42Start day

42  Start day   For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2. Division 3AA—Compliance with participation payment obligations: persons other than declared program participants 42AA  Simplified outline of this Division This Division is about the Secretary taking action to ensure that people (other than declared program participants) meet their obligations in relation to participation payments. The participation payments are jobseeker payment and, for some people, youth allowance, parenting payment and special benefit. A person commits a mutual obligation failure for failing to comply with obligations relating to participation payments, such as attending appointments, undertaking activities, or taking action to gain paid work. A person commits a work refusal failure for failing to accept an offer of paid work (except paid work that is unsuitable to be done by the person). A person commits an unemployment failure for becoming unemployed because of a voluntary act (except a reasonable act) or misconduct. For a mutual obligation failure or a work refusal failure, the participation payment may not be payable until the person complies with a reconnection requirement. The person may then receive back pay. The participation payment must be cancelled if the person fails to comply with the reconnection requirement within 4 weeks. If a person who commits a mutual obligation failure has persistently committed mutual obligation failures and does not have a reasonable excuse then, depending on the circumstances, the person’s participation payment may be reduced by either 50% or 100% for a period (in addition to not being payable) or be cancelled. In addition, a participation payment may be cancelled if a person does not have a reasonable excuse for a work refusal failure. No participation payments are payable to a person for 4 weeks if a participation payment is cancelled for a mutual obligation failure or a work refusal failure. If a person commits an unemployment failure, participation payments may not be payable to the person for either 4 or 6 weeks, depending on whether relocation assistance had been paid to help the person take up the employment concerned. Also, the person’s participation payment may be cancelled if he or she was receiving a participation payment when the unemployment failure was committed. 42AB  Division not to apply to declared program participants   This Division applies in relation to a person if the person is not a declared program participant. Subdivision B—Failures for which compliance action must be taken 42AC  Mutual obligation failures  (1) A person commits a mutual obligation failure if the person is receiving a participation payment and any of the following applies:  (a) the person fails to comply with a requirement that was notified to the person under subsection 63(2) or (4);  (b) the person fails to comply with a requirement, under section 40A, to enter into an employment pathway plan;  (c) the person fails to attend, or to be punctual for, an appointment that the person is required to attend by:  (i) a notice under subsection 63(2); or  (ii) an employment pathway plan that is in force in relation to the person;  (d) the person fails to attend, to be punctual for, or to participate in, an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;  (e) an employment pathway plan is in force in relation to the person and the person fails to satisfy the Secretary that the person has undertaken adequate job search efforts in relation to a period worked out in accordance with the plan (see subsection (2));  (f) an employment pathway plan is in force in relation to the person and the person fails to comply with any other requirement of the plan that applies to the person;  (g) the Secretary is satisfied that the person acted in an inappropriate manner:  (i) during an appointment to which paragraph (c) applies that the person attended; or  (ii) while participating in an activity referred to in paragraph (d);  (h) the person intentionally acts in a manner and it is reasonably foreseeable that acting in that manner could result in an offer of paid work in Australia (except particular paid work that is unsuitable to be done by the person) not being made to the person;  (i) the person fails to:  (i) attend a job interview; or  (ii) act on a job opportunity when requested to do so by an employment services provider. Note: In certain circumstances a person is taken to be receiving a participation payment even if it is not payable to the person: see section 42AQ.  (1A) However, a person does not commit a mutual obligation failure in relation to the person’s failure to:  (a) accept an offer of paid work in Australia of more than 15 hours per week; or  (b) undertake paid work in Australia of more than 15 hours per week; if the person is the principal carer of at least one child or has a partial capacity to work.  (2) For the purposes of paragraph (1)(e), the question whether a person has undertaken adequate job search efforts in relation to a particular period is to be worked out in accordance with a determination in force under subsection (3).  (3) The Secretary must, by legislative instrument, make a determination for the purposes of subsection (2).  (4) Paragraph (1)(c) does not limit paragraph (1)(a), and paragraph (1)(i) does not limit paragraph (1)(h). 42AD  Work refusal failures  (1) A person commits a work refusal failure if:  (aa) in the case where the participation payment is parenting payment—the person is not someone to whom paragraph 500(1)(ca) of the 1991 Act applies; and  (b) the person refuses or fails to accept an offer of paid work in Australia, except particular paid work that is unsuitable to be done by the person. Note 1: In certain circumstances a person is taken to be receiving a participation payment even if it is not payable to the person: see section 42AQ. Note 2: See Division 2B for the circumstances in which paid work is unsuitable to be done by a person.  (2) However, a person does not commit a work refusal failure if:  (b) the person refuses or fails to accept an offer of paid work in Australia that is more than 15 hours per week. 42AE  Unemployment failures  (1) A person commits an unemployment failure if:  (aa) in the case where the participation payment is parenting payment—the person is not someone to whom paragraph 500(1)(ca) of the 1991 Act applies; and  (b) the person becomes unemployed:  (i) as a direct or indirect result of a voluntary act of the person; or  (ii) as a result of the person’s misconduct as an employee. Note: In certain circumstances a person is taken to be receiving a participation payment even if it is not payable to the person: see section 42AQ.  (2) A person also commits an unemployment failure if:  (a) the person is not receiving, but has made a claim for, a participation payment; and  (aa) in the case where the participation payment is parenting payment—the person is not someone to whom paragraph 500(1)(ca) of the 1991 Act applies; and  (b) the person becomes unemployed (whether before or after making the claim):  (i) as a direct or indirect result of a voluntary act of the person; or  (ii) as a result of the person’s misconduct as an employee.  (3) However, a person does not commit an unemployment failure because of subparagraph (1)(b)(i) or (2)(b)(i) if the person satisfies the Secretary that the voluntary act was reasonable.  (4) A person also does not commit an unemployment failure if:  (b) the work in relation to which the person became unemployed was work of more than 15 hours per week. Subdivision C—Compliance action that must be taken for particular failures 42AF  Compliance action for mutual obligation failures Usual rule  (1) If a person commits a mutual obligation failure (the relevant failure), the Secretary may:  (a) determine that the person’s participation payment is not payable to the person for a period (see section 42AL); and  (b) take action under subsection (2) (if applicable). Note: The person may be eligible for back pay once the payment suspension period ends (see subsection 42AL(4)). Special rule—persistent mutual obligation failures and no reasonable excuse  (a) the Secretary is satisfied in accordance with an instrument made under subsection 42AR(1) that the person has persistently committed mutual obligation failures; and  (b) the person does not satisfy the Secretary that the person has a reasonable excuse for the relevant failure (see sections 42AI and 42AJ);  (c) that an instalment of the person’s participation payment for an instalment period is to be reduced (see section 42AN), in addition to making a determination under paragraph (1)(a) of this section; or  (d) that the person’s participation payment is cancelled (see section 42AP). Note 1: For paragraph (c), the person may be eligible for back pay once the person’s payment suspension period ends (see subsection 42AL(4)). However, the back pay may be reduced (including to nil) if the instalment period for which an instalment is to be reduced under paragraph (c) overlaps with the payment suspension period. Note 2: For paragraph (d), a further consequence is that participation payments will not be payable to the person for the person’s post‑cancellation non‑payment period (see subsection 42AP(5)).  (3) A determination made under paragraph (2)(d) for the relevant failure has effect despite any determination made under paragraph (1)(a) for the relevant failure. Action not to be taken—instalment already reduced to nil for instalment period when failure committed  (4) Despite subsections (1) and (2), the Secretary must not make a determination under this section for the relevant failure if:  (a) the Secretary has previously determined under paragraph (2)(c) that an instalment of the person’s participation payment for an instalment period is to be reduced; and  (b) the instalment for the instalment period is reduced by the whole of the amount of the instalment (see paragraph 42AN(3)(b)); and  (c) the person commits the relevant failure during that instalment period. 42AG  Compliance action for work refusal failures  (1) If a person commits a work refusal failure, the Secretary may:  (a) determine that the person’s participation payment is not payable to the person for a period (see section 42AL); or  (b) determine that the person’s participation payment is cancelled (see section 42AP) if the person does not satisfy the Secretary that the person has a reasonable excuse for the work refusal failure (see section 42AI). Action not to be taken—instalment already reduced to nil for instalment period when failure committed  (4) Despite subsection (1), the Secretary must not take action under this section for a work refusal failure (the relevant failure) if:  (a) the Secretary has previously determined under paragraph 42AF(2)(c) that the amount of an instalment of the person’s participation payment for an instalment period is to be reduced; and  (b) the instalment for the instalment period is reduced by the whole of the amount of the instalment (see paragraph 42AN(3)(b)); and  (c) the person commits the relevant failure during that instalment period. 42AH  Compliance action for unemployment failures Unemployment failures committed by persons receiving a participation payment  (1) If a person receiving a participation payment commits an unemployment failure, the Secretary may determine that the participation payment is cancelled (see section 42AP). Note: Participation payments will not be payable to the person for the person’s post‑cancellation non‑payment period (see subsection 42AP(5)). Unemployment failures committed by persons claiming a participation payment  (2) If a person who has made a claim for (but is not receiving) a participation payment has committed an unemployment failure, the Secretary may determine that participation payments (whether or not the same as the participation payment that was claimed) are not payable to the person for a period (see section 42AO). 42AI  Reasonable excuses—matters that must or must not be taken into account Matters to be taken into account  (1) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing:  (a) a mutual obligation failure (see paragraph 42AF(2)(b)); or  (b) a work refusal failure (see paragraph 42AG(1)(b)).  (2) To avoid doubt, a determination under subsection (1) does not limit the matters that the Secretary may take into account in deciding whether the person has a reasonable excuse. Matters not to be taken into account  (3) The Secretary may, by legislative instrument, determine matters that the Secretary must not take into account in deciding whether a person has a reasonable excuse for committing:  (a) a mutual obligation failure (see paragraph 42AF(2)(b)); or  (b) a work refusal failure (see paragraph 42AG(1)(b)). 42AJ  Reasonable excuses for mutual obligation failures—prior notification required for certain failures  (1) For the purposes of paragraph 42AF(2)(b), an excuse cannot be a reasonable excuse for a mutual obligation failure mentioned in subsection (2) of this section that is committed by a person unless:  (a) the person notifies the excuse as mentioned in subsection (3) of this section; or  (b) the Secretary is satisfied that there were circumstances in which it was not reasonable to expect the person to give the notification. Note: The Secretary may also decide for other reasons that the excuse is not a reasonable excuse.  (2) The failures are as follows:  (a) a failure to comply with a requirement that was notified to the person under subsection 63(2) to attend an office of the Department, to contact the Department, or to attend a particular place;  (b) without limiting paragraph (a), a failure to attend, or to be punctual for, an appointment that the person is required to attend by a notice under subsection 63(2);  (c) a failure to attend, to be punctual for, or to participate in, an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;  (d) a failure to attend, or to be punctual for, an appointment that the person is required to attend by an employment pathway plan that is in force in relation to the person.  (3) The person must notify the excuse:  (a) for a failure mentioned in paragraph (2)(a) or (b):  (i) before the end of the time specified under subsection 63(2); and  (ii) to the person or body specified by the Secretary as the person or body to whom prior notice should be given if the person is unable to comply with the notice under subsection 63(2); and  (b) for a failure mentioned in paragraph (2)(c) or (d):  (i) before the start of the activity on the day concerned, or before the time of the appointment; and  (ii) to the person or body specified in the employment pathway plan as the person or body to whom prior notice should be given if the person is unable to undertake the activity or attend the appointment. 42AK  Relationship between provisions of this Subdivision   Sections 42AF, 42AG and 42AH do not limit each other. Subdivision D—Effect of taking particular compliance action 42AL  Payment suspension periods for mutual obligation failures and work refusal failures  (1) If the Secretary determines under section 42AF or 42AG that a participation payment is not payable to a person for a period, the participation payment is not payable for the period (the payment suspension period) worked out under this section.  (2) The payment suspension period begins at the start of:  (a) the instalment period in which the person commits the mutual obligation failure or the work refusal failure (unless paragraph (b) applies); or  (b) if the Secretary determines that a later instalment period is more appropriate—that later instalment period.  (3) The payment suspension period ends immediately before:  (a) the day the person complies with the reconnection requirement imposed under subsection 42AM(1) (unless paragraph (b) of this subsection applies); or  (b) if the Secretary determines that an earlier day is more appropriate—that earlier day.  (4) If the payment suspension period ends under subsection (3) for a person, then, for the purposes of the social security law after the end of that period:  (a) the participation payment is taken to be payable to the person from the start of that period (subject to the social security law); and  (b) the Secretary is taken to have made a determination to the effect mentioned in paragraph (a). Note: The effect of this subsection is that the person may receive back pay for the payment suspension period. However, the back pay may be reduced (including to nil) if the instalment period for which an instalment is to be reduced under section 42AN overlaps with the payment suspension period. 42AM  Reconnection requirements for mutual obligation failures and work refusal failures  (1) The Secretary must impose a requirement (the reconnection requirement) on a person if the Secretary determines under section 42AF or 42AG that a participation payment is not payable to the person for a period.  (2) The Secretary must notify the person, in any way the Secretary considers appropriate, of:  (a) the reconnection requirement; and  (b) the effect of not complying with the reconnection requirement.  (3) The Secretary must determine that the person’s participation payment is cancelled if:  (a) the Secretary does not determine an earlier day for the purposes of ending the person’s payment suspension period under paragraph 42AL(3)(b); and  (b) the person fails to comply with the reconnection requirement within 4 weeks after it is notified under subsection (2) of this section.  (4) If the Secretary makes a determination under subsection (3), the participation payment is cancelled at the end of the 4 weeks mentioned in paragraph (3)(b). 42AN  Reducing instalments of participation payments for mutual obligation failures  (a) a person commits a mutual obligation failure; and  (b) the Secretary makes a determination (the reduction determination) under paragraph 42AF(2)(c) that an instalment of a participation payment for an instalment period (the reduction period) is to be reduced.  (2) The reduction period must be:  (a) the instalment period in which the person commits the mutual obligation failure (unless paragraph (b) applies); or  (b) if the Secretary determines that a later instalment period is more appropriate—that later instalment period.  (3) The instalment payable to the person is reduced by an amount included in the reduction determination that is equal to:  (a) half of the instalment that would otherwise have been payable for the reduction period; or  (b) the whole of the instalment that would otherwise have been payable for the reduction period. Note: Paragraph (b) may have the effect of reducing the amount of the instalment to nil. However, the participation payment remains payable (see subsection (6)).  (4) The Secretary must determine which of paragraph (3)(a) or (b) applies in relation to the reduction in accordance with an instrument made under subsection 42AR(1).  (5) The Secretary may make the reduction determination in accordance with paragraph (3)(b) for the reduction period even if the Secretary has already made a determination for the person in accordance with paragraph (3)(a) for the same instalment period for a different mutual obligation failure.  (6) The participation payment remains payable for the reduction period even if the amount of an instalment is reduced to nil in accordance with this section. 42AO  Unemployment preclusion periods for unemployment failures by persons claiming participation payments  (1) If the Secretary determines under subsection 42AH(2) that participation payments are not payable to a person who has made a claim for a participation payment, then participation payments are not payable to the person for the period (the unemployment preclusion period) of:  (a) 4 weeks beginning on the day the person becomes unemployed as a result of the person’s voluntary act or misconduct (unless paragraph (b) applies); or  (b) 6 weeks beginning on that day, if, during the 6 months ending on the day immediately before that day, relocation assistance, for the employment to which the voluntary act or misconduct related, has been paid to or for the benefit of the person. Note 1: The unemployment preclusion period may affect the person’s start day for a claim (see clauses 5 and 5A of Schedule 2). Note 2: For the purposes of this subsection, it is irrelevant which participation payment the person claimed (see subsection 42AH(2)).  (2) For the purposes of this Act, relocation assistance for employment means a payment:  (a) that is made by or on behalf of the Commonwealth to or for the benefit of a person for the purpose of assisting the person to take up the employment; and  (b) that is specified under subsection (3).  (3) The Secretary may, by legislative instrument, specify one or more payments for the purposes of paragraph (2)(b). 42AP  Cancelling participation payments  (1) This section applies if the Secretary determines under Subdivision C that the participation payment of a person who has committed a mutual obligation failure, a work refusal failure or an unemployment failure is cancelled. When payments are cancelled  (2) For a mutual obligation failure or a work refusal failure, the participation payment is cancelled at the start of the following day (the cancellation day):  (a) the first day of the instalment period in which the person commits the failure (unless paragraph (b) applies);  (b) if the Secretary determines that a later instalment period is more appropriate—the first day of that later instalment period.  (3) For an unemployment failure committed by a person who was receiving the participation payment when he or she became unemployed, the participation payment is cancelled at the start of the following day (the cancellation day):  (a) the day that the person becomes unemployed as a result of the person’s voluntary act or misconduct (unless paragraph (b) applies);  (b) the first day of the first instalment period for the person that begins after the day the Secretary makes the determination under subsection 42AH(1), if the Secretary considers it more appropriate.  (4) For the purposes of paragraph (3)(b), the day the Secretary makes the determination is the day the Secretary originally makes the determination (even if another decision in relation to the determination is later made on review). Participation payments not payable for post‑cancellation non‑payment period  (5) A participation payment (whether or not the same as the participation payment that was cancelled) is not payable to the person for the period (the post‑cancellation non‑payment period) of:  (a) 4 weeks beginning on the cancellation day (unless paragraph (b) applies); or  (b) 6 weeks beginning on the cancellation day, if:  (i) the cancellation is for an unemployment failure; and  (ii) during the 6 months ending on the day immediately before the person becomes unemployed, relocation assistance, for the employment to which the voluntary act or misconduct related, has been paid to or for the benefit of the person. Note 1: If the person makes a claim for a participation payment, the post‑cancellation non‑payment period may affect the person’s start day for the claim (see clauses 5 and 5A of Schedule 2). Note 2: For relocation assistance, see subsection 42AO(2). Participation payment taken to not be cancelled for certain purposes during post‑cancellation non‑payment period  (6) Despite subsections (2) and (3), the participation payment is taken to not be cancelled for the purposes of the following provisions until the end of the post‑cancellation non‑payment period:  (a) a provision of the social security law, or the Family Assistance Act, that refers to a post‑cancellation non‑payment period or a compliance penalty period, other than a provision that is determined by the Minister under subsection 42AR(2) of this Act for the purposes of this paragraph;  (b) section 106B of this Act (automatic cancellation of certain concession cards);  (c) a provision of the social security law that is determined by the Minister under subsection 42AR(2) of this Act for the purposes of this paragraph. Subdivision E—Miscellaneous 42AQ  Persons for whom participation payments not payable taken to still be receiving payment for certain purposes   If, under this Division, a participation payment is not payable to a person for a period, then, for the purposes of the following provisions, the person is taken to be receiving that participation payment for that period:  (a) Subdivision B (except if the participation payment is not payable because of subsections 42AH(2) and 42AO(1) (unemployment preclusion periods));  (b) sections 63 and 64;  (c) any other provision of the social security law, or the Family Assistance Act, that is determined by the Minister under subsection 42AR(2) of this Act for the purposes of this paragraph. 42AR  Minister to make determinations for purposes of this Division  (1) The Minister must, by legislative instrument, determine the following:  (a) for the purposes of paragraph 42AF(2)(a)—circumstances in which the Secretary must, or must not, be satisfied that a person has persistently committed mutual obligation failures;  (c) for the purposes of subsection 42AN(4):  (i) circumstances in which paragraph 42AN(3)(a) applies in relation to the reduction of an instalment for an instalment period; and  (ii) circumstances in which paragraph 42AN(3)(b) applies in relation to the reduction of an instalment for an instalment period.  (2) In addition, the Minister may, by legislative instrument, determine provisions of the social security law or the Family Assistance Act for the purposes of paragraph 42AP(6)(a) or (c) or 42AQ(c) of this Act. 42AS  Relationship with section 80   Nothing in this Division affects the power of the Secretary to cancel or suspend a participation payment under section 80. Note: However, the Secretary cannot suspend or cancel a participation payment under that section on the basis that the participation payment is not, or was not, payable because of the operation of this Division (see paragraph 80(1)(b)).