Claimant's External Review Application for Improvement Notice Rejected

The claimant, an HRWL assessor, sought an external review of an improvement notice issued by the respondent. The NSWIRComm denied the claimant's application, ruling that the claimant was not an eligible person under the Work Health and Safety Act 2011 (NSW).

Industrial Relations Commission New South Wales Medium Neutral Citation: [NAME] v [NAME] [2023] NSWIRComm 1072 Hearing dates: 7 March 2023, final submissions 24 March 2023 Date of orders: 24 July 2023 Decision date: 24 July 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: (1) The Motion is upheld; and (2) The Application is dismissed. Catchwords: WORK HEALTH AND SAFETY – application for external review – whether applicant an "eligible person" entitled to make application – whether applicant a worker whose interests are affected by the decision – whether applicant a person conducting a business or undertaking whose interests are affected by the decision – whether applicant a worker whose interests are affected by the decision – applicant not an eligible person Legislation Cited: Work Health & Safety Act 2011 (NSW) Cases Cited: [NAME] v [COMPANY] (2019) NSWIRComm 1032 Texts Cited: NIL Category: Procedural rulings Parties: [NAME] (applicant) [NAME] (respondent) Representation: [NAME] with [NAME] (applicant)

Counsel:

[redacted]

Solicitors:

[redacted] File Number(s): 2022/305843 Publication restriction: NIL

decision 1. The respondent in these proceedings seeks by way of an amended notice of motion filed 8 December 2022 (the "Motion") to set aside an application under s 229 of the Work Health & Safety Act 2011 (NSW) (the "[NAME]") for external review of a decision by the respondent (the "Application") relating to an Improvement Notice issued by an [NAME] of the respondent on 6 September 2022 (the "Notice").

2. For the reasons set out in this decision I have decided to uphold the Motion.

The Motion 1. The Motion provided two bases upon which the Application should be struck out, being: 1. There was no "reviewable decision" made by the respondent which is capable of external review by the Commission pursuant to s 229 of the [NAME]. 2. In the alternative, the applicant was not an " eligible person" to bring the application.

Background 1. The applicant at the time the Notice was issued was an accredited assessor to conduct High Risk Work Licence ("HRWL") assessments under the Work Health & Safety Regulation 2017 (NSW) (the "WHS Regs").

2. The applicant was the sole director and only employee of [COMPANY] ("[NAME]").

3. As an assessor, the applicant had to be affiliated with one or more [NAME] approved HRWL Registered Training Organisations (RTOs) for whom the applicant could conduct HRWL Assessments.

4. One such RTO that the applicant was affiliated with was an organisation known as [COMPANY] ("[NAME]"). The affiliation was not directly with the applicant, but rather through [COMPANY] ("[NAME]"), with which the applicant was engaged as a contractor through [NAME].

5. On 2 September 2022, the applicant was undertaking an assessment of candidates for HRWL Class SB (Basic Scaffolding) for [NAME] (the "Assessment"). The Assessment involved the candidates utilising a Transmissions Technology Cantilever Hoist (the "Hoist") which was owned by [NAME].

6. During the Assessment an audit was undertaken by an [NAME] of the respondent and of the applicant.

7. On 6 September 2022, [NAME] issued [NAME] with the Notice which was in relation to the Hoist.

8. Also on 6 September 2022, [NAME] issued correspondence to the applicant directing him to reassess the candidates from the Assessment. The basis for the requirement to reassess was that the applicant had assessed the candidates using the Hoist which, according to the Notice, was non-compliant.

9. On 12 September 2022, the applicant lodged a request for internal review of the decision to issue the Notice.

10. On 28 September 2022, [NAME] who held the role of Coordinator Reviewable Decisions Unit with the respondent telephoned the applicant. In that telephone conversation, [NAME] informed the applicant that requests for review of a decision to issue an improvement notice under s 191 of the [NAME] can only be made by an "eligible person": * The person to whom it was issued. * A person conducting a business or undertaking whose interests are affected by the decision. * A worker whose interests are affected by the decision;. * A health and safety representative who represents a worker whose interests are affected by the decision. 1. [NAME] went on to seek information from the applicant as to which category he falls within. 2. [NAME] soon after the phone call sent an email to the applicant, confirming the categories of persons who can seek a review and requesting the applicant to provide information as to which category he falls into.

3. The applicant sent an email response to [NAME] on 28 September 2022, in which he provided the following explanation as to how he was an "eligible person": "As you will see from the attached correspondence from [NAME] I, without doubt am an affected person in the issuance of this improvement notice. This letter shows that the same [NAME] who issued the improvement notice is the same [NAME] who has unjustly caused the attached letter to be sent to me. I believe from reading the second last paragraph of the letter that my accreditation is to be cancelled if the incorrect interpretation of the NAI and Australian Standards is allowed to stand. I meet point 2 as an eligible person as my contract assessing business ([NAME]) will be forced to close if I lose my accreditation. I also meet point 3 as an eligible person as a worker whose interests will be affected by this improvement notice being enforced. My livelihood would be severely impacted in a negative way as well as my reputation being damaged."

1. The letter referred to by the applicant in his email was the 6 September 2022 correspondence directing him to reassess candidates.

2. Following receipt of this information, [NAME] determined that the additional information provided by the applicant had failed to establish that the applicant was an "eligible person" and as such the application for internal review under s 224 of the [NAME] was invalid and therefore he was not going to conduct an internal review of the Notice.

3. In an email of 29 September 2022, [NAME] informed the applicant that the applicant was not an eligible person able to make an application for internal review of the decision to issue the Notice and that there was to be no internal review.

4. On 7 October 2022 the respondent issued the applicant with a corrective action notice (the "CAN"). The CAN stated that it was issued as a result of Non-Compliance with the Conditions of accreditation for HRWL assessors to conduct HRWL assessments in NSW under the Work Health and Safety Regulation 2017.

5. The reason for the CAN arose from the [NAME] which was non-compliant and required a written response from the applicant to confirm that he has implemented appropriate measures to ensure future compliance.

Submissions

Hearing 1. The respondent, at the commencement of oral submissions at the hearing, withdrew ground 1 of the Summons and relied solely on the second ground that the applicant was not an "eligible person" for the purposes of s 229 of the [NAME].

2. It was submitted that the applicant would need to fall into one of the four categories of persons listed in column 2 of Item 7 of ss 223(1) of the [NAME].

3. As to the categories, the respondent submitted that the applicant was not a worker but conceded that he was probably a person conducting a business or undertaking ("PCBU") as listed in Item 7. However, the respondent submitted that even if the applicant was a worker or a PCBU he was not a person who is affected by the decision to issue the Notice.

4. The respondent submitted that the following principles are relevant to the determination of whether the applicant was a person whose interests were affected by the decision to issue the Notice: a. A person has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public. If no private right of his is interfered with, he has standing to sue only if he has a special interest in the subject matter of the action ([NAME] v [NAME] of [COMPANY] (1981) 149 CLR 27 at 35-36 per Gibbs CJ); b. An interest does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not amount to standing (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530 per Gibbs J); c. If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 260 per Davies J); d. In each case, the content of the terms "affect" and "interest" are to be seen in the light of the scope and purpose of the statute in issue (Alphapharm at 272 per [NAME]); e. In Transurban City Link Ltd v Allan (1999) 95 FCR 553, a [ADDRESS] of the Federal Court of Australia considered the issue of standing in the context of section 27 of the Administrative Appeals Tribunal Act 1975. A [ADDRESS] observed at [565]: "In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases."

1. In oral submissions the respondent confirmed in answer to a question posed, that the interest that was required to be affected was an interest that arose under the [NAME] and the applicant's interest that was affected by the Notice was not one that arose under the [NAME].

2. The applicant's submission was that his interest was one affected by the Notice, in the manner set out in his email of 28 September 2022 as set out above.

3. In particular, the applicant in the hearing submitted that the effect of the Notice may lead to the loss of his accreditation as an assessor by reference to the CAN and it resulted in the applicant losing work from [NAME].

Further Written Submissions 1. At the conclusion of the hearing, leave was granted for the parties to file and serve further written submissions addressing the application of the decision of [NAME] in [NAME] v [COMPANY] [2019] NSWIRComm 1032 ("[NAME]").

2. Those matters raised by the applicant in response to [NAME] were, firstly, a repeat of the submission made concerning the possible loss of the applicant's certification as a result of the CAN.

3. Secondly, the applicant submitted that as he was operating and responsible for the Hoist he was an eligible person in reliance on paragraphs [29] and [30] of [NAME].

4. As for the respondent, it made the following submissions concerning the application of [NAME]:

4. The respondent maintains that the applicant is not a person affected by the decision of [NAME] to issue an Improvement Notice to [COMPANY], the person with management and control of the plant. Applying the reasoning in [NAME]: a. Upon a proper construction of the Work Health & Safety Act 2011, the applicant is neither a worker or a PCBU affected by the decision, or a worker affected by the decision; b. The "legal effect" and operation of the decision to issue the Improvement Notice impacted [NAME] only, not the applicant. The applicant was not compelled to take any action as a result of the decision. It was [NAME] who was required to address the issue raised in the Notice as the person with management and control of the plant; c. The issue of Notice did not, and could not, result in any legal effect or impact upon the applicant. The fact that the applicant was present at [NAME]'s premises for the purposes of undertaking High Risk Work Licence assessments does not establish a requisite connection between the decision to issue the Improvement Notice to [NAME] and the interests of the applicant, nor does any financial loss alleged to have flowed from the decision to issue the Notice (which is not substantiated on the evidence).

Consideration 1. Part 12 of the [NAME] provides a process for both internal and external reviews of various decisions made pursuant to the [NAME]. Section 213 sets out which decisions are reviewable and who can apply for such a review.

2. An application can be made for a review of a decision internally pursuant to s 224 or externally by the Industrial Relations Commission of New South Wales (the "Commission") pursuant to s 229(1)(a).

3. Sub-section 229(1)(b) of the [NAME] also permits an eligible person to apply to the Commission for a review of an internal review conducted under s 224.

4. Item 7 of ss 223 (1) lists the following persons as an eligible person to apply for a review of a decision to issue a s 191 notice: (1) The person to whom the notice was issued. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision.

1. The key consideration in this Motion is whether the applicant is either a PCBU or a worker whose interests are affected by the decision to issue the Notice for the purposes of Item 7 (2) or (3) of s223(1) of the [NAME].

2. In [NAME] had to determine whether the applicant for an external review was a worker who fell within Item 7 (3). The Commissioner, following review of the relevant authorities regarding similar provisions in other legislation, at paragraph [62] accepted the following submissions of the respondent as to the relevant principles: (1) The starting point is one of the proper construction of the legislation. (2) The word "affected" is ambulatory but is limited by the word "interests", which is designed to narrow the scope of eligible persons within the meaning of the section. The use of the noun "interests" is significant. (3) The Commission is required to make an assessment of the legal effect and operation of the decision and then give consideration to the interests asserted to be affected. (4) There needs to be a connection between the decision and the interests of the worker asserted that is of a sufficient intensity to be able to satisfy the Commission that the worker is one whose interests are affected.

1. Furthermore, at paragraph [65] [NAME] made the following observation: It is consistent with such an intention, and the authorities referred to, that an applicant be able to demonstrate both their interests and how they are affected by the relevant decision. To my mind, this must be an actual, as opposed to a theoretical or in-principle, affection.

1. The reasoning and conclusions of [NAME] in [NAME] with respect to the approach to consideration of whether an interest has been affected for the purposes of ss 223(1) of the [NAME] are sound and well reasoned.

2. The applicant claims two interests that are affected by the decision, being:

1. His potential loss of accreditation; and 2. The loss of work from [NAME].

1. As to the loss of accreditation, it is at best a theoretical rather than an actual effect. The content of the CAN upon which this submission is based does not provide a basis upon which the Commission could find that the applicant's accreditation is at risk due to the decision to issue the Notice.

2. As to the loss of work from [NAME], the evidence, does not support the contention made by the applicant. The invoices issued by the applicant, disclose that he had performed work for [NAME] on 2 and 4 October 2022, which post-dates the issuance of the Notice.

3. Also, the applicant's submission in reliance on paragraphs [29] and [30] of [NAME] are misconceived. These paragraphs simply replicate s 223 and 229 of the [NAME] and make no reference to persons who are operating and responsible for plant or machinery.

4.

For the reasons set out above, I find that the applicant is not an eligible person for the purposes of ss 223(1) of the [NAME] and does not have standing to make an application for external review pursuant to s 229 of the [NAME] and I make the following orders:

1. The Motion is upheld; and 2. The Application is dismissed.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The [NAME] remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2023