Hawke v Chief Executive Officer, WorkCover NSW (No 2) [2009] NSWADT 63

CITATION: Hawke v Chief Executive Officer, WorkCover NSW (No 2) [2009] NSWADT 63

DIVISION: General Division

APPLICANT Dominic Hawke PARTIES: RESPONDENT Chief Executive Officer, WorkCover NSW

FILE NUMBER: 083089; 083318

HEARING DATES: 13 March 2009

SUBMISSIONS CLOSED: 13 March 2009

DATE OF DECISION: 25 March 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: Occupational health and safety – refusal of application for accreditation as an assessor

Occupational Health and Safety Act 2000 LEGISLATION CITED : Occupational Health and Safety Regulation 2001 Administrative Decisions Tribunal Act 1997

CASES CITED: Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 320

APPLICANT In person REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: The decision to refuse Mr Hawke's application for accreditation as an assessor is affirmed.

REASONS FOR DECISION 1 This matter involves a review of a decision of WorkCover NSW ('WorkCover') made under cl 284 of the Occupational Health and Safety Regulation 2001 ('the OHS Regulation') to refuse Mr Hawke's application for accreditation as a WorkCover assessor. Background 2 On 23 October 2008, Mr Hawke applied to the Tribunal for a review of two decisions made by WorkCover: (1) to refuse his application for accreditation as a WorkCover assessor, and (2) to refuse his application for accreditation as a WorkCover trainer. At that time, Mr Hawke had another similar application before the Tribunal, file number 083089. On 13 November 2008, I conducted a preliminary hearing in that matter on a jurisdictional issue. My decision on that issue - Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 320 – was published on 2 December 2008. Following publication of that decision, I conducted a Planning Meeting with the parties in relation to file no.s 083089 and 083318 on 23 December 2008 and gave directions for the exchange of documents. 3 At the hearing on 13 March 2009, Mr Hawke confirmed that he no longer wished to proceed with his application in file no 083089, which I have therefore dismissed. He also confirmed that he no longer wished to pursue that part of his application in file no 083318 concerning the refusal of his application for accreditation as a WorkCover trainer. The focus of the hearing and, therefore, of my decision is on WorkCover's refusal of Mr Hawke's application for accreditation as an assessor. 4 Mr Hawke has, in the past, held various accreditations as a trainer and assessor. On 21 April 2008, he made a new application to WorkCover for accreditation as an assessor. In a letter dated 2 May 2008, WorkCover sought further information from Mr Hawke, to which Mr Hawke responded by letter dated 20 June 2008. By letter dated 25 July 2008, WorkCover informed Mr Hawke that his application had been refused because, despite the request for further information, he had been "unable to demonstrate sufficient relevant industry experience" or evidence that he held a National Certificate of Competency for six classes of activity: basic scaffolding, intermediate scaffolding, basic rigging, intermediate rigging, hoist operation and materials operation, and concrete placing boom operation. Mr Hawke sought an internal review of this decision. 5 By letter dated 19 September 2008, WorkCover notified Mr Hawke that it had confirmed its original decision: "Your representations and additional information supplied have been reviewed and after further consideration the internal review has supported our reason for rejection, being: * Relevant Industry Experience – after an extensive review of your relevant industry experience and information provided by your referees, the required benchmark, set by WorkCover, has not been met. * Evidence of competency – National Certificates of Competency for Hoist Personnel and Materials Operation (HP) and Concrete Placing Boom Operation (PB) have not been held for a minimum of 2 years, as required by the accreditation criteria." 6 This is the decision in respect of which Mr Hawke seeks a review by the Tribunal. However, the focus of the hearing was on the issue of relevant industry experience, and I have confined this Statement of Reasons to that issue. The Relevant Legislation 7 The power to accredit assessors is contained in cl 284 of the OHS Regulation, which states: 284 Accreditation of assessors (1) Any person may apply to WorkCover for accreditation as an assessor. (2) The application: