REVIEW OF DECISION - S.61A - OSH ACT

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

CITATION : 2021 WAIRC 00206

DELIVERED : FRIDAY, 9 JULY 2021

FILE NO. : OSHT 4 OF 2020

Applicant

AND

Worksafe Western Australia Commission

Respondent

CatchWords :  Reviewable decision – registration as an assessor for high risk work licences – experience – extensive and recent – skills necessary to access a person’s competency – experience obtained overseas – experience obtained in a training environment and an operational environment – details and information that are verifiable.

Legislation : Occupational Safety and Health Act 1984 (WA)

  Occupational Safety and Health Regulations 1996 (WA)

Result : Decision of the WorkSafe Commissioner Affirmed

Representation:

Applicant : Mr D Sly (as agent)

Respondent : Mr J Lloyd (of counsel)

Cases referred to in reasons:

Green v Mabey (Unreported, WASC, Library No 940711, 7 December 1994)

Shepherd v Murray [2000] WASCA 281

Stratton Creek Pty Ltd v Morrison [2005] WASC 84

Waugh v Kippen (1986) 160 CLR 156

Reasons for Decision

1         Mr Steven Rossi has applied under s 61A of the Occupational Safety and Health Act 1984 (WA) (OSH Act), for a review of the WorkSafe Western Australia Commissioner’s (WorkSafe Commissioner) decision to refuse his registration as a High Risk Work Licence Assessor in the following classes:

(a) Vehicle Loading Crane (10 metre tonnes and above) (CV);

(b) Non-Slewing mobile Crane (greater than 3 tonnes) (CN); and

(c) Slewing mobile Crane (up to 20 tonnes) (C2).

2         The WorkSafe Commissioner contends that Mr Rossi does not have sufficient recent and relevant experience and submits that the Tribunal ought to affirm his decision to not grant Mr Rossi’s application for assessor registration in classes CV, CN and C2.

Background

3         On 31 May 2019, Mr Rossi applied to the Department of Mines, Industry Regulation and Safety, WorkSafe Division (WorkSafe) for registration as an assessor for licences to perform high risk work in:

(a) Dogging (DG);

(b) Basic Rigging (RB);

(c) Vehicle Loading Crane (10 metre tonnes and above) (CV);

(d) Non-Slewing Mobile Crane (greater than 3 tonnes) (CN); and

(e) Slewing Mobile Crane (up to 20 tonnes) (C2).

4         In support of his class DG licence, Mr Rossi’s application included five items of experience  The list is dated 21 October 2018 and includes two entries for activity of 38 hours over 12 days performed in Italy in 1998 to 2000 and 2004 to 2006, one entry for activity of 16 hours over 6 days performed in Italy, Asia and the Middle East in 2001 to 2003; and two entries for activity of 36 hours over 12 days performed in Australia in 2013 to 2015 and 2015 to 2016.

5         In support of his class RB licence Mr Rossi’s application included five items of experience.  The list is dated 21 October 2018 and includes two entries for activity of 38 hours over 10 days performed in Italy in 1998 to 2000 and 2004 to 2006, one entry for activity of 14 hours over 5 days performed in Italy, Asia and the Middle East in 2001 to 2003; and two entries for activity of 36 hours over 12 days performed in Australia in 2013 to 2015 and 2015 to 2016.

6         In support of his class CV licence Mr Rossi’s application included five items of experience.  The list is dated 21 October 2018 and includes two entries for activity of 28 hours over 11 days performed in Italy in 1998 to 2000 and 2004 to 2006, one entry for activity of 8 hours over 3 days performed in Italy, Asia and the Middle East in 2001 to 2003; and two entries for activity of 35 hours over 12 days performed in Australia in 2013 to 2015 and 2015 to 2016.

7         In support of his class C2 licence, Mr Rossi’s application included four items of experience.  The list is dated 21 October 2018 and includes two entries for activity of 20 hours over 8 days performed in Italy in 1998 to 2000 and 2004 to 2006, one entry for activity of 10 hours over 5 days performed in Italy, Asia and the Middle East in 2001 to 2003; and one entry for activity of 15 hours over 7 days performed in Australia in 2013 to 2015.

8         In support of his class CN licence, Mr Rossi’s application included four items of experience.  The list is dated 21 October 2018 and includes two entries for activity of 31 hours over 8 days performed in Italy in 1998 to 2000 and 2004 to 2006, one entry for activity of 16 hours over 5 days performed in Italy, Asia and the Middle East in 2001 to 2003; and one entry for activity of 21 hours over 7 days performed in Australia in 2013 to 2015.

9         On 17 June 2019, an officer of WorkSafe emailed Mr Rossi requesting further information of additional activities for each class, particularly for the RB class.  Mr Rossi had cited activities undertaken in Italy and he was requested to provide a copy of his Italian qualifications.

10      Mr Rossi responded on 24 June 2019 advising that he had destroyed his Italian licences.  Mr Rossi re-submitted the activity statement for dogging and rigging he had previously submitted without any additions or amendments and a description of the work he performs at the WA Advanced Training Academy Pty Ltd (WAATA) as a trainer. 

11      On 16 July 2019, an officer of WorkSafe emailed Mr Rossi seeking the names of the employers for the activities undertaken in Australia.  Additional details for his statement of experience were also requested.  The email attached the Assessor Application Guide and referred Mr Rossi to the template in the guide.  Mr Rossi was requested to amend his statement of experience to match the template so that a clearer picture of the work he had undertaken could be obtained.

12      Mr Rossi updated his statements of experience on 28 July 2019 by email and reiterated his earlier advice that he had been working for three years at the WAATA as a trainer and assessor three days per week.

13      On 12 August 2019, an officer of WorkSafe emailed Mr Rossi requesting further information for:

● Dates and months of the activities undertaken (not just the years);

● More detail of the experience for C2 and CV; and

● Training experience acquired.

14      Mr Rossi responded on 17 August 2019 and advised that he had amended the statements to include the relevant months, added further details for the C2 and CV licences and reiterated the work performed as a trainer.

15      Between September 2019 and October 2019 Mr Rossi provided details of his referees and reference checks were conducted by officers of WorkSafe.

16      Mr Rossi was advised on 29 November 2019 that his experience in relation to DG and RB classes was sufficient and he was invited to undertake the assessors’ examinations for those classes.  Mr Rossi was also advised that he did not have sufficient experience for the CV, CN and C2 classes and was invited to provide additional information in support of his application for these classes.

17      Mr Rossi provided statements of experience amended by the inclusion of details of his experience at the WAATA dated 1 December 2019.

18      On 6 December 2019, an officer of WorkSafe sent Mr Rossi a further email in relation to his additional training experience, advising that he did not have sufficient experience to qualify for the crane licences as the additional experience he provided was not industry operational experience in operating the relevant cranes.  The email advised that the experience must be a minimum of three years, recent, relevant, and varied operational industry experience.

19      On 6 December 2019, Mr Rossi sent an email to the WorkSafe Commissioner requesting that he ‘overturn’ the decision of the officer.

20      On 28 January 2020, the WorkSafe Commissioner wrote to Mr Rossi notifying him that he had decided to grant him registration as an assessor in classes DG and RB.  The WorkSafe Commissioner also advised that he had received his request to review his application for classes CN, CV and C2 and following his review of Mr Rossi’s statements of experience in his application, he had decided that his application be refused.  The WorkSafe Commissioner advised him that the details of work in Italy, Asia and the Middle East were unable to be considered because he was not able to confirm this experience without evidence of the qualifications and references.  The WorkSafe Commissioner advised that the experience in a training environment or in the commission of equipment is not considered industry operational experience.

21      The WorkSafe Commissioner contends that his decision of refusing to grant Mr Rossi the licences should be affirmed because Mr Rossi has not demonstrated the appropriate minimum experience, being three years of extensive and recent operating experience, in the relevant classes to meet the requirements for granting an assessor registration pursuant to reg 6.22(2)(b) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations):

(a) That most of the experience on which Mr Rossi seeks to rely should not be taken into account because this experience was obtained overseas in Italy, Asia and the Middle East and cannot be substantiated.  Mr Rossi has not provided evidence that he held an equivalent licence when undertaking this work.

(b) That a period of the experience operating the relevant cranes was undertaken prior to Mr Rossi obtaining a High Risk Work Licence (HRWL).  This experience was obtained in contravention of reg 6.2(1) of the OSH Regulations, and therefore, was unlawfully obtained and ought not be considered.

(c) The experience obtained in operating cranes during the most recent three years whilst employed at Registered Training Organisation (RTO) ought be considered to have significantly less weight than experience gained in an operating environment.  Experience gained in a controlled training environment is likely to involve significantly fewer hazards and risks, and less variety in work than using the cranes on active projects.

22      Mr Rossi contends that the experience he submitted to the WorkSafe Commissioner is sufficient for registration as a HRWL assessor in all three classes.  Mr Rossi did not dispute the interpretation by the WorkSafe Commissioner that the regulations ought be construed to require a minimum of three years extensive and recent operating experience.  Mr Rossi disagrees with the WorkSafe Commissioner’s submissions that his experience obtained in a registered training organisation setting ought to be given less weight than that obtained in an industrial operating setting.

Question to be Decided

23      The issue for the Tribunal to decide in this matter is whether Mr Rossi has sufficient experience to have demonstrated that he has acquired, through training and work experience, the skills necessary to assess a person’s competency to obtain a HRWL pursuant to reg 6.22(2)(b) of the OSH Regulations.

24      To decide this question a central issue is the weight to be given to the experience obtained by Mr Rossi when working as a trainer for a registered training organisation for the purposes of interpreting reg 6.22 of the OSH Regulations.

Principles

25      The objects of the OSH Act are set out in s 5:

5. Objects

 The objects of this Act are —

 (a) to promote and secure the safety and health of persons at work;

 (b) to protect persons at work against hazards;

 (c) to assist in securing safe and hygienic work environments;

 (d) to reduce, eliminate and control the hazards to which persons are exposed at work;

 (e) to foster cooperation and consultation between and to provide for the participation of employers and employees and associations representing employers and employees in the formulation and implementation of safety and health standards to current levels of technical knowledge and development;

 (f) to provide for formulation of policies and for the coordination of the administration of laws relating to occupational safety and health;

 (g) to promote education and community awareness on matters relating to occupational safety and health.

26      In Shepherd v Murray [2000] WASCA 281; Green v Mabey (Unreported, WASC, Library No 940711, 7 December 1994) the Supreme Court of Western Australian held that the objects of the OSH Act are to secure the safety of persons at the workplace and create obligations on employers to protect against risk to health and safety.

27      The OSH Regulations give effect to the purpose of the OSH Act and provide detail on the duties, obligations, and requirements on a vast range of matters.  Section 60(1) of the OSH Act provides the Governor with the power to make regulations necessary or convenient to giving effect to the purposes of the Act.  Schedule 1 of the OSH Act lists the subject matters for which regulations can be made and includes:

Schedule 1 – Subject matter for regulations

…

4. The registration or licensing of —

 (a) any work, plant, process, substance or workplace;

 (b) any person carrying out any kind of work,

 by the Commissioner or any other prescribed person or authority.

…

28      The requirements for registration as an assessor are set out in the OSH Regulations at Division 3 – Registration as an assessor.  A registered assessor is authorised to issue notices of satisfactory assessment for the class or classes of high risk work in respect of which the person is registered.

29      The requirements for registration are set out in reg 6.22(2) of the OSH Regulations and states the WorkSafe Commissioner must be satisfied that a person seeking registration holds a HRWL for that relevant class of work and has acquired, through training and work experience, the skills necessary to assess a person’s competency to do high risk work of that class:

6.22. Deciding application for registration

 (1) In this regulation —

  previously registered as an assessor means previously registered as an assessor under —

 (a) this Division; or

 (b) Part 6 of the former regulations; or

 (c) a law of another State or a Territory that the Commissioner recognises as being equivalent to the law set out in this Part or in Part 6 of the former regulations.

 (2) After receiving an application made under regulation 6.21, the Commissioner may register the applicant in respect of a class of high risk work to which the application relates if the Commissioner is satisfied that the applicant —

 (a) holds a high risk work licence for that class of work; and

 (b) has acquired, through training and work experience, the skills necessary to assess a person’s competency to do high risk work of that class.

 (3) The Commissioner may refuse to register the applicant if the applicant was previously registered as an assessor and that registration was suspended or cancelled, either wholly or in part.

30      The Western Australian Supreme Court in Stratton Creek Pty Ltd v Morrison [2005] WASC 84 [48] stated that the dominant purpose of the OSH Regulations is protecting the safety of workers.

31      The OSH Regulations do not specify a minimum number of years in which a person has undertaken training or acquired work experience to obtain the skills necessary.   The Tribunal must interpret the regulations to determine whether a person has acquired the necessary skills. An interpretation which favours construction in accordance with the purpose or objects of an Act should be preferred in the case of occupational health and safety law. This principle of broad construction in safety matters was enunciated in Waugh v Kippen (1986) 160 CLR 156, 164 - 165.

32      The purpose of granting assessors’ registration, in keeping with the objects of the OSH Act, is to authorise satisfactorily competent and experienced individuals to perform high risk work.

33      WorkSafe’s ‘A guide to becoming a WorkSafe Registered Assessor for Licensing Persons Performing High Risk Work’ advises applicants that a minimum of three years extensive and recent operating experience in the class of high risk work for which registration is sought is required.  The Macquarie Dictionary defines extensive as ‘of great extent; wide; broad; covering a great area; large in amount’ and ‘comprehensive; thorough; lengthy; detailed’.  Recent is defined as ‘of late occurrence, appearance, or origin; lately happening, done, made’ and ‘not long past’.

Nature of the Review

34      The nature of the review under s 61A(3) of the OSH Act is by way of a rehearing. That is, the powers of the Tribunal are exercisable without having to find error in a decision made by the WorkSafe Commissioner.  The Tribunal may have regard to material that was not before the WorkSafe Commissioner.

35      The Tribunal is to inquire into the circumstances relating to the decision of the WorkSafe Commissioner.  This requires the Tribunal to inquire for itself the circumstances giving rise to the decision and the validity of the conclusions reached.

36      Having inquired into the circumstances, it is then for the Tribunal to determine whether the decision can be affirmed, set aside, or substituted for another decision that the Tribunal considers the WorkSafe Commissioner should have made in the first instance.

Experience Obtained

37      The evidence of Mr Rossi’s experience before the Tribunal consists of:

(a) Statement of Experience dated 21 October 2018;

(b) Statement of Experience dated 1 December 2019;

(c) References for work completed by Mr Rossi at Monadelphous KT Pipelines (Australia) in 2013 to 2015;

(d) Photographs of the equipment, facilities and sites on which Mr Rossi conducts training of persons for high risk work licences. 

Experience Obtained Overseas and More Than Three Years Previously

38      In support of his class CV licence Mr Rossi submitted that he had undertaken relevant work experience of 28 hours over 11 days performed in Italy in 1998 to 2000 and 2004 to 2006, and 8 hours over 3 days performed in Italy, Asia and the Middle East in 2001 to 2003.

39      In support of his class C2 licence, Mr Rossi submitted that he had undertaken relevant work experience of 20 hours over 8 days performed in Italy in 1998 to 2000 and 2004 to 2006, and 10 hours over 5 days performed in Italy, Asia and the Middle East in 2001 to 2003.

40      In support of his class CN licence, Mr Rossi submitted that he had undertaken relevant work experience of 31 hours over 8 days performed in Italy in 1998 to 2000 and 2004 to 2006, and 16 hours over 5 days performed in Italy, Asia and the Middle East in 2001 to 2003.

41      The regulations require a person’s skills be assessed.  The Macquarie Dictionary defines ‘skill’ as the ability that comes from knowledge, practice, aptitude. The skill to be assessed is a person’s skills and abilities which are to be applied and used currently.  Information and evidence provided to demonstrate a current ability needs to be recent.

42      Mr Rossi did not provide any evidence that independently verified this work experience.

43      I do not consider this experience satisfies the requirements of the regulations because the experience is not recent and statements of experience have not been verified.

Experience Obtained in Contravention of Regulations

44      Mr Rossi submitted that he had undertaken relevant work experience for all three classes when engaged by Monadelphous KT Pipelines (Australia) between May 2013 and February 2015.

45      Mr Rossi obtained his HRWL on 10 October 2014. 

46      I find that the long established public policy principle that no person should benefit from their wrongdoing applies in this matter.  Accordingly, I will not consider this experience obtained contrary to the law.

Requirement for Recent Experience

47      The relevant experience that may be considered is that obtained from 10 October 2014 to February 2015.  In support of this experience two references were submitted in the form of statutory declarations signed in 2019 by two different individuals containing identical statements of general observations of the work undertaken by Mr Rossi some time ago.

48      The regulations require a person’s skills be assessed.  The Macquarie Dictionary defines ‘skill’ as the ability that comes from knowledge, practice, aptitude. The skill to be assessed is a person’s skills and abilities which are to be applied and used currently.  Information and evidence provided to demonstrate a current ability needs to be recent.  The experience cited at Monadelphous KT Pipelines (Australia) is more than five years ago.  Given the time period that has elapsed I do not consider the experience cited is relevant for the purposes of reg 6.22 of the OSH Regulations.

Experience Obtained in a Training Environment

49      Mr Rossi submits that he has obtained recent relevant experience in all three classes through his work as a trainer at the WAATA.  Mr Rossi contends that this experience should not be given any less weight than experience obtained in an operating environment.  Mr Rossi submitted photographs of the equipment, facilities and sites on which Mr Rossi conducts training of persons for HRWL’s.  Mr Rossi contends these photographs demonstrate that the work experience in the training environment is no different to that undertaken in an operating environment.

50      The WorkSafe Commissioner submits that experience gained in providing training and sales demonstrations carry little weight because a training environment does not provide for the breadth of experience encountered in an operational work environment. In an operating environment equipment would need to be operated near and adjacent to buildings, on different ground conditions, where there are overhead obstructions, weather, variations to loads, other equipment, traffic, other workers, and the public on a site.  A WorkSafe Inspector with significant experience in the construction industry including operating the relevant cranes throughout Australia and overseas gave evidence of the differences between operating the cranes in an operational environment to that of a training environment.

51      The WorkSafe Commissioner contends that a significant proportion of the three years operational experience in high risk work required must be obtained through operational experience criteria where an applicant cites experience obtained when providing instruction or demonstrating equipment use in a training environment.

52      The WorkSafe Commissioner submits that the fact that HRWL’s are required for cranes of the type in classes CV, CN and C2 demonstrates Parliament’s recognition of the risks associated with operating this machinery.  Similarly, Parliament saw fit to impose strict regulations in relation to the safe use and maintenance of Vehicle Loading Cranes, Non-Slewing Mobile Cranes and Slewing Mobile Cranes in the workplace. This is due to the complexities involved in operating these machines, and the dangers that occur when the cranes are not operated correctly. Given this, the WorkSafe Commissioner considers it imperative to ensure that assessor registration is only granted to people with sufficient demonstrated and evidenced operational experience using these cranes on a worksite, including proof of recent regular and varied industry experience performing the type of high risk work for which registration is sought.  The WorkSafe Commissioner submits that the Tribunal ought to adopt this approach.

53      Mr Rossi’s statement of experience sets out that he undertakes the following relevant activities:

(a) For the CV class one day per week for about two hours;

(b) For the CN class one day per week for about two hours; and

(c) For the C2 class three days per week for about three hours.

For each class Mr Rossi sets out the practices he adopts in delivering the cranes to a site, setting up the cranes, demonstrating the crane operations, returning the crane to the yard and shutting the crane down.

54      I accept the WorkSafe Commissioner’s submissions concerning the requirement to ensure that assessor registration only be granted to people with sufficient demonstrated and evidenced operational experience.  In the context of a training environment, the absence of specific information that records, contemporaneously, the details of the activities undertaken, and the environment noting any hazards or risks, cannot demonstrate that the requirements of reg 6.22 of the OSH Regulations have been met.

55      The experience obtained at WAATA cited by Mr Rossi is expressed in general terms and is not verified nor confirmed by the WAATA. The description of the work undertaken is not of varied activities.  The submissions of photographs of the activities does not provide the detail required to assess the task being performed.  The nature of the environment along with any risks or hazards and the action taken to remove or mitigate the risk is not identified by the photographs.  It is not possible to identify the skills necessary by reviewing the photographs.  The omission of any written evidence from the RTO confirming experience in demonstration and operation of the relevant HRWL plant in a training environment, and the proximity to that of an operational environment, also means I am not satisfied that Mr Rossi has met the requirement of reg 6.22 of the OSH Regulations.

56      I note that the Australian Skills Quality Authority recommends that RTO’s ensure their trainers are regularly exposed to industry workplaces and are provided opportunities to participate in workplace tasks. In addition, I note that in New South Wales and South Australia applications to renew licences for assessors requires the demonstration of current industry skills which may be demonstrated by physical operation of plant or performance of relevant competency tasks in the relevant class of work in a training environment.  The submission of work diaries or logbooks created by Mr Rossi at the time of performing the relevant high risk work is able to be considered to verify this experience.

57      There is no onus on Mr Rossi to establish that the decision by the WorkSafe Commissioner should not have been made, either in the form in which it was, or at all.  However, Mr Rossi is required to satisfy the Tribunal that it would be appropriate to grant a licence or registration as an assessor.  Mr Rossi’s description of his experience obtained at the WAATA is not detailed and is not verified and I find it does not meet the requirements of the regulations.

Conclusion

58      Mr Rossi must satisfy the Tribunal that, on the evidence and information before it, that he has the required experience pursuant to reg 6.22(2) of the OSH Regulations.  For the reasons set out above I am not satisfied that on the evidence and information before me that Mr Rossi has the experience required in accordance with the regulations.  Therefore, I will affirm the decision of the WorkSafe Commissioner.