All Class Training Pty Ltd v SafeWork NSW Agency [2026] NSWCATAD 110;

1. Regulation 683 of the 2017 Regulations says that an "eligible person" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (an external review) of a decision made, or taken to have been made, on an internal review.
2. Who is an "eligible person" is set out in Regulation 676 of the 2017 Regulations. Where the decision in issue is the imposing of a condition when renewing accreditation, the "eligible person" is the applicant or an "RTO that engages the applicant". An RTO is a "registered training organisation" as defined in Regulation 5 of the 2017 Regulations.
3. The application for renewal in evidence is, on its face, from Mr Mearrick as the accredited assessor. This makes him the applicant for renewal. The Respondent said that as such, he was the proper party to these proceedings and not All Class Training Pty Ltd.
4. The Applicant in these proceedings, on the other hand, said that it was an RTO that engaged Mr Mearrick in relation to the relevant renewal. They said that as such, they were an "eligible person" with standing to bring these proceedings under Regulation 676 of the 2017 Regulations which applied at the time of the application being made. I did not understand the Respondent to dispute that the Applicant was an RTO that engaged Mr Mearrick.
5. I accept that in the above circumstances, the Applicant in these proceedings has standing to seek review. This is because it is an RTO that engages the applicant for renewal, namely Mr Mearrick.
6. The 2025 Regulations came into effect after the date of the application for administrative review the subject of these proceedings. Regulations 5, 676 and 683 of the 2025 Regulations, however, for relevant purposes contain provisions having the equivalent effect to the provisions bearing the same numbering in the 2017 Regulations. It follows that the same outcomes as to standing would occur under both the 2017 Regulations and the 2025 Regulations to allow the Applicant to bring these proceedings.

1. Part 4.5 of the 2017 Regulation requires a person wishing to perform prescribed high risk work to be appropriately trained and assessed. Regulation 81 says:

"81 Licence required to carry out high risk work

A person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work, except as provided in clause 82".

1. Assessors in turn must be accredited. Division 2 allows for the accreditation of assessors. Regulation 121 of the 2017 Regulations allows for conditions to be imposed on accreditation. It says:

"121 Conditions of accreditation

(1) The regulator may impose the conditions it considers appropriate on an accreditation.

(2) Without limiting subsection (1), the regulator may impose conditions -

(a) relating to the competency assessments and assessment activities that may be carried out, and

(b) relating to the circumstances in which competency assessments or assessment activities may be carried out, and

(c) requiring the accredited assessor to keep specified information, and

(d) requiring the accredited assessor to give specified information to the regulator".

1. Regulation 121, in other words, permits the regulator to impose conditions it considers appropriate on an accreditation of assessors.
2. Page 5 of the Second Published Conditions describes that document as conditions of accreditation under the Regulations. In their terms, they apply generally and not to any particular accreditation.
3. The equivalent provisions of the 2025 Regulations have materially the same effect.
4. There were conditions imposed in relation to the accreditation in issue in these proceedings. They were what the Respondent said were standard conditions 31.a, 31.b, 33, 34, 40.a, 45, 53, 58.a, 59, 63, 65 66, 67, 72 and 74 taken from the Second Published Conditions.
5. The dispute between the parties involved the question of whether the conditions set out above were conditions that complied with the Second Published Conditions. I understood the Applicant's submission to be that to the extent that they did not, the decision under review imposing the conditions was invalid.
6. The Applicant additionally raised questions as to the workability of certain terms of the Second Published Conditions.
7. I will first consider the question of whether each of the conditions imposed on the Applicant complies with the terms of the Second Published Conditions and go on to consider the questions raised by the Applicant as to the workability of the Second Published Conditions.
8. The Conditions challenged by the Applicant follow the same numbering used in the Second Published Conditions. I will use that numbering below.

1. This imposed condition deals with review of evidence prior to assessment of a candidate, among other things, to ensure that the candidate "is enrolled" in a relevant course. The amendment of the condition that was sought by the Applicant was to replace the words "is enrolled" with "was enrolled".
2. The Second Published Conditions refer to a candidate who "is enrolled" in a relevant course. The decision under review was made when the Second Published Conditions were in force and accords with its language. The Third Published Conditions, however, refer to a candidate who "was enrolled".
3. To the extent that the condition requires review of evidence of proper enrolment before commencement, I do not think the use of the past or present tense to identify the time of enrolment matters. What matters is that enrolment be in place at or before commencement.
4. The Respondent, however, did not object to the change requested by the Applicant.

1. This is a condition that requires that a candidate has been assessed against the relevant unit of competency and is deemed competent to undertake an HRWL assessment.
2. The Applicant said that this condition conflicted with Regulation 113. That Regulation in the 2025 Regulations says:

"A person who is not an accredited assessor must not -

(a) conduct a competency assessment, or

(b) issue a notice of satisfactory assessment, or

(c) hold themselves out in another way to be an accredited assessor".

1. The effect of the equivalent regulation in the 2017 Regulations is not materially different.
2. The Applicant sought removal of Regulation 113.
3. The Respondent said that no change was required. The Respondent said that compliance with the condition must occur prior to a person being then assessed for HRWL.
4. I do not see any conflict between the condition and Regulation 113. Regulation 113 prevents a person who is not an accredited assessor from doing the things the regulation specifies. Condition 31.b does not infringe that prohibition. It only requires a particular assessment to be carried out before an HRWL assessment.
5. I also observe that condition 31.b does not contravene the terms of the equivalent Condition of the Second Published Conditions.

1. This is a condition that says an assessor must not conduct an assessment if the RTO does not provide the evidence required to complete Condition 31 or if the full assessment requirements cannot be met.
2. The Applicant said that the condition places unrealistic and prohibitive conditions on their commercial activities. The Applicant said if equipment is planned to be on site but has not yet arrived, he would be in breach of the condition if he started the assessment process. The Applicant said that a better condition would be that a component of the assessment cannot be conducted unless all required resources are available.
3. The Respondent said that they agreed with the revised wording to be clearer. However, they also said that they did not consider the scenario given by the Applicant to be non-compliance. If equipment is yet to arrive on site as planned, they said the assessor would be able to commence the assessment and conduct the theory components while waiting for the equipment. I accept these submissions.
4. The Respondent also said that they will implement the relevant change at the next iteration of conditions to clarify the matter.
5. I also observe that Condition 33 does not contravene the terms of the Second Published Conditions.

1. This was a condition that the assessor must not conduct an assessment if they know, suspect or reasonably believe that any information provided by the candidate, RTO or trainer in support of their application for assessment may be false or misleading.
2. The Applicant said that the word "suspect" should be removed because evidence was required to support a decision not to conduct an assessment.
3. The Respondent said that there should be no change to the condition. They said that if the assessor had a suspicion of false or misleading information, the assessment must not occur. I accept these submissions having regard to the "consistently high standard of assessment" that the Second Published Conditions contemplate.
4. Condition 34 accords with the terms of condition 34 of the Second Published Conditions.

1. This is a condition that requires an assessor prior to commencing an assessment to add a candidate to the assessment in the LPP using their assessment enrolment number and date of birth.
2. The Applicant submitted that sometimes compliance was not possible if the computer system was not working correctly to record the relevant information about the candidate. They said that the condition should be changed to allow assessments to occur when the service is unavailable.
3. The Respondent said that the condition applied when the system was in full working order. They said that when the system is unavailable for example during an outage, they would provide suitable guidance for assessors and no non-compliance would be considered. They also said that this happened on 11 July 2025 when there was a system outage and the assessor was given clear instructions on how to conduct administration with no requirement to postpone or cancel assessments.
4. I understood the Respondent to be saying that compliance would not be insisted upon when the system was unavailable and alternative arrangements could be made. I accept the Respondent's submission. However, it would be beneficial for the Respondent to explicitly set out in conditions what is to happen when the system is not working.
5. Condition 40.a accords with the terms of condition 40.a of the Second Published Conditions.

1. This is a requirement that an assessor must be present during each component of the assessment and appropriately supervise all candidates being assessed and any candidates present but not engaged in the assessment. The Applicant said that this condition was in direct conflict with condition 53 (see below at [58]). They said there should be no requirement to supervise candidates not undertaking a component of an assessment.
2. The Respondent said that this condition should not be changed. They said that conditions 45 and 53 were mutually reinforcing.
3. I agree that there is no necessary conflict between condition 45 and condition 53. If the Applicant's submission is that the presence of candidates not being assessed when others were being assessed gave them unfair advantage or influenced the candidate undertaking the assessment, there was no evidence before the Tribunal to indicate that this was necessarily the case.
4. Condition 45 accords with the terms of condition 45 of the Second Published Conditions.

1. This is a condition that requires an assessor to supervise and conduct a performance assessment in a manner that does not allow other candidates to obtain an unfair advantage or influence the candidate undertaking the assessment.
2. The Applicant objected to the condition on the basis that he was "being set up to fail".
3. The Respondent said that there should be no change to the condition. I am in agreement with the Respondent's submission, absent any particular explanation as to what the Applicant's specific concern is.
4. Condition 53 accords with the terms of condition 53 of the Second Published Conditions.

1. This is a condition that says that for a calculations assessment, a candidate's calculation assessment answer is correct only if the candidate's answer is the "same" as the acceptable answer provided.
2. The Applicant said that this was an unrealistic expectation of both assessors and students. I understood the Applicant to say that it did not allow for judgement to be exercised in determining the correctness of an answer. Accordingly, the Applicant said that the word "same" should be changed to "comparable using the assessor's judgement".
3. The Respondent said that there should be no change to the condition. They also said that it did not preclude the assessor from using judgement. They said that the calculation answers are a "mathematical equations/formula/ answer for which the SAME must be written by the Candidate to marked as correct".
4. I understood the Respondent to say that the answer in each case to a given mathematical problem had only one objectively correct answer and was not a matter for judgment. I accept the Respondent's submission, absent any evidence to show that different answers to a problem could properly be reached.
5. Condition 58.a accords with the terms of condition 58.a of the Second Published Conditions.

1. Condition 59 provides that clarification may be conducted for both knowledge and calculations assessment. Further, it says that clarification must not be sought for answers that are clearly incorrect. Verbal clarification can be required.
2. The Applicant disputed the viability of this condition. I understood him to say that judgement was involved in the matter and no clearly correct or incorrect answer could be determined.
3. The Respondent said there should be no change to the condition. They said that an assessor is permitted to seek clarification for partially correct answers and answers that are illegible. I see no difficulty with the Respondent's submission.
4. I see nothing in the submissions of the Applicant to allow me to find that condition 59 was inconsistent with condition 59 of the Second Published Conditions.

1. Condition 63 requires that an assessor must accurately record a candidate's results for the component of an HWLR assessment in the LPP on the day the assessment is completed.
2. The Applicant objected to the condition on the basis that the condition could not be satisfied if the system was down or connectivity stopped. They said that it should be changed to reflect nonconformance if outside the assessor's control.
3. The Respondent agreed with adding reference to exemption or an alternative process being developed for extremely remote locations with no Internet and for system outages. They also said that where the system was unavailable they will provide suitable guidance for assessors to deal with non-compliance.
4. I accept the Respondent's submissions. I also see nothing in the submissions of the Applicant to say that condition 63 was inconsistent with the equivalent provision of the Second Published Conditions.

1. This condition sets out a requirement for an assessor to submit an assessment in the LPP on the day an assessment is conducted.
2. The Applicant made the same objections they did for condition 63, namely the inability to comply if the system was down or connectivity stops.
3. I understood the Respondent to accept that this was a matter for further consideration and said that the conditions were written on the basis that the system was in full working order. Where unavailable, they said that they would provide suitable guidance for assessors and non-compliance would be considered.
4. I accept the submissions of the parties. However, I also observe that condition 65 accords with the equivalent condition in the Second Published Conditions.

1. This is a requirement that the assessor must conduct multiday assessments within 10 days of the first date of the assessment.
2. The Applicant objected on the basis of fairness. The Applicant said that events outside of the assessor's control could prevent completion within the 10 day period but that the assessor would still remain in breach.
3. The Respondent rejected the need for any change of the condition. They said that the assessor may request an exemption to any condition if exceptional circumstances exist.
4. I accept the parties' submissions. However, I also observe that condition 66 accords with the equivalent condition in the Second Published Conditions.

1. This is a requirement that an assessor must in a multi-day assessment, on the final day submit and close the assessment in the LPP.
2. The Applicant made the same objections they did for conditions 63 and 65, namely the inability to comply if the system is down or connectivity stops. They wanted the condition removed.
3. The Respondent said that there should be no change to the condition. They said that the assessor may request an exemption to the condition if exceptional circumstances exist.
4. I accept the parties' submissions. However, I also observe that condition 67 substantially accords with the equivalent condition in the Second Published Conditions.

1. This is a condition that effectively requires the assessor to securely retain all assessment records for a minimum of five years from the date of the last record unless otherwise notified.
2. The Applicant objected to this condition on the basis that assessors do not have access to assessment records. They said they were locked out from seeing closed assessment details in the LPP. They also said that the RTO held hard copy paperwork and was responsible for it.
3. The Respondent accepted the Applicant's submission and said the suggested change could be made. They said they will implement the change at the next iteration of the conditions.
4. I accept the parties' submissions. I observe that the condition nevertheless materially accords with the equivalent condition in the Second Published Conditions.

1. This is a condition requiring an assessor to respond to a compliance notice issued by the Respondent in the specified time frame.
2. The Applicant says that the time frame should be pre specified for consistency and transparency.
3. The Respondent said there would be no change to the condition. They said there was no evidence that notices were issued inconsistently. They also said they reserve the right to set relevant and reasonable timeframes for low level non-compliance.
4. I accept the Respondent submissions in the absence of particular evidence of difficulties arising with the time frames allowed for compliance.
5. I also observe that the condition nevertheless accords with the equivalent condition in the Second Published Conditions.

1. I do not see any basis for impugning any relevant condition imposed upon Mr Mearrick, to the extent that this is an outcome that depends on inconsistency of these conditions with the terms of the Second Published Conditions. Each condition accords with the Second Published Conditions for the reasons set out above.
2. I accept the Respondent's explanation for each of the conditions, subject to the matters the Respondent conceded in respect of conditions 33, 63, 65 and 72. I also accept their evidence that the conditions were standard.
3. I do not see any good reason for the application of such conditions other than on a basis that is consistent across the building industry so that participants in the industry have certainty and adhere to common standards, absent particular reasons for variations to the common standards in specific cases. No such reasons were put to the Tribunal. The benchmark of that consistency was found, at the relevant times, in the terms of the Second Published Conditions.
4. The decision under review is dated 6 August 2025. Subsequently, a new iteration of conditions contained in the Third Published Conditions became effective on 1 October 2025.
5. The Respondent said that there were some differences between the Second Published Conditions and the Third Published Conditions. I observe, however, that the particular conditions in issue in these proceedings did not vary in substance from the terms of the equivalent conditions in the Third Published Conditions, in relation to the particular matters the Applicant raised.
6. I understood the next question the Applicant put to me for determination is whether or not the Second Published Conditions themselves accord with the statutory scheme and if not, the extent to which any non-compliance with the statutory scheme results in the decision under review being impugned. In other words, the question becomes one of whether or not any of the conditions imposed, even if consistent with the Second Published Conditions, can be set aside because the provisions in the Second Published Conditions that they embody, themselves fail.
7. This is a question that requires, as a preliminary matter, identification of the statutory foundation of the Second Published Conditions. These conditions are expressed to have been "imposed on an accreditation under clause 121 of the WHS Regulation". The "Regulation" is defined to mean the 2017 Regulations.
8. To the extent that the Second Published Conditions claim validity on the basis of Regulation 121 of the 2017 Regulations, what those regulations allow, in turn bears relevance. Regulation 121 allows the regulator to "impose the conditions it considers appropriate on an accreditation" (emphasis added). The use of the singular indefinite article "an", in the ordinary meaning, captures a particular accreditation. It does not, in its plain meaning, contemplate the imposition of conditions to apply generally.
9. If the Second General Conditions are not properly founded on the power allowed to the regulator under Regulation 121 (or some other power), so as to permit the imposition of conditions generally rather than specifically, a question arises whether the Respondent may properly rely upon the Second Published Conditions.
10. Any foundation of the Second Published Conditions in the 2017 Regulations must rest on an intent to extend the power to impose conditions beyond particular accreditations. There must also be an intent to allow for the making of non-specific conditions such as those found in the Second General Conditions.
11. However, the validity of the Second General Conditions is not a matter that I can decide in these proceedings. First of all, the decision the subject of review in these proceedings is the decision made on 6 August 2025 involving the imposition of conditions on Mr Mearrick specifically. It is not the decision to make the Second Published Conditions.
12. Even if the Tribunal did have jurisdiction to review the Second Published Conditions, whether as a decision on its own or to the extent that the decision under review includes relevant conditions taken from the Second Published Conditions, I do not think I can do so absent further evidence and submissions for the reasons set out below.
13. The Second Published Conditions describe accreditation as having a purpose of achieving a "consistently high standard of assessment of persons who wish to apply for a HRWL". They also describe an objective to "promote government, industry, Candidate and public confidence in the HRWL Assessment, application and grant process, and to protect the health and safety of workers and other people".
14. It is clear from what the Second Published Conditions says about their purpose and context is that they engage matters of industry wide and community interest in matters of health and safety. These are matters that involve specialist and particular knowledge of working conditions, equipment and technology used and best practices.
15. Submissions concerning the workability of the Second Published Conditions in issue need to engage with the above background, based on independent expert evidence from persons with relevant qualifications and knowledge. There was no such detailed submissions or independent expert evidence before the Tribunal. The questions raised concerning the workability of the Second Published Conditions are not matters that the Tribunal can determine absent detailed submissions or independent expert evidence.
16. If I were required to make a determination of whether or not the terms of the relevant conditions taken from the Second Published Conditions should be affirmed, I would do so for the reasons set out at [96] - [98] and the specific findings I have made in relation to each relevant condition, notwithstanding the particular concessions the Respondent made.
17. The Respondent, however, has said that they will consider some of the matters raised by the Applicant they acknowledge require review, with a view to a further iteration of the published conditions in due course. I did not understand the Applicant to object to that course. In these circumstances and for the reasons set out above, I do not think that the Tribunal, at the present time, needs to or should take any action in these proceedings to review the conditions contained in the Second Published Conditions.
18. Pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW), the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.
19. For the reasons set out above, the correct and preferable decision is to affirm the decision under review.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.