OSH Tribunal affirms Worksafe Commissioner’s decision to not grant asbestos removal licence
The Occupational Safety and Health Tribunal (OSH Tribunal) has affirmed a decision of the Worksafe Commissioner to not grant the applicant a restricted licence to remove non-friable asbestos.
Since 2010, the removal of non-friable asbestos over 10sqm may only be undertaken by a person who has a restricted licence.
The applicant runs his own construction and landscaping business. Prior to this, the applicant worked for two employers and has gained a total of over 20 years’ experience in removing asbestos.
In September 2019, the applicant applied to the Worksafe Commissioner for a restricted licence to carry out asbestos removal work of more than 10sqm of non-friable asbestos containing material.
In December 2019, the Worksafe Commissioner advised the applicant of his decision to refuse the application. The Commissioner found that the experience cited by the applicant was not lawfully obtained and that the applicant had not provided sufficient evidence that he was able to supervise and manage asbestos removal done under a licence. The Commissioner also formed the view that he was not satisfied that the applicant fully understood the regulatory requirements for safe asbestos removal.
The applicant contended that his 20 years of experience, including working on projects where he safely removed and disposed of asbestos of less than 10 sqm, ought to be sufficient evidence to demonstrate he can safely and properly remove asbestos. He submitted that the OSH Tribunal ought to substitute a decision to grant a licence and revoke the Worksafe Commissioner’s decision.
The applicant also submitted that the legislation and regulations does not prevent the Worksafe Commissioner, and the OSH Tribunal, from considering experience gained by the applicant not under a licence.
Commissioner Walkington found that the long-established public policy principle - that no person should benefit from their wrong-doing - applies to this matter. She noted that the law requires that a person undertaking the removal of non-friable asbestos exceeding 10 sqm must be licenced or be supervised by a person who is licenced. Accordingly, the experience in asbestos removal gained by the applicant was contrary to the law and could not be considered by the OSH Tribunal.
Walkington C further noted that the applicant did not provide details of any experience in projects under 10 sqm and did not demonstrate that he had the training and experience to properly supervise and manage asbestos work.
Walkington C also found that the applicant either did not understand the legal requirements or knowingly acted contrary to the legal requirements by removing asbestos without a licence.
Walkington C found that she was not satisfied that the applicant was able to meet the requirements of the Occupational Safety and Health Regulations 1996 (WA) and undertake, supervise and manage asbestos work involving non-friable asbestos containing material in a safe and proper manner.
The OSH Tribunal affirmed the Worksafe Commissioner’s decision.
The decision can be read here.