Rees v Safework NSW - [2023] NSWCATAD 325

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Rees v Safework NSW [2023] NSWCATAD 325
Hearing dates: 16 October 2023
Date of orders: 18 December 2023
Decision date: 18 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
ADMINISTRATIVE LAW – administrative review of decision to suspend accreditation of an assessor – high risk work licence – basic scaffolding – non compliance with conditions

Legislation Cited:
Administrative Disputes Review Act 1997
Civil and Administrative Tribunal Act 2013
Work Health and Safety Act 2011
Work Health and Safety Regulations 2017

Cases Cited:
Thiess v Collector of Customs (2014) 250 CLR 664

Texts Cited:
Nil

Category: Principal judgment
Parties: Timothy Rees (Applicant)
SafeWork NSW (Respondent)
Representation: A Mearrick (Agent) (Applicant)
NSW Department of Customer Service (Respondent)

File Number(s): 2023/00193157
Publication restriction: Nil

REASONS FOR DECISION

On 6 June 2023, SafeWork NSW (the Respondent or SafeWork) determined to suspend the accreditation of Mr Timothy Rees (the applicant or Mr Rees) as an assessor for high risk work licence for the licence class of ‘basic scaffolding’ (HRWL) under the Work Health and Safety Act 2011 (the Act) and the Work Health and Safety Regulation 2017 (the Regulation).
SafeWork suspended Mr Rees’ licence on the basis that he failed to comply with conditions of accreditation for high risk work licence assessors to conduct high risk licence assessment in NSW (the Conditions).
The decision to suspend was confirmed in the internal review and Mr Rees applied to the Tribunal seeking external review under s63 of the Administrative Decisions Review Act 1997 (the ADR Act).

Background

On 23 March 2023, Mr Rees was notified that SafeWork were proposing to suspend his licence as an assessor pursuant to cl 136 of the Regulation in accordance with cls 133 and 134 of the Regulation. On 16 May 2023 SafeWork issued Mr Rees with a Notice of Suspension for a period between 23 May 2023 and 23 August 2023. On 17 May 2023, Mr Rees sought an internal review of the decision and on 6 June 2023 the internal review confirmed the decision to suspend the assessor accreditation.
The determination was based on a finding that on 2 September 2022 during a verification audit of Mr Rees’ assessor accreditation there was non-compliance with Conditions 29, 31, 50 and 62. The internal reviewer accepted Mr Rees’ statements that he would ensure future compliance with Conditions 29 and 31. Mr Rees refused compliance with Conditions 50 and 62.
Condition 50 requires an assessor to conduct a full performance assessment in the prescribed manner as set out in the relevant National Assessment Instrument (NAI) an Guide for accreditation of assessors for high risk work licences’ (the Guide). Condition 62 requires that for a performance component, the assessor must only mark a candidate as competent if the candidate successfully performs all tasks to the required standard per the relevant NAI (in this case, it is the basic scaffolding NAI).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rees v Safework NSW

Details

AGLC: Rees v Safework NSW [2023] NSWCATAD 325
Case: [2023] NSWCATAD 325
Decision Date: 18 December 2023

CaseChat Overview and Summary

In Rees v Safework NSW, the applicant, Rees, sought a review of a decision by Safework NSW to suspend the accreditation of his status as an assessor for the purposes of issuing high risk work licences, specifically for basic scaffolding. The dispute arose after Safework NSW conducted an audit and found that Rees had failed to comply with certain conditions of his accreditation, leading to the suspension. Rees challenged the decision, arguing that the decision was flawed and unreasonable. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issue the court had to decide was whether Safework NSW's decision to suspend Rees' accreditation was lawful and justified. This involved assessing whether the decision-maker had considered all relevant factors, whether the decision was based on proper evidence, and whether the decision was unreasonable. A secondary issue was whether Rees' right to natural justice had been breached during the audit process.

The court found that Safework NSW had correctly identified non-compliance with the accreditation conditions and had adequately considered the evidence before making its decision. The court held that the decision was not arbitrary or capricious, and it was reasonable for Safework NSW to suspend Rees' accreditation as a consequence of the non-compliance. The court also determined that Rees' right to natural justice had not been violated, as he had been given an opportunity to respond to the findings of the audit. Consequently, the court dismissed Rees' application for review.

In light of the above, the court affirmed the decision under review. Rees was not granted the relief he sought, and the suspension of his accreditation remained in place.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rees v Safework NSW [2023] NSWCATAD 325
Hearing dates:	16 October 2023
Date of orders:	18 December 2023
Decision date:	18 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – administrative review of decision to suspend accreditation of an assessor – high risk work licence – basic scaffolding – non compliance with conditions
Legislation Cited:	Administrative Disputes Review Act 1997 Civil and Administrative Tribunal Act 2013 Work Health and Safety Act 2011 Work Health and Safety Regulations 2017
Cases Cited:	Thiess v Collector of Customs (2014) 250 CLR 664
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Timothy Rees (Applicant) SafeWork NSW (Respondent)
Representation:	A Mearrick (Agent) (Applicant) NSW Department of Customer Service (Respondent)
File Number(s):	2023/00193157
Publication restriction:	Nil