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SOCIAL SECURITY ACT 1991 - SECT 601

Activity test

             (1)  Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

                     (a)  actively seeking; and

                     (b)  willing to undertake;

paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

Note 1:       See subsections (2A) and (2B) on what paid work is unsuitable.

Note 2:       This Subdivision and Subdivision BA set out situations in which a person is taken to satisfy, or is not required to satisfy, the activity test.

          (1A)  A person also satisfies the activity test in respect of a period if:

                     (a)  the Secretary is of the opinion that, throughout the period, the person should undertake particular paid work, other than paid work that is unsuitable to be done by the person; and

Note:       See subsection (2A) on what paid work is unsuitable.

                     (b)  the Secretary notifies the person that the person is required to act in accordance with that opinion; and

                     (c)  the person complies, throughout the period, with the Secretary's requirement.

          (1B)  To avoid doubt, the work that the person is required to undertake under subsection (1A) may involve a number of hours per week that differs from the number of hours of work per week that the person is required to seek to comply with a Jobseeker Employment Pathway Plan that is in force in relation to the person.

             (2)  A person cannot be taken to satisfy the activity test throughout a period if the person fails to comply with a requirement under subsection (1A):

                     (a)  whether or not the person complies with subsection (1) or (4); and

                     (b)  whether or not another provision of this Act under which the activity test is satisfied, or taken to be satisfied, applies (or would apart from this section apply) to the person.

          (2A)  Subject to subsections (2AA) and (2AB), for the purposes of subsection (1) and paragraph (1A)(a), particular paid work is unsuitable for a person if and only if, in the Secretary's opinion:

                     (a)  the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or

                     (b)  it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or

                   (ba)  the person is the principal carer for one or more children, and does not have access to appropriate care and supervision for the children at the times when the person would be required to undertake the work; or

Note:       For principal carer see subsections 5(15) to (24).

                     (c)  performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or

                     (e)  the terms and conditions for the work would be less generous than the applicable statutory conditions; or

                     (g)  commuting between the person's home and the place of work would be unreasonably difficult; or

                     (h)  the work would require enlistment in the Defence Force or the Reserves; or

                      (i)  the work requires the person to move from a home in a place to a home in another place; or

                      (j)  for any other reason, the work is unsuitable for the person.

    (2AAA)  A person has, for the purposes of paragraph (2A)(ba), access to appropriate care and supervision for a child at a particular time if, at that time:

                     (a)  the child could be provided with care by an approved child care service (within the meaning of the Family Assistance Administration Act), and provision of that care would, in the Secretary's opinion, be appropriate in the circumstances; or

                     (b)  the child could be provided with other care that the person considers to be suitable; or

                     (c)  the child could be attending school, and attendance at that school would, in the Secretary's opinion, be appropriate in the circumstances.

     (2AAB)  For the purposes of paragraph (2A)(ba), a time when the person would be required to undertake the work includes reasonable amounts of time that would be needed for the person to travel from the person's home to the place of work and from the place of work to the person's home.

       (2AA)  If:

                     (a)  a person seeks work in an area (the new area ) that is outside the area (the old area ) in which the person's home is situated; and

                     (b)  the person is offered permanent full-time work (whether or not work of the kind sought) in the new area;

the work offered is not unsuitable for the person because of paragraph (2A)(g) or (i) unless:

                     (c)  the person is under the age of 18; or

                     (d)  the person or the person's partner is pregnant; or

                     (e)  the person or the person's partner has a severe medical condition and the condition makes it unreasonable for the person to accept the offer; or

                      (f)  the acceptance of the offer would jeopardise the current employment, or the employment prospects, of the person's partner; or

                     (g)  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 else in the old area; or

                     (h)  the person or the person's partner has significant caring responsibilities in the old area; or

                      (i)  the educational, cultural or religious background of the person makes it unreasonable for the person to accept the offer; or

                      (j)  it is more appropriate for the person to participate in education or training than to accept the offer; or

                     (k)  the person would suffer severe financial hardship if the person were to accept the offer.

       (2AB)  Without affecting what would otherwise constitute a person seeking work outside the area in which the person's home is situated, if a person, when seeking employment through an employment service provider, represents to the provider that the person is willing to undertake work outside the area in which the person's home is situated, the person is taken for the purposes of subsection (2AA) to seek work outside the area at the time when the representation is made.

       (2AC)  The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of paragraph (2A)(j), particular paid work is unsuitable for a person.

       (2AD)  To avoid doubt, a determination under subsection (2AC) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of paragraph (2A)(j), particular paid work is unsuitable for a person.

             (4)  A person also satisfies the activity test in respect of a period if:

                     (a)  throughout the period, the person complies with the terms of a Jobseeker Employment Pathway Plan that is in force in relation to the person; and

                     (b)  either:

                              (i)  the person is included in a class of persons specified in an instrument made under subsection (4A); or

                             (ii)  the Secretary determines that the person should be taken to satisfy the activity test in respect of that period.

          (4A)  The Secretary may, by legislative instrument, specify classes of persons for the purposes of subparagraph (4)(b)(i).

          (4B)  A person also satisfies the activity test in respect of a period if, throughout the period, the person:

                     (a)  is participating in an approved training course for training supplement; and

                     (b)  is, in the Secretary's opinion, making satisfactory progress towards completing the course.

          (4C)  In forming an opinion about whether a person is making satisfactory progress for the purpose of paragraph (4B)(b), the Secretary must have regard to guidelines set under subsection 541B(3B).

          (4D)  A person also satisfies the activity test in respect of a period if, throughout the period, the person is participating in the National Green Jobs Corps program.

             (5)  If a person fails to comply, throughout a period, with a requirement in a Jobseeker Employment Pathway Plan that is in force in relation to the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1), (4B) or (4D).



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