The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.11.1.20 Suitable work

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 suitable job, they may be subject to financial penalties or have to wait for a period of time until payment is payable. However, if the job seeker refused or left work that is unsuitable for the job seeker, or if their action in leaving the job was reasonable, they will not be subject to a penalty.

Policy reference: SS Guide 3.11.14 Consequences for not meeting mutual obligation requirements - CDP job seeker compliance framework, 3.11.13 Consequences for not meeting mutual obligation requirements - targeted compliance framework, 3.11.15 Reasonable excuse

Assessing suitable work

In assessing whether work is considered suitable, a wide range of factors should be considered, such as the individual's:

  • age
  • mobility
  • qualifications
  • language proficiency (principal carer parents with limited language proficiency may limit their job search to areas where advanced communication skills are not essential)
  • work history, AND
  • geographical location.

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 parent 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
  • is under terms and conditions that are less than the legal minimum set out in the relevant statute, award or agreement
  • involves a commute 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 one place to a home in another place, or if commuting is unreasonably difficult, job seekers are subject to the seeking work out of local area provisions (outlined later in this topic) if they voluntarily seek and are offered such work on a permanent full-time basis.

Act reference: SSAct section 5(1) Family relationships definitions-children

SS(Admin)Act section 40X Circumstances in which paid work is unsuitable

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 other main reason a job may be considered unsuitable 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?
  • Are the lifestyle and practices of the job seeker, as far as can be determined, consistent in regard to the particular issue?
  • 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 if they objected to doing so, 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 study or training.

Before deciding whether or not work is unsuitable for a job seeker who is a principal carer parent 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 these groups.

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 person's illness, disability or injury, OR
  • if the total cost of participating in employment means that the person 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, and
  • 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. As there is no other accessible transport available to Mike, the job is not suitable.

Example 2: Sarah's aunt comes around at 10.00 am each morning to help Sarah shower. Sarah is offered a job that requires her to start work at 8:30 am, 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 parent

In addition to the reasons outlined above, a job may be regarded as unsuitable for a principal carer parent if:

  • the principal carer parent does not have access to appropriate care and supervision for their children 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 cost of additional travel required (not just directly due to the employment) by the person's normal and most cost effective mode of transportation, after any assistance provided (e.g. through the Employment Fund) exceeds 10% of the gross wage to be gained from that work. The delegate should establish whether the person is receiving any assistance with travel. OR
  • the total cost of participating in employment means that the principal carer parent would not be at least $50.00 a fortnight financially better off as a result of undertaking the work (see 'Financial suitability of a job for principal carer parents' below regarding calculation of this).

Note: Only direct additional travel costs are to be estimated or calculated by the delegate. This includes petrol, public transport fares such as buses, trains or trams. Taxi costs would only be used where there is no other alternative form of transport for the person. If the person has access to other forms of transport (such as trains) then taxis are not considered the most effective form of transport. Costs not to be included are parking costs and toll fees.

Offers of work that may have to be given-up after a short period

There may be some circumstances where a job seeker is offered work and the person is able to commence the job now but will have to leave within a short period, for example a principal carer parent's childcare may only be temporary, or they may be commencing full-time study.

As a general principle, if the work is suitable for the job seeker at the time the offer is made, the job seeker is required to accept the job offer. That work will become unsuitable at a future time is not a reasonable excuse for failing to take a job in a current period. However, job seekers may disclose and inform prospective employers and their employment services provider of their particular circumstances. If no offer of employment is made following this disclosure, or if an offer of employment is made but then withdrawn, then the person has not refused or failed to accept a suitable offer of employment. Where an employer still wishes to engage a job seeker for the fortnight or remainder of the fortnight (assuming the work is not otherwise unsuitable) then the person must accept the offer.

Example: Jacqueline is a principal carer parent with one child aged 6 years. At an interview she is offered part-time work of 20 hours a week at a local hardware shop. Jacqueline tells her prospective employer that while she can take up the job now, in 2 weeks' time her child will be on school holidays. As holiday care is not available in her local area she indicates that she will be unable to work when school holidays start to look after her child. The employer then withdraws the offer of employment. In these circumstances, Jacqueline has not failed to accept a suitable job offer.

Reasonable travel for job seekers who are NOT principal carer parents or NOT people with a partial capacity to work

A job would generally 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.

Determination as to whether the travel time is 'reasonable' should give primary regard to what would be considered reasonable by the public. When assessing cases where travel of less than 90 minutes may be unreasonable, 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.

Reasonable travel for principal carer parents & 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 carer parents) - would normally exceed 60 minutes in duration. A person may voluntarily choose to accept a job offer where the commuting exceeds 60 minutes, but they 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.

However, a person may voluntarily choose to accept a job offer where the commuting exceeds 60 minutes.

In some circumstances, a journey shorter than 60 minutes may be considered excessive travel time. These circumstances could include:

  • where the hours of work are of quite limited duration, for example a 3 hour shift, or
  • where the job consists of multiple short shifts and the job seeker is required to make regular trips to their job. The total travel time over a week/fortnight to take up the job may then be considered unreasonable, or
  • where care arrangements can only be organised if a shorter travel time is undertaken.

Determination 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.

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 is generally required to accept such work if they indicate that they are willing to consider work outside their local area, and they are offered permanent full-time work that either is located outside their local area or would require them to move. 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.

However, even if they have indicated that they are willing, job seekers are not required to accept 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, elderly or disabled friends, or a child of the person (or the person's 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.

Relocation

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
  • residing with a partner or dependent child/ren, or
  • pregnant.

Act reference: SS(Admin)Act section 40X Circumstances in which paid work is unsuitable

Policy reference: SS Guide 3.11.1.10 Setting job search requirements

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
  • 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, and
  • the number of training hours required must not be excessive for a person assessed with partial capacity.

Remuneration & hours of work

When a job seeker is already working, but still has job search requirements, a job offer should be accepted if the total pay and the total hours from the employment are both higher than the existing job. If the person is not able to take up both jobs (e.g. because the hours of work overlap), the person would not be expected to give up their existing job and accept another job offer if the total earnings from the new job are less than the total earnings from the existing job. However if the rate of pay of the new job (e.g. hourly rate) is lower than the existing job's rate of pay, but the increase in hours will mean that a person has greater income overall, they are still required to accept the job.

Note: If a current job satisfies the job seeker's mutual obligation requirements in full and a new job does not, they may choose to leave the current job and accept the new job only if the new job pays more. However, the job seeker will need to undertake, at minimum, a job search component in addition to the new job in this scenario in order to satisfy their mutual obligation requirements.

Suitable work conflicts with training or study

While job seekers are required to accept suitable work to the level of their capacity, those who are undertaking approved education or training (even if it does not fully meet their requirements), are not required to accept offers of employment if the hours of work conflict with the hours of study, so long as the education or training is included in their Job Plan.

Financial suitability of a job for principal carer parents

No principal carer parent is required to accept a job offer or continue in a job that fails to make them financially better off compared to not doing the job. If a principal carer parent is not at least $50 per fortnight better off than if they did not accept or continue in that job, then they are able to decline the job offer or leave the job.

The following items should be taken into account by employment services providers, the digital services contact centre and Services Australia in assessing whether a job is financially suitable:

  • gross wages from the job
  • personal income tax liabilities
  • the drop in income support payment as a result of the gross income paid
  • out of pocket child care costs incurred in order to undertake the work (after taking into account CCS, additional child care subsidy (ACCS) (transition to work) and/or other subsidies, or assistance such as through the Employment Fund)
  • travel costs to and from work (after taking into account any assistance that may be provided by the Employment Fund and noting the reasonable costs of travel test described above), and
  • any increase in public housing rent as a result of the person's increased income from employment (ONLY if the parent is living in state government subsidised or provided public housing).

If, after taking these factors into account, the principal carer parent would not have been at least $50 per fortnight better off than if they did not accept or continue in that job, then no compliance action can be taken if the person declines the job offer or leaves the job.

Note: In many instances public housing rent will only actually increase some months after a parent begins part-time work. However, in Tasmania, Victoria, South Australia and Western Australia increases in public housing rent may occur from the day from which the parent begins earning additional income. In these states, the delegate should factor in 25% of the difference between the maximum rate of the principal carer parent's income support payment and their combined total of the part-rate of payment and their gross fortnightly earnings. This should be used as the indicative amount by which their public housing rent will increase within the next complete fortnight. For principal carer parents in all other states and territories, increases in public housing rents are only to be taken into account in any particular application of this test if the principal carer parent can provide documentation that their rent will increase within the next complete fortnight (or if the rent has already increased on or before the date of the test due to the paid part-time work). If a rent increase is to take effect after the next complete fortnight then no increase can be taken into account within the public housing component of the financial suitability test as applied at that point in time.

Principal carer parents should be advised that if they are concerned about the financial suitability of the job after a change in circumstance (including changes in the amount of public housing rent) they may return to Services Australia to have the job assessed under this test again. If the job fails the financial suitability test then the job is no longer suitable and the person may leave the job without penalty. Principal carer parents must be advised by the delegate that they will need to provide evidence for the change.

Note: It is up to the principal carer parent to return to Services Australia and ask for the test to be reapplied if their circumstances change.

Costs outside the scope of this financial suitability of the job test include:

  • any changes to FTB (Parts A and B) due to the employment income (including where RA is paid through FTB)
  • changes to any other state government subsidies or forms of financial assistance due to the employment income
  • the eventual loss of concession cards after any relevant periods of continuation or extension, if the employment income is above the amount required to take the principal carer parent fully off income support
  • ACCS (child wellbeing), ACCS (grandparent), ACCS (temporary financial hardship), and
  • other miscellaneous costs of accepting a job offer of suitable part-time work (such as buying appropriate clothes, a uniform or other job-related equipment) will not be included in this determination. However, principal carer parents may be able to access assistance provided by employment services, such as through the Employment Fund.

Exception: If a principal carer parent also has a partial capacity to work due to a disability (as assessed by an ESAt/JCA) and they have costs in moving into employment not otherwise offset by other assistance (e.g. through the Workplace-Modifications Scheme) then these costs should also be factored into calculating financial suitability of a job (i.e. they must be at least $50 a fortnight better off once these additional costs are also factored in).

In some limited circumstances the next complete fortnight might not be the most appropriate period for assessing whether the job is financially suitable. This could include instances where a principal carer parent is taking up a job that involves work that has variable hours/shifts - which are known beforehand - that would affect earned income significantly. For example, they may be working shift work and this might mean the person will have significantly higher earned income one fortnight compared to the next. In these instances, the delegate is able to consider a longer period and use this period to consider whether the person is financially better off over the month (rather than the next complete fortnight). The use of this approach should be the exception rather than the rule.

Act reference: Social Security (Unsuitable Work) Determination 2016

Availability of child care & requirements outside school hours

When a job offer made to a principal carer parent would involve employment outside school hours or during school holidays, a job is generally considered suitable (subject to other considerations described below) if the principal carer parent can access appropriate care and supervision for their children during the hours of work, including the time it would take them to travel to and from work.

For the purposes of principal carer parents with mutual obligation requirements, appropriate care and supervision is defined as:

  • child care provided by an approved child care service (an approved child care service within the meaning of the FAAct), OR
  • any other care or supervision arrangements that the parent deems suitable, OR
  • attending school.

When principal carer parents contend that appropriate care and supervision is not available because their children are truant (i.e. absent from school without a legitimate reason) despite being of compulsory school age, this DOES NOT mean the work is unsuitable. This is because appropriate care and supervision, in the form of school, is available for the principal carer parent to access despite the child/ren choosing not to attend.

If a parent advises that acceptable informal child care arrangements (e.g. with family and friends) are available in cases where a job offer would involve employment outside school hours or on school holidays, then they are required to take up the job offer. However, the decision as to whether informal child care arrangements are acceptable lies solely with the principal carer parent. That is, if a principal carer parent does not want to accept informal child care, and there are no available places provided by an approved child care service, they cannot be made to accept the job offer.

Note: Informal care or self-care by the child/ren may be the only option for principal carer parents with older children who receive offers of work outside school hours. The decision as to whether these informal arrangements are acceptable lies solely with the principal carer parent.

An outside school hours care service would not be considered acceptable if the child is unable to be supervised going to the service from school (if after school care) or from the service to school (if before school care) when the parent considers supervision to be necessary.

Example 1: Hannah is a principal carer parent and has 2 sons, one aged 7 and one aged 9 years. She receives an offer of part-time employment of 20 hours per week working at a retail clothing store. On at least one day a week, Hannah would be required to work outside of normal school hours. Hannah examines child care options in her local area, and is able to find appropriate child care. In this situation, the job offer should generally be deemed 'suitable' (subject to other considerations below), and Hannah is required to accept the job offer.

Example 2: Erika recently received an offer of employment, which will involve work outside normal school hours. While her daughter's primary school has an approved outside school hours place available and on-site, Erika does not want to place her child in care. She believes that, as a mother, she should be there to care for the child and does not want her placed with a child care provider. In this case, the job offer is 'suitable' (subject to other considerations below) and Erika is required to accept the job. She may organise other types of care for her daughter if she wishes.

Example 3: Ione's youngest child has recently turned 6, and she has been offered part-time employment with a regional state government agency. While no formal child care places are available in Ione's local area during the times she would be expected to work, her mother is able to provide care to the children during working hours. In this case, if Ione considers this arrangement acceptable, the job offer is 'suitable' (subject to other considerations below).

Act reference: Social Security (Unsuitable Work) Determination 2016

Inability to accept an offer of suitable work because child care has not been organised

If a principal carer parent has not organised appropriate care and supervision of their child/ren despite the availability of approved child care places during the times they would be required to work, and as a result they cannot accept a job offer for work that is otherwise suitable, then their failure to accept the job offer may result in a financial penalty.

Similarly, work is not unsuitable for a principal carer parent if, after accepting an offer of suitable work during a school term, the principal carer parent is unable to continue the work as they have failed to organise access to available and affordable formal child care places (despite being able to) such as vacation care places, or to arrange other forms of appropriate care and supervision during the times they would be at work.

Child care arrangements change after accepting a suitable job offer

In the event that a principal carer parent accepts an offer of paid employment, and child care arrangements or hours of work subsequently change, and as a result approved formal child care or acceptable informal child care is no longer available, then the employment is no longer regarded as suitable. The principal carer parent may choose to leave the job and seek alternative employment without being subject to compliance action.

Example: Kim has a son, Peter, aged 7. She received an offer of part-time employment of 17 hours per week working at a supermarket, and has been able to obtain a temporary child care place for Peter at the local child care centre. This arrangement works well for the temporary placement but, after 3 months, there is no available place. Kim is able to leave this job (and resume looking for work) because the work is no longer suitable as she does not have access to appropriate care and supervision for Peter during the times she would be required to work.

Act reference: SSAct section 502 Secretary may impose additional participation requirements (PP)

Any other matters that the Secretary considers relevant in the circumstances

Without being prescriptive, additional issues not directly addressed above may be considered in determining whether work is 'suitable' (including financially suitable) where there are exceptional circumstances (e.g. beyond the range of what could be considered usual) or in special hardship cases. Before making a determination, the customer service adviser (CSA) should seek advice from NSO, who will consult with the Department of Education, Skills and Employment.

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