Edway Training Pty Ltd v SafeWork NSW

Should the application be determined without a hearing?

1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials, I am satisfied that this the Tribunal's jurisdiction in this matter can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.

Does the Tribunal have administrative review jurisdiction?

1. Section 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) relevantly provides that: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) … (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note. See section 8 of the Administrative Decisions Review Act 1997. … (6) An administrative review application is an application made to the Tribunal for an administrative review decision. Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
2. Section 9 of Administrative Decisions Review Act 1997 (NSW) (the ADR Act) then provides the circumstances in which the Tribunal has administrative review jurisdiction. It relevantly provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
3. "Enabling legislation" is defined in s 4: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
4. The first question confronting the Tribunal when seeking to exercise its administrative review jurisdiction is whether there is any "enabling legislation" which provides for the applicant to seek administrative review: see Dubow v Mid-Western Regional Council [2019] NSWCATAP 242; White v Sutherland Shire Council [2019] NSWCATAD 100.
5. SafeWork NSW asserts that the Tribunal does not have administrative review jurisdiction with respect to its decision not to enter into an agreement with Edway to conduct General construction Training (GTI) as a registered training organisation (RTO) because neither the Work Health and Safety Act 2011 (NSW) (the WHS Act) or the Work Health and Safety Regulation 2017 (NSW) (the WHS Regulation) provide for such a decision to be administratively reviewable.
6. Edway argues that by seeking to enter into an agreement to conduct GIT as an RTO, it also sought accreditation as an "accredited assessor" under Part 4.5 of the Work Health and Safety Regulation 2017. Edway submits that these two roles are not mutually exclusive and that RTOs "may act as a creditors assessors" and does so in the context of GIT. It therefore argues that: … the decision to refuse its application for a contract to deliver GIT and Accreditation falls within the ambit of refusing to grant accreditation to an assessor. Such decision is reviewable under item 9 of regulation 676 of the WHS Regulations and is therefore within NCAT's external merits review jurisdiction.
7. Section 276 of the WHS Act contains a wide regulation making power. It relevantly provides: (1) The Governor may make regulations in relation to - (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act. (2) Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 3. (3) … (4) The Minister is not to recommend the making of a regulation containing provisions that confer jurisdiction of the Civil and Administrative Tribunal to exercise functions unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions.
8. Schedule 3 of the Act contains further provisions concerning the regulation making power under the Act. Clause 7 of the schedule relevantly provides that the power includes: (1) Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of Part 4 or the regulations including providing for - (a) applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation, and (b) the evidence and information to be provided in relation to applications including the provision of statutory declarations, and (c) exemptions, and (d) variations of authorisations by the regulator whether on application or otherwise, and (e) authorisation of persons as trainers and assessors, and (f) examination of applicants for authorisations, and (g) conditions of authorisations, and (h) fees for applications for the grant, issue, renewal and variation of authorisations. (2) The recognition of authorisations under corresponding WHS laws and exceptions to recognition. (3) The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations.
9. It is to be noted that these regulation making powers do not extend to regulating contracts between SafeWork NSW and others.
10. Clause 14 (d) of Schedule 3 provides a regulation making power with respect to reviews including - (d) conferring jurisdiction on the Civil and Administrative Tribunal to conduct administrative reviews under the Administrative Decisions Review Act 1997.
11. Part 11.1 of the WHS Regulation is concerned with decisions made under the Regulation that are reviewable. Clause 676 sets out the decisions made under the Regulation which are reviewable, and who may exercise the right to review. A decision to refuse to sign a contract with an RTO to conduct GTI is not among them. Such contracts are not regulated by the WHS Regulation.
12. A wide variety of decisions relating to accredited assessors, from the refusal to grant accreditation, to the imposition of conditions on accreditation and decisions to cancel suspend or disqualify accreditations, are matters which are reviewable at the request of the applicant, or "an RTO that engages the applicant." The only other mention of an RTO in clause 676 is with respect to the disqualification of an RTO from applying for the authority to conduct training for traffic control work under clause 184L of the WHS Regulation. This has nothing to do GTI.
13. Both accredited assessors and RTOs are defined in clause 5 of the WHS Regulation: accredited assessor means - (a) a person who is accredited under Part 4.5 to conduct assessments, or (b) the regulator. While: registered training organisation (RTO) means a training organisation that - (a) is listed as a registered training organisation on the National Register established under the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, and (b) has entered into an agreement with the regulator to deliver training and conduct assessments.
14. Edway submits that RTOs act as accredited assessors and exercise all of the responsibilities of an accredited assessor under Part 4.5 of the WHS Regulation. In support of this contention, Edway points to the fact that recital 3 of the standard form agreement between SafeWork NSW and RTOs, for the delivery of GIT, provides that: Chapter 1, part 1.1 of the WHS regulation defines an RTO as that which is listed as an RTO on the national register established under the National Vocational Education and Training Regulator Act 2011 (the NVETR Act) of the Commonwealth and provides for an RTO to enter an agreement with the regulator (in this case SafeWork NSW) in order to be approved to deliver GTI for the purposes of training and assessing the individual competence required for the issuance of a GTI card.
15. In addition, Edway relies on clause 113 of the WHS Regulation which provides: 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) in any other way hold himself or herself out to be an accredited assessor.
16. Inferentially, Edway argues that because the recital refers to RTOs assessing competence, RTOs who do enter an agreement to deliver GIT may act as accredited assessors, "so long as they satisfy the requirements of an accredited assessor under 4.5 of the regulations". This is a curious submission, elevating the status of the contract with respect to the Act and Regulation.
17. SafeWork NSW disputes this, arguing that the roles of an accredited assessor under the scheme created by the Act and the Regulation and an RTO are different. An accredited assessor undertakes competency assessments under Part 4.5 of the WHS regulation with respect to various types of high risk work. They are necessarily individuals who themselves have been assessed as having the competency to undertake such assessments: see Division 2 of Part 4.5.
18. The information which SafeWork NSW requires to accredit an assessor relates to individual competency and experience in the work concerned, as set out in Clause 116 of the Regulation. Most of the information required is information that relates to an individual person, rather than a corporation such as Edway. As a corporation Edway does not have a residential address within the ordinary meaning of the term, nor can it provide evidence of its experience actually doing high risk work.
19. Accredited assessors may work for or contract with RTOs in their delivery of GIT and assessments. In contrast, RTOs rely on their nominated trainers to deliver training, and on accredited assessors to undertake competency assessments for them.
20. It is clear that the roles of an RTO and an accredited assessor are different.
21. This is not a case in which the applicant applied to be accredited as an assessor. Rather, it is a case in which an organisation (Edway) sought to enter into a contract to deliver GIT in NSW. The roles and responsibilities of an accredited assessor and an RTO differ, as does their likely make up and constitution.
22. Decisions by SafeWork NSW to enter into agreements with RTOs to deliver GIT training are not the subject of regulation under the WHS Regulation. Applications to be accredited as an assessor are. The WHS Regulation contains specific provisions concerning how applications for accreditation are to be made to be made, considered, refused or granted. Clause 676 of the WHS Regulation provides that such decisions with respect to accredited assessors are reviewable decisions.
23. In contrast the method of applying to enter into a contract for an RTO to deliver GIT training is not the subject regulation under the WHS Acct or Regulation. A refusal by SafeWork NSW to enter into such an agreement with an RTO is not a reviewable decision for the purposes of the ADR Act and the CAT Act.

Concerning SafeWork's incorrect advice that the decision was reviewable

1. There is no doubt that the internal review decision was not one authorised by the WHS Regulation, because a decision to refuse to enter into a contract to deliver GIT in NSW is not a reviewable decision. The advice in that internal review decision to the effect that Edway could seek external review under the ADR Act in the Tribunal was also wrong. The decision is not a reviewable decision.
2. The fact that the internal reviewer incorrectly advised that the Tribunal could review the decision does not operate to confer jurisdiction on the Tribunal to do so. That would simply be perpetuating the error, rather than correcting it.

Conclusion

1. As a result, the Tribunal makes the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter. 2. The application is dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2021