REVIEW OF DECISION - S.61A - OSH ACT

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

CITATION : 2022 WAIRC 00759

DELIVERED : Friday, 28 October 2022

FILE NO. : OSHT 3 OF 2021

Applicant

AND

Worksafe Western Australia Commissioner Department of Mines, Industry Regulation and Safety

Respondent

CatchWords : Class 2 Demolition Licence, lawfully obtained experience – safe and proper manner – demolition work – reviewable experience – proportionality – equity, good conscience, and the substantial merits of the case

Legislation : Industrial Relations Act 1979 (WA)
Occupational Safety and Health Act 1984 (WA)
Occupational Safety and Health Regulations 1996 (WA)

Result : Decision affirmed

Representation:

Applicant : Mr T Retallack (of counsel)

Respondent : Mr A Hay (of counsel)

Cases referred to in reasons:

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Eclipse Resources Pty Ltd v The State of Western Australia [No. 4] [2016] WASC 62; (2016) 307 FLR 221

Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264

GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655; (2021) 102 WAIG 89

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

Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438

Minister For Aboriginal Affairs v Peko Wal/Send [1986] HCA 40; (1986) 66 ALR 299

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Sean Investments Pty Ltd v Mckellar [1981] FCA 191; (1981) 38 ALR 363

Shepherd v Murray [2000] WASCA 281

Shrimpton v The Commonwealth (1945) 69 CLR 613

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Stratton Creek Pty Ltd v Morrison [2005] WASC 84

Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; (2013) 138 ALD 600

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 322 ALR 581

The Worksafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2008) 88 WAIG 22

Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156

Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2

Reasons for Decision

1         Mr Sean Lamprecht owns a business that undertakes demolition work.  In October 2020, Mr Lamprecht applied to renew his class 2 demolition licence which was due to expire on 28 November 2020. 

2         The WorkSafe Commissioner declined to reissue a licence because he considered Mr Lamprecht did not have sufficient experience in class 2 demolition work. Mr Lamprecht submitted a statement of his experience in class 2 demolition work to support this application.  The WorkSafe Commissioner excluded from his consideration those class 2 jobs which had not been notified to WorkSafe.  The failure to notify these jobs contravened the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).  Mr Lamprecht also submitted several additional class 2 demolition jobs.   The WorkSafe Commissioner excluded these jobs from his considerations because those class 2 jobs had been undertaken following the expiry of Mr Lamprecht’s class 2 demolition licence.  Mr Lamprecht did not provide any other evidence of class 2 demolition work to the WorkSafe Commissioner.

3         Mr Lamprecht has applied to the Tribunal to review the WorkSafe Commissioner’s decision to refuse to grant him a class 2 demolition licence.  Mr Lamprecht submits that the Tribunal ought to grant him a licence because he is able to undertake class 2 demolition work in a safe and proper manner.  Mr Lamprecht contends the demolition work undertaken between March 2015 and November 2020 along with WorkSafe’s audits of his work during that period provides the basis for the Tribunal finding that he can perform the class 2 demolition work in a safe and proper manner. Mr Lamprecht contends that the Tribunal ought not to exclude from its consideration the class 2 demolition jobs undertaken in contravention of the OSH Regulations because the adverse consequences of the denial of a licence is disproportionate to the breach of the OSH Regulations.  Mr Lamprecht submits that the Tribunal ought to consider his experience in demolition work other than class 2 demolitions.  Mr Lamprecht seeks the Tribunal quash the decision of the WorkSafe Commissioner and order that he be granted a licence.

4         The WorkSafe Commissioner opposes Mr Lamprecht’s application and contends 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 WorkSafe Commissioner asserts Mr Lamprecht carried out work unlawfully on a recurrent basis and the evidence of the breaches of the Occupational Safety and Health Act 1984 (WA) (OSH Act) and the OSH Regulations is a relevant consideration for the Tribunal.  The WorkSafe Commissioner submits that the Tribunal ought to affirm his decision to not issue a class 2 demolition licence.

Evidence of the Applicant’s Ability to Perform Class 2 Demolition Work

5         Mr Lamprecht gave evidence that he has undertaken demolition work for many years and over that time has learnt how to do most tasks associated with demolishing houses and structures.  Mr Lamprecht described the process he undertakes when demolishing a structure.  This process involves Mr Lamprecht identifying the height of the structure and ascertaining whether it is two storeys. Mr Lamprecht then assesses how close it is to the boundary line and how close the structure is to any other structures. Prior to commencing any work temporary fencing is erected.

6         When undertaking demolition work Mr Lamprecht operates various machinery, including a truck for which he is licenced and a 12-tonne excavator which he has a ticket to operate.  Mr Lamprecht is also licenced to operate a front-end loader and a bobcat.

7         Mr Lamprecht gave evidence that he checks for asbestos by walking around the structure from the outside to look at the roof profile and then going inside.  If Mr Lamprecht is uncertain about the presence of asbestos, he takes a sample and obtains a laboratory test. If asbestos is present, he will use caution tape and warning signs. An asbestos register is completed prior to commencing the job.

8         When Mr Lamprecht has identified that asbestos is present, he usually engages others to assist. In five jobs submitted for consideration by the Tribunal he engaged others to assist him. Mr Lamprecht gave evidence that the people assisting him had completed demolition training.

9         On the first morning of a demolition job Mr Lamprecht reviews the asbestos removal work plan ensuring safe work method statements are used for asbestos removal and safe work method statements are used for the demolitions. Mr Lamprecht ensures daily attendance registers are completed for those who are working with him, and he creates the required documents prior to the job. At the review meeting he delegates specific tasks.  For example, delegating the task of watching during asbestos work to ensure no one enters the exclusion zone.  There is an opportunity for those working on the job to comment on the proposed safe work method systems and he requires persons working on the job to sign that they have agreed with the proposed system.

10      Mr Lamprecht then walks through the job with the other people and discusses with them how the job will proceed. In this process, they identify risks and talk about how they will address them. They look for slip and trip hazards. At this time, they get their tools and Personal Protective Equipment (PPE) ready and conduct a safety check. Mr Lamprecht says this whole process takes no more than 30 minutes.

11      Mr Lamprecht supervises his employees during the job, and he always remains on site with them.

12      If there is a need to use machinery on the site, Mr Lamprecht completes a pre-start inspection checklist on the machine.

13      Demolition always happens after the asbestos is removed, wrapped, and disposed of.

14      Mr Lamprecht gave evidence of 14 demolitions carried out between 2015 and 2020:

(i) Demolition of a shed over 2 meters high on Cunliffe Street, Lancelin in March 2015.

(ii) Demolition of single storey dwelling with a patio over 2 metres in DeBurgh Street, Ledge Point in July 2015.

(iii) Full demolition of a dwelling and pergola over 2 metres in Dillworth Way, Ledge Point commencing in July 2015.

(iv) Full demolition of a derelict school house in Chitna Road, Neergabby in December 2015.

(v) Demolition of a two-storey house consisting of a single storey house on stilts greater than two metres and less than ten metres in height in Jones Street, Ledge Point in November 2017.

(vi) Demolition of an external ablution block greater than two metres and less than ten metres in height in Whitfield Street, Guilderton commencing in May 2020.

(vii) Demolition of four sheds and four concrete tanks that were two metres high or more in Reserve Road, Chittering commencing in October 2020.

(viii) Demolition of one shed and two partial structures which are not single storey houses and which are greater than two metres and less than ten metres in height in Midlands Road, Watheroo commencing in April 2019.

(ix) Partial demolition of a structure greater than two metres and less than ten metres in height in Merewana Road, Watheroo commencing in May 2019.

(x) The demolition of two sheds greater than two metres and less than ten metres in height at DeBurgh Street, Ledge Point commencing in February 2019.

(xi) Demolition of a structure greater than two metres and less than ten metres in height at Ammon Avenue, Ledge Point commencing in March 2016.

(xii) The demolition of three structures greater than two metres and less than ten metres in height at Beattie Road, Beermullah commencing in May 2016.

(xiii) Demolition of a structure greater than two metres and less than ten metres in height in Walebing Way, Guilderton commencing in March 2016.

(xiv) The demolition of a structure greater than two metres and less than ten metres in height at Moore River Drive, Guilderton commencing in May 2016.

15      Mr Lamprecht concedes he did not notify these jobs to WorkSafe as required by regulation 3.119.  Mr Lamprecht’s evidence is that at that time he had misunderstood the requirements of the OSH Regulations and only notified commercial jobs and not demolition jobs associated with residential dwellings.  Mr Lamprecht says that he now properly understands the requirements of the OSH Regulations and that once he had been made aware of his error, he subsequently notified the class 2 demolition jobs as required by the OSH Regulations.

16      Mr Lamprecht gave evidence of a further five class 2 demolitions carried out between 28 November 2020 and 21 April 2021:

(i) The first class 2 job was located at Lot 232 Wedge Street, Guilderton. Mr Lamprecht worked on this job with David Moir and Franz Lamprecht. The applicant said it was a class 2 job as it was a shed higher than two metres and he estimates the structure was 6 metres by 6 metres and 3.5 metres tall. The shed was clad in asbestos which was removed in accordance with the method described by Mr Lamprecht in his oral evidence. The job required portable scaffolding. The documents relating to this job submitted to the Tribunal include a demolition permit, a notice of completion, a notification of demolition work to WorkSafe signed on 13/01/2021 (handwritten notation emailed on 13/1/2021), showing a proposed commencement date of 15/02/2021 and WAD licence 229 with an expiry date of 28/11/2022, an asbestos removal works plan dated 5/2/2021, a Safe Work Method Statement signed by the applicant, David Moir and Franz Lamprecht on 5 February 2021 and a demolition permit issued by the local government.

(ii) Jobs two and three were both at Lot 184 Nilgen Road, Nilgen. The applicant worked on this job with Franz Lamprecht. The site was owned by the Water Corp and involved the demolition of five concrete tanks. Mr Lamprecht explained that these were class 2 jobs because the tanks are greater than two metres high and had steel reinforcing and an inner liner to make the water safe for drinking. The tanks were 2.2 metres high and about 8.0 metres in diameter.  This job was notified to WorkSafe on 13 January 2021 by email with a commencement date of 22 February 2021 and citing the expired class 2 demolition licence number with the expiry date section of the form left blank.

(iii) The fourth job submitted was located at 18 Kaiber Avenue, Yanchep.  Mr Lamprecht worked on this job with David Moir and Franz Lamprecht. It was demolition of a dwelling with an attached carport about 8 metres long, 3.5 metres wide and 3.0 metres high. The applicant said this was a class 2 job because the single storey house had a carport higher than two metres. During this job a WorkSafe Inspector visited the site on 9 February 2021. The inspector checked permits, fencing, signage and commented that ‘everything complies’ and that he was ‘well organised’. The documents submitted to the Tribunal include an email that the applicant’s wife Amber Lamprecht sent to the Department on 13 January 2021 on the applicant’s behalf which attaches a notification of the class 2 demolition work for this job citing the licence WAD 229 and omitting the expiry date. This notification was given eight days before demolition began. Amber Lamprecht prepared the notification of demolition work and it is her handwriting on this form and Mr Lamprecht signed it.

(iv) The fifth job was located at 5 Troy Street, Guilderton. Mr Lamprecht worked on this job with David Moir, Franz Lamprecht and Blake Anderson. The job was the demolition of a dwelling on stilts and a free standing shed 3.0 metres by 3.0 metres and about 3.0 metres high at its highest point. The applicant said this was a class 2 job because it includes a garden shed higher than two metres.  Risks were associated with this job because the shed was on a boundary line and a fence was at risk of being damaged during the demolition. The documents submitted to the Tribunal include a notification of demolition work for this job that Amber Lamprecht sent as an attachment to the Department on 12 April 2021 on the applicant’s behalf. This notification was sent seven days before the demolition began. The description indicates why the job is a class 2 demolition. Amber Lamprecht prepared the notification of demolition work and it’s her handwriting on this form with Mr Lamprecht’s signature.

17      Mr Lamprecht whilst conceding the work was carried out after his licence had expired contends that this experience should be considered by the Tribunal.  Mr Lamprecht submits that he understands his application to renew or re-issue a licence is the subject of these proceedings and therefore his application was pending and has not been rejected by the WorkSafe Commissioner.  Mr Lamprecht submits he notified the WorkSafe Commission of the proposal to undertake these class 2 demolitions in accordance with regulation 3.119.  Mr Lamprecht asserts that the WorkSafe Commissioner was aware of the jobs because he had notified WorkSafe, and the WorkSafe Commissioner did not advise him that he was not permitted to perform demolition work whilst his application was pending.  Mr Lamprecht says it was reasonable for him to believe that it was not unlawful to perform the demolitions which he notified to WorkSafe whilst his application was pending.

18      WorkSafe submit that the Tribunal ought not grant Mr Lamprecht a class 2 demolition licence because he is not able to satisfy the requirement that he can do class 2 demolition work in a safe and proper manner because:

(1) Mr Lamprecht has not recently completed class 2 demolition works lawfully.

(2) Mr Lamprecht has breached the regulations and conditions of his previous licences on a recurrent basis by:

(a) Failing to submit notifications of demolition work required by the OSH Regulations.

(b) Engaging workers to undertake demolition works without ensuring they had the required training.

19      Mr Lamprecht submits that the Tribunal ought to grant him a licence because he is able to undertake class 2 demolition work in a safe and proper manner.  Mr Lamprecht contends the demolition work undertaken between March 2015 and November 2020 along with WorkSafe’s audits of his work during that period provides the basis for the Tribunal finding that he can perform the class 2 demolition work in a safe and proper manner. Mr Lamprecht contends that the Tribunal ought not to exclude from its consideration the class 2 demolition jobs undertaken in contravention of the OSH Regulations because the adverse consequences of the denial of a licence is disproportionate to the breach of the OSH Regulations.

Question to be Decided

20      The issue for the Tribunal to decide in this matter is whether I am satisfied on the evidence before the Tribunal that Mr Lamprecht is able to undertake class 2 demolition work in a safe and proper manner.

21      Mr Lamprecht has submitted evidence of his experience which has been gained in contravention of the regulations and/or the conditions of a previously issued licence.  To answer the question of whether I am satisfied by the evidence submitted I must consider the weight to be given to the experience obtained in contravention of the regulations.

Nature of the Review

22      The nature of the review under s 61A(3) of the OSH Act is by way of a rehearing and the  powers of the Tribunal are exercisable without having to find error in a decision made by the WorkSafe Commissioner.

23      In accordance with s 61A(3) of the OSH Act, the Tribunal is required to ‘inquire into the circumstances relevant to the decision’ of WorkSafe.  This involves the Tribunal assessing whether, in view of the material before it, WorkSafe was justified in making the decision it did.  This requires the Tribunal to investigate for itself the circumstances giving rise to the decision and the validity of the conclusions reached:  Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2; The WorkSafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2008) 88 WAIG 22.

Equity, Good Conscience, and the Substantial Merit

24      In exercising its jurisdiction, Mr Lamprecht submits that the Tribunal is required by s 51I of the OSH Act and s 26(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms.

25      The WorkSafe Commissioner submits that the Tribunal is not required to take account of matters listed in s 26(1) of the IR Act. Section 26(1) of the IR Act only applies where the Tribunal is exercising jurisdiction under the IR Act.  In the present proceedings the Tribunal is exercising jurisdiction under s 61A of the OSH Act and not under the IR Act.  The objectives of the OSH Act are different from those of the IR Act. The IR Act is concerned with bargaining for fair wages and working conditions. Whereas the objects of the OSH Act are to secure safety of people at the workplace.

26      The practice and procedure to be adopted by the Tribunal is set out in s 51I of the OSH Act:

51I. Practice, procedure and appeals

(1) The provisions of sections 22B, 26(1), (2) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 33, 34(1), (3) and (4), 36 and 49 of the Industrial Relations Act 1979 that apply to and in relation to the exercise of the jurisdiction of the Commission constituted by a commissioner apply to the exercise of the jurisdiction conferred by section 51G —

(a) with such modifications as are prescribed under section 113 of that Act; and

(b) with such other modifications as may be necessary or appropriate.

(2) For the purposes of subsection (1), section 31(1) of the Industrial Relations Act 1979 applies as if paragraph (c) were deleted and the following paragraph were inserted instead —

“

(c) by a legal practitioner.

”.

27      The relevant sub-clauses of s 26 of the IR Act are:

26 Commission to act according to equity and good conscience

(1) In the exercise of its jurisdiction under this Act the Commission –

(a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal form; and

(b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(c) shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and

(d) shall take into consideration to the extent that it is relevant —

(i) the state of the national economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;

(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v) any changes in productivity that have occurred or are likely to occur;

(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

28      It is clear from the text of the OSH Act that the Tribunal exercises its powers and discretion consistent with and applying the provisions of s 26(1) of the IR Act.

29      The Full Bench in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655; 102 WAIG 89 considered s 26 of the IR Act to be incorporated into the OSH Act [110] and observed that the Tribunal exercises quasi-judicial power and not executive power [111].

30      I find that the Tribunal is required to have regard to the provisions of s 26(1) of the IR Act and when reviewing a matter referred to it under the OSH Act must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form.  In addition, the Tribunal is not bound by the rules of evidence and may inform itself as it thinks just.  The Tribunal 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.

Application of the Principles in Briginshaw

31      Mr Lamprecht asserts that the Tribunal ought to adopt the standards set in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

32      The WorkSafe Commissioner asserts the Tribunal is not bound to apply the principle set out in Briginshaw and refers the Tribunal to Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; (2013) 138 ALD 600 at [38] per Jagot J (as Her Honour then was).  Sullivan concerned an appeal from a decision of the AAT to affirm the cancellation of the applicant’s helicopter licence. This decision was then appealed to the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 322 ALR 581. In dismissing the appeal, Flick and Perry JJ found that the AAT is ‘freed from the rules of evidence’ and thus as a matter of law the Briginshaw principle does not directly apply. However, Flick and Perry JJ added that such freedom ‘does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide’.

33      Section 51I of the OSH Act and s 26(1)(b) of the IR Act provides that the Tribunal is not bound by the rules of evidence.  Briginshaw is concerned with the application of rules of evidence by a court bound by them. 

34      Where there is a requirement that a decision maker be satisfied of a matter before exercising a discretion, the decision maker's opinion must be supported by probative evidence and not be illogical or irrational. Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ.

35      Provided that the material findings of fact are reasonably open and based on some logically probative material, the process of reasoning cannot be impugned on the basis that the decision maker did not follow the test in Briginshaw. Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; (2013) 138 ALD 600 at [38].

36      The standard of proof applying in these proceedings is the civil standard, that is, the balance of probabilities. These are not adversarial proceedings and there is no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]).  The standards of proof in Briginshaw do, however, provide guidance for the Tribunal’s exercise of jurisdiction.

37      I accept that applying the principles in Briginshaw may assist the Tribunal in ascertaining the facts of a matter. 

38      It is for the Tribunal to assess the evidence and experience put before it and determine whether it is satisfied that this demonstrates a person can undertake work in a safe and proper manner. I consider that the application of s 26 in the context of the OSH Act does not result in an assessment of the experience without regard to the contraventions of the OSH regulations and the conditions of a licence.  It is a question of the meaning of ‘safe and proper’ and whether that incorporates a consideration of an applicant’s conduct in gaining the experience relied upon.  The application of s 26 means the Tribunal must balance the weight given to the conduct of the applicant in gaining the experience and the interests of an applicant and the interests of the community as a whole.

Proportionality

39      I understand Mr Lamprecht submits that in applying its discretion afforded by s 26 of the IR Act, the Tribunal ought to have regard for the proportionality of its decision.  The Tribunal is referred to the decision of the Western Australian Supreme Court of Appeal in Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264.  Mr Lamprecht contends the Tribunal ought to apply the reasoning of McClure J and consider the necessity of any further sanction.  Mr Lamprecht submits that excluding this experience because he failed to notify the Commission, as required by the OSH Regulations and the conditions of his previously issued licence, would be disproportionate to the seriousness of the breach. Mr Lamprecht contends the refusal to grant a licence to him would be a further sanction against him that is disproportionate to the breaches of the OSH Regulations by his failures to notify class 2 demolition work and undertaking class 2 demolition work following the expiry of his licence.  Mr Lamprecht submits that the WorkSafe Commissioner has alternative actions to use where he identifies a contravention of the OSH Regulations and the consequences of the imposition of the penalty of refusal to grant a licence is disproportionately harsh.

40      Mr Lamprecht contends that the Tribunal should adopt the approach set out in BGC and should only invoke a sanction of refusing to recognise rights because they arose out of or were associated with an unlawful act or purpose where:

(i) The relevant statute itself discloses an intention that the relevant rights should be unenforceable in all circumstances, or

(ii) Alternatively:

(1) the sanction of refusing to enforce the rights is not disproportionate to the seriousness of the unlawful conduct;

(2) the imposition of the sanction is necessary, having regard to the terms of the Statute to protect its objects or policies; and

(3) the Statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the Statute or the frustration of its policies.

41      Mr Lamprecht submits that excluding his experience because he failed to notify the Commission would be disproportionate to the seriousness of the breach. Mr Lamprecht refers the Tribunal to Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438 and submits that the Tribunal ought not apply a rule inflexibly or without regard to the surrounding circumstances.  Mr Lamprecht asserts that his application for a licence ought to be considered pursuant to the provisions of regulation  3.116 and that an assessment conducted by the Tribunal ought to provide for distinctions between degrees of illegality and exclude cases of minor or lesser illegality.

42      Mr Lamprecht further submits that the Tribunal ought to consider the consequences for him and the detrimental impact of denying the community’s access to the services he provides in making its decision.

43      The WorkSafe Commissioner contends that BGC does not guide the Tribunal in this matter because this matter does not concern a right or entitlement possessed by Mr Lamprecht.  The BGC case is about the enforceability of a contract and considers the question of whether courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose.  Mr Lamprecht has not pointed to the legal or equitable right he says has been refused and BGC does not apply.

44      The WorkSafe Commissioner submits that while a decision not to issue a licence may have an adverse effect on a person the power is not conferred for punitive purposes and the availability of alternative punishments or enforcement measures does not restrict the discretion conferred by the OSH Regulations. The WorkSafe Commissioner contends that a policy of excluding experience obtained unlawfully when considering a demolition licence is reasonable because reference to work being done in a 'proper' manner should be understood as meaning lawfully and in accordance with the OSH Regulations.

45      In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, French CJ considered the term ‘equity, good conscience and the substantial merits of the case’ [14]:

The rolled-up direction to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins.  As pointed out by Gleeson CJ and Handley JA in that case, the collocation has no fixed legal meaning independent of the statutory context in which it is found.

46      French CJ observed at [23] of Li:

[e]very statutory discretion, however broad, is constrained by law. As Dixon J said in Shrimpton v The Commonwealth:

[C]omplete freedom from legal control, is a quality which cannot … be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.

Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then

the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

That view, however, must be reached by a process of reasoning (footnotes omitted).

47      In this matter I find that the Tribunal is not considering the enforceability of a right arising from the terms of a contract as in the BGC case.  The Tribunal’s task is to apply the provisions of the law that set the conditions which a person must satisfy to be able to be licenced to undertake a task or activity that is regulated for reasons of safety.

48      Consistent with Li, the Tribunal in deciding whether to grant a licence to a person is to apply considerations of equity, good conscience and the merits of the case concerned for both the interests of persons immediately affected and the interests of the community as a whole.

49      Consistent with the observation of French CJ in Li citing Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630 this discretion is to be exercised by the Tribunal in the context of the scope and purpose of the text of the OHS Act and Regulations.

Principles of Interpretation

50      The general approach to the construction of statutes, legislative instruments and other documents that may have legislative or regulatory effect, and contracts, is to construe the instrument as a whole.  In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ at [69], [70] and [78], it was said as follows:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"(46). In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed (48).

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (49). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (50). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"(51). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (56) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out (57):

"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted)

51      The principles of interpretation applicable to statutes apply to regulations and other subsidiary legislation: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398 cited in Eclipse Resources Pty Ltd v The State of Western Australia [No. 4] [2016] WASC 62; (2016) 307 FLR 221; per Beech J at par 550. As to delegated legislation specifically, recently in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 the High Court said:

[28]…The appropriate enquiry in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose.

52      I find that the search for the scope and purpose of the legislation and regulations commences with the consideration of the objects of the OSH Act 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.

53      In Shepherd v Murray [2000] WASCA 281; Green v Mabey (Unreported, WASC, Library No 940711, 7 December 1994) the Western Australian Supreme Court of Appeal 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.

54      The OSH Regulations, consistent with s 60(1) of the OSH Act, are to be regarded as giving effect to the objects of the OSH Act. Those objects include the promotion of health and safety of persons at work; to protect those persons and to reduce, eliminate and control hazards.  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.

…

55      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.

56      The Tribunal must interpret the OSH Regulations to determine whether a person is able to satisfy the criteria or requirements set out in the OSH Regulations. 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] HCA 12; (1986) 160 CLR 156, 164 - 165.

Meaning of ‘safe and proper’

57      Regulation 3.116 authorises the WorkSafe Commissioner to issue class 2 demolition licences where he is satisfied that a person is able to perform class 2 demolition work in a safe and proper manner.

58      The WorkSafe Commissioner says that:

(1) The OSH Act and Regulations do not expressly state the considerations that are to be taken into account in exercising a discretion to issue a demolition licence pursuant to r 3.116 of the OSH Regulations.

(2) Where relevant considerations are not specified, it is largely for the decision maker to determine which matters are to be regarded as relevant and the comparative importance to be accorded to those matters. Sean Investments Pty Ltd v McKellar [1981] FCA 191; (1981) 38 ALR 363 at 375 per Deane J; Minister for Aboriginal Affairs v Peko Wal/send [1986] HCA 40; (1986) 66 ALR 299 at 309 per Mason J.

(3) A decision maker may be bound to take into account a particular matter that is not expressly stated in the relevant legislation where a requirement to take account of the matter is implied from the subject matter, scope and purpose of the legislation. Minister for Aboriginal Affairs v Peko Wal/send.

59      Consistent with this, the WorkSafe Commissioner has defined the criteria that would satisfy him that an applicant is able to undertake class 2 demolition work in a safe and proper manner and advises applicants that they must satisfy and provide evidence of the following:

(i) That they have demolition work experience relevant to the class of licence they are applying for.

(ii) That they have a policy or operating procedures that ensure persons engaged to do licenced demolition work will be trained in safe demolition work before demolition occurs by a registered training organisation.

(iii) That they have a policy in place that will ensure the demolition work will be directly supervised by a competent person.

60      The WorkSafe Commission publishes ‘Guidelines for applicants for a Demolition Licence November 2019’ (Guidelines) which contains information for applicants concerning the process of applying for a licence and sets out the criteria used in assessing an application.  The Guidelines do not include demolition work procedures or work practices.  Applicants are advised that details of recent experience, comprising of three jobs within the last five years, is required.  The Guidelines state that experience obtained unlawfully will not be considered.  Applicants must be trained in safe methods of demolition by a Registered Training Organisations registered by the Western Australian Training Accreditation Council.

61      Mr Lamprecht contends that the words ‘safe and proper’ should take their common or ordinary meaning and ‘proper’ manner should be understood to mean that the demolition work is done in a manner that is correct or appropriate to the circumstances in which class 2 demolition work is to be carried out.  Mr Lamprecht submits that ‘proper’ in relation to the word ‘work’ does not include the requirement that the ‘work’ being done is also done lawfully.  Mr Lamprecht asserts this construction is supported by the decision in Stratton Creek and is authority for construing Regulation 3.116 as ‘work in a safe and proper manner’ meant the work on site and that ‘proper’ referred to the manner and system of doing the work competently and not to any regulatory compliance.

62      The WorkSafe Commissioner submits that the task of the Tribunal is administrative and urges the Tribunal to reject Mr Lamprecht’s proposition that Stratton Creek is authority for the interpretation of ‘safe and proper manner’ to not include a requirement for lawful conduct by a person seeking a licence.  The WorkSafe Commissioner submits that Stratton Creek concerned a question of the seriousness of offending and is not relevant to decisions in administrative proceedings.  The WorkSafe Commissioner contends that the relevant question for the Tribunal is whether an applicant for a licence is able to undertake work in accordance with the regulations relevant for that type and class of licence.

63      The meaning of ‘in a safe and proper manner’ I find by reference to the Macquarie Dictionary.  The meaning of ‘safely’ is to secure from liability to harm, injury, danger, or risk, free from hurt injury danger or risk.  The meaning of ‘proper’ is correctly and/or appropriately. The OSH Act and Regulations establishes a scheme for compliance including permits, licencing, suspension, cancellation, assessment, inspection, improvements and prohibition notices, fines and penalties and prosecutions.

64      The process for issuing and the requirement for the re-issuing of licences every two years is part of the scheme directed to the objects of the OSH Act, including to promote and secure the safety and health of persons at work and to protect persons at work against hazards.  The OSH Regulations are directed toward the reduction and elimination of hazards.  The existence of other means for the regulator to address conduct that contravenes the OSH Regulations does not reduce the need to ensure that the OSH Regulations are applied in a manner directed toward achieving their objectives.  One of the objectives of issuing a licence under and with conditions is to reduce hazards and eliminate risks.  In other words, prevent hazards as much as possible.  The imposition of a penalty occurs after a hazard or risk has occurred or a hazard that fails to be adequately addressed in accordance with the legislation and regulations has been identified.  In my view a measure directed at prevention cannot be in effect set off against a penalty or negated because a penalty may be imposed.  I do not accept Mr Lamprecht’s contention that the requirements established by the legislature aimed at prevention is in a continuum of penalties for breaches of the provisions of the legislation and therefore, where there are penalties of lesser impact on an applicant, they ought to be used in preference to the refusal to issue a licence.

65      Mr Lamprecht's explanation for failing to notify WorkSafe of class 2 demolition works was that he understood the obligation to notify of his intention to carry out a class 2 demolition only applied to two storey houses and commercial jobs. However, the evidence is that Mr Lamprecht failed to notify WorkSafe when demolishing commercial structures and a two-storey house.

66      Mr Lamprecht gave evidence that when he became aware of his error and that he was obliged to notify the WorkSafe Commission of class 2 demolition works he commenced doing so in accordance with the OSH Regulations for the demolition works.

67      The WorkSafe Commissioner gave evidence of the purpose of the notifications which are to provide the regulator with the information necessary to be able to inspect demolition works to ensure the works are carried out in compliance with the legislation and regulations.  The class 2 demolition works undertaken by Mr Lamprecht between 2012 and expiry of the applicant's licence in November 2020 were not inspected because, in the absence of notification or a chance encounter of the site, it was not known to WorkSafe that these works were being undertaken.  That is, the absence of any inspection of class 2 demolition work carried out by Mr Lamprecht can be attributed to Mr Lamprecht's failure to submit notifications.

68      Mr Lamprecht contends that the experience he obtained following the expiry of his licence ought to be considered by the Tribunal because the licence effectively remains operative because the WorkSafe Commissioner’s decision to decline to reissue his licence is under review by this Tribunal.  Mr Lamprecht submits he notified the WorkSafe Commission of the proposal to undertake these class 2 demolitions in accordance with regulation 3.119.  Therefore, the WorkSafe Commissioner was aware of the jobs and did not advise him that he was not permitted to perform demolition work whilst his application was pending.  Mr Lamprecht says it was reasonable for him to believe that it was not unlawful to perform the demolitions which he notified to WorkSafe whilst his application was pending.

69      The WorkSafe Commissioner contends that it was made clear to Mr Lamprecht that he did not have a current licence to undertake class 2 demolition work.  In a letter from WorkSafe dated 25 September 2020 Mr Lamprecht was advised that it is an offence to carry out demolition work without a current licence.  By letter dated 19 January 2021 to Mr Lamprecht, the WorkSafe Commissioner stated that he was not satisfied that he could continue to carry out demolition work in accordance with the regulations and had formed the preliminary view that his application should be refused.

70      Following the expiry of his licence in email communications to WorkSafe concerning several matters Mr Lamprecht included his intention to carry out class 2 demolition work.  On 4 February 2021 Mr Lamprecht stated he intended to proceed to carry out demolition work the next day unless he was advised to not do so.  At the hearing Mr Lamprecht accepted that this did not provide a reasonable time for a response from WorkSafe.  On the second occasion, on 21 April 2021, Mr Lamprecht stated that he assumed his licence remained valid.  In response WorkSafe emailed a response stating that class 1, 2 or demolition work cannot be done without a licence and that his licence has expired.

71      I find that Mr Lamprecht was notified, and ought to have taken note, that undertaking class 2 demolition work following the expiry of his licence would result in him being in breach of the OSH Regulations.  I do not accept that Mr Lamprecht misunderstood the requirements for a current licence to undertake class 2 demolition work at any time.  The requirement to be licenced had been clearly communicated to him.

72      Mr Lampreht’s class 2 demolition licence was issued with conditions including that class 2 demolition work is carried out in accordance with the OSH Act and OSH Regulations and that all persons carrying out demolition work have been trained in safe methods of demolition by a Registered Training Organisation (RTO) registered by the Western Australian Training Accreditation Council (TAC).  A record of the training provided to each person who carries out demolition work, as required by condition 2 of a class 2 demolition licence, is to be kept for a minimum period of five years.

73      The WorkSafe Commissioner asserts that the evidence before the Tribunal is that Mr Lamprecht failed to ensure that people working on class 2 demolitions had been trained in safe methods of demolition by a registered training organisation.  Mr Lamprecht’s evidence is that he usually only engages others to assist him when asbestos needs to be removed prior to demolition.  Mr Lamprecht submits the evidence before the Tribunal does not enable a conclusion that the workers whose names are on the asbestos register or Safe Work Methods Statements for a job subsequently carried out work on the same site.

74      I find that Mr Lamprecht agreed under cross examination that the removal of asbestos constituted demolition work or at least a part of demolition work.  The evidence before the Tribunal is that not all persons engaged by Mr Lamprecht to carry out demolition work had been trained in safe methods of demolition by a RTO.  I find that this contravened the conditions of the licence. 

75      Mr Lamprecht submits that the Tribunal is not limited to assessing class 2 demolition work and may conclude that he is able to undertake class 2 demolition work in a safe and proper manner on the basis of an assessment of demolition work other than class 2 demolitions that he has conducted.  Mr Lamprecht gave evidence of the practice and procedure he adopts when undertaking demolition work.  However, this evidence is general in nature and is not supported by any evidence of specific jobs nor with references or evidence from any persons with expertise.  Given this, I cannot make an assessment on this basis.

76      Mr Lamprecht contends that the Tribunal is able to conclude that he is able to undertake class 2 demolition work in a safe and proper manner because WorkSafe have conducted audits which have not identified any deficiencies in his records.  Mr Lamprecht suggests that in the absence of an audit identifying that he had failed to comply with the OSH Regulations by not notifying of his intention to undertake a class 2 demolition his incorrect understanding of this requirement is understandable.  The WorkSafe Commissioner submits that the audits review the paperwork of jobs selected at random and did not involve an inspection of the actual demolition works.

77      I find that the conduct of the audits was limited to a review of the records and the outcome of an audit is not sufficient to satisfy the Tribunal that Mr Lamprecht can undertake class 2 demolition work in a safe and proper manner.  The assertion that an audit failed to identify and notify Mr Lamprecht of his failure to comply with the regulations moves the responsibility for compliance with the OSH Regulations from the individual performing the demolition to the regulator.  I cannot find a sound basis for this, and I do not consider it relieves Mr Lamprecht of the responsibility to ensure he is complying with the law.

78      I find the meaning of the words ‘safe and proper manner’ incorporates the safe means by which a demolition is performed.  This encompasses the performance of work in compliance with legislative requirements and conditions of licenses issued to perform a task in a safe manner.  The objects of the OSH Act include ‘to provide for formulation of policies and for the coordination of the administration of laws relating to occupational safety and health’.  The meaning of the words in the context of the purpose of the statute encompass the manner of undertaking the activity and this includes compliance with the requirements of the legislation and the conditions of the license issued. 

79      If I accept that requirements of the OSH Regulations referred only to a person’s ability or competence to demolish class 2 structures, there is simply no work for the word ‘safe’ to do.

80      The Tribunal is required to look at the applicant's conduct, including potential future conduct. In that regard, past conduct of the applicant is a significant guide in assessing likely future conduct: See for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].  That is, ‘safe and proper’ includes considerations of the requirements of the law and a person’s conduct.

81      All the evidence of his experience in class 2 demolitions submitted by Mr Lamprecht for the Tribunal’s consideration have contravened the OSH Regulations in that the demolition was not notified to WorkSafe as required, persons engaged to work on the demolitions were not trained in accordance with the OSH Regulations and/or the class 2 demolition was carried out following the expiry of his licence.

82      In my view, a license should not be granted in circumstances where it is not possible to be satisfied that the applicant has a propensity to perform the tasks authorised by the license within the regulatory regime. There is sufficient evidence that Mr Lamprecht has had difficulty in comprehending the requirements of the OSH Act and the OSH Regulations. In these circumstances I am unable to be satisfied that Mr Lamprecht is able to undertake class 2 demolition work in a safe and proper manner.

83      A finding by the Tribunal that a person can or cannot undertake an activity safely and properly then requires the Tribunal to decide a course of action authorised by the OSH Act. In deciding this, the Tribunal ought to apply s 26 which provides that both the persons immediately affected, and the interests of the community be considered.

84      Mr Lamprecht contends that the loss of the class 2 demolition licence has had an adverse impact on his livelihood. Mr Lamprecht is seeking that the Tribunal’s assessment of the manner in which a person conducts an activity and whether this is safe and proper include considerations of the consequences for a person denied a licence.  That is, the extent of financial loss, the reduction of work and the loss of a supplier or provider of services for others. 

85      However, s 26 does not limit the Tribunal’s considerations to that of an applicant for a licence.  The Tribunal must consider the issues in reference to the purpose of the legislation and regulations, and the interests of other people immediately affected, as well as the interests of the community.  This includes any persons in the vicinity of a demolition and the interests of the community in ensuring a robust and rigorous scheme of safety.

86      The importance of safety considerations is evidenced by the adoption of a comprehensive regulation regime for demolition.  The purpose of considering each person’s application for a class 2 demolition licence is to ensure that demolition work is carried out safely and properly.  Demolition work is hazardous and carries risk of injury to those undertaking the work and any persons in the vicinity of the work.  It is important that the work is undertaken safely. The licencing scheme is an important element of safe systems of work.  The consequences for an individual being denied a licence are outweighed by the overriding purpose of the legislation which are considerations for the safety of those undertaking demolition work and the community. The identification of work conducted in contravention of the OSH Regulations is an essential element and is not incidental to the licencing scheme.  I find Mr Lamprecht’s individual interest in maintaining a licence must be subordinate to the public interest in ensuring public safety.

Conclusion

87      For the reasons set out above I affirm the decision of the WorkSafe Commissioner.