CITATION: Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 320 DIVISION: General Division APPLICANT Dominic Peter Hawke PARTIES: RESPONDENT Chief Executive Officer, WorkCover NSW FILE NUMBER: 083089 HEARING DATES: 13 November 2008 SUBMISSIONS CLOSED: 13 November 2008 DATE OF DECISION: 2 December 2008 BEFORE: Handley R - Deputy President CATCHWORDS: Jurisdiction - whether application for review competent Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4 CASES CITED: Hawke v Chief Executive Officer, WorkCover NSW (GD) [2008] NSWADTAP 30 Hawke v Chief Executive Officer, WorkCover NSW (No 2) (GD) [2008] NSWADTAP 45 Bridge v WorkCover Authority of NSW [2007] NSWADT 154 APPLICANT In person REPRESENTATION: RESPONDENT G De Courcey, solicitor ORDERS: (1) The Tribunal has no jurisdiction to undertake a review in respect of a decision by WorkCover NSW refusing accreditation as an OHS induction trainer for construction work in NSW (2) A Directions Hearing is to be arranged to discuss the parties making further submissions in relation to the applicability of clause 351(2) of the Occupational Health and Safety Regulation 2001 in the case of Mr Hawke's second and third WorkCover applications, as explained in these Reasons. REASONS FOR DECISION 1 On 13 March 2008, Mr Hawke applied to the Tribunal for a review of a refusal by WorkCover to make decisions in relation to his applications for (1) accreditation as an OHS induction trainer for construction work in NSW; (2) a national certificate of competency for accreditation as an assessor; and (3) for accreditation as an assessor for explosive-powered tools and formwork. WorkCover contends this review application is not 'competent' since WorkCover has made no decision in relation to Mr Hawke's three applications. Background 2 Mr Hawke has held various accreditations as a trainer and assessor. On 25 May 2007, he applied to the Tribunal for the review of the following decisions: (1) a decision of September 2004 cancelling his accreditation as a WorkCover assessor; (2) a decision of May 2005 refusing his application for accreditation as an assessor for explosive-powered tools and formwork; and (3) a decision of January 2007 to cancel his accreditation as a WorkCover trainer. 3 On 12 July 2007, Montgomery JM dismissed Mr Hawke's application in relation to the third decision, that of January 2007, on the ground that it was not a 'reviewable decision' so that the Tribunal had no jurisdiction to conduct a review. Because the two earlier decisions were made in 2004 and 2005 respectively, it was necessary for Mr Hawke to apply for an extension of time for the lodging of his application with the Tribunal. Montgomery JM dealt with this as a preliminary issue at hearings on 12 July 2007 and 2 August 2007. He decided that Mr Hawke's application for an extension of time should be refused: Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4 (decision dated 7 January 2008). 4 Mr Hawke appealed against this decision to the Tribunal's Appeal Panel. The Panel, comprising the President of the Tribunal, O'Connor DCJ, refused Mr Hawke leave to appeal and dismissed the appeal: Hawke v Chief Executive Officer, WorkCover NSW (GD) [2008] NSWADTAP 30 (decision dated 9 May 2008). WorkCover sought costs in respect of the appeal. In a later decision solely on this issue, the President ordered Mr Hawke to pay WorkCover's costs of the appeal as agreed or assessed: Hawke v Chief Executive Officer, WorkCover NSW (No 2) (GD) [2008] NSWADTAP 45 (decision dated 25 July 2008). 5 As stated above, Mr Hawke's present application is in respect of three applications for accreditation as an assessor/trainer. Submissions and Discussion The First Application – for accreditation as an OHS induction trainer for construction work in NSW 6 In relation to the first of the applications in respect of which Mr Hawke seeks a review, his application for accreditation as an OHS induction trainer for construction work in NSW, the Tribunal notes, as Mr De Courcey pointed out, that such an application was the subject of a decision by Montgomery JM on 7 January 2008, when the Judicial Member dismissed the application for want of jurisdiction: Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4, at [4] to [5]. 7 Pursuant to s 8 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), "[a] 'reviewable decision' is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review". Section 36 of the Occupational Health and Safety Act 2000 provides that regulations made under the Act "may authorise a person to apply to the Tribunal for a review of a decision, of a class prescribed by the regulations, that is made under this Act or the regulations". Clause 351(1) of the Occupational Health and Safety Regulation 2001 ('the OHS Regulation') sets out the classes of decisions made by WorkCover in respect of which an aggrieved person may apply to the Tribunal for a review. These do not include decisions made under clause 217A (which is in Part 8.2 of the Regulation) on an application for accreditation to conduct OHS induction training. 8 Thus, as Montgomery J correctly determined, it is not open to Mr Hawke to make an application to the Tribunal for a review in respect of a decision by WorkCover to refuse his application for OHS induction trainer accreditation for construction work in NSW. 9 On 24 April 2008, Mr Hawke sent additional information to WorkCover concerning his application for trainer accreditation. WorkCover responded by letter dated 2 May 2008 requesting further information. Mr Hawke replied by letter dated 20 June 2008. In a letter dated 25 July 2008, WorkCover stated that, after careful consideration, it was unable to recommend accreditation, identifying various deficiencies in Mr Hawke's application. Mr Hawke requested an internal review of this decision. In a letter dated 19 September 2008, a review officer said that, after considering Mr Hawke's representations and the additional information supplied, the internal review had supported WorkCover's reason for rejecting Mr Hawke's application. 10 On 23 October 2008, Mr Hawke filed an application with the Tribunal for a review of this decision. (This application is the subject of Tribunal matter no 083318.) While this later application is not the subject of the current proceedings, I note that the applicable law remains the same as that in respect of the application considered above, and the Tribunal would have no jurisdiction to entertain Mr Hawke's later review application in respect of his application to WorkCover for accreditation as an OHS induction trainer for construction work in NSW. The Second Application – for a national certificate of competency for accreditation as a WorkCover assessor 11 The second application in respect of which Mr Hawke seeks a review by the Tribunal is that for a national certificate of competency for accreditation as a WorkCover assessor. WorkCover submits the Tribunal has no jurisdiction to conduct a review since no decision has been made. By letter dated 29 February 2008, WorkCover stated it was unable to process Mr Hawke's correspondence dated 14 December 2007: "as you have not addressed the accreditation criteria outlined within the National Certificates of Competency Assessors Accreditation Manual. WorkCover NSW will not make a final decision on any application received for NCOC assessor accreditation until the outcome of proceedings currently before the Administrative Decisions Tribunal (ADT), including the appeal process, is known." 12 This is the subject of the Mr Hawke's application to the Tribunal filed on 13 March 2008 under review in this decision. Mr De Courcey submitted that the Tribunal has no jurisdiction in relation to this application because no decision has been made, referring to the decision in Bridge v WorkCover Authority of NSW [2007] NSWADT 154. In that case, the applicant had not yet applied for the licence in question and thus there was no reviewable 'decision' for the purposes of section 38 of the ADT Act, which confers jurisdiction on the Tribunal in respect of a decision or class of decisions made by an administrator. 13 Clause 351(2) of the OHS Regulation appears to apply in relation to such an application, specifically paragraph (c): (2) WorkCover is taken, for the purposes of an application for review by the Administrative Decisions Tribunal: (a) to have refused to grant an approval, permission or exemption, or (b) to have refused to register a plant design or an item of plant or amusement device, or (c) to have refused to issue a certificate of competency or licence, or (d) to have refused to amend or cancel a condition of an approval, registration, permission or exemption, or (e) to have refused to rescind a cancellation or discontinuance of registration, or (f) to have refused to accredit an assessor under Chapter 9, or (g) to have confirmed a decision of an assessor under Chapter 9, if it does not determine an application in relation to the relevant matter within 3 months after the date of lodgment of the application. 14 Since the applicability of this clause was not addressed by the parties in their submissions, I propose to invite further submissions on this issue and, in the event that clause 351(2) is relevant and I find that it does apply in this instance, an appropriate order might be to remit the matter to WorkCover to reconsider Mr Hawke's application. However, such an order may be rendered superfluous by Mr Hawke's later application for review referred to below. 15 Mr Hawke said he sent a further application to WorkCover for accreditation as a WorkCover Assessor on 24 April 2008. WorkCover responded on 2 May 2008 stating that the required declaration in the application form concerning whether Mr Hawke had been suspended or cancelled as an accredited assessor or other OHS service provider in any State or Territory, had not been answered clearly and further information was required. Moreover, other information and documentation had not been provided in the proper form and could not be accepted. 16 Mr Hawke responded by letter dated 20 June 2008. WorkCover replied by letter dated 25 July 2008 stating that Mr Hawke's application had not demonstrated "sufficient relevant industry experience, or evidence that you hold a National Certificate of Competency" for six specified classes of operation, and that the references supplied were inadequate. Mr Hawke sought an internal review of this decision. By letter dated 19 September 2008, WorkCover stated that Mr Hawke's "representations and additional information supplied have been reviewed and after further consideration the internal review has supported our reason for rejection". On 23 October 2008, Mr Hawke filed an application with the Tribunal for a review of this decision. (This application is the subject of Tribunal matter no 083318.) 17 I have postponed holding a further Directions Hearing in relation to matter no 083318 pending my determination in the present matter. I propose to arrange such a Hearing after the publication of this decision and invite submissions from the parties in relation to outstanding issues in relation to both matters. The Third Application – for accreditation as an assessor for explosive-powered tools and formwork 18 The third application in respect of which Mr Hawke seeks a review by the Tribunal is that for accreditation as an assessor for explosive-powered tools and formwork. 19 Mr De Courcey submitted that the Tribunal has no jurisdiction because no decision has been made. He relied on the same submissions as those outlined in paragraph 12, above. He stated that a review of Part 9.2 of the OHS Regulation commenced in March 2008 and calling for public submissions by 28 March 2008, is still ongoing, and WorkCover has suspended the acceptance and processing of all new applications pending the outcome of the review. Mr Hawke's application was therefore returned to him. 20 Mr Hawke appears to have written to WorkCover on 14 December 2007 and 8 February 2008 in respect of this application. WorkCover responded by letter dated 2 May 2008: "As per our correspondence dated 29 February and 16 April 2008, WorkCover NSW has placed a suspension on the acceptance and processing of all new explosive-powered tools and formwork assessor accreditation applications until the review of the accreditation processes and the associate licensing requirements are complete." 21 As with Mr Hawke's second application, clause 351(2) of the OHS Regulation may apply, specifically paragraph (f). Once again, since the applicability of this clause was not addressed by the parties in their submissions, I propose to invite further submissions on this issue. 22 I note that, unlike in the case of the previous two WorkCover applications, Mr Hawke does not appear to have lodged a further application with WorkCover for accreditation as an assessor for explosive-powered tools and formwork in April 2008, and thus it would appear that no other decision or internal review decision has been made by WorkCover in this regard. Mr Hawke's application to the Tribunal filed on 23 October 2008 makes no reference to such a decision and such an application is not, therefore, the subject of his appeal in Tribunal matter no 083318. Submission concerning the costs order 23 Mr De Courcey also noted that Mr Hawke does not appear to have complied with the costs order made by the President in Hawke v Chief Executive Officer, WorkCover NSW (No 2) (GD) [2008] NSWADTAP 45 (decision dated 25 July 2008). WorkCover has lodged its claim for costs, and has received no response from Mr Hawke. Mr De Courcey submitted that the Tribunal should not deal with any new application by Mr Hawke until Mr Hawke has addressed the costs order. Mr Hawke said that he had asked the Tribunal Registry staff about the process of applying for an assessment of costs, and he intends to apply for such an assessment. Conclusion 24 The Tribunal makes the following orders: (1) The Tribunal has no jurisdiction to undertake a review in respect of a decision by WorkCover NSW refusing accreditation as an OHS induction trainer for construction work in NSW. (2) A Directions Hearing is to be arranged to discuss the parties making further submissions in relation to the applicability of clause 351(2) of the Occupational Health and Safety Regulation 2001 in the case of Mr Hawke's second and third WorkCover applications, as explained in these Reasons. 25 I note that at this Directions Hearing, I will also invite the parties to discuss how best to progress the proceedings in matter no 083318. 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.