REVIEW OF DECISION - S.61A - OSH ACT

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2023 WAIRC 00189

CORAM : Commissioner T Emmanuel

HEARD : Tuesday, 4 April 2023

DELIVERED : THURSDAY, 6 APRIL 2023

FILE NO. : OSHT 4 OF 2022

BETWEEN : Robert Tasman Gates

Applicant

AND

Worksafe Western Australia

Respondent

CatchWords : Reviewable decision – restricted asbestos removal licence – insufficient verifiable experience – extension of time

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(a), s 27(1)(n)

  Occupational Health and Safety Act 1984 (WA) s 51G, s 51I, s 61A, s61A(3)(a)

  Occupational Health and Safety Regulations 1996 (WA) r 5.45(2A), r 5.45B, r 5.45B(a)    

Result : Extension of time granted

    WorkSafe Commissioner’s decision affirmed

  Application dismissed

Representation:
 

Applicant : In person (by video)

Respondent : Ms A Sukoski (of counsel)

Case(s) referred to in reasons:

Exhaust Control Industries Pty Ltd v Lex McCulloch WorkSafe Western Australia Commissioner [2017] WAIRC 00375; (2017) 97 WAIG 1373

Exhaust Control Industries Pty Ltd v Lex McCulloch WorkSafe Western Australia Commissioner [2016] WAIRC 00897; (2017) 97 WAIG 1510

Mr Danny Rawlinson-Shelton v WorkSafe [2021] WAIRC 00139; (2021) 101 WAIG 442

Decision

1         Mr Robert Gates applied to the WorkSafe Commissioner (WorkSafe) for a restricted asbestos removal licence in May 2021.

2         WorkSafe refused Mr Gates’ application on the basis that his training and experience did not satisfy the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations). Specifically, WorkSafe said Mr Gates’ experience could not be verified by the referees provided in his application and his work methods were not compliant with the safe and proper practices for asbestos work.

3         WorkSafe gave Mr Gates several opportunities to provide more detail to his original application. Ultimately WorkSafe was not persuaded that it should grant Mr Gates a licence.

4         Mr Gates has referred WorkSafe’s decision to the Tribunal for review under s 61A of the Occupational Safety and Health Act 1984 (WA) (OSH Act).

Question for the Tribunal to answer – substantive matter

5         In accordance with s 61A of the OSH Act, the Tribunal must decide if it should affirm, set aside or substitute the WorkSafe Commissioner’s decision to not grant the licence to Mr Gates.

Extension of time to refer decision to the Tribunal

6         It is not in dispute that Mr Gates’ application was filed after the 14 day time period prescribed in s 61A of the OSH Act had passed. WorkSafe’s decision letter is dated ‘February 2022’. Mr Gates tried to refer this application to the Tribunal on 11 March 2022 but the Registry identified various deficiencies in his application. Ultimately application OSHT 4 of 2022 was filed on 21 March 2022.

7         In effect, Mr Gates asks the Tribunal to extend the time for him to make his referral in circumstances where:

a. the delay is potentially only seven days, (given WorkSafe’s decision letter is dated ‘February 2022’ and Mr Gate’s referral was made on 21 March 2022), and Mr Gates did try to refer his application to the Tribunal 10 days before it was accepted for filing, which would have been within the prescribed 14 day time period;

b. Mr Gates experiences PTSD, depression and dyslexia. He has a carer to support him. At times they have confused and conflated the Tribunal with WorkSafe. Mr Gates and his carer say they did the best they could to refer this application to the Tribunal as soon as possible;

c. WorkSafe does not oppose Mr Gates’ application for an extension of time.

8         The parties in this case have not questioned the Tribunal’s power to extend the time. There is precedent for the Tribunal extending time to appeal under s 61A of the OSH Act (for example, the Tribunal constituted by Senior Commissioner Kenner (as he was then) in Exhaust Control Industries Pty Ltd v Lex McCulloch WorkSafe Western Australia Commissioner [2016] WAIRC 00897; (2017) 97 WAIG 1510 and Exhaust Control Industries Pty Ltd v Lex McCulloch WorkSafe Western Australia Commissioner [2017] WAIRC 00375; (2017) 97 WAIG 1373). WorkSafe did not make submissions about Mr Gates’ application for an extension of time, other than to confirm it does not oppose an extension being granted. WorkSafe did not point to any prejudice it would suffer if an extension were granted. In the circumstances, for the reasons set out at [7] above, the Tribunal is satisfied that it should extend the time to refer in accordance with s 27(1)(n) and s 26(1)(a) of the Industrial Relations Act 1979 (WA) and s 51G and s 51I of the OSH Act. An order will issue extending the time for Mr Gates to refer his application to the Tribunal.

Legislative framework

9         Section 61A of the OSH Act provides:

(1) In this section —

 reviewable decision means —

 (a) a decision made under the regulations by the Commissioner himself or herself; and

 (b) a determination of the Commissioner on the review, under the regulations, of a decision made under the regulations by a person other than the Commissioner, whether or not the decision was made by that person as a delegate of the Commissioner,

 but does not include a decision made by a person acting as a delegate of the Commissioner.

 (2) A person who is not satisfied with a reviewable decision may, within 14 days of receiving notice of the decision, refer the decision to the Tribunal for review.

(3) On reference of a decision under subsection (2), the Tribunal is to inquire into the circumstances relevant to the decision and may —

 (a) affirm the decision; or

 (b) set aside the decision; or

 (c) substitute for the decision any decision that the Tribunal considers the Commissioner should have made in the first instance.

 (4) Pending the decision on a reference under this section, the operation of the reviewable decision is to continue, subject to any decision to the contrary made by the Tribunal.

10      Regulation 5.45(2A) of the OSH Regulations provides:

  Subject to regulation 5.53A(5), a person who, at a workplace, is an employer, the main contractor, a self‑employed person or the person having control of the workplace must ensure that any asbestos work at the workplace involving more than 10 m² of non‑friable asbestos‑containing material —

 (a) is done by —

 (i) the holder of an unrestricted licence or a restricted licence; or

 (ii) a person employed or otherwise engaged by the holder of an unrestricted licence or a restricted licence;

  and

 (b) is done in accordance with —

 (i) Part 9 of the Code of Practice for the Safe Removal of Asbestos 2nd Edition [NOHSC: 2002 (2005)]; and

 (ii) the unrestricted licence or the restricted licence, as the case requires.

    … 

11      WorkSafe may grant a restricted asbestos licence pursuant to regulation 5.45B, which provides:

After receiving an application under regulation 5.44(1)(b) the Commissioner may grant a restricted asbestos licence if the Commissioner is satisfied that —

 (a) if the applicant is an individual —

 (i) the applicant is able to do asbestos work involving non‑friable asbestos‑containing material in a safe and proper manner; and

 (ii) the applicant has the training and experience to properly supervise and manage asbestos work involving non‑friable asbestos‑containing material done under the licence;

  or

 (b) if the applicant is not an individual —

 (i) the applicant has systems of work in place to ensure that asbestos work involving non‑friable asbestos‑containing material will be done in a safe and proper manner; and

 (ii) the applicant has nominated at least one person employed or otherwise engaged by the applicant who has the training and experience to properly supervise and manage asbestos work involving non‑friable asbestos‑containing material done under the licence.

Background

12      On 27 May 2021 Mr Gates applied to WorkSafe for a restricted asbestos removal licence (Licence Application).

13      The application form states: ‘At a minimum, the nominated person is to provide a detailed description of at least 12 months of verifiable (via referees) experience in asbestos removal that occurred within the last five years from the date of the application.’

14      Mr Gates provided four examples to demonstrate his experience. Two related to periods in March  and July 2016. They noted that the works were conducted under restricted licence number WARA532. The other two examples did not provide a licence number under which the works were conducted.

15      The Licence Application included a copy of a Statement of Completion, certifying that Mr Gates had obtained WorkSafe accredited restricted asbestos licence training from a registered training organisation on 30 March 2021.

16      On 2 July 2021 WorkSafe wrote to Mr Gates and explained that it could only consider one of the four examples of experience he had provided, because the March 2016 example was not within the previous five years and the 2018 and 2019 examples involved removal of less than 10m2 of asbestos. WorkSafe told Mr Gates that to meet the minimum requirement for a grant of a restricted asbestos licence, he must provide additional jobs that speak to his experience within the past five years where he has removed more than 10m2 of asbestos. WorkSafe asked Mr Gates to provide clear particulars of those job examples, within 21 days.

17      On 16 July 2021, WorkSafe wrote to Mr Brett Burrows, the holder of restricted licence WARA532 referred to in Mr Gates’ Licence Application. WorkSafe explained that it wanted to verify Mr Gates’ claimed experience in non-friable asbestos removal and attached a questionnaire for Mr Burrows to fill in. WorkSafe says this email ‘bounced back’.

18      WorkSafe provided a file note from its Senior Licensing Coordinator, Mr Mark Rossi, dated 19 July 2021. The file note says:

● Emailed reference check to WR532, Brett Peter Burrow, for work carried out with Robert Tasman Gates (as below)

● Email bounced back.

● So I called Brett Burrows on 19 July 2021.

● Brett Burrows informed me, he got out of the business, but remembered, Robert Tasman Gates.

● Mr Burrows informed me, he may have done work for Mr Gates in the past, but Robert Tasman Gates never helped or assisted. Mr Burrows worked alone.

● Approximately speaking, Last year, Brett gave Robert Tasman Gates a verbal quote and Mr Gates took a photo of his business card (sic).

19      On 11 August 2021, Mr Gates wrote to WorkSafe by email and said:

I was involved in the removal of non friable asbestos at 25 St Kilda Rd, Rivervale with a 40 M2 area

We removed sheeting off the walls, ceilings and the Asbestos roof

It was supervised by a Licenced Asbestos removalist and disposed of legally at the local tip by double wrapping

the load

The asbestos was removed by non mechanical means and the area was kept wet and clean

I attach statutory declaration with details

Assistance has been sought by me as I suffer from Post Traumatic Stress Disorder (sic).

20      On 15 August 2021, Mr Gate sent WorkSafe additional information to supplement his Licence Application. It included one example in support of his experience, being asbestos removal relating to a granny flat. Mr Gates said that the work was done from 20 – 22 January 2017. Again the work was said to have been conducted under restricted licence number WARA532. Mr Gates included:

a.  a photograph of Mr Burrows’ restricted licence; and

b. a statutory declaration dated 11 August 2021 signed by Mr Gates.

21      Mr Gates’ statutory declaration declared that:

a. he solely removed the non-friable asbestos from the granny flat; and

b. all asbestos removal was performed under the supervision of restricted licence holder Mr Burrows.

22      In its ‘Preliminary Decision Letter’ to Mr Gates dated 21 December 2021, in summary WorkSafe said:

a. WorkSafe conducted reference checks for the three jobs Mr Gates conducted under Mr Burrows’ licence WARA532 but Mr Gates’ experience could not be corroborated;

b. Mr Gates’ reference to use of brooms and tarps raised concerns about his understanding of safe removal principles in the Code of Practice for the Safe Removal of Asbestos 2nd Edition [NOHSC: 2002 (2005)];

c. From the information Mr Gates had provided to WorkSafe, WorkSafe was not satisfied that Mr Gates met the requirements of regulation 5.45B(a) of the OSH Regulations in relation to having training and experience to properly supervise and manage asbestos work in a safe and proper manner;

d.  Accordingly, WorkSafe had formed a preliminary view that it should refuse Mr Gates’ application;

e.  Mr Gates could provide additional information within 14 days to address WorkSafe’s concerns, including documents to verify the experience Mr Gates had provided. If no response was received, a decision would be made based on the information available to WorkSafe.

23      Outside of the 14 day timeframe, on 17 January 2022, Mr Gates wrote to WorkSafe and the relevant Minister. He apologised for confusion he may have caused in relation to his description of using a broom in asbestos removal and clarified that he did not use a broom to remove asbestos or in the clean-up. Mr Gates confirmed that he also holds a Certificate 4 in Work Health and Safety (National Uniform Legislation). In summary, Mr Gates said: ‘I have extensive experience in dealing with Asbestos in a very practical manner and enjoyed inviting 4 others to complete the Non Friable Asbestos Removal Course in Bunbury March 2021 by First in Training, and feel that my application for a Non Friable Asbestos License should be granted to me.’

24      WorkSafe wrote to Mr Gates in February 2022 in an otherwise undated letter and refused his Licence Application.

25      In summary, WorkSafe explained that Mr Gates had not addressed WorkSafe’s concerns that Mr Gates’ referees did not corroborate the experience he had provided. Because Mr Gates did not provide any verifiable experience, WorkSafe could not be satisfied that Mr Gates is able to do asbestos work involving non-friable asbestos-containing materials in a safe and proper manner, or that he has the experience to properly supervise and manage asbestos work done under the licence. On that basis, WorkSafe had formed the view that Mr Gates did not satisfy the requirements of regulation 5.45B(a) of the OSH Regulations and his application was refused.

26      WorkSafe informed Mr Gates that he could apply to the Tribunal under s 61A of the OSH Act within 14 days for a review of the decision.

27      On 11 March 2022, Mr Gates sent a letter to WorkSafe and the relevant Minister a letter in the same terms as his letter dated 17 January 2022 described in [23] above. He tried to refer application OSHT 4 of 2022 to the Tribunal on 11 March 2022 and it was accepted for filing on 21 March 2022.

Materials before the Tribunal

28      The Tribunal is conscious that Mr Gates is unrepresented. It is clear that Mr Gates has found it difficult to navigate the appeal process. Because he experiences PTSD, depression and dyslexia, he was assisted during the hearing by his carer. At times Mr Gates has expressed his frustration at what he perceives as an unfair, ineffective system. In the 12 months since Mr Gates referred his appeal to the Tribunal, the Tribunal has gone to considerable lengths to assist Mr Gates as much as possible, including by providing him many times with plainly worded explanations of what he needed to do at each step of these proceedings. The Tribunal considers that Mr Gates was also assisted in these proceedings by Ms Sukoski, WorkSafe’s counsel. Her approach and conduct of the matter was exemplary, and reflective of the high standard expected of a model litigant.

29      The Registry and chambers explained to Mr Gates in August 2022 that the documents he sent for filing were not in a form that could be accepted for filing. My Associate telephoned and wrote to Mr Gates many times to clearly explain exactly what Mr Gates needed to do to provide his materials in a way that they could be accepted by the Registry for filing. My Associate took the unusual step of creating template documents for Mr Gates to use.

30      Although Mr Gates was granted six extensions of time to file his outlines of evidence, documents he relies on and written submissions, he did not file those documents. A week before the hearing, Mr Gates sent a short document to chambers titled ‘Robert Gates response to Official Hearing Restricted Asbestos License 04 of 2022 on 4 April 2023’. Notwithstanding the lateness of the document, the Tribunal will treat that as Mr Gates’ written submissions.

31      On 30 March 2023, WorkSafe filed written submissions and a bundle of eight documents it relies on. It is not apparent to the Tribunal that there is any dispute in relation to those documents.

Mr Gates’ case

32      Mr Gates’ grounds of appeal set out in his Form 6 referral to the Tribunal can be summarised as:

a. WorkSafe took too long to make its decision;

b. WorkSafe should have taken into account all of Mr Gates’ previous experience, rather than focussing on Mr Gates’ previous seven years of experience;

c. There is a shortage of people with these licences; and

d. Mr Gates has organised training with a training service provider so that more people can become qualified to remove asbestos.

33      In his Form 6, Mr Gates says his current work involves the supervision of asbestos removal. He submits that his eligibility for a restricted asbestos removal licence is demonstrated by his experience and qualifications, including successful completion of WorkSafe accredited Restricted Asbestos Licence Training on 30 March 2021. Mr Gates funded four others to complete this training, which he says shows his commitment to safe work practices.

34      Mr Gates expresses little confidence in the system that denied him the licence. He says there is ‘little regard for personal safety’, and ‘a lot of the training is obsolete’ and ‘complacency is rife’.

35      Mr Gates says as ‘the key witness [Mr Burrows] has died of Asbestos-related injuries and exposure’, all evidence that Mr Burrows provided should be considered hearsay because he cannot be cross-examined. Further, Mr Gates argues that evidence ‘from an unnamed officer in DMIRS [Mr Rossi] also be declared Hear Say (sic) as it is second hand and not confirmable, thus not available to cross examine.’

36      Finally, Mr Gates says:

I aim to identify to members of the public, Hon Don Punch as I am on his Public Advisory Committee, Local Government who currently do not recognize the risks and anyone else who will listen, that we are under current risk from Asbestos that most are oblivious of, or care not to recognize

I must have a formal qualification to get greater impact to my audience, the previous Restricted Asbestos Removal Act was more appropriate to my needs

Can you please cease this action against my application and issue my license as requested in my application

WorkSafe’s case

37      WorkSafe’s submissions rely on the matters set out from [12] – [27] above.

38      Ultimately, WorkSafe submits that its decision to refuse Mr Gates’ Licence Application was ‘on the basis that there was insufficient verifiable experience for the Respondent to be satisfied that the Applicant could do asbestos work involving non-friable asbestos-containing material in a safe and proper manner, or that the Applicant has the experience to properly supervise and manage asbestos work under the licence.’

39      WorkSafe submits that the Tribunal can only consider information that was before WorkSafe at the time it made the decision to refuse the Licence Application, although it does not offer any authority in support of that proposition. WorkSafe says: ‘The Tribunal cannot consider any new information that was not, or could not have been before the decision maker when assessing the initial Application. This includes any new experience that has been obtained since the decision to refuse the Application was made.’ WorkSafe argues that the Tribunal is confined to considering the training and experience that Mr Gates put before WorkSafe for consideration.

40      WorkSafe argues that its decision to not grant Mr Gates a restricted asbestos licence was appropriate in all the circumstances. Mr Gates is unable to demonstrate that he has the skills necessary to supervise and manage asbestos work in a safe and proper manner. He has not provided sufficient evidence of relevant and varied industry experience in supervising and managing asbestos work performed under the employment of a restricted asbestos licence holder.

41      Accordingly, WorkSafe argues that its decision should be affirmed under s 61A(3)(a) of the OSH Act.

Consideration

42      The question of whether the Tribunal may only consider the evidence that was before WorkSafe when it made the decision under appeal was the subject of very brief argument by WorkSafe. Mr Gates did not make any submissions about this point and WorkSafe did not refer to any authorities in support of its argument. But in any event, the Tribunal does not consider that in the circumstances of this matter it is necessary to decide that issue. This is because Mr Gates did not put any new evidence before the Tribunal that would enable the Tribunal to decide that WorkSafe’s decision should be set aside or substituted.

43      Ultimately, the difficulty for Mr Gates is that he has not produced evidence (neither before WorkSafe nor the Tribunal at this hearing) that could satisfy the Tribunal that he has the experience necessary to properly supervise and manage asbestos work involving non-friable asbestos-containing material done under the licence.

44      Mr Gates relies on very limited evidence in relation to his experience of properly supervising and managing asbestos work involving non-friable asbestos-containing material. The examples he provided of his experience, set out in [14] and [19] – [21] above do not establish relevant and varied industry experience in supervising and managing asbestos work performed under the employment of a restricted asbestos licence holder.

45      The Tribunal accepts that it is not now possible to examine Mr Burrows. But the difficulty for Mr Gates is that he seeks to rely on work performed under Mr Burrows’ licence where there is no evidence that Mr Burrows verified Mr Gates’ experience in this regard.

46      Neither party called Mr Rossi to give evidence. But even if Mr Gates had called Mr Rossi to give evidence and somehow undermined his file note, there would still be an absence of evidence of Mr Gates’ verified experience properly supervising and managing asbestos work.

47      Having inquired into the circumstances relevant to WorkSafe’s decision, the Tribunal considers that the evidence can only result in a finding that the experience Mr Gates points to in his Licence Application (including the supplementary evidence/example) is not verified by a referee. Like the applicant in Mr Danny Rawlinson-Shelton v WorkSafe [2021] WAIRC 00139; (2021) 101 WAIG 442 (see [40]), Mr Gates has not provided any evidence of having done work involving asbestos removal under the supervision of a person with a relevant licence.

48      The Tribunal accepts Mr Gates’ submission that he seeks the licence in question because he wants to raise awareness about the risks associated with asbestos, and not to carry out asbestos work or employ others to do that work. However on the evidence before the Tribunal, it is not possible to find that Mr Gates has the experience necessary to properly supervise and manage asbestos work involving non-friable asbestos-containing material done under the licence.  Accordingly, WorkSafe’s decision must be affirmed.

49      This application must be dismissed.