Miller v SafeWork NSW [2016] NSWCATAD 238

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miller v SafeWork NSW [2016] NSWCATAD 238 Hearing dates: 11 October 2016 Date of orders: 24 October 2016 Decision date: 24 October 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The Respondent's application for the stay order to be revoked is dismissed. Catchwords: MERITS REVIEW – application for revocation of stay order – where applicant breached condition of stay – whether public interest considerations justify revocation Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 60 Work Health and Safety Regulation 2011 (NSW), cl 489 Category: Procedural and other rulings Parties: Garry Miller (Applicant) SafeWork NSW (Respondent) Representation: Applicant (self-represented) Department of Finance, Services and Innovation (Respondent) File Number(s): 1610409 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. SafeWork NSW has applied for the revocation of a stay order which allowed Mr Miller to retain his asbestos assessor licence pending a hearing. The basis for the revocation application is that Mr Miller has not complied with a condition of the stay. I have decided not to revoke the stay because even though non-compliance with the condition is a serious matter, there is no suggestion that there is any risk to public safety if he continues to hold the licence.

Background 1. Following a hearing on 12 July 2016, the Tribunal stayed SafeWork's decision to cancel Mr Miller's asbestos assessor licence. That licence allows the holder to undertake certain types of air monitoring and clearance inspections and to issue clearance certificates for certain types of asbestos removal work: Work Health and Safety Regulation 2011 (NSW), cl 489. The stay was subject to the following condition: Mr Miller must advise SafeWork NSW of when and where he will be performing work under the Asbestos Assessor Licence (LAA001134). 1. Mr Miller commenced employment on 5 September 2016. He did not notify SafeWork in writing that he was employed until 18 September 2016. I find that Mr Miller did not comply with the condition. 2. In his defence, Mr Miller says three things. First, he was only being inducted and doing desktop work as a project assessor for the first week. He says the condition is vague because he was not actually using his licence until he started a project on 15 September 2016 at Westmead Hospital. I do not accept this excuse. The condition is clear. Mr Miller can have been under no misapprehension that he needed to advise SafeWork as soon as he commenced work in a job which required him to hold an asbestos assessor licence. 3. Secondly, Mr Miller says SafeWork provided him with the name of Steve Nikolovski as an email contact. He says he received an automated reply from Mr Nikolovski to the following effect: Thank you for your email. I am on secondment to the Loose Fill Asbestos Taskforce until 29/8/17. I will not have access to email during this time. Please contact Zoran Sukara on [contact details deleted] 1. Mr Miller did not say when he sent an email to Mr Nikolovski or what it contained. Mr Nikolovski says he checked his SafeWork e-mail account but there were no emails from Mr Miller other than the email he sent on 18 September 2016. The automated email response, even if received by Mr Miller, does not advance his case. 2. Thirdly, Mr Miller opposed the revocation saying that it has taken him from 12 July 2016 to 5 September 2016 to gain employment in Sydney and that if he loses his licence he will be unemployed. He has no problem complying with the condition in future.