El Masri v Safework NSW

[2018] NSWCATAD 194

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	El Masri v Safework NSW [2018] NSWCATAD 194
Hearing dates:	15 August 2018
Date of orders:	28 August 2018
Decision date:	28 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	The decision under review is affirmed
Catchwords:	ADMINISTRATIVE LAW – restrictive demolition licence – appropriate experience – practical training
Legislation Cited:	Occupational Health and Safety Regulation 2001 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011
Category:	Principal judgment
Parties:	Maher El Masri (Applicant) Safework NSW (Respondent)
Representation:	Counsel: P Lott (Applicant)   Solicitors: Kheir Lawyers (Applicant) S Pintamalli, Safework NSW (Respondent)
File Number(s):	2017/00297427
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. The Applicant, Maher El Masri lodged an application with respect to himself and his company, Royal Demolition and Excavation Pty Limited (the company) seeking a restricted demolition (RD) licence. The application was refused by the Respondent and that decision was affirmed on internal review. The Applicant now seeks review of that decision, pursuant to clause 320 of the Occupational Health and Safety Regulation 2001 (the OHS Regulations).

To whom does the application relate?

2. The application lodged with the Respondent was ostensibly by the company. In the section of the application headed “individual applicant details OR contact person for Corporation applications” Mr El Masri set out not only his contact details but also personal particulars such as his date of birth. In the section in which Corporation applicants were invited to nominate a person involved in the management of the company, Mr El Masri wrote that he was an individual applicant. The original decision was addressed as follows:

Maher El Masri

Royal Demolition & Excavation Pty Ltd

3. The application for internal review was made by the company with Mr El Masri as the contact person. Sometime prior to the internal review decision Mr El Masri was apparently asked to clarify whether the application for the RD licence was on his own behalf or on behalf of the company. In a letter dated 28 August 2017 Mr El Masri wrote, on the company’s letterhead that “[he] was applying on behalf of the company”. Nonetheless the internal review decision was addressed in the same manner as the original decision.

4. Both decision letters also commenced with the salutation “Dear Mr El Masri” and referred to ‘your’ application.

5. Mr El Masri is the sole director of the company.

6. The Application for Review was filed by Mr El Masri and the company.

7. As I observed at the hearing, the application forms required to be completed by applicants for an RD licence are unclear, and can easily lead to confusion as to who is the applicant. I am satisfied though, following his clarification in the letter of 28 August 2017 that the decision under review relates to both Mr El Masri and the company. It follows that, if Mr El Masri meets the criteria for a RD licence, so does the company.

Requirement to hold a Restricted Demolition Licence

8. Although portions of the Work Health and Safety Regulation 2011 have been repealed, Reg 318 continues to set out that a person must not carry on the business of licensed work without a licence relating to that work. Reg 317 defines licensed work so as to include restricted demolition work.

9. A RD licence is required to demolish (or partially demolish), any building, structure or installation that:

is between 4 metres and 15 metres in height involving mechanical demolition such as using excavators, bulldozers or cranes;

is between 10 metres and 15 metres in height and affects its structural integrity;

involves the use of load shifting machinery on suspended floors.

10. Pursuant to Regulation 320 of the OHS Regulations:

(1)   A person is eligible for a licence if WorkCover [now Safework NSW] is satisfied that …

(a)   in the case of an individual:

(i)   the individual is of or above the age of 18 years, and

(ii)   the individual is a fit and proper person to hold a licence, and

(iii)   the individual has appropriate qualifications in relation to the relevant licensed work, and

(iv)   appropriate arrangements exist to ensure that the individual’s employees do not do licensed work unless they have had training in safe working methods in relation to the licensed work

(b)   in the case of a corporation:

(i)   the corporation is a fit and proper person to hold a licence, and

(ii)   each director of the corporation would, if he or she were the Company, be a fit and proper person to hold a licence and

(iii)   at least one individual engaged in the management of the corporation has appropriate qualifications in relation to the licensed work, and

(iv)   appropriate arrangements exist to ensure that the corporation's employees do not do the licensed work unless they have hadtraining in safe working methods in relation to the licenced work, and

(c)   appropriate arrangements exist to ensure that, during the carrying out of the licensed work, a person holding appropriate qualifications in relation to the licensed work (whether or not the holder of the licence) will supervise the carrying out of the work.

(2)   For the purposes of this Chapter, a person holds appropriate qualifications in relation to licensed work if the person:

(a)   has demonstrated his or her knowledge of safe working method in relation to the licensed work, and

(b)   has completed a course of training recognised by WorkCover [now Safework NSW] in relation to the licensed work, and

(c)   has, in the opinion of WorkCover [now Safework NSW], appropriate experience or training relevant to the carrying out of the licensed work.   

11. Therefore, the OHS Regulations require the Respondent, and now the Tribunal on review, to be satisfied that Mr El Masri and the company are each fit and proper to hold a RD licence, and at least one individual engaged in the management of the company, namely Mr El Masri, holds appropriate qualifications. Appropriate qualifications include having the appropriate experience or training relevant to the carrying out of the licensed work.

Issue for the Tribunal

12. Before me there was no issue in relation to fitness and propriety. Further, it was conceded by the Respondent that Mr El Masri had undertaken all the necessary courses for qualification for a RD licence. The only remaining issue was whether he had the appropriate experience or training relevant to a RD licence.

What was Mr El Masri’s demolition experience?

13. Mr El Masri provided a number of referee reports about supervision of his demolition work, which, together, referred to work undertaken between March 2012 and November 2017. Unfortunately, none were from companies licensed to undertake demolition work.

14. Ultimately, the only reference relied on by the Applicant was from Milad El Khochen of MAK Construction (Aust) Pty Limited (MAK) dated 24 July 2018 – MAK held a RD licence while Mr El Masri worked with that company. Mr El Khochen wrote that the Mr El Masri had been working for MAK for a period of three years and that he had worked at eight (specified) addresses. Mr El Khochen wrote that Mr El Masri was regarded as an important member of MAK’s team and he had worked in roles including excavator operator, truck driver, site maintenance, site supervision and equipment maintenance. Under Mr El Kochen’s supervision, Mr El Masri had organised staff, liaised with clients and neighbours, managed tool box talks, ensured safety measures were in place and implemented all necessary requirements to ensure the projects ran as smoothly and as efficiently as possible. It was unclear to me though to what extent these tasks were demolition, rather than general construction, related. Nonetheless I was prepared to accept that they were relevant to the present application.

15. In his evidence Mr El Masri said he had worked for MAK from about January 2014, having started “3 or 4 years ago”. He thought his first demolition job with MAK was at the end of 2014 or the beginning of 2015. He also said he had worked for MAK for not more than 3 years, and does not work for MAK full time, although when he works for MAK, some work days are from 7.00 am to 3.30 pm. The 8 addresses listed were the only locations where he had undertaken MAK-supervised demolition work, and he was supervised by Mr El Kochen directly.

16. His evidence that at least 5 of the demolition jobs identified in MAK’s reference took place after June 2017. Of the demolition jobs he had undertaken with MAK most were single storey residences, and only one or two were two storey houses. As to how long the demolition work at a site might take, Mr El Masri said that a single storey house might take 3 days to demolish and a two-storey house might take up to 7-8 days, especially if there was likely to be asbestos. By my calculations, and on a generous allowance on the basis of Mr El Masri’s evidence – namely two 2-storey properties taking eight days each and six properties taking three days each - the most time he has spent on demolition work supervised by MAK was not more than 34 days.

Did Mr El Masri have appropriate experience or training relevant to a RD licence?

17. In the Respondent’s Guide for Applicants for Demolition Licences and Notifications issued in December 2015, information is provided to those making an application for a demolition licence or RD licence. The Guide provides that generally three years of experience in undertaking relevant demolition work will be required. Experience must be demonstrated by providing a description of the work undertaken, including knowledge of safe working methods and references from the employer/supervisor to support the description of work. While, as far as I can see, the Guide itself is not a legislative instrument, it nonetheless provides, as its name suggests, guidance to those seeking a licence as to what depth of experience might be favourably considered in a licence application. The Guide does not specify three years’ experience as a mandatory requirement; neither does it suggest that the experience needs to be consistent through that period, nor, on the other hand, if intense short-term in-depth work may suffice.

18. Unfortunately for Mr El Masri though, in my view, his experience supervised by the holder of a demolition licence is, on his evidence, very limited in the number of days, with most of the experience being gained in the last year or so.

19. As a possible alternative to the requirement of “appropriate experience”, an applicant for a RD licence may undertake relevant training: Reg 320(2)(c) of the OHS Regulations. While it may appear that there is some overlap with the requirement in Reg 320(2)(b) that an applicant has completed a recognised training course relevant to a RD licence, I consider the “training” reasonably contemplated as an alternative, or in supplementation to “appropriate experience” in Reg 320(2)(c) is on-the-job or practical training. This is different to the academic learning associated with the “recognised training course”. There was no evidence about any practical training Mr El Masri might have undertaken, which might have complemented his limited “appropriate experience”.

20. Mr El Masri gave evidence that he had an understanding of the requirements for a RD licence, especially the need for safety, as well as the need to check the safety of machinery, providing verbal induction to new staff, checking fences, and checking that power, and gas and other utilities had been disconnected. However, relevantly, in June 2017 the company was issued with an “improvement notice” following an incident in which a worker was injured when an excavator rolled on top of him. The company was directed, amongst other things to develop and implement a safe system of work. The company was referred to the Respondent’s Code of Practice, namely the Code of Practice: Demolition Work (September 2016) approved under s 274 of the Work Health and Safety Act 2011. When the company failed to comply, it was issued with a penalty notice. Mr El Masri said that when he received the notice he ceased work on that site. With only a couple of exceptions, all of Mr El Masri’s demolition work supervised by MAK was after penalty notice. I therefore place less weight on the issuance of the improvement notice and penalty notice, than on Mr El Masri’s actual experience.

21. The Respondent submitted, and I agree, that demolition work contains an inherent risk to workers and to the health, safety and welfare of other persons. Common demolition hazards may include unplanned structure collapse, falls from one level to another, falling objects, and/or exposure to above and underground essential services. As such, licensed demolition work requires a higher level of skill and responsibility than general construction work, due to its higher inherent risk.

22. With that in mind, I cannot be satisfied, on the available evidence, that Mr El Masri, nor, necessarily the company, has, at this stage, the depth of experience or sufficient practical training relevant to the carrying out of restricted demolition work. The essential criteria for the issuance of an RD licence have not been met.

DECISION

1. The decision under review is affirmed.

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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

Decision last updated: 28 August 2018