Difford v WorkCover Authority of NSW [2009] NSWADT 127

CITATION: Difford v WorkCover Authority of NSW [2009] NSWADT 127

DIVISION: General Division

APPLICANT Mark Difford PARTIES: RESPONDENT WorkCover Authority of NSW

FILE NUMBER: 093031

HEARING DATES: 19 May 2009

DATE OF DECISION: 29 May 2009

BEFORE: Molony P - Judicial Member

CATCHWORDS: Occupational Health and Safety, certificates of competency

Occupational Health and Safety Regulation 2001 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Occupational Health and Safety (Certificate of Competency) Regulation 2007 Occupational Health and Safety Act 2000

APPLICANT In person REPRESENTATION: RESPONDENT W Cooper, solicitor

ORDERS: The decision of the WorkCover Authority of NSW to cancel Mr Difford's certificates of competency in the classes 'non-slewing mobile crane,' 'basis scaffolding,' intermediate scaffolding' and 'advanced scaffolding' is set aside. In its place the Tribunal substitutes a decision to suspend Mr Difford's certificates of competency in the classes 'non-slewing mobile crane,' 'basis scaffolding,' intermediate scaffolding' and 'advanced scaffolding.'

REASONS FOR DECISION 1 Mr Difford held a number of certificates of competency issued under cl 290 of the Occupational Health and Safety Regulation 2001. Four certificates in the classes 'non-slewing mobile crane,' 'basis scaffolding,' intermediate scaffolding' and 'advanced scaffolding' were issued to Mr Difford in 2000. To qualify for those permits Mr Difford successfully passed tests conducted by an accredited assessor, Mr Fassone. 2 In 2003 ICAC commenced an inquiry into the conduct of certain accredited assessors. On 30 June 2004 ICAC published a report of its investigation, 'Investigation into safety certification and training in the NSW construction industry.' In that report ICAC made adverse findings against Mr Fassone with respect to his conduct of assessments. Among other things ICAC recommended that: That WorkCover NSW ensures that a rigorous and ongoing program of random site visits and re-testing of operator competence is developed and maintained as part of its compliance monitoring regime. 3 WorkCover determined to retest all holders of competency certificates who had been issued with certificates following assessments by Mr Fassone between 2000 and 2004. Clause 296 of the Occupational Health and Safety Regulation 2001 at that time relevantly provided: (2A) WorkCover may, at any time, cause written notice to be given to a person who is the holder of a certificate of competency, or whose certificate of competency is suspended, directing the person to have his or her competency assessed in accordance with the requirements set out in the notice. (2B) WorkCover may suspend or cancel the certificate of competency if the person refuses or fails to comply with the requirements set out in the notice. 4 WorkCover says it sent Mr Difford a registered letter in November 2005 directing him to make arrangements to be retested for the Basic Scaffolding certificate of competency before 28 November 2005. It indicated the reasons for the reassessment, and offered to pay the costs of the assessment if done at a TAFE. In April 2006 WorkCover says it sent a similar letter to Mr Difford requiring him to make arrangements to be retested for the non-slewing mobile crane certificate of competency by 28 April 2008. 5 In July 2007 WorkCover says it wrote to Mr Difford advising that, as he had not complied with the notices requiring that he be retested, it would cancel his certificates of competency. He was given 21 days to make submissions as to why this would not occur. 6 On 25 July 2007 Mr Difford contacted a WorkCover officer advising that he had not received the notices to be retested as he had moved. A person from his former address had handed him a copy of WorkCover's most recent letter. According to the Internal Review, which was later conducted, because 'of Mr Difford indicating he did not receive the notices WorkCover did not proceed with the cancellation of Mr Difford's certificates of competency.' 7 On 6 August 2007 WorkCover sent fresh notices to Mr Difford requiring that he be retested for the three classes of scaffolding certificate and his non-slewing mobile crane certificate. It advised that if he did not make arrangements to be retested by 27 August 2007 it would proceed to cancel his certificates of competency under cl 296(2B) of the Regulation. 8 There then ensured a number of discussions between WorkCover and Mr Difford about which there is some conflict as to precisely what was said. Mr Difford alleges he was told that there was no right to review WorkCover's decisions in relation to his certificates of competency. A meeting was arranged with WorkCover to discuss these issues on 13 August 2007, which Mr Difford did not attend. 9 On 15 August 2007 WorkCover again wrote to Mr Difford confirming that he was required to be retested and providing copies of the notices of 6 August 2007. The letter contained advice as to why he was required to be retested and advised: If you are not satisfied with the actions taken by WorkCover staff, or wish to appeal the decision to be retested you should submit your concerns in writing to … 10 On 21 September 2007 WorkCover wrote to Mr Difford advising that as he had not complied with the notices requiring that he be retested it would cancel his certificates of competency. He was given 21 days to make submissions as to why this would not occur. Mr Difford did not reply. 11 On 24 October 2007 WorkCover wrote to Mr Difford advising it had cancelled his certificates of competency from that day, and requiring him to return the certificates. The letters did not advise that he had a right to seek an internal review as required by s 48 of the Administrative Decisions Tribunal Act 1997. 12 On 4 March 2008 the Commonwealth AAT advised WorkCover that they had received an application from Mr Difford to review that decision. The AAT advised that Mr Difford had been told to seek an internal review before the decision could be reviewed. Any such review is in this Tribunal, rather than the AAT. 13 On 29 December 2008 Mr Difford sought an internal review by email. On 23 January 2009 that internal review was completed. It affirmed the decision to cancel his certificates of competency. It advised of Mr Difford's right to seek an external review in this Tribunal. 14 On 9 February 2009 Mr Difford lodged an application to review that decision with this Tribunal. Relevant Legislation 15 I have already set out in paragraph 3 the relevant provisions of cl 296 of the Occupational Health and Safety Regulation 2001. That clause was repealed by the Occupational Health and Safety (Certificate of Competency) Regulation 2007 on 2 November 2007. It replaced cl 296 with cl 283A, which provides: (1) A written notice directing a person to have his or her competency assessed may be given, at any time, by WorkCover: (a) to a person who is the holder of a certificate of competency, or (b) to a person whose certificate of competency is suspended, or (c) to a person who has lodged an application for the issue or renewal of a certificate of competency. (2) WorkCover may suspend, cancel or refuse to issue or renew the certificate of competency if the person refuses or fails to comply, without reasonable excuse, with the requirements set out in the notice. (3) If WorkCover decides to suspend, cancel or refuse to issue or renew a certificate of competency under this clause, WorkCover must give the person written notice: (a) stating that the certificate has been suspended or cancelled, or that the application for the issue or renewal of a certificate has been refused, and (b) giving reasons for the suspension, cancellation or refusal, and (c) in the case of a suspension, stating the period for which the certificate is suspended. (4) The suspension or cancellation of a certificate of competency takes effect on the date on which notice of the suspension or cancellation is given to the holder of the certificate or on such later date as may be specified in the notice. 16 In addition the same regulation amended cl 293 by inserting a new sub-cl (2)(b) so that that provision now relevantly provides: (1) Unless sooner cancelled, a certificate of competency expires on the earlier of: (a) the day specified in subclause (2) for the expiry of a certificate of competency, or (b) … (2) For the purposes of subclause (1) (a), the day specified for the expiry of a certificate of competency is: (a) … (b) in the case of a certificate issued before 29 March 2004—29 March 2009 or such earlier date as may be specified by WorkCover by means of a written notice given to the holder of the certificate. (3) … (5) Despite subclause (1), if the holder of a certificate of competency has applied under this Division for the issue or renewal of a certificate of competency authorising the holder to do that same kind of work as the holder is authorised to do under the certificate referred to in that subclause that is in force, the existing certificate does not expire until WorkCover: (a) issues the certificate applied for, or (b) gives the notice referred to in clause 290 (3). 17 Clause 351 of the Occupational Health and Safety Regulation 2001, when read with s 38 of the Administrative Decisions Tribunal Act 1997, gives this Tribunal jurisdiction to review the decision to cancel Mr Difford's certificates of competency. 18 Mr Difford's right to seek an internal review of WorkCover's decision is found in s 53 of the Administrative Decisions Tribunal Act 1997. Sub-section (2)(d) specifies the time within which an internal review is to be sought: (d) …within 28 days (or such later date as the administrator may allow) after the person: (i) if the person has requested reasons under section 49—was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the person has not requested reasons under section 49—was notified of the making of the reviewable decision, and 19 Section 55 of the Administrative Decisions Tribunal Act 1997 then provides a right to seek external review in this Tribunal, subject to satisfying either the time limits set out in the Occupational Health and Safety Regulation 2001, or the default period set out in s 55(2) of the ADTA. It relevantly provides: (1) A person may apply to the Tribunal for a review of a reviewable decision only if: (a) the application is made by an interested person, and (b) where the person was entitled to seek an internal review of the decision—the person has duly applied for such a review and the review is taken to have been finalised under section 53 (9), and (c) the application is made in the manner prescribed by the rules of the Tribunal, and (d) the application is made within the period or by the time prescribed by or under the enactment under which the application is made or, if no such period or time is prescribed, the default application period for the decision. (2) The default application period for a reviewable decision is: (a) in the case where the applicant has duly applied for an internal review of the reviewable decision—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53 (9), or (b) … The Hearing 20 Mr Difford's application was listed for hearing before me on 19 May 2009. 21 As is my practice when litigants are unrepresented I had Mr Cooper outline WorkCover's position so that both Mr Difford and I understood precisely what WorkCover's position was. I then invited Mr Difford to outline his position to me. He told me that he was resting his case on the paperwork he had provided. He did make some oral submissions in relation to being told there was no review process and with respect to internet searches he had done, which showed his certificates of competency being cancelled before he contacted WorkCover and subsequently reinstated. Ultimately, however, he chose to rely on the paper work he had provided. 22 I reserved my decision so that I could examine it in detail. Issues 23 There are two issues requiring determination in this case. First, whether the Tribunal has jurisdiction to hear the application for review. Secondly, if so, whether the decision to cancel Mr Difford's certificates of competency was the correct and preferable decision. 24 It is to be noted that if Mr Difford is successful on review his victory will be a pyrrhic one as cl 293 of the Occupational Health and Safety Regulation 2001 in any case operates to cancel them as of 29 March 2009. The Jurisdiction Issue 25 Mr Copper who appeared for WorkCover submitted that the Tribunal had no jurisdiction to hear Mr Difford's application because Mr Difford had not 'duly' applied for an internal review as required by s 55. Mr Cooper noted that Mr Difford has made his application for internal review on 29 December 2008, more than a year after WorkCover made the decision to cancel his certificates on 24 October 2007. He submitted that this was well outside the 28 day time limit fixed by s 53(2)(d) for requesting an internal review. As a result, Mr Cooper argued that Mr Difford had not duly applied for an internal review: the Tribunal therefore did not have jurisdiction to hear his application. 26 I pointed out to Mr Cooper that WorkCover had not rejected Mr Difford's internal review request, despite it being made well outside the 28 day time limit, but had proceeded to make in decision on internal review. Mr Cooper submitted that WorkCover had done so for other purposes associated with Mr Difford agitating for compensation, but had not agreed to extend the time for the making of the internal review. 27 I do not accept this. There is no mention in the internal review of it being conducted for anything other than the usual purposes. The internal review does not address the fact that the request was made out of time, but simply proceeds to re-determine the issue and affirm the earlier decision. 28 Section 53(2)(d) provides that a request for internal review is to be lodged with an administrator 'within 28 days (or such later date as the administrator may allow)' of the original decision. By proceeding to consider and determine the internal review I think it obvious that WorkCover allowed Mr Difford additional time in which to seek the internal review. For WorkCover to now retrospectively put qualifications on its own conduct in undertaking the internal review is at odds with its own earlier conduct. 29 It should also be noted that when WorkCover advised Mr Difford of the cancellation it did not give him the required advice about his right to seek an internal review, or of the time for seeking such a review. This, in my view, emphasises the lack of merit in WorkCover's submission on jurisdiction. 30 I am satisfied that the Tribunal has jurisdiction to hear Mr Difford's application. The Decision to Cancel 31 Mr Difford submissions and the material he filed to support his application concentrates on the decision to require him to be retested. He has produced copies of the ICAC's Report on investigation into safety certification and the operations of the WorkCover NSW Licensing Unit which reported on the issuing of false certificates of competency, and of the report on the Investigation into safety certification and training in the NSW construction industry, in which Mr Fassone was named. He has also produced copies of transcripts of evidence given to ICAC. 32 As I understand it the point of this evidence, and much of Mr Difford's submissions, is to question WorkCover's conduct in requiring him to be retested. He regards it as harsh and capricious, pointing to the fact that if he had been tested by Mr Fassone three months earlier, in 1999, he would not have been required to be retested. The material filed in the s 58 documents demonstrates that Mr Difford has been vociferous and assertive in expressing his sense of injustice at the decision to retest, to the point where WorkCover will no longer speak with him by phone. It requires that all communication be in writing. 33 I sought to point out to Mr Difford that the Tribunal's jurisdiction and function was to review the decision to cancel his certificates of competency, not the decision to have him retested. Relevantly, cl 351(1)(c)(ii) of the Occupational Health and Safety Regulation 2001 gives a person aggrieved a right to seek a review of a decision 'to suspend or cancel a certificate of competency.' 34 It is clear, and WorkCover conceded, that there is no evidence that there was any irregularity in Mr Fassone's testing of Mr Difford for his certificates of competency in early 2000. It is equally clear that as a result of ICAC's investigation irregularities were found in the testing of some candidates, and that ICAC recommended that WorkCover embark on a program of retesting. WorkCover has serious and important obligation to ensure safety in the workplace under the Occupational Health and Safety Act 2000. WorkCover also has a discretion given to it by the Regulation to require holders of certificates of competency to be retested. This it did in Mr Difford case. At that time the relevant regulation was cl 296. 35 Mr Difford pointed to the fact that before he contacted WorkCover a search of his certificates of competency on the WorkCover site had shown some of them cancelled, but later searches showed them as current. Many hours could be spent trying to untangle the conundrum of why this occurred. What seems plain to me is that when WorkCover discovered that Mr Difford had not received the initial notices to be retested, they proceeded on that basis, and on the basis that his certificates were current. Whether or not there had been an earlier decision to cancel is not plain to me on the material, but a finding about that is not necessary to the issue I have to determine. I observe that if there was in fact an earlier cancellation decision WorkCover had power to reconsider it, when the fact that Mr Difford had not received the retesting notices came to its attention. 36 What is clear is that on 6 August 2007 WorkCover sent fresh notices to Mr Difford requiring that he be retested for the three classes of scaffolding certificate, and his non-slewing mobile crane certificate, by 27 August 2007. By letter of 15 August 2007 it confirmed that advice and sent him copies of the notices. It also advised him of who to contact if he wished to challenge the decision to retest. 37 Mr Difford was not retested. He did not put in place arrangements to be retested. He says he did not arrange a retest because he was not told he would not be using a machine for his retest, and was otherwise refused details of the test. He was not prepared to accept those conditions. 38 When no retest had been arranged or completed WorkCover gave Mr Difford notice, on 21 Septembers 2007, of its intention to cancel his licence, and asked for submissions as to why it should not do so. He made no representations in response. 39 On 24 October 2007 WorkCover cancelled the certificates of competency. It did not advise of his right to seek an internal review in the letters advising of the cancellation. 40 In my opinion WorkCover complied with the requirements of cl 296(2A) regarding retesting and, therefore, could exercise the discretion under sub-clause (2B) to cancel or suspend Mr Difford's certificates of competency. 41 It had also satisfied the requirement of cl 283A(1) which had effect after 7 November 2007, and, if the decision were made under that provision, could similarly have made a decision to cancel or suspend. There is an issue as to which provision I should be acting on in reviewing the decision at this time. Because both provisions are satisfied by WorkCover actions, I do not propose to allow myself to diverted by resolving that question, because I am satisfied that the result would be the same in either case. 42 While it was clearly open to WorkCover to cancel Mr Difford's certificates of competency under both provisions, I have difficulty in understanding why a decision was made to cancel, rather than suspend, Mr Difford's certificates of competency. There was no evidence that his certificates had been obtained improperly: he was simply caught up in a wider retesting program recommended by ICAC. He was aggrieved by the decision to retest, and clearly unused to dealing in the regulatory environment in which he was embroiled. 43 By suspending his certificates, rather than cancelling them, WorkCover's aim of ensuring safety in the workplace could have been achieved, and Mr Difford would have been encourage to submit to retesting. 44 In my view the correct and preferable decision was not to cancel Mr Difford's certificates of competency, but to suspend them. 45 Section 66 of the Administrative Decisions Tribunal Act 1997 provides that a decision made on review by the Tribunal is taken 'to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise' Therefore a decision to set aside WorkCover's decision to cancel Mr Difford's certificate of competency, and substituting a decision to suspend them, would have effect from 24 October 2007. 46 While I understand that the benefits that Mr Difford will derive from a decision to suspend his certificates of competency are of little practical utility, given that cl 293 operated to cancel all certificates issue before 29 March 2004 on 29 March 2009, I nonetheless consider this to be the correct and preferable decision. This is so because I consider a suspension for failing to submit to retesting a less onerous censure than a cancellation, and easier for Mr Difford to explain to future employers. Conclusion 47 As a consequence I think that the correct and preferable decision is to set aside decisions of the WorkCover Authority of NSW to cancel Mr Difford's certificates of competency in the classes 'non-slewing mobile crane,' 'basis scaffolding,' intermediate scaffolding' and 'advanced scaffolding'. 48 In it place the Tribunal substitutes a decision to suspend Mr Difford's certificates of competency in the classes 'non-slewing mobile crane,' 'basis scaffolding,' intermediate scaffolding' and 'advanced scaffolding.'