Henderson v SafeWork NSW

NCAT Appeal Panel|2023-07-21

Background

This is an appeal from a decision made by the Tribunal in the Administrative & Equal Opportunity Division published 24 March 2023 (the "Decision") by which the Tribunal affirmed a decision by the Respondent to refuse the Appellant's application for accreditation as a high-risk work licence assessor under the Work Health & Safety Act 2011 ("the Act") and the Work Health & Safety Regulation 2017 ("the Regulation").
The background facts are as follows: 1. The Appellant had formerly held a high-risk work licence issued in Queensland until 2012. 2. The Appellant was granted a NSW high-risk work licence in respect of certain categories of work, namely Rigging Intermediate, Boom Type Elevating Platform, Forklift Trucks, Dogging and Basic Rigging issued on 25 November 2020, and Slewing Mobile Crane (up to 60 tonnes) issued on 5 January 2021, and Bridge and Gantry Crane issued on 16 February 2022. 3. The Appellant had completed a Certificate IV in Training and Assessment issued by TAFE on 22 July 2021. 4. On 18 February 2022, the Appellant submitted an application for accreditation as an assessor for high-risk work licence in the classes of Rigging Intermediate, Slewing Mobile Crane (up to 60 tonnes) and Boom-type Elevating Platform. The supporting material included evidence of the Appellant's operational experience between 2002 and 2008 as well evidence of experience gained from January 2022. 5. The parties engaged in correspondence concerning the application and, on 27 May 2022, the application was refused under clause 118(2)(a) of the Regulation. 6. Thereafter, the Appellant made an application to the Tribunal for review of the decision by the Respondent. As indicated above, the Tribunal published the Decision on 24 March 2023, by which it ordered that the decision under review be affirmed. 7. On 19 April 2023, the Appellant lodged a Notice of Appeal in respect of the Decision.

The Decision

In order to understand the appeal, it is necessary to summarise the reasoning contained in the Decision. This summary is as follows: 1. The Tribunal outlined the nature of the proceedings before it, namely that its task is to determine the correct and preferable decision in respect of the Appellant's application for accreditation as an assessor. The Tribunal described the nature of the review to be conducted by it and then proceeded to consider the legislation relevant to the Appellant's application for accreditation. 2. After considering the relevant legislative background the Tribunal noted at [32] that the Respondent had adopted a practice of assessing an applicant's experience against the requirements in a document called "Guide for accreditation of assessors for high risk work licence" (the Guide) and that the Guide stipulated that applicants should generally have a minimum of two years relevant current industry and operational experience in the high-risk work for which accreditation is being sought. The Tribunal noted that the Respondent's practice is to require an applicant to demonstrate that the experience was gained in the preceding two years. 3. At [58] the Tribunal noted that the Respondent had refused the Appellant's application on the basis that the Appellant had not demonstrated at least two years relevant industry and operational experience gained in the preceding two years. At [59] the Tribunal stated that it was satisfied that the Regulation was authorised by the Act and was validly made. The Tribunal identified the issue in dispute as whether the Appellant had established that he had sufficient relevant industry and operational experience to satisfy the requirements of the Regulation as it relates to the application for accreditation. 4. At [62] the Tribunal stated that it agreed with the Appellant that the relevant regulation relied upon by the Respondent does not mention any specific time frames and, in particular, does not mention a requirement of a minimum of two years relevant current industry and operational experience. 5. The Tribunal found that the Respondent has determined that in order to satisfy the requirements of the Regulation applicants "should generally have a minimum of two years relevant current industry and operational experience (such as - experience gained in the preceding two years) in the HRW (ie. high-risk work) for which accreditation is sought" [64]. 6. Clause 118(6) of the Regulation contains a provision to the effect that an applicant is qualified if the applicant's competencies, skills and knowledge are in accordance with the "Standards for NVR Registered Training Organisations 2011" published by the Commonwealth. This is referred to as the "RTO Standard". At [69] the Tribunal found that the RTO Standard provides general guidance which can be interpreted as required for different industries. 7. At [70] the Tribunal referred to s 276(3)(a) of the Act. During the hearing of the appeal, the parties acknowledged that this contained a typographical error and that the Tribunal in fact intended to refer to s 276(3)(c). That provides that the Regulation may leave any matter or thing to be determined, applied or approved by the regulator. The Tribunal found that it was envisaged that separate instruments would be developed for individual industries and that it was not intended that the Regulation would provide specific details. 8. At [73] and [74] the Tribunal referred to the Guide published by the Respondent and stated that it was not satisfied that the Guide is contrary to government policy or to law. The Tribunal stated that it was able to have regard to the Guide as a guide concerning the level of experience that is needed to satisfy the requirements of the Regulation. 9. At [75] the Tribunal found that "it is not in dispute that the [Appellant] has in excess of the two years' experience referred to in the Guide. However, the majority of that experience was obtained in the period 2002 to 2008". 10. At [78] the Tribunal found that careful scrutiny must be given to the operational experience of applicants for accreditation and at [80] the Tribunal found that the currency of the experience is a significant consideration. 11. At [81] the Tribunal stated that it agreed with the Respondent that "at this time, the depth and range of the recent experience of the [Appellant] does not warrant an exercise of discretion to grant the accreditation that he is seeking. More time gaining relevant experience would be needed before I could be satisfied that the [Appellant] is able to meet the requirements of cl 118(2)(a) of the Regulation".

Notice of Appeal

The form of the Notice of Appeal requires the grounds of appeal to be set out. In this case those grounds may be summarised as follows: 1. The Tribunal erred by applying the RTO Standards as a general guide to assessing a person's eligibility to be an assessor. There is no legal basis to assume the RTO Standards are only a guide. They are the legislative instrument for trainer/assessor competence. 2. The Tribunal erred by allowing the Guide to be used as government policy even though the Tribunal stated it was not government policy under the Administrative Decisions Review Act. 3. The Tribunal erred in incorrectly applying s 276(3)(a) of the Act in [70] of the Decision. 4. In [82] the Tribunal erred by not taking into account the time elapsed since the original decision was made by the Respondent. 5. At [58] the Tribunal erred by stating that the Appellant did not meet the requirements of the Regulation. The Regulations do not mention relevant operational experience. 6. In addition, the Appellant sought leave to appeal on the same grounds as above.
The Respondent filed a Reply to Appeal rebutting each of the grounds of appeal.

Legislative Background

The Decision records the relevant legislative framework relevant to the Appellant's application and neither party took issue with the identification of the relevant provisions (as opposed to the Tribunal's interpretation of those provisions). The starting point is s 3 of the Act which sets out the objects of the Act. Section 3 provides: 3 OBJECT (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by-- (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
Section 276 of the Act authorises the making of Regulations. It provides: 276 REGULATION-MAKING POWERS (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) The regulations may-- (a) be of general or limited application, or (b) differ according to differences in time, place or circumstance, or (c) leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons, or (d) apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether-- (i) with or without modification, or (ii) as in force at a particular time or as in force or remade from time to time, or (e) prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed, or (f) allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator, or (g) prescribe fees for doing any act or providing any service for the purposes of this Act, or (g1) the waiver, reduction, postponement or refund by the regulator of fees payable or paid under this Act or the regulations, or (h) prescribe a penalty for any contravention of the regulations not exceeding an amount equal to the monetary value of 345 penalty units. (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.
The Act and the Regulation contain provisions conferring jurisdiction on the Tribunal to conducted administrative reviews under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
The Regulation contains provisions prohibiting a person who is not an accredited assessor from conducting certain categories of assessment for high-risk work licences.
Clause 118 of the Regulation is important to this appeal. It provides: 118 DECISION ON APPLICATION (1) Subject to subclause (3), the regulator must grant an accreditation if satisfied about the matters referred to in subclause (2). (2) The regulator must be satisfied that-- (a) the applicant-- (i) is qualified to conduct the competency assessment to which the application relates, and (ii) is able to conduct the competency assessment to which the application relates competently, and (iii) is able to ensure compliance with any conditions that will apply to the accreditation, or (b) the applicant holds a current equivalent accreditation under a corresponding WHS law. (3) The regulator must refuse to grant an accreditation if satisfied that-- (a) the applicant is disqualified under a corresponding WHS law from holding an equivalent accreditation, or (b) the applicant, in making the application, has-- (i) given information that is false or misleading in a material particular, or (ii) failed to give any material information that should have been given. (4) If the regulator decides to grant the accreditation, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 117, the regulator is taken to have refused to grant the accreditation applied for. (6) For the purposes of subclause (2)(a)(i), an applicant is "qualified" to provide the competency assessment if-- (a) the applicant's competencies, skills and knowledge are in accordance with the Standards for NVR Registered Training Organisations 2011 published by the Commonwealth, and (b) the applicant holds a current high risk work licence for the class of high risk work to which the competency assessment relates. Note : A refusal to grant accreditation (including a refusal under subclause (5)) is a reviewable decision (see clause 676).
Clause 118(6) (see above) refers to the "Standards for NVR Registered Training Organisations 2011 published by the Commonwealth" which the parties refer to as the RTO Standard. The text of the relevant portions of the RTO Standard are set out at [29] of the Decision.
As stated above the Respondent has published a document entitled "Guide for Accreditation of Assessors for High-Risk Work Licence" (the Guide) dated June 2017. The relevant parts of the Guide are set out in the Decision at [31]. It provides that applicants "should generally have a minimum of two years relevant current industry and operational experience".

Submissions

The Appellant submitted that his qualifications satisfied the requirements of the Regulation and the RTO Standard, and that to the extent that he did not meet the requirements of the Guide, the requirements of the Regulation (including the RTO Standard) must prevail. The RTO Standard does not, as the Guide does, impose a minimum of two years industry and operational experience. The Tribunal should have had regard to the requirement for current industry skills and experience as defined in the RTO Standard. It provides that current industry skills are the "knowledge, skills and experience required by VET trainers and assessors and those who provide training and assessment under supervision to ensure that their training and assessment is based on current industry practices and meets the needs of industry". The definition goes on to provide that current industry skills may be informed by consultants with industry and may include, but is not limited to, the matters thereafter listed. These include knowledge of and/or experience using the latest techniques and processes, possessing a high level of product knowledge, understanding and knowledge of legislation, possessing formal industry and training qualifications and training content that reflects current industry practice.
Additionally, it is relevant that the Guide uses language indicating that it is not mandatory to have two years relevant current industry and operational experience.
The Appellant submitted that the Tribunal should have had regard to other matters weighing in favour of the Appellant. These included the fact that Covid 19 affected the ability to work continuously. The Tribunal should also have taken into account that from March 2020, the Appellant re-sat all his previously acquired qualifications. The Appellant submitted that the Tribunal has been influenced by the Guide which lacks clear intent and, in the case of the Appellant, has produced an unjust result. The experiences obtained by the Appellant between 2002 and 2008 were not given enough weight. The experiences then gained were extensive and not forgotten.
The Respondent's submissions acknowledge that the Respondent refused the application of the Appellant on the basis that the Appellant did not meet the requirements of the Guide in that he had not demonstrated at least two years relevant industry and operational experience in the preceding two years in the high-risk work for which accreditation was sought. The Respondent's submissions also acknowledge that the RTO Standard does not mention any specific time frames, such as a minimum of two years relevant current industry and operational experience or that the experience is to be gained in the preceding two years. The RTO Standard provides general guidance which can be interpreted as required for different industries. However, the RTO Standard provides that assessors should have the relevant vocational competencies at least to the level being assessed and that they can demonstrate current industry skills directly relevant to the assessment being undertaken. The RTO Standard contains a definition of "current industry skills" (to which we have referred above when summarising the Appellant's submissions).
The Respondent acknowledged that the Guide did not have the status of government policy to which the Tribunal would be bound. The Tribunal held, and the Respondent submits that that the Tribunal was correct in determining, that the Guide was not government policy as defined in s 64 of the ADR Act but was a policy to which the Tribunal may have regard. Section 64(4) of the ADR Act provides that in determining an application for an administrative review under that Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator. Accordingly, the Tribunal was permitted to have regard to the two-year current industry and operational experience requirement present in the Guide.
The Respondent submitted that the majority of the Appellant's operational experience was obtained in the period 2002 to 2008.
The Respondent submitted that the appeal does not raise any question of law and the only "potential question" of law is that the Appellant may be submitting that the Tribunal incorrectly determined that it could have regard to the two-year current industry and operational experience on the basis that it was government policy. However, it is clear from the decision that the Tribunal used the Guide in an appropriate manner as "other policy applied by the administrator" as opposed to "government policy".
The Respondent submitted that to the extent that the Appellant seeks leave to appeal there is no basis for the granting of leave.
The Respondent submits that the appeal should be dismissed.

Consideration

Appeals from decisions made at first instance in the Tribunal are governed by s 80 of the Civil & Administrative Tribunal Act, 2013 NSW (the NCAT Act). This means that appeal may be made as of right on any question of law or with the leave of the Appeal Panel on any other grounds.
In our view, the Appellant has not identified any question of law. To the extent that the Appellant seeks to submit that the Tribunal erred in giving the Guide the status of government policy, we agree with the submissions of the Respondent. In other words, the Tribunal did not give the Guide that status. Rather, the Tribunal specifically said at [68] that the Guide is not government policy. The Tribunal went on to say, correctly in our view, that the RTO Standard provides general guidance and at [72] the Tribunal stated that the Guide may be considered under s 64(4) of the ADR Act as other policy applied by the administrator. We see no error of law in that analysis.
To the extent that leave is sought the Respondent's submissions correctly state that the principle in Secretary, Department of Family & Community Service v Smith [2017] NSWSC 206 is applicable, namely that it is only appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable [28].
In this case, the Tribunal, correctly in our view, identified the issue in dispute, namely whether the Appellant had established that he had sufficient relevant industry and operational experience to satisfy the requirements of the Regulation as it relates to the application for accreditation: see [59].
As the Tribunal stated, cl 118(1) of the Regulation provides that an accreditation must be granted if the regulator, and therefore the Tribunal, is satisfied about the matters referred to in cl 118(2). Clause 118(2) provides that the Tribunal must be satisfied that the applicant satisfies the requirements set out in subclauses (a)(i) to (iii) inclusive and (b). Further, cl 118(6) states that for the purposes of subclause (2)(a)(i) an applicant is qualified to provide the competency assessment if the applicant's competencies, skills and knowledge are in accordance with the RTO Standard. The RTO Standard does not stipulate that the experience is to be gained in the preceding two years (as the Tribunal rightly stated at [62]). The RTO Standard refers to "current industry skills directly relevant to the training and assessment being provided" and to "current knowledge and skills in vocational training and learning that informs their training and assessment".
As the Tribunal stated at [64], the Respondent has determined that in order to satisfy the requirements of the RTO Standard, applicants "should generally have a minimum of two years relevant current industry and operational experience". In our view the requirement for experience requires the Respondent to decide the period in which an Applicant has had sufficient experience to satisfy the requirements of the RTO Standard. Although there does not appear to be any explanation as to why the period of two years has been chosen by the Respondent as opposed to a greater or lesser period, it is the case, in our view, that the Regulation gives to the Respondent scope to determine such matters as the length of the period of relevant experience. As the Tribunal noted at [70], s 276(3)(c) of the Act states that the Regulation may leave any matter or thing to be determined, applied or approved by the regulator. Whilst the Regulation, in turn, does not stipulate that the length of relevant experience must be a minimum of two years, cl 118 requires the regulator to achieve a level of satisfaction as to an applicant's qualification and competency which, in our view, must be by reference to relevant experience including the length of the period of the applicant's experience.
With respect to ground 1 of the appeal, it is our view that the Tribunal did not err in its treatment of the RTO Standard. The Standard requires an applicant to have experience and for the experience to be current. It does not specify the precise length of time of that experience. The Respondent was entitled to develop a guide incorporating a period of experience necessary to enable the Respondent to achieve the level of satisfaction required by cl118. In our view, there is no merit in ground 1.
In addition, there is no merit in the second ground, namely that the member erred by allowing the Guide to be used as government policy. As has already been explained, the Guide was used as permitted by s 64(4) of the ADR Act.
Ground 3 concerns a typographical error which both parties acknowledge and which did not affect the reasoning or the substance of the Decision.
Ground 4 concerns the contention that the Tribunal failed to take into account the Appellant's ongoing experience and that he had had a year's experience by the time the Decision was published. We do not agree, as is evident by [82] of the Decision whereby the Member would appear to acknowledge that the Appellant is in the course of acquiring continuing additional experience. In any event, the period of that experience still falls short of two years.
We are also of the view that the Tribunal was entitled to give little or no weight to the Appellant's experience between 2002 to 2008. The object of the Act is to provide a nationally consistent framework to secure the health and safety of workers and workplaces. The RTO Standard is consistent with furthering those objects and it places emphasis on knowledge and experience of current industry practices and the latest techniques and processes. The experience gained more than fifteen years ago would not on its face satisfy the criteria described in the RTO Standard.
Ground 5 concerns [58] of the Decision and the Appellant attributes the statement made in paragraph 58 to the Tribunal. In fact, paragraph 58 merely records the view of the Respondent.
The Appellant submitted that the Decision appears to him to contain the view that he is not safe to conduct the work he currently undertakes. In our opinion the Appellants view in this regard is mistaken. The Decision is concerned with the Appellant's application and is not concerned with the work he currently undertakes except to the extent it constitutes experience relevant to the Appellant's application.
In conclusion, the appeal does not disclose any question of law. Nor does the appeal disclose a ground upon which leave to appeal might be granted. There is no clear injustice or question of principle. Rather the Tribunal made a decision based upon the specific facts concerning the Appellant's relevant experience.
The result is that the appeal must be dismissed.
Accordingly, we make the following order: 1. Appeal dismissed.

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: 31 July 2023

Administrative Tribunal Act 2013(NSW)

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)