Edway Training Pty Ltd v SafeWork NSW

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Edway Training Pty Ltd v SafeWork NSW [2021] NSWCATAD 152

Hearing dates:

On the papers

Date of orders:

3 June 2021

Decision date:

03 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

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.

Catchwords:

ADMINISTRATIVE LAW – Civil and Administrative Tribunal – administrative review jurisdiction – no jurisdiction to administratively review a decision by Safework NSW to refuse to enter into a contract with a Registered Training Organisation to do General Construction Induction Training in NSW

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Work Health and Safety Act 2011

Work Health and Safety Regulation 2017

Cases Cited:

Dubow v Mid-Western Regional Council [2019] NSWCATAP 242

White v Sutherland Shire Council [2019] NSWCATAD 100

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Edway Training Pty Ltd (Applicant)
SafeWork NSW (Respondent)

Representation:

Solicitors:
A Soriano (Agent) (Applicant)
S. Hedger (Legal Officer) (Respondent)

File Number(s):

2021/00029653

Publication restriction:

Nil

reasons for decision

Introduction.

1. On 26 August 2020 Edway Training Services Proprietary Limited (Edway) applied to SafeWork NSW to enter an agreement to conduct General Construction Induction Training (GTI) as a registered training organisation (RTO). That application was refused in writing on 8 December 2020. The notice of refusal advised Edway that it could seek an internal review of that decision. This it did, in writing, on 16 December 2020.

2. On 13 January 2021, an internal review decision advised that the decision to refuse to enter an agreement with Edway to conduct GIT was affirmed, with SafeWork NSW relying on its right to refuse to accept an application from an RTO to deliver GIT, under the RTO conditions for delivering GIT in New South Wales. The decision advised that Edway could seek external review in the Tribunal within 28 days.

3. On 2 February 2021 Edway filed an administrative review application with the Tribunal with respect to that decision.

4. From the commencement of the proceedings SafeWork NSW has argued, despite its earlier advice to the contrary, that the Tribunal does not have jurisdiction to review a decision by SafeWork NSW to refuse to enter an agreement to conduct GIT with Edway.

5. At a directions hearing held on 2 March 2021 the Tribunal ordered that the parties file submissions relating to the jurisdictional issue and noted that:

The parties agree that hearing can be dispensed with under section 50 of the Civil and Administrative Tribunal Act 2013 and the jurisdictional issue is to be determined on the papers after 6 April 2021.

6. That timetable was later extended to 13 April 2021 by consent.

7. The jurisdictional issue has now been referred to me to determine without a hearing.

Material before the Tribunal.

8. In determining this matter, I have had regard to the following materials provided…