Tribunal Affirms Suspension of Assessor’s Accreditation

The Tribunal affirmed the suspension of an assessor's accreditation for non-compliance with conditions, emphasising the importance of adhering to all conditions of accreditation.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2023] NSWCATAD 325 Hearing dates: 16 October 2023 Date of orders: 18 December 2023 Decision date: 18 December 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: [NAME], Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – administrative review of decision to suspend accreditation of an assessor – high risk work licence – basic scaffolding – non compliance with conditions Legislation Cited: Administrative Disputes Review Act 1997 Civil and Administrative Tribunal Act 2013 Work Health and Safety Act 2011 Work Health and Safety Regulations 2017 Cases Cited: [NAME] v [NAME] of Customs (2014) 250 CLR 664 Texts Cited: Nil Category: Principal judgment Parties: [NAME] (Applicant) [NAME] (Respondent) Representation: [NAME] (Agent) (Applicant) NSW Department of Customer Service (Respondent) File Number(s): 2023/00193157 Publication restriction: Nil

REASONS FOR

DECISION 1. On 6 June 2023, [NAME] (the Respondent or [NAME]) determined to suspend the accreditation of [NAME] (the applicant or [NAME]) as an assessor for high risk work licence for the licence class of 'basic scaffolding' (HRWL) under the Work Health and Safety Act 2011 (the Act) and the Work Health and Safety Regulation 2017 (the Regulation). 2. [NAME] suspended [NAME]' licence on the basis that he failed to comply with conditions of accreditation for high risk work licence assessors to conduct high risk licence assessment in NSW (the Conditions).

3. The decision to suspend was confirmed in the internal review and [NAME] applied to the Tribunal seeking external review under s63 of the Administrative Decisions Review Act 1997 (the ADR Act).

Background 1. On 23 March 2023, [NAME] was notified that [NAME] were proposing to suspend his licence as an assessor pursuant to cl 136 of the Regulation in accordance with cls 133 and 134 of the Regulation. On 16 May 2023 [NAME] issued [NAME] with a Notice of Suspension for a period between 23 May 2023 and 23 August 2023. On 17 May 2023, [NAME] sought an internal review of the decision and on 6 June 2023 the internal review confirmed the decision to suspend the assessor accreditation.

2. The determination was based on a finding that on 2 September 2022 during a verification audit of [NAME]' assessor accreditation there was non-compliance with Conditions 29, 31, 50 and 62. The internal reviewer accepted [NAME]' statements that he would ensure future compliance with Conditions 29 and 31. [NAME] refused compliance with Conditions 50 and 62.

3. Condition 50 requires an assessor to conduct a full performance assessment in the prescribed manner as set out in the relevant National Assessment Instrument (NAI) an Guide for accreditation of assessors for high risk work licences' (the Guide). Condition 62 requires that for a performance component, the assessor must only mark a candidate as competent if the candidate successfully performs all tasks to the required standard per the relevant NAI (in this case, it is the basic scaffolding NAI).

4. Condition 50 and 62 findings were made in regard to Task 7 of the NAI, which was to install and remove a Transmission Technology Cantilever Hoist model MKTT1 (the hoist).

5. The crux of the dispute between the parties was whether during the assessment the hoist needed to be plugged into a socket in the wall.

Legislation and Guidelines 1. The objects of the Act are set out in section 3. The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. It follows that an assessor for a HRWL must ensure that there is compliance with the framework so that those persons who are granted accreditation operate at the level where they operate safety at the workplace.

2. Section 276 of the Act authorises the making of Regulation. The Act and the Regulation contain provisions conferring jurisdiction on the Tribunal to conducted administrative reviews under the ADR Act.

3. Pursuant to s63 of the ADR Act, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

4. Clause 121 of the Regulation gives power to [NAME] to impose Conditions on an accreditation. Section 45 of the Act provides that a person must comply with the Conditions of any authorisation given to that person under the regulations.

5. Clauses 133 and 134 of the Regulation contain provisions about imposing conditions, suspension and cancellation of an accreditation. Clause 134(1)(c) of the Regulation gives [NAME] discretion to suspend or cancel an accreditation of an accredited assessor who has failed to comply with a condition under cl 121.

6. Clause 144 of the Regulation defines 'electrical equipment': (1) In this Part, "electrical equipment" means any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that-- (a) is used for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra-low voltage, or (b) is operated by electricity at a voltage greater than extra-low voltage, or (c) is part of an electrical installation located in an area in which the atmosphere presents a risk to health and safety from fire or explosion, or (d) is, or is part of, an active impressed current cathodic protection system within the meaning of AS 2832.1-2004 (Cathodic protection of metals--Pipes and cables) . (2) In this Part,"electrical equipment" does not include any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that is part of a motor vehicle if-- (a) the equipment is part of a unit of the vehicle that provides propulsion for the vehicle, or (b) the electricity source for the equipment is a unit of the vehicle that provides propulsion for the vehicle.

1. Clause 145 of the Regulation sets out the meaning of 'electrical installation' and Clause 146 of the Regulation sets out the meaning of 'electrical work' in the following terms: (1) In this Part, "electrical work" means-- (a) connecting electricity supply wiring to electrical equipment or disconnecting electricity supply wiring from electrical equipment, or (b) installing, removing, adding, testing, replacing, repairing, altering or maintaining electrical equipment or an electrical installation. (2) In this Part, "electrical work" does not include the following-- (a) work that involves connecting electrical equipment to an electricity supply by means of a flexible cord plug and socket outlet, (b) work on a non-electrical component of electrical equipment, if the person carrying out the work is not exposed to an electrical risk, Example : Painting electrical equipment covers and repairing hydraulic components of an electrical motor. (c) replacing electrical equipment or a component of electrical equipment if that task can be safely performed by a person who does not have expertise in carrying out electrical work, Example : Replacing a fuse or a light bulb. (d) assembling, making, modifying or repairing electrical equipment as part of a manufacturing process, (e) building or repairing ducts, conduits or troughs, where electrical wiring is or will be installed if-- (i) the ducts, conduits or troughs are not intended to be earthed, and (ii) the wiring is not energised, and (iii) the work is supervised by an authorised electrician, (f) locating or mounting electrical equipment, or fixing electrical equipment in place, if this task is not performed in relation to the connection of electrical equipment to an electricity supply, (g) assisting an authorised electrician to carry out electrical work if-- (i) the assistant is directly supervised by the authorised electrician, and (ii) the assistance does not involve physical contact with any energised electrical equipment, (h) carrying out electrical work, other than work on energised electrical equipment, in order to meet eligibility requirements in relation to becoming an authorised electrician. (3) In this clause, "authorised electrician" means a person who is authorised under the Home Building Act 1989 to do electrical wiring work.

1. Task 7 of the NAI is to install and remove a cantilevered materials hoist. It states that: For this task, 'You need to install and remove, including securing and levelling, a cantilevered materials hoist as per the manufacturer's specification, including ground based safety barriers. Apply any control measures needed, select the equipment and tools for the job and install the hoist. Check that the hoist is safely installed and that you have followed up the manufacturers specifications… 1. [NAME] publishes a document entitled 'Conditions of Accreditation for high risk work licence assessors to conduct high risk work licence assessments in NSW under the Work Health and Safety Regulation 2017' effective from 10 October 2022. At paragraph 5.9 conducting an assessment – performance component, paragraph 50 states: An Assessor must conduct a full Performance Assessment in the prescribed manner as set out in the relevant NAI and the Guide for Assessors.

The applicant's case 1. [NAME] submitted that [NAME]'s findings that he has not complied with Conditions 50 and 62 are based on a new incorrect interpretation of Task 7 of the NAI which goes against Standard 2550.7 and AS/NZS 3000.2018.

2. The hoist is required to be installed by a person like an electrician and the hoist cannot be 'electrified'. [NAME] is unable to perform electrical work as he is not an electrician. 3. [NAME] claimed that the NAI did not require candidates to perform all tasks required as they would be expected to apply once licensed and carrying out the activity in the workplace and that simulation and verbal answers as to a number of tasks was sufficient. 4. [NAME] submitted that a verification of his HRWL assessor accreditation for the SB licence class conducted in August 2020 and identified no areas of noncompliance but involved the same hoist used in the September 2022 verification. 5. [NAME] relied on the Assessment Instrument for licence to erect, alter and dismantle scaffolding – basic level to assert that the hoist cannot be electrified.

6. Correspondence between the parties disclosed that the following specific issues were in dispute:

1. As to the activity 'ensure barriers/fencing/gates are installed correctly', [NAME] required candidates to install a chain on the platform due to concerns that candidates may not be able to exit the site safely in case of an emergency if fencing or gates are installed.

2. As to the activity 'ensure limit switches are installed and tested for correct function', [NAME] did not require candidates to test whether the limit switches were functioning as the hoist is not electrified for this activity as there is no qualified person on site during the assessment to complete required electrical testing of the plant after installation and prior to use.

3. As to the activity 'ensure load movement or transfer complies with the specified plan', [NAME] did not require candidates to demonstrate a load movement as the hoist is not electrified for this activity.

The respondent's case 1. The respondent relied on the evidence of [NAME], Assistant State Inspector, [NAME], Manager Training, [NAME], an Inspector. 2. [NAME]'s case is that [NAME] did not conduct the full performance assessment during the verification audit and had marked candidates as 'competent' without the task being performed in the prescribed matter as per the NAI and the Guide and the hoist used was not compliant with AS1418.7 and as such contravened the Conditions of the accreditation.

3. In regard to each specific part of the tasks under Task 7 of the NAI, [NAME] submitted that [NAME] was required to but failed to do the following: 1. ensure limit switches are installed and tested for correct function. The hoist must be connected to a power source. The candidate must demonstrate raising and lowering the hoist to check the limit switches work as required. Testing the physical elements of the switch do not meet the requirements. 2. ensure load movement or transfer complies with the specific plan. The candidate must demonstrate an actual load movement, for example by raising and lowering the platform.

3. A chain is not an acceptable option for either a barrier or a fence or gate for the purpose of conducting the activity in Task 7. 1. [NAME] submitted that Safe Work Australia (SWA) is responsible for approving NAIs which are used in each jurisdiction in Australia to verify the competency of HRWL applicants and that SWA confirmed that its position on Task 7 is consistent with the NAI and the Guide for Assessors. 2. [NAME] submitted that there was no evidence in regard to the hoist used in the August 2020 verification and that the 2020 verification did not provide any assurance as to the outcome of any subsequent verification audits as verification audits are conducted to identify non-compliance on the day of the verification. 3. [NAME] considered that the hoist is an 'electrical equipment'. To provide power to this type of hoist, the power cord is plugged into a single phase electrical outlet. The consideration and compliance with standards AS2550.7 and or AS/NZS 3000.2018 is not relevant for installing this type of hoist because this it is not electrical work under the Regulation.

Consideration 1. The applicant's case is that when candidates are assessed on Task 7, the hoist is not electrified, that is plugged into the socket. [NAME] holds the opposite view. 2. [NAME] relied on clause 146(1)(b) of the Regulation to submit that the hoist cannot be electrified because it is an 'electrical equipment' and it cannot be installed by him because he is not an electrician. 3. [NAME] relied on the exclusion in clause 146(2)(a) of the Regulation that the electrification of the hoist is not electrical work as the hoist, which is an 'electrical equipment' needed to be connected to an electricity supply by being plugged into a socket. 4. [NAME] pointed to the criteria set out in Task 7 in the NAI to demonstrate that a number of activities candidates must perform require the hoist to be electrified [NAME] also relied on the Guide for Assessors which stated that the assessment should be conducted in 'realistic workplace conditions' and explained basic scaffolding requirements.

5. The matter before the Tribunal involves the suspension of accreditation of an assessor. Clause 135 of the Regulation sets out the matters that must be taken into account in making a decision to suspend or cancel accreditation. [NAME] must consider any submissions made by the assessor and any advice received from a corresponding regulator.

6. There is substantial evidence before the Tribunal that demonstrates that [NAME] considered [NAME]' submissions. [NAME] also sought advice from [NAME], State Inspector, Electrical Hazards Management, Engineering as to whether the hoist was an 'electrical installation'. [NAME]'s opinion was that 'anything that extends beyond the socket outlet is not considered part of the electrical installation' as per AS3000 and referred to the definition of 'electrical installation' in the Gas and Electricity (Consumer Safety) Act 2017 (NSW).

7. Once the matters set out in cl 135 are taken into account, [NAME] has discretion to suspend or cancel the assessor's accreditation to conduct high risk licence assessments. The reference to 'high risk' is a reference to a high risk of injury or death. It is critical therefore that assessors ensure that candidates undertake all the tasks as prescribed to ensure the demonstration of competencies. 8. [NAME]' submission at the Tribunal was that he was not willing to comply with [NAME]'s decision because he did not believe that a hoist should be electrified during assessment of candidates.

9. I do not consider that the Assessment Instrument for licence to erect, alter and dismantle scaffolding – basic level assists [NAME]. The Task 7 checklist refers to conducting a final inspection of the hoist prior to use. This task together with the tasks testing switches and load movements suggest that the hoist has to be electrified, the hoist cannot be used unless it is electrified.

10. Clauses 144 and 146 of the Regulation are set out above. In interpreting these provisions, it is fundamental to consider the text of the provisions. The meaning of the text requires consideration of the whole of the work health and safety regime set out in the Act and the Regulation (separately and together). The meaning of the text is construed by reference to context and legislative purpose of the provision: [NAME] v [NAME] of Customs (2014) 250 CLR 664 at [22].

11. The parties have a different interpretation of cl 146 of the Regulation. [NAME] submitted that [NAME]'s interpretation would have him installing, removing, testing electrical equipment which pursuant to cl 146(1)(b) he is not permitted to do. However, [NAME]' submission does not take into account 146(2) of the Regulation. [NAME] did not dispute that in installing and testing the hoist, the hoist had to be simply plugged into a socket outlet.

12. I am satisfied that cl 146(2)(a) of the Regulation means that connecting the hoist to electricity supply by means of a flexible cord plug and socket outlet is not electrical work and therefore the standard and AS/NZS relied on by [NAME] does not apply. As explained by [NAME] in its correspondence, [NAME] is not required to do any work of a licenced electrician such as ensuring that the hoist is regularly inspected and tested. It is also not a part of the assessment, apart from being aware of the tag on the hoist and inspecting it to confirm recent testing by a competent person.

13. The Tribunal has undertaken a review of the merits of the original decision. Having considered all material before it, the Tribunal has decided that the correct and preferable decision is to affirm [NAME]'s decision.

ORDER 1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 onus 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: 18 December 2023