Exit Distraction Free Reading Mode
- Unreported Judgment
- Turner v Office of Industrial Relations[2025] QCAT 340
- Add to List
Turner v Office of Industrial Relations[2025] QCAT 340
Turner v Office of Industrial Relations[2025] QCAT 340
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Turner v Office of Industrial Relations [2025] QCAT 340 |
PARTIES: | Paul Turner (applicant) v Office of Industrial relations (respondent) |
APPLICATION NO/S: | OCR149-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 5 September 2025 |
HEARING DATE: | 5 December 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Carrigan |
ORDERS: |
|
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – application to review decision of Workplace Health and Safety – whether reviewable decision – where HRWL license cancelled – where disqualified from reapplying for two years Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 17, s 18, s 19, s 20, s 24 Work Health and Safety Regulation 2011 (Qld), s 106, s 107, s 108, s 109, s 683 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Mr Nicholas Palmer, Solicitor of Crown Law. |
REASONS FOR DECISION
- [1]On 30 May 2024 the Office of Industrial Relations (‘the Respondent’) completed an internal review and decided to uphold an earlier decision of the Respondent to cancel the HRW licenses held by Paul Turner (‘the Applicant’) and to disqualify him from applying for a HRW license in the same classes, and several other classes which require the same or similar skills, for a period of two years.
- [2]On 25 June 2024 the Applicant filed in the Tribunal an Application to review the decision of the Respondent made on 30 May 2024.
Background Facts
- [3]The Applicant held a high risk work (‘HRW’) license in a number of classes, namely;
- Slewing mobile crane (over 100 tons) (CO);
- Slewing mobile crane (up to 100 tons) (C1);
- Slewing mobile crane (up to 60 tons) (C6);
- Tower crane (CT);
- Self-erecting tower crane (CS);
- Bridge and gantry crane (CB).
- [4]On 23 February 2023 the Applicant in the course of setting up a crane at a worksite in Brisbane started extending the boom which caused a cable to over tighten and break with the hook block falling and striking a worker, causing significant injuries.
- [5]The Respondent contends that this incident was caused when the Applicant was not paying attention to where the main hook was and did not follow the proper process of letting the main hook down before extending the boom of the crane.
- [6]On 20 March 2024 the Respondent gave a Notice of proposed cancellation of the high risk work license to the Applicant.
- [7]On 20 March 2024 the Applicant advised the Respondent that he would be making a submission in reply to the Notice. Subsequently, submissions were made by email on 20 March 2024, 17 April 2024 and 23 May 2024.
- [8]On 16 May 2024 the Respondent issued a Notice of Cancellation of high risk work license issued to the Applicant.
- [9]On 16 May 2024 the Applicant made an internal review application of the decision of the Respondent to cancel his license.
- [10]On 30 May 2020 the Respondent completed the internal review process and made the decision to uphold the earlier decision to cancel the HRW license and to impose the two year disqualification period The basis of this decision was that the Respondent could be satisfied that the Applicant failed to take reasonable care to carry out the HRW safely and competently.
Tribunals Jurisdiction
- [11]The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or by an enabling Act.[1]
- [12]The Work Health and Safety Regulation 2011 (Qld) (‘the Regulation’) provides for an external review of reviewable decisions made by the regulator under various provisions of the Regulation. The decision, the subject of the Application, to review a decision filed by the Applicant in these proceedings is such a reviewable decision made by the regulator. However, any application to the Tribunal to review that reviewable decision must be made within 28 days after the date on which the reviewable decision first came to the Applicant’s notice or such additional time as the Tribunal allows.[2]
- [13]In these proceedings the reviewable decision was made on 30 May 2024. The Application to review that decision was filed in the Tribunal on 25 June 2024. Accordingly, the Application to review the decision is compliant with the provisions of the Regulation and the Tribunal that has jurisdiction to hear and determine these proceedings. The Regulation is the “enabling Act” for the purposes of these proceedings.
- [14]In conducting the review of the decision dated 30 May 2020 the Tribunal has all the functions of the “regulator” for the reviewable decision.[3] The Tribunal must hear and decide the review of a reviewable decision by way of a fresh hearing on the merits and is to produce the correct and preferable decision.[4] The review being conducted by the Tribunal does not operate as an appeal from the decision of 30 May 2024. The Applicant does not have an onus of proof to establish that the decision was wrong. In reviewing the decision the Tribunal may:[5]
- confirm or amend the decision;
- set aside the decision and substitute its own decision;
- set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
Relevant Provisions of the Regulation
- [15]A high risk work license can be suspended or cancelled where the holder has failed to take reasonable care to carry out the high risk work safely and competently.[6] If the license is suspended or cancelled then the license holder can be disqualified from applying for a further high risk work license of the same class; or another license to carry out work which requires skills that are the same or similar to those required for the work authorised by the license that has been suspended or cancelled.[7]
- [16]In suspending or cancelling a license, regard must be had to a number of matters including any submission made by the license holder including any relevant WHS conviction of the licensed holder and the license holder’s record in relation to any matters arising under any relevant WHS law.[8]
- [17]Prior to suspending or cancelling a license, the license holder must be given notice of the proposed suspension or cancellation, any proposed disqualification and any proposed variation of license conditions. Such notices must outline all relevant allegations, facts and circumstances and advise the license holder that the license holder may, by a specific date not less than 28 days after the notice is given, make a submission.[9]
- [18]The license holder is to be given Notice of the Decision to suspend or cancel a high risk work license within 14 days after making the decision. The notice also must contain and state specific matters such as when the suspension or cancellation begins and ends, the reasons for the decision, whether the license holder is required to undergo re-training before the suspension ends, and whether the license holder is disqualified from applying for a further license during the period of suspension.[10]
The Grounds Relied Upon by the Applicant
- [19]In the Application to review a decision filed 25 June 2024 the Applicant said the decision is wrong or not properly made because:
In the first show cause, they allege I did not have a SWMS. When it was pointed out that they are wrong with the internal appeal all of a sudden they want to change the story, then give a response to the obligations of an owner of a business not as a worker, the business doesn’t hold a HRWL;
Then in that review they mention that by them taking my crane license it doesn’t affect my livelihood as they left me with a dogging license. They have not accounted that I have had to crushed vertebrae, broken wrist and broken heel and walk with a limp, I’m 55 not a 20-year-old getting around the site;
Being a regulated machine, when the machine was plant registered, workplace health and safety failed in their obligations to properly assess the machine, by having a silent on/off switch for the override that is obstructed by the steering wheel. Every other machine has either a momentary switch or spring-loaded key switch and generally emits a sound. If workplace health and safety in approving this machine, didn’t fail in their obligations to ensure that the switch couldn’t be left on inadvertently it would be highly unlikely that I wouldn’t had the accident;
The penalty is manifestly excessive, you can tip a crane over in SA and get 3 month penalty, here 2 years or less? They also state that I didn’t put an exclusion zone in prior to being set up, yet not one person from WPHS can provide an answer on how that could have achieved in the area I had to work with.
- [20]The Applicant says that that the outcome he seeks is “a fair outcome with common sense prevailing”.
Review of the Evidence
- [21]The issue to be determined is whether the Applicant, as the license holder, has failed to take reasonable care to carry out high risk work safety and competently. To reach the correct and preferable decision relating to that issue a number of matters will have to be considered below.
- [22]The first matter relates to compliance with the Regulation. The evidence before the Tribunal includes the written Notice of Proposal to Cancel the HRWL dated 20 March 2024. That document contains the proposed cancellation and disqualification as well as outlining all relevant allegations, facts and circumstances and gives the Applicant advice to provide a submission within 28 days. That Notice also referred to a statement by the Applicant to WHSQ Inspectors as follows:
On the date of the incident, you indicated that while setting up the crane for the job, you are not paying attention to where the main hook was and started extending the boom without following the proper process of letting the main hook down before extending the boom of the crane. As the main hook was already up, the extension of the boom caused the cable to overtighten and break at the weakest point. The hook block then fell and struck Mr Gregory. The anti-two block was not engaged at the time.
- [23]The Notice then proceeds to make this allegation about the Applicant:
You did not follow the proper crane set up procedures or take reasonable care to ensure key safety measures, such as exclusion zones, were in place while setting up the crane.
- [24]The Notice also refers to significant admissions by the Applicant as follows:
- the anti-two block was meant to be activated and if it was it would have cut out if the hook exceeded the limit;
- you did not have a Safety Work Method Statement (‘SWMS’) and did not do a Job Safety Analysis (‘JSA’) on the day of the incident. We are informed by Inspector Christopher O'Donald that you should do one every time, you advised that you would have to do ten every day and there is nothing overly technical about lifting general stuff;
- no exclusion zone was set up and that one should have been.
- [25]The Notice referred to the Mobile Crane Code of Practice 2006 and also other facts and circumstances and informed the Applicant as follows:
I am satisfied that you have failed to take reasonable care to carry out HRW in operating a mobile crane safely and competently based on evidence obtained during a Workplace Health and Safety Queensland (WHSQ) investigation into an incident that occurred on 23 February 2023 at 104 Newmarket Road, Windsor, where the hook block of the mobile crane you are operating fell and struck the dogger, Mr Robert Gregory, causing him significant injuries.
- [26]
- [27]The second matter relates to taking into account a number of relevant facts and circumstances.[12] These include having regard to any submission made by the Applicant, any relevant WHS conviction and any other relevant criteria.
- [28]The Applicant made submissions by email on 20 March 2024, 17 April 2024 and also by 23 May 2024. While the first two emails were sent within the 28 days after the Notice was given, the third email appears to be outside that time period. Notwithstanding that, the Tribunal will have regard to that later email as part of the evidence in these proceedings.
Applicant’s Submissions
- [29]On 20 March 2024 the Applicant sent an email to the Respondent stating that he will not make submissions as the Respondent is prosecuting him and under the justice system the Respondent has to prove these allegations. He said he has a right to defend the allegations.
- [30]On 17 April 2024 the Applicant sent a further email stating that he will bring the Notice to the attention of the Magistrate on 19 April 2024 and will test the allegations made in a “legal court”.
- [31]On 23 May 2020 the Applicant sent a further email and made substantial submissions. He referred to the need for a SWMS and indicated that he had a generic SMWS, while not on site, nevertheless had one that was available. He also referred to the need for an exclusion zone and argued that technically he had an exclusion zone established prior to work commencing. He also contended that the 2006 Mobile Crane Code does not cover every situation. He says he was in the process of setting up the crane and had not commenced working. As for the allegation that he didn’t operate the crane to manufacturers manual, by overriding the crane his submission was:
This crane is the only one that I am aware of that has an on/off switch on the anti-two block override switch, every other machine is a momentary switch or spring loaded key, so to override them you have to hold the switch by hand or jam it open with something. The machine in question does not have the momentary or spring loaded key switch it is an on/off switch like a light switch, It is also silent when activated, has a dull little LED light in it, it is also located on the bottom right of the computer and is quite often obstructed from view by the steering wheel. Having it like this it is very easy to inadvertently leave it activated, and the machine gives no indication of its status. There is absolutely no reason for the switch to override the whole machine yet it does, which goes against section 6 of the code of practice, furthermore section 4 of your code of practice relating to design plant registration, while I have a duty to operate it to the manufacturers manual, as WPHS approved this machine for use, and has not foreseen that a silent on/off switch that overrides the complete machine has not foreseen the risk that that machine could be left on inadvertently and that the said switch average every function, unlike other machines, your department has failed in its own duty of care in approving the system
The Applicant concludes the submissions of that date submitting that cancelling his license for two years is manifestly excessive:
considering that the machine in the overridden state was not in aggravation, by being jammed or held on inadvertently..
- [32]The Tribunal takes into account the Applicant’s submissions that at the time of the incident it had a generic SWMS and while it was not available on site, it was said to be otherwise available to the Applicant from its business premises. However, there is no evidence before the Tribunal that the particular site factors which the Applicant refers to in his submissions particularly relating to the compact site, difficulty in positioning the crane and other matters was satisfactory addressed in the generic SWMS. In those circumstances, the submissions did not demonstrate that the Respondent’s reliance by the Notice was inadequate or insufficient to support the decision to cancel the HRW licence. The Applicant argues in any event that this was not the cause of the injury to Mr Gregory. However, failure to have a complete SWMS is indicative of the level of care and attention being given by the Applicant on the date of this incident. The Tribunal, having regard to the submissions, is not persuaded that the allegations stated in the Notice to the Applicant are other than a proper basis to rely upon the Applicant’s failure to exercise the relevant duty of care.
- [33]The Applicant also submits that technically there was an exclusion zone while still setting up the crane and he had not commenced working. However, the facts in this case are that no exclusion zone was set up. The purpose of the exclusion zone is to prevent persons from entering the area. The Applicant submits the lack of an exclusion zone was not causative of Mr Gregory’s injuries. However, the lack of an exclusion zone again points to the level of attention and care which the Applicant was demonstrating at the time of this incident. Safety factors, based on the evidence before the Tribunal, do not appear to be uppermost in the action of the Applicant. It is a relevant matter to take into account in terms of the Notice whether the Applicant was taking reasonable care in carrying out high risk work safely and competently. The Tribunal regards the lack of the exclusion zone as a further consideration indicating the lack of reasonable care in performing the high risk work in a manner that was safe and confident. The Tribunal, having regard to the submissions, is not persuaded that the allegations stated in the Notice to the Applicant are other than a proper basis to rely upon the Applicant’s failure to exercise the relevant duty of care.
- [34]The Applicant relies upon design faults with the on/off switch of the crane. He submits, with the faults of the override on/off switch it should never have been registered by WHSQ. However, the issue that needs to be addressed is:
Did the license holder fail to take reasonable care to carry out high-risk work safely and competently
- [35]The submissions contain explanations as to why this incident may have occurred but the Tribunal is not satisfied that the submissions have dealt with the Applicant’s own inadvertence at the time of what he describes as “setting up” the machines or failure to follow manufacturers procedures. The submissions made it clear to the Tribunal the Applicant was oblivious to the state of the on/off switch at the time of his setting up the crane. His submissions also make it clear to the Tribunal that he was aware that this particular crane was a “one off” in that it departed from what was usually installed in other cranes having a momentary switch or a spring loaded key to override them. He was aware of the location of the on/off switch at the bottom of the computer with a dull LED light. He was also aware that that LED light could be obscured in certain circumstances. There is absolutely no submission made about any steps taken to check or verify or in any way ascertain what was the state of the operation of that on/off switch at the time of the incident. The Applicant’s submissions do not demonstrate that there is any basis on which the allegations in relation to this topic as stated in the Notice should be disregarded by the Tribunal. The Tribunal, having regard to the submissions, is not persuaded that the allegations stated in the Notice to the Applicant are other than a proper basis to rely upon the Applicant’s failure to exercise the relevant duty of care.
- [36]The Tribunal is satisfied for these reasons that the submissions of the Applicant have failed to show that he took reasonable care to carry out high risk work safely and competently.
Any Relevant WHS Conviction of the License Holder
- [37]The Applicant was charged with the following offence:
Paul Michael Turner (“Turner”) is charged with an offence contrary to section 32 of the Work Health and Safety Act 2011 (‘the Act’), in that he held a health and safety duty pursuant to section 28(b) of the Act to while at work, take reasonable care that his acts or omissions do not adversely affect the health and safety of other persons, and failed to comply with the said duty, and failure exposed an individual to a risk of death or serious injury.
- [38]The particulars relating to that charge refer to the incident on 23 February 2023 when the Applicant operated the crane at 104 Newmarket Road, Windsor and the boom was moved causing the main hoist rope to snap and drop the hook block on to Mr Gregory who was standing underneath the crane at the time. The hook block struck Mr Gregory on the head resulting in him being taken to hospital where he received treatment for bleeding to the brain and fracture at the base of his skull and right foot. He was hospitalised for five days.
- [39]While the Applicant had earlier required the Respondent to have the allegations particularly in the Notice (to which references already been made) dealt with in a “legal court” according to his emails of 20 March 2024 and 17 April 2024, the transcript of the proceedings in the Magistrates Court indicate that on Thursday, 8 August 2024 he pleaded “Guilty” to the charge. In other words, the Respondent accepted the particulars of the charge and the charge by his plea of guilty.
- [40]The Magistrates Court ordered the Applicant to pay a fine of $11,000 and costs of court. The total amount ordered was $12,601.40 with 28 days to pay. A conviction was not recorded.
- [41]The duty imposed on the Applicant in the Magistrates Court charge is not identical with the duty that is imposed on the Applicant under the Regulation. The former duty is to take reasonable care not to adversely affect the health and safety of other persons whereas under the Regulation the duty relates to taking reasonable care to carry out high risk work safely and competently. Both duties require the Applicant to take “reasonable care” while the duties are in respect of different obligations. The facts relating to both the Magistrates Court charge and those in these Tribunal proceedings are the same. However, a plea of guilty to the Magistrates Court charge does not automatically mean that the Applicant has breached the duty which is the subject of these proceedings. The guilty plea does accept that in respect of the events that have occurred at the time of the incident the Applicant accepts he failed to exercise reasonable care towards other persons on the site, namely Mr Gregory.
- [42]It is not necessary, based on the available evidence, for the Tribunal to consider any of the other matters referred to in s 107 of the Regulation.
Should the License be Cancelled – What is the Correct and Preferable Decision
- [43]The Tribunal has already made a number of findings concerning the issue whether the Applicant exercised reasonable care to carry out high risk work safely and competently. In summary, the Tribunal is satisfied that:
- In setting up the crane on the date of the incident the Applicant was not paying attention to where the main hook was and started to extend the boom of the crane;
- The Applicant did not follow the process of letting the main hook down before extending the boom of the crane;
- The extension of the boom caused the cable to tighten and break causing the hook block to fall and strike Mr Gregory;
- Mr Gregory sustained significant personal injuries and required hospitalisation for five days;
- The Applicant failed to check or identify whether the on/off switch was activated or otherwise when he should have known it was necessary to do so as this crane lacked a momentary switch or spring loaded key present on other cranes. This failure resulted in the Applicant not ensuring the activation of the anti-two block system;
- Did not follow appropriate set up procedures to take reasonable care to ensure safety by establishing an exclusion zone and a specific SWMS dealing with this difficult site;
- The Applicant’s submissions in reply to the Notice did not provide any adequate evidence or explanation that he had taken reasonable care to carry out the high-risk work with the crane;
- The Applicant’s guilty plea in the Magistrates Court is in effect an admission he failed to take reasonable care in respect of the safety of other persons on site.
- [44]The Tribunal accepts the matters referred to in (a) to (h) above and makes the appropriate findings of fact in accordance with those paragraphs. The Tribunal is satisfied by this evidence that the Notice dated 20 March 2024 proposing to cancel the Applicant’s licence was issued in compliance with ss 108 and 109 of the Regulation. The Tribunal is also satisfied that on the basis of the acceptance of the evidence (a) to (h) above that the Respondent’s decision made on 30 May 2024 to cancel the Applicant’s license was the correct and preferable decision.
- [45]The cancellation of 30 May 2024 disqualified the Applicant from applying for a HRW license in the same classes and also from applying for a licence for work which requires the same or similar skills to those required for work authorised by the license that was cancelled, for a period of two years.
- [46]The Applicant has submitted that the disqualification from applying for two years in each instance is manifestly excessive. He contends that it is manifestly excessive considering that the machine in the overwritten state was not in aggravation, by being jammed or held on inadvertently. However, the evidence establishes at all material times the Applicant knew that the on/off switch in the crane was different to other machines, difficult to locate, difficult to see, had a dull LED light, but on the evidence does not appear to have taken any appropriate steps to ascertain whether the activation switch was operating or not. In the circumstances, the disqualification for two years is not manifestly excessive.
- [47]The Tribunal will make orders confirming the decision of the Respondent made on 30 May 2024 and will dismiss the Application filed in the Tribunal to review that decision.
Human Rights Act
- [48]Neither party made submissions whether the Human Rights Act 2019 (Qld) (‘HR Act’) applies to these proceedings.
- [49]The Tribunal must consider the human rights of the Applicant and the Respondent under the HR Act in reaching its decision in these proceedings.
- [50]The Tribunal is an entity which acts in an administrative capacity and is bound to comply with the HR Act in conducting the review jurisdiction in relation to the Application filed by the Applicant.
- [51]In considering the provisions of the Regulation, the Tribunal must, to the extent possible that is consistent with the purposes of the HR Act, interpret that legislation in a way that is compatible with the human rights of the parties.
- [52]The human rights of the Applicant and the Respondent include:
- recognition and equality before the law;
- property rights;
- fair hearing.
- [53]These human rights have to be considered by the Tribunal in the light of its exercise of the review jurisdiction in these proceedings.
- [54]The Tribunal has made findings about the Applicant’s Application and the Respondent’s response to that Application. These findings can possibly be a limitation on the human rights of the Applicant and the Respondent under the HR Act. This limits their entitlements by imposing, in effect, a liability and/or limits the parties’ equal treatment with other applicants making Application to the Tribunal.
- [55]However, any such limitation on the parties’ human rights arises from the provisions of the Regulation and the QCAT Act. While the Tribunal is required to make a decision that is compatible with human rights and is to give proper consideration to human rights relevant to the decision, the Tribunal can make such a decision if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision.
- [56]The Regulation creates a legislative scheme in relation to the effective management of HRW licence disputes relating to the use of cranes and other equipment. It has the purpose of protecting the community by providing rules about work place responsibility and the requirement to take reasonable care to operate high-rise equipment safely and competently. The Regulation is to facilitate safety and competence for HRW.
- [57]This decision under the Regulation is made in accordance with statutory provisions and is not an arbitrary decision. It is a decision based upon the legislative scheme and is reasonable and justified in accordance with s 13 of the HR Act in the light of the purposes of the Regulation. The decision in these proceedings is made in a way that is consistent with the purpose of the legislation and has been interpreted in a way that is compatible with human rights as required by s 48 of HR Act. In these circumstances any limitation on the human rights of the Applicant and or the Respondent is reasonable and is justified in terms of section 8(b) of the HR Act.
Orders
- The decision made 30 May 2024 by the Office of Industrial Relations to uphold the original decision to cancel the license of Paul Turner in CO, C1, C6, CT, CS and CB license classes and to disqualify Paul Turner from applying for HRW license in the same classes for a period of two years and to further uphold the original decision to disqualify Paul Turner from applying for HRW license in classes C2, CD, CP, CV, CN and RS for a period of two years, as they involve work which requires the same or similar skills to those required for the work authorised by the license that was cancelled, is confirmed.
- The Application to review a decision filed in the Tribunal on 25 June 2024 by Paul Turner is dismissed.