Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chapman v Safework NSW [2018] NSWCATAD 114 Hearing dates: 20 March 2018 Date of orders: 30 May 2018 Decision date: 30 May 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: 1. The decision of Safework NSW dated 14 September 2017 to refuse to renew Mr Chapman's high risk work licence is set aside. 2. The Tribunal remits the matter to Safework NSW for reconsideration in accordance with the following directions: (a) that, in accordance with cl 103 (b) of the Work Health and Safety Regulation 2017, Mr Chapman has satisfied the Tribunal that exceptional circumstances exist; (b) that Safework NSW forward to Mr Chapman both by email and postal delivery the relevant documentation for renewal of his high risk work licence within seven days of the publication of this decision; and (c) that, in accordance with cl 103 (b) of the Work Health and Safety Regulation 2017, the Tribunal allows Mr Chapman to lodge his application for renewal of his high risk work within a longer period than 12 months after the expiry of the licence, namely within 21 days of receipt by Mr Chapman of the relevant documentation from Safework NSW for renewal of his high risk work licence. 3. The Tribunal recommends that in assessing any documentation lodged by Mr Chapman for renewal of his high risk work licence, Safework NSW take into account Mr Chapman's evidence to the Tribunal in relation to his competency to carry out the relevant high risk work. Catchwords: ADMINISTRATIVE LAW - High Risk Work Licence – Dogging – Forklift Trucks – Bridge and Gantry Crane – renewal documents not received by applicant - whether exceptional circumstances to allow late lodgement of renewal application. Legislation Cited: Administrative Decisions Review Act 1997 Work Health and Safety Regulation 2011 Cases Cited: Nil Category: Principal judgment Parties: Michael Chapman (Applicant) Safework NSW (Respondent ) Representation: Applicant: self-represented Solicitors: Government and Corporate Services, Finance Services and Innovation (Respondent) File Number(s): 2017/00317479 REASONS FOR DECISION Summary 1. Having held a licence to perform high risk work since 1994, the applicant, Mr Michael Chapman, had not renewed his licence (which provided for classes CB-Bridge and Gantry Crane; DG-Dogging and LF- Forklift Trucks) when it expired on 4 November 2014. He did not write to the respondent, Safework NSW, asking to renew his licence until 22 August 2017. Safework NSW subsequently refused Mr Chapman's request because he had not applied for renewal of the licence within 12 months of it having expired and because he had not demonstrated exceptional circumstances. This decision was confirmed on internal review on 14 September 2017, notification of which Mr Chapman received on 22 September 2017. He applied to the Tribunal for a review of the decision within time and there is no dispute that the Tribunal has jurisdiction to hear this review. 2. I have decided that the decision by Safework NSW to refuse to renew Mr Chapman's high risk work licence should be set aside and remitted to Safework NSW for reconsideration of the matter. This is because Mr Chapman has satisfied me that exceptional circumstances exist in this case; and because I have determined that he should be allowed to apply for renewal of his licence within a longer period than 12 months after the expiry of his licence, namely within 21 days of his receipt of the relevant documentation from Safework NSW for renewal of his high risk work licence. 3. I have also accepted that Mr Chapman is a witness of truth in relation to his evidence attesting to his competency to carry out high risk work. Exceptional circumstances 1. The Work Health and Safety Regulation 2011 ('the Regulation') sets out the circumstances under which an expired high risk work licence can be renewed. Clause 103 of the Regulation allows a person whose high risk work licence has expired to apply for renewal of that licence within 12 months after the expiry of the licence or, if the person satisfies the regulator that exceptional circumstances exist, within any longer period that the regulator allows. 2. Under 63 of the Administrative Decisions Review Act 1997, on review, this Tribunal stands in the shoes of the decision maker, in this case Safework NSW. 3. Exceptional circumstances are not defined in the regulation. The Macquarie Dictionary defines the word 'exceptional' as 'forming an exception or unusual instance; unusual; extraordinary.' 4. In both written and oral evidence, Mr Chapman, who was self-represented, set out those circumstances he submitted were exceptional. His evidence was not disputed by Ms Derrig, who appeared for Safework NSW. I found Mr Chapman to be a credible and truthful witness. 5. Mr Chapman gave evidence that: * he did not receive the paperwork for his licence renewal which, according to Safework NSW, was to have been sent to him by post; * he was not advised by email or by text message that his high risk work licence was due for renewal; * in June 2014, he lost his wallet which did not usually contain his high risk work licence card. In 2017 he realised his licence card was missing when he could not locate it in the folder where it belonged. It was then he remembered he'd put it in his wallet to allow his employer to make a copy of it. Mr Chapman submitted that, had he not lost his wallet and with it his high risk work licence card, he might have realised when it was due for renewal, even in the absence of any paperwork from Safework NSW; * it was only in 2017 that Mr Chapman realised that his high risk work licence had expired. When he contacted Safework NSW to request a renewal and advised the operator that he had received no notice of renewal, he was informed that he should have received the paperwork by mail, by email and by SMS. When Mr Chapman enquired further, he was informed that he had not been part of the electronic notification scheme. 1. In an affidavit sworn on 27 February 2018, Ms Pritchard, Acting Team Leader of Customer Experience at Safework NSW, stated that according to documentation held by Safework NSW, a high risk work licence renewal letter was sent to the applicant at his home address on 13 August 2014. 2. According to Ms Pritchard's affidavit, 'in August of 2014 all renewal reminder notices were sent via post…In 2016 SafeWork implemented SMS reminder messages as an additional method to [remind] customers when their HRW licences are due to expire. In accordance with the scheme, customers are sent an SMS 100 days prior to expiry, asking them to update their address. A further SMS is then sent 14 days prior to expiry, reminding them that their licence is due to expire and finally, an SMS is sent the day the licence expires, informing the customer that their licence has expired…The SMS reminder messages are sent in addition to the renewal reminder notice sent via post approximately 60 days prior to licence expiry. Prior to the 1/12/2017 these renewals were sent at 90 days. ' 1. Ms Derrig told the Tribunal that as Australia Post dockets of sent deliveries are only kept for 18 months, there was no evidence that the renewal documents were actually delivered by Australia Post to Mr Chapman's address. 2. On this basis, I am satisfied on the evidence that the documentation was prepared by Safework NSW (or WorkCover as it then was) to be sent to Mr Chapman. In the absence of a docket confirming sent delivery, however, I cannot be satisfied that the documents were actually delivered to him. 3. I accept the evidence provided by Ms Pritchard of Safework NSW that since 2016, the agency has not only relied on postal delivery to ensure that an applicant is aware of the need to renew his or her high risk work licence but now also sends three messages by SMS. 4. On the evidence before me, I find that Mr Chapman did not receive his renewal papers and so was not reminded of the approaching expiry of his high risk work licence. In the absence of a lodgment docket from Australia Post, I cannot be satisfied that Australia Post did deliver the renewal papers to Mr Chapman. I accept that because Mr Chapman's wallet was stolen - on his evidence, presumably with his licence card in it – the licence card itself could not provide a reminder to him to renew his high risk work licence. I also accept that this was only the second occasion that Mr Chapman had been required to renew his licence and I accept his evidence that when he first received the licence in 1994, he was told 'it was for life' and that a five-year validity period for the licence was only introduced in 2009. 5. Considering them together, I find that these constitute exceptional circumstances. Competency 1. Clause 101 of the Regulation requires that an application for renewal of a high risk work licence must include a declaration by the applicant that he or she has maintained his or her competency to carry out the high risk work, including by obtaining any reassessment directed under clause 95. 2. Clause 95 of the Regulation provides that the regulator may direct a licence holder to obtain a reassessment of the competency of the licence holder to carry out the high risk work covered by the licence if the regulator reasonably believes that the licence holder may not be competent to carry out that work. 3. Mr Chapman gave evidence to the Tribunal that he believed that he has maintained his competency – that is, the skill or ability - to carry out the relevant high risk work, namely dogging and the operation of bridge and gantry cranes and forklift trucks. 4. Mr Chapman's evidence was not disputed by Ms Derrig for Safework NSW and Mr Chapman impressed me as a credible and honest witness. 5. I accept that Mr Chapman received the equivalent of a high risk work licence in 1994 and that to be granted such a licence, he had to demonstrate the ability to operate cranes, to sling a load, to put wire around a load and to calculate the load. I accept that between 1994 and 1997, Mr Chapman worked as a fork lift driver transporting re-constituted timber and masonite and that between 1997 and 2006, he worked in the steel industry operating a fork lift on a daily basis. I accept Mr Chapman's evidence that in his position, he was mindful of the need to maintain safety in his interaction with pedestrians and to be aware of speed limits both inside and outside buildings. During this time, I am also satisfied that he regularly operated both bridge and gantry cranes. 6. I accept that between 2006 and 2009, he operated a pendant crane for which his dogging licence was required. I also accept that from 2009 to 2011, he continued to work in the steel industry where he operated both bridge and gantry cranes as well as pendant cranes. I accept his evidence that he would also use a 30 tonne fork lift to lift containers onto the docks. 7. From 2011, I am satisfied that he has been working in the mining industry in the Hunter Valley and that part of his responsibilities include driving dump trucks with a 220 tonne payload. 8. Following his redundancy in 2017, Mr Chapman now wishes to renew his high risk work licence so that he can get work in the Newcastle area. Without a high risk work licence, he believes he will be unavailable to secure work in the local area. If he is unable to renew his licence, Mr Chapman will have to re-apply for it. This will require him to complete courses in the relevant fields. He told the Tribunal that he would find it difficult to get his bridging gantry class back as there are no courses within the Newcastle area. 9. Although he accepts that it has now been seven years since he has operated machinery for which a high risk work licence is required, Mr Chapman submits that he has retained the competency to perform the relevant high risk work. 10. He was able to articulate the main safety risks in operating a forklift and to explain the measures he takes to manage these risks, which include working around pedestrians and large machinery. 11. In describing his dogging work, Mr Chapman explained precautions taken to ensure that: * a load doesn't become loose; * the correct material is used to secure a load; * the correct sling is used on a load; * a sling is evened out to avoid a load sliding out. 1. Having considered Mr Chapman's oral evidence to the Tribunal, I am satisfied that he has 17 years experience in high risk work and up until 2011, he regularly operated fork lifts and cranes and was regularly involved in gantry and bridging and dogging work. I accept that despite not having operated high risk work machinery since 2011, he has continued to work in an area involving heavy machinery and I am satisfied that he continues to be aware of the need for safety when operating such machinery. 2. As set out in Ms Derrig's submissions, cl 95 of the Regulation empowers a regulator such as Safework NSW to make their own determination of a licence holder's competency, if the regulator reasonably believes that the licence holder may not be competent to carry out that work. Failure to report lost card 1. Clause 98 of the Regulation 2011 requires licence holders to give written notice as soon as practicable if the licence document is lost, stolen or destroyed. I am satisfied that Mr Chapman was unaware that he had lost his licence card until 2017 when he sought to renew his licence, at which point he advised Safework NSW of the situation. On the evidence before me, I am not satisfied that Mr Chapman is in breach of cl 98 of the Regulation. Decision 1. For the reasons set out above, Mr Chapman has satisfied me that exceptional circumstances exist such that he should be allowed to apply for a renewal of his high risk work licence. As his application for renewal was refused by Safework NSW before he had completed the relevant documentation, this documentation will need to be sent to him by Safework NSW. Mr Chapman will then need some time to complete the documentation and return it to Safework NSW. On this basis, I find that it would be reasonable to allow Mr Chapman to lodge his application for renewal of his high risk work within a longer period than 12 months after the expiry of the licence, namely within 21 days of receipt by the applicant of the relevant documentation from Safework NSW for renewal of his high risk work licence. Orders 1. The decision of Safework NSW dated 14 September 2017 to refuse to renew Mr Chapman's high risk work licence is set aside. 2. The Tribunal remits the matter to Safework NSW for reconsideration in accordance with the following directions: 1. that, in accordance with cl 103 (b) of the Work Health and Safety Regulation 2017, Mr Chapman has satisfied the Tribunal that exceptional circumstances exist; 2. that Safework NSW forward to Mr Chapman both by email and postal delivery the relevant documentation for renewal of his high risk work licence within seven days of the publication of this decision; and 3. that, in accordance with cl 103 (b) of the Work Health and Safety Regulation 2017, the Tribunal allows Mr Chapman to lodge his application for renewal of his high risk work within a longer period than 12 months after the expiry of the licence, namely within 21 days of receipt by Mr Chapman of the relevant documentation from Safework NSW for renewal of his high risk work licence. 1. The Tribunal recommends that in assessing any documentation lodged by Mr Chapman for renewal of his high risk work licence, Safework NSW take into account Mr Chapman's evidence to the Tribunal in relation to his competency to carry out the relevant high risk work. ******** 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: 30 May 2018