Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Henderson v SafeWork NSW [2023] NSWCATAD 73 Hearing dates: 20 October 2022 Date of orders: 24 March 2023 Decision date: 24 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATVE LAW – Administrative review – review of decision to refuse assessor accreditation - high risk work licence – operational experience – applicable standards – application of policy Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Work Health and Safety Act 2011 Work Health and Safety Regulation 2017 Cases Cited: Minister for Immigration and Citizenship v Li [2013] 297 ALR 225 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Category: Principal judgment Parties: Warren Mitchell Henderson (Applicant) SafeWork NSW (Respondent) Representation: Solicitors: A Mearrick (Agent) (Applicant) NSW Department of Customer Service, Legal (Respondent) File Number(s): 2022/00202049 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by Mr Warren Henderson ("the Applicant") for review of a decision by SafeWork NSW ("the Respondent" or "the Regulator") to refuse his application for accreditation as a high risk work licence ("HRWL") assessor under the Work Health and Safety Act 2011 ("the Act") and the Work Health and Safety Regulation 2017 ("the Regulation"). 2. The Respondent refused the application on the basis that the Applicant did not meet the requirements of the Regulation in that he had not demonstrated at least two years relevant industry and operational experience gained in the preceding two years in the high risk work for which accreditation was sought. 3. The determination was confirmed on internal review. 4. The Applicant has applied to the Tribunal seeking external review under the Administrative Decisions Review Act 1997 ("the ADR Act"). Background 1. The Background to the decision is not in dispute. The internal review reasons sets out the following summary: * the Applicant formerly held a high risk work licence, issued in Queensland, until 2012. * the Applicant was granted NSW high risk work licence number HRW879264 in the classes of Rigging Intermediate (Rl), Boom Type Elevating Platform (WP), Forklift Trucks ((LF), Dogging (DG) and Basic Rigging (RB) issued on 25 November 2020, Slewing Mobile Crane (up to 60 tonnes) (C6) issued on 5 January 2021 and Bridge and Gantry Crane (CB) issued on 16 February 2022. * the Applicant completed a Certificate IV in Training and Assessment issued by TAFE on 22 July 2021. * On 18 February 2022, the Applicant submitted an application for accreditation as an assessor for high risk work licence in the classes of Rigging Intermediate, Slewing Mobile Crane (up to 60 tonnes) and Boom-type Elevating Platform. * On 18 March 2022, SafeWork NSW emailed the Applicant requesting additional information. The Applicant provided his response on 7 April 2022. * On 11 May 2022, SafeWork NSW issued a notice to the Applicant advising of its intention to refuse the application and invited him to make submissions for consideration. The Applicant provided his response on 12 May 2022. * On 27 May 2022, the application was refused under clause 118(2)(a) of the Regulation. The Issue for determination 1. The Tribunal is to determine whether the correct and preferable decision is to grant the Applicant's application for accreditation as an assessor. The Tribunal's approach 1. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. 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: section 63 of the ADR Act. 2. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Respondent to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. 3. The Tribunal makes its own decision in place of the Respondent's, and there is no presumption that the Respondent's decision is correct. 4. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 5. The Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Act, keeping in mind the activities which are authorised by an accreditation under the Act. 6. The Respondent, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ... Applicable legislation 1. The objects of the Act are set out in section 3, which provides: 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by— (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable. 1. Part 2 of the Act imposes health and safety duties on those conducting businesses and others in the workplace, including workers, which seek to ensure the health and safety of all involved in the workplace and the minimisation of risk. Section 17 provides: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person— (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 1. Section 276 of the Act contains a wide regulation making power. It relevantly provides: (1) The Governor may make regulations in relation to— (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act. (2) Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 3. (3) The regulations may— (a) be of general or limited application, or (b) differ according to differences in time, place or circumstance, or (c) leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons, or (d) apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether— (i) with or without modification, or (ii) as in force at a particular time or as in force or remade from time to time, or (e) prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed, or (f) allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator, or (g) prescribe fees for doing any act or providing any service for the purposes of this Act, or (g1) the waiver, reduction, postponement or refund by the regulator of fees payable or paid under this Act or the regulations, or (h) prescribe a penalty for any contravention of the regulations not exceeding an amount equal to the monetary value of 345 penalty units. (4) The Minister is not to recommend the making of a regulation containing provisions that confer jurisdiction of the Civil and Administrative Tribunal to exercise functions unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions. 1. Schedule 3 of the Act contains further provisions concerning the regulation making power under the Act. Clause 7 of the schedule relevantly provides that the power includes: (1) Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of Part 4 or the regulations including providing for— (a) applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation, and (b) the evidence and information to be provided in relation to applications including the provision of statutory declarations, and (c) exemptions, and (d) variations of authorisations by the regulator whether on application or otherwise, and (e) authorisation of persons as trainers and assessors, and (f) examination of applicants for authorisations, and (g) conditions of authorisations, and (h) fees for applications for the grant, issue, renewal and variation of authorisations. (2) The recognition of authorisations under corresponding WHS laws and exceptions to recognition. (3) The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations. 1. Clause 14 of Schedule 3 provides a regulation making power with respect to reviews including – … (d) conferring jurisdiction on the Civil and Administrative Tribunal to conduct administrative reviews under the Administrative Decisions Review Act 1997. 1. The Regulation then contains provisions for the regulation of various matters under the Act including provisions relating to assessors and decisions which can be reviewed under the ADR Act. 2. Section 9 of the ADR Act provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. 1. Division 2 of Part 4.5 of the Regulation is concerned with assessors for high risk work licenses. Clause 113 provides: 113 Accreditation required to assess competency for high risk work licence A person who is not an accredited assessor must not— (a) conduct a competency assessment, or (b) issue a notice of satisfactory assessment, or (c) in any other way hold himself or herself out to be an accredited assessor. 1. Clause 114 provides: 114 Accredited assessor must act in accordance with accreditation (1) An accredited assessor must not conduct a competency assessment unless— (a) the competency assessment relates to a class of high risk work for which the assessor is accredited, and (b) the accredited assessor conducts the competency assessment for or on behalf of an RTO. (2) An accredited assessor must not issue a notice of satisfactory assessment unless the competency assessment relates to a class of high risk work for which the assessor is accredited. (3) An accredited assessor who conducts a competency assessment must do so in accordance with the conditions of accreditation imposed under clause 121. (4) An accredited assessor who issues a notice of satisfactory assessment must do so in accordance with any conditions of accreditation imposed under clause 121. (5) Subclauses (1) to (4) do not apply if the regulator is the accredited assessor. 1. Provisions relating to the accreditation of assessors are found in Subdivision 2. Clause 116 sets out the details to be provided in regard to an application for accreditation. 2. Clause 118 of the Regulation provides in regard to an application for accreditation: 118 Decision on application (1) Subject to subclause (3), the regulator must grant an accreditation if satisfied about the matters referred to in subclause (2). (2) The regulator must be satisfied that— (a) the applicant— (i) is qualified to conduct the competency assessment to which the application relates, and (ii) is able to conduct the competency assessment to which the application relates competently, and (iii) is able to ensure compliance with any conditions that will apply to the accreditation, or (b) the applicant holds a current equivalent accreditation under a corresponding WHS law. (3) The regulator must refuse to grant an accreditation if satisfied that— (a) the applicant is disqualified under a corresponding WHS law from holding an equivalent accreditation, or (b) the applicant, in making the application, has— (i) given information that is false or misleading in a material particular, or (ii) failed to give any material information that should have been given. (4) If the regulator decides to grant the accreditation, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 117, the regulator is taken to have refused to grant the accreditation applied for. (6) For the purposes of subclause (2)(a)(i), an applicant is qualified to provide the competency assessment if— (a) the applicant's competencies, skills and knowledge are in accordance with the Standards for NVR Registered Training Organisations 2011 published by the Commonwealth, and (b) the applicant holds a current high risk work licence for the class of high risk work to which the competency assessment relates. Note— A refusal to grant accreditation (including a refusal under subclause (5)) is a reviewable decision (see clause 676). 1. Clause 119 sets out considerations to which the Regulator must have regard when considering an accreditation application: 119 Matters to be taken into account For the purposes of clause 118(2)(a)(ii) and (iii), the regulator must have regard to all relevant matters, including the following— (a) any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty, (b) any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law, (c) in relation to any equivalent accreditation applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law— (i) any refusal to grant the accreditation, and (ii) any condition imposed on the accreditation, if granted, and (iii) any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation, (d) the applicant's record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. 1. Clause 120 sets out the process to be followed if the regulator proposes to refuse to grant an accreditation application: 120 Refusal to grant accreditation—process (1) If the regulator proposes to refuse to grant an accreditation, the regulator must give the applicant a written notice— (a) informing the applicant of the reasons for the proposed refusal, and (b) advising the applicant that the applicant may, by a specified date (being not less than 28 days after the notice is given), make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must— (a) if the applicant has made a submission in relation to the proposed refusal to grant the accreditation—consider that submission, and (b) whether or not the applicant has made a submission—decide whether to grant or refuse to grant the accreditation, and (c) within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision. Note— A refusal to grant an accreditation is a reviewable decision (see clause 676). 1. Clause 676 provides: 676 Which decisions under this Regulation are reviewable (1) The following table sets out— (a) decisions made under this Regulation that are reviewable under this Part (reviewable decisions), and (b) who is eligible to apply for review of a reviewable decision (the eligible person). Accreditation of assessors Refusal to grant accreditation 1. Section 64 of the ADR Act provides: 64 Application of Government policy (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators. 1. As noted, clause 118(6) refers to competencies, skills and knowledge are in accordance with the Standards for NVR Registered Training Organisations 2011 published by the Commonwealth ("the RTO Standard"). That provision is to be read as a reference to the version of the RTO Standard as in force at the relevant time. 2. The current version of the RTO Standard in evidence is dated 1 July 2019 and is titled Standards for Registered Training Organisations (RTOs) 2015 ("the RTO Standard"). The glossary of the RTO Standard provides: Competency means the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments. Current industry skills are the knowledge, skills and experience required by VET trainers and assessors and those who provide training and assessment under supervision to ensure that their training and assessment is based on current industry practices and meets the needs of industry. Current industry skills may be informed by consultations with industry and may include, but is not limited to: a) having knowledge of and/or experience using the latest techniques and processes; b) possessing a high level of product knowledge; c) understanding and knowledge of legislation relevant to the industry and to employment and workplaces; d) being customer/client-oriented; e) possessing formal industry and training qualifications; and f) training content that reflects current industry practice. 41 The RTO Standard provides from Clause 1.13: Trainers and assessors 1.13. In addition to the requirements specified in Clause 1.14 and Clause1.15, the RTO's training and assessment is delivered only by persons who have: a) vocational competencies at least to the level being delivered and assessed; b) current industry skills directly relevant to the training and assessment being provided; and c) current knowledge and skills in vocational training and learning that informs their training and assessment. Industry experts may also be involved in the assessment judgement, working alongside the trainer and/or assessor to conduct the assessment. 1.14. The RTO's training and assessment is delivered only by persons who have the training and assessment credential specified in Item 2 or Item 3 of Schedule 1. 1.15. Where a person conducts assessments only, the RTO ensures that the person has the training and assessment credential specified in Item 2, or Item 3, or Item 5 of Schedule 1. 1.16. The RTO ensures that all trainers and assessors undertake professional development in the fields of the knowledge and practice of vocational training, learning and assessment including competency based training and assessment. Individuals working under the supervision of a trainer 1.17. Where the RTO, in delivering training and assessment, engages an individual who is not a trainer or assessor, the individual works under the supervision of a trainer and does not determine assessment outcomes. 1.18. The RTO ensures that any individual working under the supervision of a trainer under Clause 1.17: a) holds the training and assessment credential specified in Item 6 of Schedule 1. b) has vocational competencies at least to the level being delivered and assessed; and c) has current industry skills directly relevant to the training and assessment being provided. 1. The reference to Items from Schedule 1 is a reference to applicable training and assessment credentials. 2. The Respondent has published a document entitled, '"Guide for accreditation of assessors for high risk work licence" ("the Guide"), dated June 2017, which provides the experience and qualification requirements for obtaining an accreditation as an assessor under the Regulation. Page 6 the Guide provides: Industry and operational experience The Standards for RTOs 2015, standard 1.13 provides that assessors: • have the relevant vocational competencies at least to the level being assessed • can demonstrate current industry skills directly relevant to the assessment being undertaken • can demonstrate they have current knowledge and skills in vocational training and learning that informs their training and assessment. • continue to develop their VET knowledge and skills as well as their industry currency and assessor competence. Applicants should generally have a minimum of two years relevant current industry and operational experience (such as – experience gained in the preceding two years) in the HRW for which accreditation is sought. Current industry skills, and industry and operational experience may be evidenced by documents such as: • letters from employers or persons conducting business or undertakings for whom the applicant has performed the relevant HRW • contracts evidencing the engagement of the applicant to perform the relevant class of HRW • work diaries or logbooks created by the applicant at the time of performing the relevant HRW. Current knowledge and skills in vocational training and learning may be evidenced by documents such as: • Records of training delivered by the applicant within the VET sector. • Letters from RTOs detailing training and assessment activities undertaken by the applicant. Where an applicant holds an encompassing licence (an example of an encompassing class is an advanced rigging licence, which encompasses the competencies for dogging, basic rigging and intermediate rigging licence HRW classes) and the applicant seeks to assess in an encompassed class, evidence of relevant industry and operation experience of at least six months in the encompassed class should generally be demonstrated. An applicant who holds an advanced rigging licence who applies to assess for the intermediate licence class as well as for the advanced rigging class should generally demonstrate at least six months industry and operational experience. This experience should include performing rigging work associated with erecting hoists, cranes, conveyors, dredges or excavators, tilt slabs, and performing demolition work and dual lifts (intermediate rigger), as well as at least two years industry and operational experience in erecting gin poles and shearlegs, flying foxes and cable ways, guyed derricks and structures, or suspended scaffolds and fabricated hung scaffolds (advanced rigging). 1. The Respondent has adopted a practice of assessing an applicant's experience against the Guide's stipulation that applicants should generally have a minimum of two years relevant current industry and operational experience in the HRW for which accreditation is sought. The Respondent's practice is to require an applicant to demonstrate that the experience was gained in the preceding two years, but it recognises that the discretion should not be applied inflexibly. 2. The Applicant contends that the Respondent's practice is not authorised by the legislation. The Respondent's case 1. The Respondent determined that the Applicant had not demonstrated at least two years relevant industry and operational experience gained in the preceding two years. It relies on the RTO Standard and the Guide as providing the basis on which the assessment is to be undertaken. 2. The Respondent noted that the RTO Standard is not directed specifically towards training and assessment for high-risk work licences. It does not set a specific minimum industry and operational experience requirements, but it provides general guidance which can be interpreted as required for different industries. In that regard, the Respondent determined that a minimum of two years relevant current industry and operational experience is required for the accreditation of a high risk work assessor. As noted above, this requirement has been published in the Guide. 3. The Respondent relies on the evidence of its Manager, Operational Practice, Mr David Chamings. Mr Chamings' evidence is that the Respondent is a member of the Heads of Workplace Safety Authorities ("HWSA") group. HWSA is made up of representatives from work health and safety regulators across Australia and New Zealand. It works to develop a consistent approach to nationally recognised priorities. 4. The HWSA has agreed on the requirement of relevant experience for assessors. Mr Chamings provided documents which indicate HWSA's approval of the Model guide for applicants for accreditation of assessors for high risk work licences dated 1 January 2012 ("the Model Guide"). The Respondent is a signatory to the Model Guide. 5. The Model Guide relevantly provides: Industry and operational experience The Standards for NVR (National Vocational Education and Training Regulator) Registered Training Organisations 2011 SNR 4 and SNR 15 provides that assessors and trainers: b) have the relevant vocational competencies at least to the level being delivered or assessed; c) can demonstrate current industry skills directly relevant to the training/assessment being undertaken; and d) Continue to develop their vocational education and training (VET) knowledge and skills as well as their industry currency and trainer/assessor competence. Applicants should generally have a minimum of 2 years relevant current industry and operational experience (i.e. experience gained in the preceding 2 years) in the high risk work for which accreditation is sought. ... Current industry skills and industry and operational experience may be evidenced by documents such as: * letters from employers or persons conducting businesses or undertakings for whom the applicant has performed the relevant high risk work; * contracts evidencing the engagement of the applicant to perform the relevant class of high risk work; * work diaries or logbooks created by the applicant at the time of performing the relevant high risk work. 1. The Respondent contends that it has taken a policy position informed by the RTO Standard and the Model Guide and as documented in the Guide. 2. The Respondent refers to the material provided by the Applicant to establish his relevant experience. This material includes details of experience gained between January 2022 and September 2022 during employment with All Class Training Pty Ltd. He also provided details of operational experience obtained in the period 2002 to 2008. In his evidence before the Tribunal, he explained the roles that he had undertaken in the period prior to his employment with All Class Training Pty Ltd which comprised experience out of the industry. 3. The Respondent contends that the Applicant's experience is significantly less than two years' relevant current industry and operational experience as specified in the Guide. 4. The Respondent's internal reviewer concluded: SafeWork NSW accepted Mr Henderson holds a current high risk work licence in the relevant classes and has completed a Certificate IV in Training and Assessment however determined he had not demonstrated at least two years relevant industry and operational experience gained within the preceding two years to be accredited as assessor for high risk work licence in the classes of Rl, C6 and WP. Mr Henderson has provided information that supports recent operational experience for C6 and Rl class from January 2022 to date (five months) and also experience gained more than fourteen years ago from 2002 to 2008 (six years). It is noted that the experience gained for WP class from 2012 to date was not accepted because the class did not involve operation of boom length 11 metres or more and he did not hold a high risk work licence at the time. I agree with the original decision to refuse the application under clause 118(2)(a) of the Regulation because SafeWork NSW has an expectation that applicants should have current relevant industry and operational experience to ensure they are capable of conducting competency assessments for high risk work licence. This is due to the considerable safety risks associated with the subject industry, particularly for Rl, C6 and WP class licences. Based on the above, I have concluded Mr Henderson has not recently obtained the required relevant industry and operational experience at the present time to warrant the grant of accreditation as an assessor for high risk work licence. 1. The Respondent submits that currency of experience is of particular importance because of the number of workplace injuries and fatalities linked to high risk work. It is further submitted that the depth and range of the Applicant's experience does not warrant an exercise of a discretion to allow for an exception to the two-year current experience period. 2. The Respondent noted that the Applicant has identified four instances where discretion was exercised in favour of an applicant. The Respondent contends that each of those matters concerned different individuals with differing levels of experience and they should be distinguished on their facts from the present case. 3. The Respondent submits that the Tribunal should affirm the decision to refuse the application. However, if the Tribunal chooses not to affirm the decision, the Applicant should not be granted immediate accreditation. This is because under clause 118(2) (ii) and (iii) of the Regulation, the Respondent has an obligation to be satisfied the Applicant is able to: 1. conduct the competency assessment to which the application relates competently, and 2. ensure compliance with any conditions that will apply to the accreditation. 1. Those two matters are addressed by an applicant completing and successfully passing a mandatory knowledge examination, online ethics training and attending a SafeWork NSW Assessor Induction session. Accordingly, it is not possible to grant an applicant accreditation if these accreditation requirements are not satisfied. The Applicant's case 1. The Applicant seeks orders setting aside the Respondent's decision and granting the accreditation without any further requirements other than the online anti-corruption training. 2. The Applicant contends that the orders are warranted because: 1. The Guide is not supported by the regulations 2. RTO Standard does not mention anything about a 2 year time frame or operational experience gained in the preceding 2 years. 3. Industry currency was proven by the Applicant's reaccreditation in 2020 and 2021. 4. The Applicant is currently employed at an RTO where he is constantly using his skills and knowledge. 1. The Applicant contends that the accreditation is to be granted immediately because clause 118(1) provides that the regulator must grant an accreditation if satisfied at the Applicant: (i) is qualified to conduct the competency assessment to which the application relates, and (ii) is able to conduct the competency assessment to which the application relates competently, and (iii) is able to ensure compliance with any conditions that will apply to the accreditation, or (b) the applicant holds a current equivalent accreditation under a corresponding WHS law. The Guide is not supported by the regulations 1. The Applicant provided copies of internal review decisions conducted by the Respondent February 2018 and March 2021 which overturned decisions to refuse high risk work accreditation applications. The Applicant notes the expressed view that the Guide is not called up in the Regulation and is a guide only. The RTO Standard 1. The Applicant submits that the RTO Standard does not stipulate the need for a particular length of operational experience or that the operational experience is to be gained in the preceding 2 years. As noted above, the time stipulations are set out in the Guide. 2. The Applicant submits that the Guide is not part of the legislation that is applicable to the assessment of the application. Government policy 1. As noted above, section 64 of the ADR Act provides that the Tribunal must give effect to relevant Government policy. 2. The Applicant submits that the Respondent has not provided any evidence to prove that the Guide is in fact NSW State Government policy. He submits that Mr Chamings' evidence does not establish a commitment by the government to follow the Model Guide as policy. 3. The Applicant also notes that the Regulation has been amended and updated since the development of the Model Guide, yet there is still no reference to the Model Guide in the Regulation. He argues that the Respondent's position is inconsistent with the Regulation. 4. Similarly, the Applicant contends that there is no evidence to establish that the RTO Standard is Government policy. 5. The Applicant submits the Tribunal should grant the accreditation immediately. Consideration 1. The general facts in relation to the Applicant's qualifications and experience are not in dispute. The Respondent was satisfied in regard to the Applicant's qualifications. However, it refused the application on the basis that the Applicant had not demonstrated at least two years relevant industry and operational experience gained in the preceding two years. Accordingly, it was of the view that the Applicant did not meet the requirements of the Regulation. 2. I am satisfied that the Regulation was authorised by the Act and was validly made. The issue in dispute is whether the Applicant has established that he has sufficient relevant industry and operational experience to satisfy the requirements of the Regulation as it relates to the application for accreditation. 3. Clause 118(1) of the Regulation provides that an accreditation must be granted if the regulator, and therefore the Tribunal, is satisfied about the matters referred to in subclause (2). 4. Subclause (2)(a)(i) requires that an applicant must be qualified to provide the competency assessment to which the application relates. Subclause (6) provides that an applicant is qualified to provide the competency assessment if their competencies, skills and knowledge are in accordance with the RTO Standard. 5. The Applicant has correctly identified that the RTO Standard does not mention any specific time frames. It does not mention a requirement of a minimum of 2 years relevant current industry and operational experience. The RTO Standard does not stipulate that the experience is to be gained in the preceding 2 years. 6. The RTO Standard refers to: 1. vocational competencies at least to the level being delivered and assessed; 2. current industry skills directly relevant to the training and assessment being provided; and 3. current knowledge and skills in vocational training and learning that informs their training and assessment. 1. The Respondent has determined that in order to satisfy the requirements of the RTO Standard, applicants "should generally have a minimum of two years relevant current industry and operational experience (such as – experience gained in the preceding two years) in the HRW for which accreditation is sought". 2. The Respondent has published this requirement in the Guide. 3. There is a direct correlation between the requirement stipulated in the Guide and the requirement stipulated in the Model Guide. 4. The Applicant contends that the two years minimum operational experience requirement is no more than a guide. He further contends that, notwithstanding that the Model Guide was developed by a group which comprises representatives from work health and safety regulators across Australia and New Zealand and which works to develop a consistent approach to regulation of practices of this kind, it is not government policy. 5. I agree with the Applicant in that regard. In my view, the requirement of a minimum of two years relevant current industry and operational experience is no more than a guide. It is not Government policy as defined in section 64 of the ADR Act. 6. However, I agree with the Respondent that the RTO Standard provides general guidance which can be interpreted as required for different industries. It is apparent from the face of the instrument that it is intended to set standards for a range of registered training organisations. It does not set a specific minimum industry and operational experience requirements. 7. As noted above, section 276(3)(a) of the Act states that the Regulation may leave any matter or thing to be determined, applied, or approved by the regulator. I am satisfied that it was envisaged that separate instruments would be developed for individual industries. It was not intended that the Regulation would provide those specific details. 8. It appears that the Model Guide and the Guide were developed in that context. 9. While I am satisfied that those instruments are not Government Policy as defined in section 64 of the ADR Act, they are "other policy applied by the administrator" for the purposes of section 64(4) of the ADR Act. As noted above, section 64(4) provides: (4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. 1. I am not satisfied that either the Model Guide or the Guide is contrary to Government policy or to law. I am not satisfied that having regard to those policies would produce an unjust decision in the circumstances of the case. 2. I am able to have regard to the Guide as a guide to the level of experience that is needed to satisfy the requirements of the Regulation. Clearly, the policy is not to be applied inflexibly and it should be considered in light of the objects of the Act to promote the principles and objects of the Act. 3. In the circumstances of this case, it is not in dispute that the Applicant has in excess of the two years' experience referred to in the Guide. However, the majority of that experience was obtained in the period 2002 to 2008. 4. I have set out above the objects of the Act. These include: 1. protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and 2. ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and 3. providing a framework for continuous improvement and progressively higher standards of work health and safety, and 1. The Act also states that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable. 2. In my view, if the object of providing the highest level of protection against harm and risks arising from work is to be met, careful scrutiny must be given to the operational experience of applicants for accreditation. 3. I do not accept that it is sufficient that an applicant has satisfied the course qualification requirements in regard to the accreditation that is sought. An applicant also needs to satisfy the operational experience requirements and the currency of that experience is of particular importance. 4. Some flexibility is warranted if the operational experience is extensive and closely aligned to the HRW for which accreditation is sought. However, in my view the currency of the experience is a significant consideration. This is particularly so given the extent of workplace injuries and fatalities to which the Respondent has referred. 5. I agree with the Respondent that, at this time, the depth and range of the recent experience of the Applicant does not warrant an exercise of a discretion to grant the accreditation that he is seeking. More time gaining relevant experience would be needed before I could be satisfied that the Applicant is able to meet the requirements of clause 118(2)(a) of the Regulation. 6. While I am unable to give a clear indication of the amount of extra experience that the Applicant would need to obtain before the accreditation could be granted, I can indicate that the evidence of his current experience suggests that the additional experience he would need in order to meet the requirements is in the order of months rather than years. 7. Having formed this view, it follows that the correct and preferable decision is that the accreditation should not be granted at this time. With further experience, the Applicant may well obtain a different outcome should he choose to reapply. Order The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 24 March 2023