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

1. 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).

2. 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).

3. 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

4. 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.

5. 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.

6. 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).

7. Condition 50 and 62 findings were made in regard to Task 7 of the NAI, which was to install and remove a Transmission Technology Cantilever Hoist model MKTT1 (the hoist).

8. The crux of the dispute between the parties was whether during the assessment the hoist needed to be plugged into a socket in the wall.

Legislation and Guidelines

9. The objects of the Act are set out in section 3. The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. It follows that an assessor for a HRWL must ensure that there is compliance with the framework so that those persons who are granted accreditation operate at the level where they operate safety at the workplace.

10. Section 276 of the Act authorises the making of Regulation. The Act and the Regulation contain provisions conferring jurisdiction on the Tribunal to conducted administrative reviews under the ADR Act.

11. Pursuant to s63 of the ADR Act, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

12. Clause 121 of the Regulation gives power to SafeWork to impose Conditions on an accreditation. Section 45 of the Act provides that a person must comply with the Conditions of any authorisation given to that person under the regulations.

13. Clauses 133 and 134 of the Regulation contain provisions about imposing conditions, suspension and cancellation of an accreditation. Clause 134(1)(c) of the Regulation gives SafeWork discretion to suspend or cancel an accreditation of an accredited assessor who has failed to comply with a condition under cl 121.

14. Clause 144 of the Regulation defines ‘electrical equipment’:

(1) In this Part, "electrical equipment" means any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that--

(a) is used for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra-low voltage, or

(b) is operated by electricity at a voltage greater than extra-low voltage, or

(c) is part of an electrical installation located in an area in which the atmosphere presents a risk to health and safety from fire or explosion, or

(d) is, or is part of, an active impressed current cathodic protection system within the meaning of AS 2832.1-2004 (Cathodic protection of metals--Pipes and cables) .

(2) In this Part,"electrical equipment" does not include any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that is part of a motor vehicle if--

(a) the equipment is part of a unit of the vehicle that provides propulsion for the vehicle, or

(b) the electricity source for the equipment is a unit of the vehicle that provides propulsion for the vehicle.

15. Clause 145 of the Regulation sets out the meaning of ‘electrical installation’ and Clause 146 of the Regulation sets out the meaning of ‘electrical work’ in the following terms:

(1) In this Part,
"electrical work" means--

(a) connecting electricity supply wiring to electrical equipment or disconnecting electricity supply wiring from electrical equipment, or

(b) installing, removing, adding, testing, replacing, repairing, altering or maintaining electrical equipment or an electrical installation.

(2) In this Part,
"electrical work" does not include the following--

(a) work that involves connecting electrical equipment to an electricity supply by means of a flexible cord plug and socket outlet,

(b) work on a non-electrical component of electrical equipment, if the person carrying out the work is not exposed to an electrical risk,

Example : Painting electrical equipment covers and repairing hydraulic components of an electrical motor.

(c) replacing electrical equipment or a component of electrical equipment if that task can be safely performed by a person who does not have expertise in carrying out electrical work,

Example : Replacing a fuse or a light bulb.

(d) assembling, making, modifying or repairing electrical equipment as part of a manufacturing process,

(e) building or repairing ducts, conduits or troughs, where electrical wiring is or will be installed if--

(i) the ducts, conduits or troughs are not intended to be earthed, and

(ii) the wiring is not energised, and

(iii) the work is supervised by an authorised electrician,

(f) locating or mounting electrical equipment, or fixing electrical equipment in place, if this task is not performed in relation to the connection of electrical equipment to an electricity supply,

(g) assisting an authorised electrician to carry out electrical work if--

(i) the assistant is directly supervised by the authorised electrician, and

(ii) the assistance does not involve physical contact with any energised electrical equipment,

(h) carrying out electrical work, other than work on energised electrical equipment, in order to meet eligibility requirements in relation to becoming an authorised electrician.

(3) In this clause,
"authorised electrician" means a person who is authorised under the Home Building Act 1989 to do electrical wiring work.

16. Task 7 of the NAI is to install and remove a cantilevered materials hoist. It states that:

For this task, ‘You need to install and remove, including securing and levelling, a cantilevered materials hoist as per the manufacturer’s specification, including ground based safety barriers. Apply any control measures needed, select the equipment and tools for the job and install the hoist. Check that the hoist is safely installed and that you have followed up the manufacturers specifications…

17. SafeWork publishes a document entitled ‘Conditions of Accreditation for high risk work licence assessors to conduct high risk work licence assessments in NSW under the Work Health and Safety Regulation 2017’ effective from 10 October 2022. At paragraph 5.9 conducting an assessment – performance component, paragraph 50 states:

An Assessor must conduct a full Performance Assessment in the prescribed manner as set out in the relevant NAI and the Guide for Assessors.

The applicant’s case

18. Mr Rees submitted that SafeWork’s findings that he has not complied with Conditions 50 and 62 are based on a new incorrect interpretation of Task 7 of the NAI which goes against Standard 2550.7 and AS/NZS 3000.2018.

19. The hoist is required to be installed by a person like an electrician and the hoist cannot be ‘electrified’. Mr Rees is unable to perform electrical work as he is not an electrician.

20. Mr Rees claimed that the NAI did not require candidates to perform all tasks required as they would be expected to apply once licensed and carrying out the activity in the workplace and that simulation and verbal answers as to a number of tasks was sufficient.

21. Mr Rees submitted that a verification of his HRWL assessor accreditation for the SB licence class conducted in August 2020 and identified no areas of noncompliance but involved the same hoist used in the September 2022 verification.

22. Mr Rees relied on the Assessment Instrument for licence to erect, alter and dismantle scaffolding – basic level to assert that the hoist cannot be electrified.

23. Correspondence between the parties disclosed that the following specific issues were in dispute:

1. As to the activity ‘ensure barriers/fencing/gates are installed correctly’, Mr Rees required candidates to install a chain on the platform due to concerns that candidates may not be able to exit the site safely in case of an emergency if fencing or gates are installed.

2. As to the activity ‘ensure limit switches are installed and tested for correct function’, Mr Rees did not require candidates to test whether the limit switches were functioning as the hoist is not electrified for this activity as there is no qualified person on site during the assessment to complete required electrical testing of the plant after installation and prior to use.

3. As to the activity ‘ensure load movement or transfer complies with the specified plan’, Mr Rees did not require candidates to demonstrate a load movement as the hoist is not electrified for this activity.

The respondent’s case

24. The respondent relied on the evidence of Mr Jelley, Assistant State Inspector, Ms Townsend, Manager Training, Accreditation and Compliance Services and Mr Mainland, an Inspector.

25. SafeWork’s case is that Mr Rees did not conduct the full performance assessment during the verification audit and had marked candidates as ‘competent’ without the task being performed in the prescribed matter as per the NAI and the Guide and the hoist used was not compliant with AS1418.7 and as such contravened the Conditions of the accreditation.

26. In regard to each specific part of the tasks under Task 7 of the NAI, SafeWork submitted that Mr Rees was required to but failed to do the following:

1. ensure limit switches are installed and tested for correct function. The hoist must be connected to a power source. The candidate must demonstrate raising and lowering the hoist to check the limit switches work as required. Testing the physical elements of the switch do not meet the requirements.

2. ensure load movement or transfer complies with the specific plan. The candidate must demonstrate an actual load movement, for example by raising and lowering the platform.

3. A chain is not an acceptable option for either a barrier or a fence or gate for the purpose of conducting the activity in Task 7.

27. SafeWork submitted that Safe Work Australia (SWA) is responsible for approving NAIs which are used in each jurisdiction in Australia to verify the competency of HRWL applicants and that SWA confirmed that its position on Task 7 is consistent with the NAI and the Guide for Assessors.

28. SafeWork submitted that there was no evidence in regard to the hoist used in the August 2020 verification and that the 2020 verification did not provide any assurance as to the outcome of any subsequent verification audits as verification audits are conducted to identify non-compliance on the day of the verification.

29. SafeWork considered that the hoist is an ‘electrical equipment’. To provide power to this type of hoist, the power cord is plugged into a single phase electrical outlet. The consideration and compliance with standards AS2550.7 and or AS/NZS 3000.2018 is not relevant for installing this type of hoist because this it is not electrical work under the Regulation.

Consideration

30. The applicant’s case is that when candidates are assessed on Task 7, the hoist is not electrified, that is plugged into the socket. SafeWork holds the opposite view.

31. Mr Rees relied on clause 146(1)(b) of the Regulation to submit that the hoist cannot be electrified because it is an ‘electrical equipment’ and it cannot be installed by him because he is not an electrician.

32. SafeWork relied on the exclusion in clause 146(2)(a) of the Regulation that the electrification of the hoist is not electrical work as the hoist, which is an ‘electrical equipment’ needed to be connected to an electricity supply by being plugged into a socket.

33. SafeWork pointed to the criteria set out in Task 7 in the NAI to demonstrate that a number of activities candidates must perform require the hoist to be electrified SafeWork also relied on the Guide for Assessors which stated that the assessment should be conducted in ‘realistic workplace conditions’ and explained basic scaffolding requirements.

34. The matter before the Tribunal involves the suspension of accreditation of an assessor. Clause 135 of the Regulation sets out the matters that must be taken into account in making a decision to suspend or cancel accreditation. Relevantly SafeWork must consider any submissions made by the assessor and any advice received from a corresponding regulator.

35. There is substantial evidence before the Tribunal that demonstrates that SafeWork considered Mr Rees’ submissions. SafeWork also sought advice from Mr Daoud, State Inspector, Electrical Hazards Management, Engineering as to whether the hoist was an ‘electrical installation’. Mr Daoud’s opinion was that ‘anything that extends beyond the socket outlet is not considered part of the electrical installation’ as per AS3000 and referred to the definition of ‘electrical installation’ in the Gas and Electricity (Consumer Safety) Act 2017 (NSW).

36. Once the matters set out in cl 135 are taken into account, SafeWork has discretion to suspend or cancel the assessor’s accreditation to conduct high risk licence assessments. The reference to ‘high risk’ is a reference to a high risk of injury or death. It is critical therefore that assessors ensure that candidates undertake all the tasks as prescribed to ensure the demonstration of competencies.

37. Mr Rees’ submission at the Tribunal was that he was not willing to comply with SafeWork’s decision because he did not believe that a hoist should be electrified during assessment of candidates.

38. I do not consider that the Assessment Instrument for licence to erect, alter and dismantle scaffolding – basic level assists Mr Rees. The Task 7 checklist refers to conducting a final inspection of the hoist prior to use. This task together with the tasks testing switches and load movements suggest that the hoist has to be electrified, the hoist cannot be used unless it is electrified.

39. Clauses 144 and 146 of the Regulation are set out above. In interpreting these provisions, it is fundamental to consider the text of the provisions. The meaning of the text requires consideration of the whole of the work health and safety regime set out in the Act and the Regulation (separately and together). The meaning of the text is construed by reference to context and legislative purpose of the provision: Thiess v Collector of Customs (2014) 250 CLR 664 at [22].

40. The parties have a different interpretation of cl 146 of the Regulation. Mr Rees submitted that SafeWork’s interpretation would have him installing, removing, testing electrical equipment which pursuant to cl 146(1)(b) he is not permitted to do. However, Mr Rees’ submission does not take into account 146(2) of the Regulation. Mr Rees did not dispute that in installing and testing the hoist, the hoist had to be simply plugged into a socket outlet.

41. I am satisfied that cl 146(2)(a) of the Regulation means that connecting the hoist to electricity supply by means of a flexible cord plug and socket outlet is not electrical work and therefore the standard and AS/NZS relied on by Mr Rees does not apply. As explained by SafeWork in its correspondence, Mr Rees is not required to do any work of a licenced electrician such as ensuring that the hoist is regularly inspected and tested. It is also not a part of the assessment, apart from being aware of the tag on the hoist and inspecting it to confirm recent testing by a competent person.

42. The Tribunal has undertaken a review of the merits of the original decision. Having considered all material before it, the Tribunal has decided that the correct and preferable decision is to affirm SafeWork’s decision.

ORDER

1. The decision under review is affirmed.

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: 18 December 2023