Henderson v SafeWork NSW [2023] NSWCATAP 210

Henderson v SafeWork NSW [2023] NSWCATAP 210

The Appeal Panel held that the appeal disclosed no question of law and no ground warranting leave. The Tribunal did not treat the Guide as government policy, but permissibly considered it as other policy applied by the administrator under s 64(4) of the Administrative Decisions Review Act 1997 (NSW). The RTO Standard required current industry skills but did not specify a precise period of experience, and the Respondent was entitled to use a guide requiring generally two years of relevant current industry and operational experience to reach the satisfaction required by cl 118 of the Work Health & Safety Regulation 2017. The typographical reference to s 276(3)(a) did not affect the...

Jurisdiction
Australia
Judgment Date
31 July 2023
Procedural Posture
Administrative Review Appeal / Appeal to the Appeal Panel From a Decision of the Administrative & Equal Opportunity Division Affirming Refusal of Accreditation as a High Risk Work Licence Assessor
Outcome
Appeal dismissed
Legal Topics
['high Risk Work Licence Assessor Accreditation' 'current Industry and Operational Experience' 'use of Administrator Policy on Administrative Review' 'questions of Law and Leave to Appeal']
['administrative Law' 'work Health and Safety' 'tribunal Appeals'] ['high Risk Work Licence Assessor Accreditation' 'current Industry and Operational Experience' 'use of Administrator Policy on Administrative Review' 'questions of Law and Leave to Appeal']

Case Brief

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Procedural Posture

Administrative Review Appeal / Appeal to the Appeal Panel From a Decision of the Administrative & Equal Opportunity Division Affirming Refusal of Accreditation as a High Risk Work Licence Assessor

Legal Issues

  1. 1 ['Whether the Tribunal erred in treating the Standards for NVR Registered Training Organisations 2011 as general guidance for assessing eligibility to be an assessor.' 'Whether the Tribunal erred by having regard to the Guide for Accreditation of Assessors for High-Risk Work Licence, including the requirement for a minimum of two years relevant current industry and operational experience.' "Whether the Tribunal's reference to s 276(3)(a) of the Work Health & Safety Act 2011 affected the decision where the intended reference was s 276(3)(c)." "Whether the Tribunal failed to take into account the Appellant's ongoing experience and earlier experience from 2002 to 2008." 'Whether the appeal disclosed a question of law or a basis for granting leave to appeal.']

Ratio Decidendi

The Appeal Panel held that the appeal disclosed no question of law and no ground warranting leave. The Tribunal did not treat the Guide as government policy, but permissibly considered it as other policy applied by the administrator under s 64(4) of the Administrative Decisions Review Act 1997 (NSW). The RTO Standard required current industry skills but did not specify a precise period of experience, and the Respondent was entitled to use a guide requiring generally two years of relevant current industry and operational experience to reach the satisfaction required by cl 118 of the Work Health & Safety Regulation 2017. The typographical reference to s 276(3)(a) did not affect the...

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed.']