Work Health and Safety Tribunal affirms WorkSafe decision not to grant a demolition license
The Work Health and Safety Tribunal has affirmed a decision not to grant a demolition license after determining that it could not be satisfied that the applicant could undertake the work in a safe and proper manner.
The applicant undertook demolition work. The respondent, the WorkSafe Western Australia Commissioner, decided not to reissue a class 2 demolition license to the applicant due to insufficient class 2 demolition work experience. The applicant applied to the Tribunal to quash the respondent’s decision not to reissue.
The applicant contended that the Tribunal ought to grant a license as he was able to undertake class 2 work in a safe and proper manner as shown by his work and WorkSafe audits, and that the Tribunal should consider non class 2 experience. The applicant contended that the Tribunal should not exclude class 2 jobs that contravened the Occupational Safety and Health Regulations 1996 (WA) (‘OSH Regulations’) as the adverse consequences of denying a license was disproportionate to the breach.
The respondent contended that the requirement to be able to undertake demolition work in a ‘safe and proper manner’ should be understood to mean lawfully and in accordance with the OSH Regulations. The respondent contended that the applicant recurrently carried out unlawful work, and that breaches of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’) and the OSH Regulations were relevant.
The Tribunal noted that that it must have regard to s 26(1) of the Industrial Relations Act 1979 (WA) (‘IR Act), and when reviewing an OSH Act matter referred to it, must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form. The Tribunal noted it was not bound by the rules of evidence, may inform itself as it thinks just, and must consider the interests of the persons immediately concerned whether directly affected or not and, where appropriate, the interests of the community as a whole. The Tribunal noted further that it must apply the legal provisions setting out the conditions a person must satisfy to be licensed to undertake a task or activity regulated for reasons of safety.
The Tribunal found that the applicant was notified, and ought to have taken note, that undertaking class 2 work following his license expiry breached the OSH Regulations, and that the applicant agreed that asbestos removal constituted demolition work or at least was a part of it. The Tribunal found that the applicant had contravened his license by engaging others who were not trained in safe demolition by a Registered Training Organisation. The Tribunal found it could not assess non class 2 work experience as the evidence given was general and not supported by specific jobs, referees, or experts.
The Tribunal found it was not satisfied that the applicant could undertake class 2 work in a safe and proper manner, and that the applicant’s individual interest in maintaining a license must be subordinate to the public interest in ensuring public safety. The Tribunal affirmed WorkSafe’s decision.
The decision can be read here.