Tanti Industries Pty Ltd v WorkCover Authority of New South Wales [2010] NSWADT 15 (15 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Tanti Industries Pty Ltd v WorkCover Authority of New South Wales [2010] NSWADT 15


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Tanti Industries Pty Ltd

RESPONDENT
WorkCover Authority of New South Wales



FILE NUMBERS:
093231

HEARING DATES:
27 November 2009

SUBMISSIONS CLOSED:
30 November 2009



DATE OF DECISION:
15 January 2010

BEFORE:
Montgomery S - Judicial Member





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

CASES CITED:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Sobey v Commercial and Private Agents Board 20 SASR 70
Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18

TEXTS CITED:


APPLICATION:
Occupational Health and Safety Act - demolition licence - refusal to renew licence

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
D Tanti, agent
RESPONDENT
L Welsch, barrister


ORDERS:
The decision to refuse renewal of the Applicant’s restricted demolition licence is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 This is an application by Tanti Industries Pty Ltd ("the Applicant") for review of a decision by a delegate of the Chief Executive of the WorkCover Authority of New South Wales ("WorkCover") to refuse renewal of the Applicant’s restricted demolition licence.

2 The Applicant held a Restricted Demolition Licence that expired in November 2008. Mr David Tanti, the sole director of the Applicant, applied for renewal of that licence. That application for renewal was unsuccessful. WorkCover was not satisfied that Mr Tanti, as a director of the Applicant, is a fit and proper person to hold a Restricted Demolition Licence.

3 Mr Tanti was formerly the director of Tanti Demolition & Excavation Pty Ltd. Both The Applicant and Tanti Demolition & Excavation Pty Ltd has been the subject of many workplace complaints and other internal investigations by WorkCover. The refusal was based on the history of complaints and the view that Mr Tanti has had many opportunities to learn from previous mistakes and does not appear to have done so.

4 The Applicant applied to the Tribunal for external review of the determination pursuant to Clause 351 of the Occupational Health and Safety Regulation 2001 ("the Regulations").

Applicable legislation
5 The Regulations are made pursuant to section 33 of the Occupational Health and Safety Act 2000 ("the Act"). Clause 317 of the Regulations defines licensed work as:

licensed work means work of one of the following kinds:

(a) demolition work,

(b) restricted demolition work,

(c) friable asbestos removal work, other than:

(i) work done by a person, at the person’s usual place of business, at a frequency of one hour per week or less, or

(ii) work done for the purpose only of obtaining a sample of asbestos for identification, or

(iii) work done for the purpose only of non-asbestos mining where rock or tailings containing naturally occurring asbestos is removed or disturbed,

(d) bonded asbestos removal work, other than:

(i) work done for the purpose only of obtaining a sample of asbestos for identification, or

(ii) work done in relation to bonded asbestos material having a total surface area of less than the maximum allowable area specified in subclause (3), or

(iii) work done for the purpose only of non-asbestos mining where rock or tailings containing naturally occurring asbestos is removed or disturbed.

6 Clause 318 of the Regulations provides that a person must not carry on the business of licensed work otherwise than in accordance with a licence relating to that work. Generally, a licence is not required for the manual demolition of a building, structure or installation under 10 metres in height.

7 Chapter 10 Clauses 319 - 329 of the Regulations governs the suspension cancellation or refusal to grant a Licence. Clause 320 provides:

320 Eligibility for licence

...

(b) in the case of a corporation:

(i) the corporation is a fit and proper person to hold a licence, and

(ii) each director of the corporation would, if he or she were the applicant, be a fit and proper person to hold a licence, and

(iii) at least one individual engaged in the management of the corporation has appropriate qualifications in relation to the licensed work, and

...

8 Clause 321 provides

321 Determination of applications

(1) After considering an application, WorkCover:

(a) may grant the licence or renewal of the licence to which the application relates, either unconditionally or subject to conditions, or

(b) may refuse the application if satisfied that the applicant is not eligible for the licence.

(2) A licence is to be in the approved form and is to specify the class of licensed work to which it relates.

(3) If WorkCover grants more than one licence to an applicant, it may issue a single document in respect of those licences.

9 Clause 328 provides

328 Suspension or cancellation of licences

(1) WorkCover may suspend or cancel a licence if satisfied that the holder of the licence:

(a) has made a statement, in or in connection with an application for the licence, that the holder knew, when the statement was made, to be false or misleading in a material particular, or

(b) has done or authorised licensed work in such a manner as to expose any person (including any of his or her employees or agents) to a health or safety risk from the licensed work that could reasonably have been avoided, or

(c) has contravened a condition of the licence, or

(d) has failed to comply with the requirements of an improvement notice or prohibition notice under this Regulation, or

(e) has been convicted of an offence against the Act or any regulation (including this Regulation) under the Act, or

(f) in the case of an individual, is no longer a fit and proper person to hold the licence, or

(g) in the case of a corporation, has a director who is no longer a fit and proper person to hold a licence.

(2) Before suspending or cancelling a licence, WorkCover:

(a) must cause notice of the proposed suspension or cancellation to be given to the holder of the licence, and

(b) must give the holder of the licence a reasonable opportunity to make representations to WorkCover in relation to the proposed suspension or cancellation, and

(c) must have regard to any representations so made.

(3) The suspension or cancellation of a licence takes effect on the date on which notice of the suspension or cancellation is given to the holder of the licence or on such later date as may be specified in the notice.

WorkCover’s case
10 Ms Welsh appeared on behalf of WorkCover at the hearing. WorkCover relies on several volumes of material, which relates to complaints received in regard to demolition work undertaken by Mr Tanti, the Applicant and Tanti Demolition & Excavation Pty Ltd. Since 2002, a total of 96 Notices have been issued in regard to those entities.

11 WorkCover’s case specifically deals with complaints received in regard to demolition work undertaken in recent years. In particular, WorkCover’s case concerns demolition work undertaken by the Applicant at 108 Dunning Avenue, Rosebery; 52 Cambridge Avenue, Vaucluse; and 639 Anzac Parade Maroubra. It is not in dispute that the Applicant undertook demolition work at each of those sites.

12 WorkCover relies on affidavit evidence in regard to those complaints. Affidavits were sworn by Mr Vince Castro, a Principal Inspector and Mr Steven Nikolovski, a Senior Inspector in the Construction and Utilities Team of WorkCover’s Occupational Health and Safety Division; and Mr Derek Pryor, an Assistant State Inspector in the Stakeholder Engagement & Alliances Construction Team of WorkCover’s Occupational Health and Safety Division. Each of those affidavits is dated 17 November 2009.

Mr Castro’s evidence
13 Mr Castro has been an inspector with WorkCover and its predecessors since 1988. In his affidavit he stated that on 22 October 2008 he attended a demolition site at 108 Dunning Avenue, Rosebery to investigate an incident that involved collapse of a brick wall onto a public street. Botany Police had advised WorkCover of the incident. Part of the wall had collapsed onto the footpath, parked cars and the street. Mr Castro’s role was to investigate whether there were any breaches of Act.

14 Mr Castro was not required for cross-examination and his evidence is not challenged.

15 Mr Castro provided details of his observations of the site. He stated that the wall was approximately 100 metres long by 5 metres in height. The distance between the building line and the street gutter was 3.5 metres. The collapsed part of the wall was approximately 32 metres long by 5 metres in height. There was a further 7 metres on each side of that collapsed part, but only the top of those other parts had collapsed. The wall itself was approximately 250mm wide with engaged piers of approximately 600mm every 4.5 metres. Mr Castro observed that there were eight trees alongside the street. Two of the trees were broken with the branches underneath bricks and rubble. The trunk of a further a tree was also damaged. Mr Castro also observed that there were seven cars underneath the rubble.

16 Mr Castro provided details of a conversation that he had with Mr Tanti at the site on 22 October 2008. He said that he asked to see Mr Tanti’s safe work method statement for the demolition and that Mr Tanti responded that it was somewhere but that he didn’t have it with him. Mr Castro stated that Mr Tanti then produced a folder containing the site paperwork, but that he did not observe any safe work method statement, notification of commencement of work and permit for the site in accordance with WorkCover’s licensing requirements.

17 Mr Castro stated that he conducted an inspection along the north elevation of the building where the collapse of the wall had occurred and the nearby area. He did this in the company of Mr Tanti. He observed that the buildings were under demolition, with the rooves already removed, and the walls were free standing. The walls were between 5 to 8 metres in height. They were unsupported and were without shoring. The building line and the boundary line was the same. No safety measures were in place to prevent the public, employees or other persons from entering what was a high-risk area.

18 Mr Castro stated that he observed that there were no Class "B" hoarding and no heavy duty scaffolding as is required by Australian Standard 2601-1 991 and clause 246 to 256 of the Regulations. He took a number of photos of the site and those photos are annexed to his affidavit.

19 Following his inspection, Mr Castro directed Mr Tanti to stop the demolition and gave him instructions in regard to the action he needed to take to make the site safer and to remove the debris to give access to the cars that was under the rubble.

20 Mr Castro returned to the site on 23 October 2008 accompanied by Mr Nikolovski and other officers. During that visit he advised Mr Tanti to get a structural engineer to assess the walls and report in relation to the stability of the remaining walls. Mr Castro stated that the engineer arrived on site that day.

Mr Pryor’s evidence
21 Mr Pryor holds a Masters Degree in Applied Science (OHS), a Graduate Degree in Health Science, a Diploma of Government and has 6 years experience as an Inspector and several years in private enterprise. In his affidavit Mr Pryor stated that he attended a worksite at 639 Anzac Parade at Maroubra on the morning of 5 May 2009 in response to a complaint received by WorkCover. He was not aware which demolition company was involved at the site until he arrived there.

22 Whilst at the site he observed an excavator that he considered to be in a condition that presented a serious risk. He observed a broken hydraulic ram seal on the ‘quickhitch’ that allows the arm of the excavator to hold a bucket. He presumed that a broken seal that allows fluid leakage would result in lower hydraulic pressure. He also observed a worn grab. The consequence of the wearing is that the hold on the bucket that the quickhitch has at normal hydraulic pressures would be loosened. Mr Pryor also observed that the secondary safety pin had not been inserted to lock the quickhitch in the event of hydraulic failure. His evidence is that these failures create risk to the safety of site personnel in the event of failure of the quickhitch and drop of the bucket. He stated that this is a known risk in the construction industry.

23 Mr Pryor also referred to a "broken keeper plate" - a component of the skid steer track of the excavator. The "keeper plate" is one part of a greater system that keeps the skid steer track on the drive mechanism. A broken keeper plate loosens the skid steer track and this reduces the responsiveness of the steering controls of the excavator. This could give rise to risks to the safety of site personnel from inadvertent contact with the excavator.

24 As a result of these observations Mr Pryor issued an Improvement Notice under section 91 of the Act. He took a number of photos of the site and those photos are annexed to his affidavit.

Mr Nikolovski’s evidence
25 Mr Nikolovski has been an inspector with WorkCover since November 2004. He holds a Bachelor of Science (Biomedical Science) and a Graduate Diploma of Science (Occupational Health and Safety). He has undertaken approximately 50 initial incident investigations to determine further actions and undertaken numerous full investigations. He has acted as a Team Coordinator over a period of 4 months. He acted as the Team Coordinator for the Construction Team Investigations Unit in January 2008 and as the Team Coordinator of the Asbestos and Demolition Unit from September 2008 - August 2009.

26 In his affidavit he stated that on 23 October 2008 he attended the site at 108 Dunning Avenue, Rosebery. At the time he was the Acting Team Coordinator of WorkCover's Asbestos and Demolition Unit within the Construction Team. At the site he observed that there was no overhead protection across pedestrian/general areas and that persons were placed at immediate risk of injury from being struck by falling objects. As a result of his observations, he issued a Prohibition Notice to the Applicant.

27 Mr Nikolovski also stated that he attended at worksite at 52 Cambridge Avenue, Vaucluse in response to an anonymous complaint that WorkCover received on 19 February 2009, He attended that site on 23 February 2009. At the site he observed bonded asbestos in black wrapped plastic at the rear of the property and he estimated that there were more than 10 square metres of the asbestos. No persons were working on the site at the time of his visit however he was able to ascertain that the Applicant was undertaking the asbestos removal/demolition work at the site. He attended the same site again on 25 February 2009 with another WorkCover Inspector, Kevin Murphy. He met with Mr Tanti at the site on that day. He observed that there were approximately 90 square metres of asbestos-containing material on the site.

28 WorkCover contends that neither the Applicant nor Mr Tanti were appropriately licensed to undertake the asbestos removal/demolition work at the site at 52 Cambridge Avenue, Vaucluse.

29 Mr Nikolovski issued two Improvement Notices under section 91 of the Act and also issued a Penalty Notice. He took a number of photos of the site and those photos are annexed to his affidavit.

30 Prosecution has been recommended in relation to offences committed under the Act in regard to the site at 108 Dunning Avenue, Rosebery. That matter has not been finalised yet.

The Applicant’s case
31 The Applicant’s case is that the Tribunal should be satisfied that Mr Tanti is a fit and proper person to hold a licence and therefore the licence should be granted. Mr Tanti appeared on behalf of the Applicant at the hearing, gave evidence at the hearing and was subjected to cross-examination.

32 Mr Tanti’s evidence is that he has worked in the demolition industry for 20 years and that he has held a demolition licence for the 12 years since licences became mandatory. The Applicant operates in the demolition industry in Sydney's eastern suburbs. It has a team of ten employees who handle some of the toughest, dirtiest and most physically demanding jobs in the industry. Assignments can range from a garage demolition to cutting a doorway through a concrete wall, stripping out a lift shaft to removing an entire multi-storey building.

33 Mr Tanti says that the Applicant operates a professional business with commitments to clients and occupational health and safety. He says that the Applicant implements strict guidelines and the requirement of WorkCover, Australian standards and the Act. He submits that the decision to refuse the licence was unfair and unjust.

34 He questioned whether the WorkCover’s inspector are sufficiently qualified and experienced to deal with the practical aspects of in the demolition industry.

35 Mr Tanti says that much of WorkCover’s material concerns a demolition job located at 11 Kenneth Street, Tamarama. Mr Tanti says that he was unfairly targeted by WorkCover’s chief inspector, Rick Reech in regard to the work on that site. He also asserts that he was unfairly treated by WorkCover’s inspector, Clive Woodington. As a consequence he was issued with numerous notices and fines of over $5000.

36 Mr Tanti hypothesises that the action taken against him in regard to the Kenneth Street, Tamarama site may have been retaliation because he had questioned Mr Woodington’s integrity as a WorkCover inspection and had advised Mr Woodington that he was not experienced enough to tell Mr Tanti how a three storey concrete building should be demolished when he did not have any practical experience in this field.

37 Mr Tanti contends that as a result of these incidents he gained an unwarranted reputation amongst WorkCover’s inspectors and action has been taken against him on the basis of that reputation. He argues that each of the matters to which the evidence given by Mr Castro, Mr Pryor and Mr Nikolovski relates have been dealt with unfairly because of that reputation. He says that WorkCover should have consulted with him rather than issuing issue improvement notices and penalties.

38 In regard to that contention, he relies on Mr Pryor’s admission that he was aware of Mr Tanti’s reputation before they had ever met.

39 Mr Tanti contends that the collapsed wall at the site at 108 Dunning Avenue, Rosebery to on 22 October 2008 was an unfortunate accident where a wall was blown over by a freak storm. He stated that the wind speed in Roseberry on that day reached between 80 and 100 km per hour, the highest recorded for the area.

40 He denies that there have been any significant breaches of the legislation and asserts that on each occasion the inflexible approach adopted by the WorkCover inspectors has aggravated the situation. He says that if the WorkCover inspectors adopted a more consultative and educative role, far fewer penalty notices would have been issued and a different decision would have been reached in regard to his application.
41 He submits that he is a fit and proper person to hold a licence and that because of his depth of knowledge and experience it would be detrimental to the industry if the licence were not granted.

Consideration
42 The issue requiring determination in this case is whether Mr Tanti is a fit and proper person to hold a licence.

43 The meaning of the expression "fit and proper person" has been considered in numerous matter before this Tribunal. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

44 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:

‘The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’

45 Toohey and Gaudron JJ said at 380:

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

46 A person’s fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

47 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

"In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

48 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability is the context of the role they are seeking to undertake. Thus in Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors.

49 In my view, similar issues arise in this matter. The licensing scheme that WorkCover administers is designed to protect the public and those working within the industry. A tardy and intransigent attitude in dealing with the regulator is not conducive to that objective.

50 I have no basis for forming the view that Mr Tanti is dishonest or of bad repute. However, there is much evidence to suggest that there has been animosity between him and former WorkCover inspectors. It is also apparent that he considers some of the current WorkCover inspectors to be insufficiently experienced to understand the practical realities of the demolition industry in which he operates. He clearly believes that he has been unfairly treated by a number of WorkCover inspectors.

51 Notwithstanding those views, I accept the evidence presented on behalf of WorkCover and in particular, the evidence of its inspectors in relation to work undertaken by the Applicant at 108 Dunning Avenue, Rosebery; 52 Cambridge Avenue, Vaucluse; and 639 Anzac Parade Maroubra.

52 It is not in dispute that Mr Tanti and businesses with which he has been associated have been the subject of numerous Improvement Notices, Penalty Notices and Prohibition Notices that have been issued under the legislation administered by WorkCover. It seems to me that despite the issue of those notices, and the monetary cost that has resulted to Mr Tanti and those businesses, he has failed to grasp the significance of his actions. While he acknowledges the necessity of regulation in the demolition industry, the evidence presented by WorkCover in this matter suggests that he is not able to apply this to his own operations. His attitude towards WorkCover inspectors has aggravated this situation.

53 In my view, a licence should not be granted in circumstances where it is not possible to attest that a director of the Applicant has a propensity to perform the tasks authorised by the licence within the regulatory regime. I have no doubt that Mr Tanti has met the practical experience requirements for the licence that the Applicant seeks. However, in this matter, there is sufficient evidence to suggest that Mr Tanti has great difficulty in working within the scheme established by the Act and the Regulations. In these circumstances I am unable to attest that the director of the Applicant is a person who is fit and proper to be the holder of the licence.

54 In my view, this difficulty is largely the result of his lack of clear understanding of requirements of the legislation and his attitude towards WorkCover. Until those issues have been resolved, it is my view that the licence should not be granted. It follows, that the decision under review should be affirmed.

Order

55 The decision to refuse renewal of the Applicant’s restricted demolition licence is affirmed.