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PSAB appeal against redundancy dismissed for want of jurisdiction

The Public Service Appeal Board (Board) has unanimously dismissed an appeal by a government officer on the basis that the Board has no jurisdiction to hear and determine the matter.

Background

The appellant was employed by the respondent, the Director General of the Department of Education, as a Public Service Officer.

On 23 September 2020, the Director General made the appellant an offer of voluntary severance by letter. If the appellant wished to accept the offer, he was required to sign and return it by 16 November 2020.

The appellant subsequently contacted the Department of Education to clarify by what date his resignation should be effective in order to receive the full incentive payment of 12 weeks. The Department informed him that his acceptance would need to be dated and returned on 5 October 2020.

The appellant signed the offer for voluntary severance on 5 October 2020 but claimed that the advice concerning the date of response given by the Department of Education was contrary to the date given in the original offer by the Director General.

The appellant contended that he was ‘pushed into having to accept this advice [from the Department of Education] … and missed out on several weeks of pay between 5 October and 16 November 2020’.

Contentions

The Board noted that it was not in dispute that the appeal centred around a ‘section 94 decision’ and whether the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations) were fairly and properly applied to him.

The Director General argued that the Board does not have jurisdiction to hear and determine an appeal against a decision made under s 94 of the Public Sector Management Act 1994 (WA) (PSM Act). She claimed the Commission has exclusive jurisdiction to review s 94 decisions.

The appellant contended that the Board has jurisdiction ‘to hear and determine any appeal against a s 94 decision if the regulations referred to in s 94(4) of the PSM Act were not fairly and properly applied to, thereby allowing the Board jurisdiction by way of s 80I of the Industrial Relations Act 1979 (WA) (Act).’

Findings

The Board noted that it was clear from the appellant’s submission that his appeal related to whether the Regulations were fairly and properly applied to him. In effect, the appellant appealed a s 94 decision to the Board.

The Board found that, fundamentally, the appellant did not appear to appreciate the distinction between the Commission and the Board. It noted that the appellant did not understand that the Board is not the Commission, but rather a constituent authority of the Commission.

The Board set out its jurisdiction under s 80I and found that it was clear that this section does not confer jurisdiction on the Board to hear appeals of s 94 decisions.

The appeal was dismissed for want of jurisdiction.

The decision can be read here.

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.

Background

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.

Contentions

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.

Findings

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.

OSH Tribunal affirms improvement notice issued to GHD

The Occupational Safety and Health Tribunal (Tribunal) has reviewed and affirmed an improvement notice issued to the applicant, GHD Pty Ltd, concerning reg 3.140(2) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).

Background

The applicant is an Australian operation of an international professional services company.

In 2018, the applicant was engaged by another company to design a ship building facility. The applicant incorporated pre-cast concrete hollowcore panels for the flooring system of the ship assembly hall. A contractor was engaged to lift and install the panels into the floor.

In 2019, a concrete panel fell and landed on the concrete dock, destroying the panel and damaging part of the concrete deck. Worksafe Inspectors attended the site and following inspections, issued the applicant with an Improvement Notice.

The Improvement Notice stated that the applicant’s written safety report did not appropriately identify the relevant hazards or risk associated with the design, including the hazard of hollowcore panels falling when being lifted by a crane.

The applicant applied to the Worksafe Commissioner for a review of the Improvement Notice, which was affirmed by the Commissioner with a modification to the date of compliance with the notice.

The applicant then referred the decision of the Worksafe Commissioner to the Tribunal for a further review of the Improvement Notice.

Contentions

The applicant contended that:

  • the Tribunal ought to revoke the Improvement Notice on the basis that, as a matter of law, the alleged contravention was not within the scope of its duty;
  • there were no reasonable grounds for forming an opinion that the applicant was in contravention of the Occupational Safety and Health Act 1984 (WA);
  • the design documentation appropriately identified the relevant hazards or risks associated with the design and the control or elimination of those risks during the design process; and
  • the Improvement Notice issued to them was uncertain, vague and ambiguous.

The Worksafe Commissioner maintained that the Improvement Notice was validly issued, that the applicant failed to comply with its duty prescribed in reg 3.140 of the OSH Regulations and that the Improvement Notice, when read as a whole, does not suffer from the defects alleged by the applicant.

The Worksafe Commissioner contended that the Improvement Notice should be affirmed with modification to allow additional time for compliance.

Findings

Commissioner Walkington found that the applicant was the ‘designer’ of the flooring system, and that it was within the scope of its responsibility and obligation as a designer to specifically address, in its safety report, the hazards associated with lifting and installing hollowcore panels.

Walkington C found that the safety report ought to have included a specific reference to the pre-cast hollowcore panels and the hazard arising from the installation of these panels in the flooring system. She concluded that the safety report provided by the applicant to its client did not satisfy the requirements set out in reg 3.140 of the OSH Regulations.

Walkington C determined that the directions contained in the second section of the Improvement Notice, which dealt with the manner of the expressed time to comply with the notice, were not sufficiently clear and ambiguous. However, she found that this did not result in a conclusion that the Improvement Notice was invalid and ought to be revoked.

Walkington C affirmed the Improvement Notice with a modification to remove the directions and add a direction to include the hazards arising from the selection of the flooring system in the safety report, and a modification to the date for compliance.

The decision can be read here.

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