El Masri v Safework NSW [2018] NSWCATAD 194

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: El Masri v Safework NSW [2018] NSWCATAD 194 Hearing dates: 15 August 2018 Date of orders: 28 August 2018 Decision date: 28 August 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Naida Isenberg, Senior Member Decision: The decision under review is affirmed Catchwords: ADMINISTRATIVE LAW – restrictive demolition licence – appropriate experience – practical training Legislation Cited: Occupational Health and Safety Regulation 2001 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Category: Principal judgment Parties: Maher El Masri (Applicant) Safework NSW (Respondent) Representation: Counsel: P Lott (Applicant)

Solicitors: Kheir Lawyers (Applicant) S Pintamalli, Safework NSW (Respondent) File Number(s): 2017/00297427 Publication restriction: Nil

REASONS FOR DECISION

Background 1. The Applicant, Maher El Masri lodged an application with respect to himself and his company, Royal Demolition and Excavation Pty Limited (the company) seeking a restricted demolition (RD) licence. The application was refused by the Respondent and that decision was affirmed on internal review. The Applicant now seeks review of that decision, pursuant to clause 320 of the Occupational Health and Safety Regulation 2001 (the OHS Regulations).

To whom does the application relate? 1. The application lodged with the Respondent was ostensibly by the company. In the section of the application headed "individual applicant details OR contact person for Corporation applications" Mr El Masri set out not only his contact details but also personal particulars such as his date of birth. In the section in which Corporation applicants were invited to nominate a person involved in the management of the company, Mr El Masri wrote that he was an individual applicant. The original decision was addressed as follows: Maher El Masri Royal Demolition & Excavation Pty Ltd 1. The application for internal review was made by the company with Mr El Masri as the contact person. Sometime prior to the internal review decision Mr El Masri was apparently asked to clarify whether the application for the RD licence was on his own behalf or on behalf of the company. In a letter dated 28 August 2017 Mr El Masri wrote, on the company's letterhead that "[he] was applying on behalf of the company". Nonetheless the internal review decision was addressed in the same manner as the original decision. 2. Both decision letters also commenced with the salutation "Dear Mr El Masri" and referred to 'your' application. 3. Mr El Masri is the sole director of the company. 4. The Application for Review was filed by Mr El Masri and the company. 5. As I observed at the hearing, the application forms required to be completed by applicants for an RD licence are unclear, and can easily lead to confusion as to who is the applicant. I am satisfied though, following his clarification in the letter of 28 August 2017 that the decision under review relates to both Mr El Masri and the company. It follows that, if Mr El Masri meets the criteria for a RD licence, so does the company.