18.104.22.168 Unsuitable Work
Unsuitable work - general - introduction
To satisfy mutual obligation requirements, a job seeker in receipt of any participation payment must be actively seeking and willing to accept any offer of suitable paid work in a variety of fields. If a job seeker voluntarily leaves a job or refuses to accept a job, they may be subject to financial penalties or have to wait for a period of time until payment is payable. However, if the work that the job seeker refused or left is unsuitable for the job seeker or if their action in leaving the job was reasonable they will not be subject to a penalty.
Assessing unsuitable work
For the purposes of participation payments, work may be unsuitable for a job seeker if it:
- involves skills, experience or qualifications that the person does not have, and appropriate training will not be provided by the employer,
- is above the job seeker's assessed work capacity within the next 2 years with intervention,
- may aggravate a pre-existing illness, disability (1.1.D.160) or injury and medical evidence has been provided,
- involves health or safety risks and would contravene an occupational health and safety law,
- the job seeker is a principal carer of a child or children under SSAct section 5(1) and appropriate care and supervision of the child/ren is not available during the hours the person would be required to work,
- the terms and conditions for the work are less than the legal minimum set out in the relevant statute, award or agreement,
- involves commuting from home to work that would be unreasonably difficult,
- involves enlistment in the Defence Force or the Reserve Forces,
- requires the person to change residence, or
- in the Secretary's opinion, is unsuitable for any other reason.
Note: Despite the provisions that work may be unsuitable for a job seeker if it requires them to move from a home in a place to a home in another place or if commuting is unreasonably difficult, where a job seeker voluntarily seeks and is offered permanent full-time work that is located more than 90 minutes (or 60 minutes for a principal carer or a job seeker with a partial capacity to work) travelling time from their home or local area, they are subject to the seeking work out of local area provisions outlined later in this topic. Nor would the work be unsuitable on the grounds that accepting it would require the person to move (unless the cost of moving would cause severe financial hardship).
Act reference: SSAct section 5(1) Family relationships definitions-children, section 502 Secretary may impose additional participation requirements, section 541D Unsuitable paid work, section 731B Meaning of unsuitable work for the purposes of the activity test, section 601 Activity test
Applicable statutory conditions
The legislation provides that work is unsuitable if the terms and conditions of the work would be less generous than the applicable statutory conditions. This means that the terms and conditions would be less than the legal minimum set out in the relevant statute, award or agreement, which are:
- if the work would be covered by the National Employment Standards, the terms and conditions for the work under those Standards,
- if the work is covered by a modern award or enterprise agreement, the minimum terms and conditions for the work under that modern award or enterprise agreement,
- if the work is not covered by the National Employment Standards, a modern award or an enterprise agreement, the minimum terms and conditions for the work under applicable state statutes, awards or agreements,
- that the work should be paid at least the minimum required by the National Minimum Wage Order or Special National Minimum Wage Order or any applicable modern award or enterprise agreement.
Other reasons work may be unsuitable
The main reason a job may be considered unsuitable for other reasons is if the job seeker considers the work to be unsuitable on moral, cultural or religious grounds. The following criteria should be considered to ensure that the job seeker's objections are genuine:
- is there evidence of adherence to a particular set of ethical, moral or religious values?
- is the lifestyle and practices of the job seeker, as far as can be determined, consistent in regard to the particular issue?
- has the job seeker previously refused a number of positions based on a wide range of religious or moral grounds?
- is there evidence to consider the job seeker is not genuine in their objection?
Work would also be considered unsuitable if it is not consistent with prevailing community standards. For example, a job seeker would not be expected to take up work in the sex industry, even if such work were legal in the state or territory in which it was offered.
Work can also be considered unsuitable if it is the subject of industrial dispute.
Note: While all job seekers are required to accept suitable work to the level of their capacity, job seekers who are undertaking education or training that is included as a compulsory item in their Job Plan are only required to accept a job that fits around the timing of their training. This is to ensure that the job seeker can complete their training.
Other reasons a job may be regarded as unsuitable for a person with a partial capacity to work
In addition to the reasons outlined above, a job may be regarded as unsuitable for a person with a partial capacity to work if:
- it does not provide appropriate support or facilities to take account of the illness, disability or injury, OR
- if the total cost of participating in employment means that the person with a partial capacity to work would be financially worse off as a result of undertaking the work.
In making a determination on the total cost of participating in employment, the delegate should consider the potential financial impacts of accepting that work upon a person with a partial capacity to work in the next complete fortnight. The following essential costs should be taken into consideration when assessing these financial impacts at the time the job offer is made:
- personal care requirements incurred by the job seeker to get ready for work or while on the job,
- disability aids required for participation in the job which are not covered by the employer, or
- the cost of travel to and from the job by the job seeker's normal means of transport.
Example 1: Mike has chronic pain which makes walking long distances difficult. Mike is offered a job of 15 hours per week as a receptionist for a local accountant. Mike can drive to the job in his car but there is no accessible parking located near the office. The nearest parking is 500 metres away. Walking this distance to and from his car to work would aggravate Mike's condition. There is no other accessible transport available to Mike, therefore the job is not suitable.
Example 2: Sarah's aunt comes around at 10am each morning to help Sarah shower. Sarah is offered a job that requires her to start work at 8:30am, 3 times a week. In order to accept the job, Sarah would have to pay for a private carer to help her shower as her aunt is unable to come any earlier. The cost of hiring a private carer, and the associated transport costs means that Sarah would be financially worse off if she accepts the job, making this job unsuitable.
Example 3: Julia has an acquired brain injury which has resulted in her having difficulties concentrating for long periods of time. She is offered a job as a telephone switch operator. The job cannot be adapted to accommodate her disability, therefore the job would be considered unsuitable.
Other reasons a job may be regarded as unsuitable for a principal carer
Before deciding whether or not work is unsuitable for a job seeker who is a principal carer or who has a partial capacity to work, the delegate must refer to the Social Security (Unsuitable Work) Determination 2016, which provides for additional factors to be taken into account when deciding if work is unsuitable for a principal carer.
In addition to the reasons outlined above, a job may be regarded as unsuitable for a principal carer if:
- the principal carer does not have access to appropriate care and supervision for their child/ren during times when they would be required to work (including during travel time to and from work), OR
- the location of either the workplace or the child care facility would make the total travel time to and from work unreasonable, OR
- the total cost of participating in employment means that the principal carer would not be at least $50.00 a fortnight financially better off as a result of undertaking the work.
For more information on the suitability of a job for a principal carer, including financial suitability of a job, reasonable travel and child care arrangements, see 22.214.171.124.
Policy reference: SS Guide 126.96.36.199 Suitable Work (PP Recipients & Principal Carers)
Provision of appropriate training
The legislation provides that work may be considered unsuitable if it requires particular skill, experience or qualifications that the person does not have, and appropriate training will not be provided by the employer. This means that if a person cannot do the job without appropriate training and the employer fails to provide such training, then the work may be considered unsuitable. The following issues should be taken into account:
- the training must provide the skills required for the position and be of the appropriate industry standard. If doubts exist, DHS may liaise with the local Department of Employment, Skills, Small and Family Business office or regulatory body,
- the training should take account of the existing skills, knowledge and experience,
- the training must be in a form appropriate to the work being undertaken,
- the job seeker is not expected to contribute to the costs of the training,
- if the position is a traineeship or apprenticeship, the appropriate training wage must be paid, or
- the number of training hours required must not be excessive for a person assessed with partial capacity.
Reasonable travel for job seekers who are NOT principal carers or NOT people with a partial capacity to work
A job would be regarded as within reasonable commuting distance if the journey between the place of work and the job seeker's home does not normally exceed 90 minutes each way by whatever means of transport is normally available to the job seeker.
The commuting would also be considered reasonable if a substantial number of people living in the same area as the job seeker regularly commute to their places of work in similar circumstances.
Reasonable travel for principal carers & people with a partial capacity to work
An offer of work should generally not be deemed suitable for principal carer parents or people with a partial capacity to work, if the journey, either from their home to the place of work, or from the place of work to the job seeker's home (including the time to travel to and from child care for principal carers) would normally exceed 60 minutes in duration. However a person may voluntarily choose to accept a job offer where the commuting exceeds 60 minutes, but should not be subject to compliance action if they subsequently leave that job.
Travel time refers to the actual time spent in transit (i.e. the time from the person's home to the place of employment). The cost of travel for these job seekers by their normal means of transport should also not exceed 10% of the gross wage offered. Additionally, travel for job seekers with a partial capacity to work, should not aggravate, or be unreasonably difficult due to their illness, injury or disability.
Example: A person with a disability that results in incontinence may find a lengthy journey to be unreasonably difficult.
Determinations as to whether the travel time is reasonable in these cases should give primary regard to what would be considered reasonable by the public. When assessing these cases, care should be taken to ensure that the situation has NOT been contrived for the purpose of avoiding accepting an offer of paid work. All methods and routes of transport, and care options should be considered.
Policy reference: SS Guide 188.8.131.52 Suitable Work (PP Recipients & Principal Carers)
Seeking work out of local area
Although a job seeker is not required to accept work that involves unreasonable commuting or that would require them to move, a job seeker who indicates that they are willing to consider work outside their local area and is offered permanent full-time work that is located more than 90 minutes travelling time from their home or local area or that would require them to move is required to accept that work as it is not considered unsuitable, unless the expense of commuting or moving would cause severe financial hardship.
Example: Permanent full-time work means work, located in Australia that is for at least 35 hours per week, of more than 12 months duration.
Exemptions from seeking or accepting work out of local areas
A job seeker is exempt, even if they have indicated that they are willing, from accepting permanent full-time work out of the local area if:
- the person is under the age of 18, OR
- the person or the person's partner is pregnant, OR
- the person or the person's partner has a severe medical condition and the condition makes it unreasonable for the job seeker to accept the offer, OR
- the acceptance of the offer would jeopardise the current employment or the employment prospects of the person's partner, OR
- the person or the person's partner has a child under the age of 16 years who is living with them or is living somewhere in the old area, OR
- the person or the person's partner has significant caring responsibilities in the old area (see explanation 1), OR
- the educational, cultural or religious background of the person makes it unreasonable for the person to accept the offer, OR
- the person would suffer severe financial hardship if the person were to accept the offer (see explanation 2), OR
- it is more appropriate for the person to participate in education or training than to accept the offer, OR
- the person is assessed has having a partial capacity to work.
Explanation 1: Significant caring responsibilities includes caring for elderly or disabled parents or friends, or a child of the person or their partner who is 16 years of age and over who the delegate believes is substantially dependent on the person or their partner.
Explanation 2: A job seeker would suffer severe financial hardship (1.1.S.125) if the wage/salary would not allow them to meet either reasonable living expenses in the new area, or the reasonable cost of commuting to the new area.
A job seeker is expected to accept positions that necessitate living away from home if they:
- are accustomed to undertaking employment that involves living away from home, OR
- have indicated they are prepared to move to a particular location to work.
However, a job seeker is not usually expected to undertake employment that involves relocation if they are:
- under 18 years of age, or
- residing with a partner or dependent child/ren, or
Act reference: SSAct section 601 Activity test, section 541 Activity test, section 502 Secretary may impose additional participation requirements, section 731B Meaning of unsuitable work for the purposes of the activity test
Policy reference: SS Guide 184.108.40.206 Job Search - Setting Job Search Requirements - General