Farquhar v SafeWork NSW

[2017] NSWCATAD 378

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Farquhar v SafeWork NSW [2017] NSWCATAD 378
Hearing dates:	2 and 3 November 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill Senior Member
Decision:	The Respondent’s decision is affirmed
Catchwords:	High risk work; assessor accreditation; conditions
Legislation Cited:	Administrative Decisions Review Act 1997 Evidence Act 1995 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Work Health and safety Regulation 2017
Category:	Principal judgment
Parties:	Hilton Farquhar (Applicant) SafeWork NSW (Respondent)
Representation:	Applicant: Self represented Respondent: Mr O’Connell, solicitor
File Number(s):	2017/214632

Reasons for decision

The Application before the Tribunal

1. Mr Farquhar, sought a review of a decision made by SafeWork NSW dated 13 April 2017, affirming an earlier decision to cancel his accreditation as a SafeWork NSW high risk work assessor. He first obtained accreditation in February 2010. This accreditation had been renewed and was due to expire in February 2017.

2. Mr Farquhar lodged his application for review in the Tribunal on 8 May 2017.

3. SafeWork NSW's decision to cancel Mr Farquhar’s accreditation was made pursuant to the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011 (in force at the time of the decision). There is now a new Regulation dated 2017 which is not relevantly different to the previous Regulation.

Summary of the reasons for the decision to cancel Mr Farquhar’s accreditation

4. The Conditions for conducting high risk work licence assessments in NSW under the Work Health and Safety Regulation 2011 document prescribes specific conditions that must be adhered to by SafeWork NSW approved Registered Training Organisations and accredited assessors conducting high risk work licence assessments and associated administrative procedures.

5. Mr Farquhar was subject to assessments by SafeWork on 6 September 2010, 12 August 2015, 13 August 2015, 16 September 2016 and 21 December 2016. Each of those assessments had found that Mr Farquhar had not complied with certain of these Conditions. The assessments found that Mr Farquhar had, in some instances, repeated breaches previously brought to his attention.

6. Mr Farquhar wrote to SafeWork on each occasion that he had been advised of his breach of conditions – setting out reasons for any alleged breaches. At the hearing, Mr Farquhar acknowledged some alleged breaches, denied others said that he had changed his practices and denied that the breaches were grave enough to warrant cancellation of his accreditation.

The issues for the Tribunal

7. The issues for the Tribunal to determine were:

• Had Mr Farquhar been in breach of conditions as set out by the Respondent?

• Was Mr Farquhar competent to conduct assessments?

• Was the correct and preferable decision to cancel Mr Farquhar’s accreditation?

The operation of the relevant legislation

8. The Work Health and Safety Act 2011 and Regulation 2017 (WHS) provide for the accreditation of assessors. An Accredited Assessor is a person accredited by SafeWork NSW to conduct assessments of competency for a licence to perform high risk work.

9. To become an accredited HRW licence assessor, the Work Health and Safety Regulation 2017, sets out a series of requirements. Clause 121 of the Regulation sets out the basis for the conditions that can be imposed.

10. SafeWork NSW has published a document called Conditions for conducting high risk work licence assessments in NSW under the Work Health and Safety Regulation 2017. This document sets out the conditions that assessors are required to meet, as imposed under clause 121 of the Work Health and Safety Regulation 20I7.

11. An accredited assessor must conduct a competency assessment in accordance with the conditions imposed under their accreditation under clause 121 of the WHS Regulation (see also clause 114 of the WHS Regulation).

12. SafeWork conducts verifications of assessor and RTOs. Failure by an assessor to carry out assessments in accordance with the conditions is an offence. It may also form a basis for suspension or cancellation of accreditation.

Chronology of relevant Events

13. The Respondent provided the following chronology of events. Mr Farquhar did not disagree with the chronology. The Tribunal accepts the chronology for the purpose of making its findings.

14. 11 February 2010 - Mr Farquhar was accredited as a high-risk work (HRW) assessor for a number of HRW classes.

15. 6 September 2010 - Mr Farquhar was issued with a “Corrective Action Notice” by WorkCover NSW for breaching the WorkCover NSW Guidelines for Conducting High Risk Work Assessment in NSW.

16. 12 August 2015 - SafeWork Inspector Chris Chadwick conducted a high-risk work desktop verification of Mr Farquhar’s files at Gladesville to assess compliance with the requirements and the conditions for conducting high risk work licence assessments and prepared a report.

17. 13 August 2015 - SafeWork Inspector Dave Loveland conducted a verification of Mr Farquhar.

18. 16 September 2016 - Inspector N Mainland conducted an audit on Mr Farquhar at Somersby.

19. 29 November 2016 - Mr Farquhar received an educative advice concerning noncompliance with condition 19. This condition requires notice to be given when arranged assessments are varied.

20. 21 December 2016 - Inspector Chadwick conducted an audit on Mr Farquhar at Gosford Quarry, Somersby. Inspector Chadwick prepared an assessment verification tool report.

21. 6 January 2017 - Mr Farquhar received a SafeWork notice of proposal to cancel his accreditation as a SafeWork NSW HRW licence assessor.

22. 1 February 2017 - Mr Farquhar provided to SafeWork a written submission / response to Third Party Management (TPM) concerning the proposal to cancel his accreditation as a SafeWork NSW HRW licence assessor.

23. 13 March 2017 - Mr Farquhar received a written notice of decision to cancel his accreditation as a SafeWork NSW HRW licence assessor.

24. 21 March 2017 - Mr Farquhar applied for an Internal Review by SafeWork NSW.

25. 13 April 2017 - SafeWork NSW notified Mr Farquhar of the decision following an internal review to cancel his accreditation as a SafeWork NSW high risk work licence assessor.

The Respondent’s Case

26. The Respondent relied upon the section 58 documents containing statements, verification records made by inspectors and communications with Mr Farquhar.

27. Inspectors Chadwick and Mainland also gave oral evidence.

28. The Respondent provided written and oral submissions.

Matters relied upon by the Respondent for cancellation

Corrective Action Notice 6 September 2010

29. This notice was issued to Mr Farquhar arising from an audit in relation to Slewing Mobile Crane (up to 20 tonnes) assessments conducted by Mr Farquhar. The audit was conducted by Inspector Phillip May at West Gosford on 26 August 2010. Mr Farquhar breached condition 49 of the Guidelines by failing to have a copy of the Guidelines, incorporating the WorkCover NSW Code of Conduct and his WorkCover accreditation certificate with him when conducting an assessment.

Report of inspector Mr David Loveland

30. Mr Loveland completed a report dated 13 August 2015. He noted 3 matters of concern.

• Mr Farquhar did not ensure that critical question number 20 of the elevating work platform knowledge assessment had been amended to ensure that the candidates were answering the correct question relating to safe working distances to power lines;

• all six candidates undertaking the knowledge assessments for elevating work platforms provided incorrect answers to question number 20 which related to the safe working distances from power lines and Mr Farquhar had marked all six responses correct.

• During the performance assessment of 2 candidates, Mr Farquhar did not mark the relevant performance assessments during the assessments. Mr Farquhar advised that he would note any mistakes on a piece of paper and transfer this information onto the assessment paper later on.

31. Mr Loveland noted that he had discussed the outcomes with Mr Farquhar at the end of the assessment.

Corrective Action Notice 22 October 2015

32. SafeWork issued a corrective action and follow-up notice to Mr Farquhar on 22 October 2015 arising out of these issues. This was acknowledged by Mr Farquhar on 2 November 2015.

33. Mr Farquhar then wrote to WorkCover on 10 November 2015 stating that he would change his practices and be vigilant in future.

Educative Advice 25 May 2016

34. On 25 May 2016 SafeWork wrote to Mr Farquhar with educative advice concerning non-compliance with SafeWork New South Wales conditions for conducting high risk work licence assessments. This related to the times and dates for each assessment component being accurately recorded in the relevant fields in the assessment details area of the NSA/AES form.

Evidence of Mr Christopher Chadwick

35. Mr Chadwick is employed as an inspector with SafeWork NSW at Liverpool.

36. Mr Chadwick provided a statement dated 24 October 2017 and gave oral evidence before the Tribunal. The documents also included his verification tool reports.

Mr Chadwick’s verification report on 12 August 2015

37. Mr Chadwick undertook a high-risk work desk top verification process on 12 August 2015 at business premises in Gladesville NSW. Mr Chadwick’s role was to verify if the assessors had fully complied with the various requirements as contained in the Conditions for conducting high risk work licence assessments in NSW under the Work Health and Safety Regulation 2011 (Conditions).

38. Mr Chadwick looked at training and assessment records for persons who had been assessed for high risk work licences over the preceding 12-month period by 15 NSW accredited assessors who were affiliated with the RTO, one of whom was Mr Hilton Farquhar.

39. Mr Chadwick analysed 6 candidate records generated by Mr Farquhar and found that for all six (6) candidates, he had incorrectly marked critical question 20 relating to NSW electrical distance requirements as correct, although each candidate had answered incorrectly. Mr Farquhar had also failed to mark an unanswered critical question 19 in relation to a candidate. As a consequence of this, all were potentially able to be granted a high-risk work licence to operate a forklift truck – when they may not have been competent to do so. Mr Chadwick told the Tribunal that he gave a copy of his report to each of the assessors at the end of his inspection.

Mr Chadwick’s verification at Gosford on 21 December 2016

40. On 21 December 2016 Mr Chadwick undertook a high-risk work field verification at Gosford Quarries in Somersby NSW.

41. Mr Farquhar was also present, as he was a nominated assessor who was to conduct Forklift Truck assessments of 3 candidates.

42. Mr Chadwick observed the assessment process of 2 candidates and analysed each candidate’s training and assessment records. He observed 2 candidates undertaking their practical operation of a forklift truck.

Mr Chadwick’s verification report 21 December 2016

43. Mr Chadwick’s verification report stated that Mr Farquhar had not provided appropriately completed training records in relation to each of the candidates. He had presented an incomplete template. Mr Farquhar had no copies of the high-risk work information sheet to provide to candidates. He only had a single copy which he had told Mr Chadwick he used to explain the process to candidates. He had told Mr Chadwick that he did not know that he had to give a copy to each candidate. When marking a candidate’s incorrect response to a critical question, Mr Farquhar had written the correct answer. Mr Chadwick had stopped Mr Farquhar from showing the candidate the correct response.

44. Mr Chadwick had observed Mr Farquhar to have accepted incorrect responses and marked them as correct. He accepted partially correct responses and marked them as correct. Mr Farquhar had sought clarification for incorrect responses and had failed to record oral clarifications. Mr Farquhar had marked that a candidate had performed start-up checks when Mr Chadwick had observed that this had not occurred. At the conclusion of the assessment process, Mr Farquhar had deemed each candidate as not yet competent in the knowledge assessment. However, he fully completed the NSA document and gave them to each of the candidates. Mr Chadwick corrected Mr Farquhar who then corrected the mistake.

45. Mr Farquhar had failed to record “not yet competent” in the NSA section for each assessment summary document issued to Mr Crosland and Mr Galvin on the day

46. Mr Farquhar had also commented to the person being assessed that the assessment documents were designed by people “who don’t live in the real world.” He had also referred to the documents as being “RTO shit”. Mr Chadwick had then, at the end, discussed with Mr Farquhar the faults with his assessment. He had also raised the fact that Mr Farquhar had not complied with conditions that he had previously been in non-conformance with when Inspector Nigel Mainland had assessed him on 16 September 2016.

Evidence of Mr Nigel Mainland

47. Nigel Mainland is employed as an inspector with SafeWork NSW, Gosford.

48. Mr Mainland provided a statement to the Tribunal dated 24 October 2017. His verification report dated 16 September 2016 was in the Tribunal documents. On 16 September 2016, Mr Mainland attended at Active Crane Hire Pty. Ltd Somersby, to observe Mr Farquhar conducting high risk work licence assessments for mobile slewing crane with a capacity up to 60 tonnes.

49. Mr Mainland completed a report which included the following concerns about Mr Farquhar’s assessment process.

• The assessment space being used by Mr Farquhar was inappropriate. The candidates were gathered around a small table and there was potential for the candidates to see each other’s work.

• Mr Farquhar had left the NSA on the workplace table and left the room to go and conduct outdoor assessments. This left the security of the document at risk.

• Mr Farquhar had been leading a candidate by using a whiteboard to explain an issue.

• The candidates had failed to answer critical questions correctly, although Mr Farquhar had marked them correct.

• Mr Farquhar had clarified candidates’ answers without having them initial changes on the recording document.

50. Mr Mainland discussed his observations with Mr Farquhar prior to leaving the premises.

51. Mr Mainland provided copies of his report to Mr Farquhar and Mr Mainland’s supervisor Mr Michael Wright on 21 September 2016, recommending corrective action.

52. Mr Farquhar was issued with a corrective action notice dated 29 November 2016 concerning noncompliance with condition 19. This condition requires the giving of 48 hours’ notice prior to varying the arrangements for an assessment.

The Respondent’s Submissions on breaches of conditions

53. The Respondent submitted that Mr Farquhar’s accreditation had been appropriately cancelled under clause 134 of the Regulation because he had failed to comply with many conditions imposed on his accreditation and he was not able to conduct competency assessments to which accreditations relate competently.

Breaches of Conditions

54. On 16 September 2016 Inspector Nigel Mainland identified breaches of conditions 27, 49, 60, 67, 68, 72 and 73 as follows:

• Re conditions 27 and 67, "the facility used by the candidates to undertake the knowledge and calculations assessment was not conducive to an assessment environment. In particular, the 4 candidates were required to complete their assessments while seated at an eight-seater table, which made it possible for each of the candidates to see the assessment being completed by other candidates."

• Re condition 49, "When the assessor left the facility where the knowledge and calculations assessment were conducted to attend the performance assessments approximately 1km away, he left behind on the table, the candidates’ completed knowledge and calculations assessments, a copy of the assessor version of the C6 NAI and 2 uncompleted versions of the C6 calculations assessment."

• Re conditions 6O and 68, " The assessor sought clarification from candidate David Wray for an answer to Q56, which David had not answered. In doing so, the assessor used a white board to draw a rope sitting in a sheave and asked the candidate several times 'how much of the rope sits in the base of the groove'.

• Re condition 72, "the assessor marked the following answers correct when they were inconsistent with the acceptable answers contained within the NAI. Dean Davis answered Q10 number 3 'ilimination' when the acceptable answer is 'Isolation'. Dean Davis answered Q56 '1 1/3' when the acceptable answer is '1/3'. Dean Davis answered Q77 (explain dynamic forces) 'forces caused by wind on the crane while in use' when the acceptable answer is 'forces caused by movements of the crane and on the load being lifted'. David Wray answered Q73 'so it lifts up correctly' when the acceptable answer is that “avoid load swing or dragging or snigging of the load."

• Re condition 73, "The assessor sought clarification from David Wray for Q46 and Q86 (2) when the candidate had not answered the question on the assessment instrument. The assessor clarified with Dean Davis Q7, Q10, and Q56 without the candidate initialling the answers. The assessor clarified answers with David Wray Q42, Q46, Q56, Q68, Q77, Q86, Q97 without the candidate initialling the answers."

Conditions identified by Inspector Chadwick as breached

55. On 21 December 2016, Inspector Chadwick, identified the following HRW conditions as being breached: 37, 49, 60/73, 72/73, 81, 83/60, 97 and 98. He also identified repeated non-conformances of conditions 49, 60, 68, 72 and 73. The Respondent relied on Inspector Chadwick's notations of the following matters:

(i) Re condition 37, A review of the training record submitted to the assessor by the RTO identified: 1) - No dates of enrolment; 2) - No dates of training; 3)- No dates when elements of training conducted; 4) - No date of formative assessment; 5) -No evidence of enrolment for candidate Matthew Steinthal; 6) - the enrolment forms for candidates Adam Crosland and Michael Galvin had the enrolment date of 13/12/16 crossed out.

(ii) Note: - each candidate presented to the assessor via the trainer a 10-page document titled 'training record', which had Mr Farquhar’s name and contact details and the RTO trainer Mr Jamey Jang's details recorded on page 3, no other information was noted in the document as evidence of training being undertaken.

(iii) A second document comprising of 4 pages titled 'candidate training details' -checklist - forklift - theory and practical' contained a theory training checklist and a practical training checklist. Only the theory checklist had been marked to indicate it had occurred. The trainer had indicated against each checklist that the candidates were competent."

(iv) Re condition 49, "the assessor had no copies of the HRW information sheet to provide to candidates, he only had a single copy which he stated he used to explain the process to the candidates, he further stated he did not know that he had to give a copy to each candidate. I advised him to read his copy of the conditions, to which he stated words to the effect 'it's like reading the bible.'"

(v) Re condition 60/73, "when marking a response to critical question 10 from candidate Crosland, the assessor could not read a word which had been written by the candidate. Instead of asking the candidate to explain his answer the assessor wrote the correct answer in the field commenting words to the effect 'I know what you mean' and was about to show the wording he had written to the candidate.

(vi) Mr Chadwick stopped the assessor and directed him to cover what he had written, ask the candidate to explain the word he had written and if it was the correct response, then it could be accepted. The assessor covered the word he had written, asked Mr Crosland to explain what he had written, to which Mr Crosland stated he didn't know the answer and he didn't know the word he had written. Note: at no time prior to the assessor recording the word 'substitution' had the candidate stated that word."

(vii) Re condition 72/73, "throughout marking the candidates’ written knowledge assessment papers, the assessor accepted incorrect responses and marked them as correct, accepted partially correct responses and marked them as correct, failed to record oral clarification and sought clarification for incorrect responses.

(viii) Examples of the above failings are relevant to candidate Michael Galvin.

Critical Question 30 - acceptable response (the maximum load that a forklift is designed to carry at a load height and a specific load centre distance shown on the load chart) - Response provided 'What it can safely carry' - marked as correct - no clarification sought;

(ix) Critical question 22 - acceptable response (The forklift can create a risk for persons close by, structures, plant or equipment because of the fast, sideways movement of the forklift) - response provided 'causes the rear to swing 3 times the speed' - marked as correct, no clarification sought;

(x) Question 37 - acceptable response (to ensure safety to people, and load and structural stability) - response provided 'to assure load centre is maintained' -marked as correct, no clarification sought;

(xi) Question 53 - the incorrect response was recorded. The assessor sought clarification, did not record the oral responses, which were still incorrect and did not mark the original response as incorrect;

(xii) Question 56 option 2 - acceptable response (in addition to normal parking procedures, chock the wheels of the forklift) - response provided 'make sure handbrake working properly, tines down, and vehicles out of the way' - marked as correct - no clarification sought;

(xiii) Candidate Adam Crosland - Critical question 16 – the candidate had not provided a response to this question. The assessor sought clarification and recorded the oral response provided, which was incorrect;

(xiv) Critical question 22 - Acceptable (The forklift can create a risk to persons close by, structures, plant or equipment because of the fast, sideways movement of the forklift). Response provided 'causes the rear to swing 3 times the speed' -the assessor sought clarification and the oral response given, which was recorded was 'behind the driver the counterweight' - marked as correct;

(xv) Question 30 - Acceptable response (it is the maximum load a forklift is designed to carry at a load height and a specific load centre distance shown on the load chart) - Response provided 'Check the ID plate for max load that can be carried safe' - marked as correct;

(xvi) Question 36 - Acceptable response (check the pathway is clear, check the mirrors, look over both shoulders, use a guide, use warning devices) - response provided 'check size, check weight report obstructions' - marked as correct;

(xvii) Question 41 - acceptable response (it is only allowed when the forklift is specifically designed and equipped to carry more than one person) - Response provided 'only on a platform'. The assessor sought clarification of an incorrect response, the correct answer was given, and he marked the question as correct."

(xviii) Re condition 83, "the assessor recording observations on candidate Adam Crosland’s performance checklist indicated in task 3 'Start-Up checks' that he had observed the candidate had checked both steering and brakes whilst moving before commencing lifting operations. This had not occurred.

(ixx) Re condition 83/60; whilst candidate Adam Crosland was undertaking his start-up checks, he only partially raised the mast assembly and was in the process of lowering the tines when the assessor stated words to the effect 'would you raise it all the way up to check it' to which the candidate responded: “I suppose so”;

(xx)Whilst candidate Michael Galvin was undertaking his start-up checks he had completed the mast assembly processes and had lowered the tines when the assessor stated words to the effect 'what are you going to do about the brakes and steering'. The candidate then proceeded to carry out those checks."

(xxi) Re condition 97; at the conclusion of the assessment process, the assessor deemed each candidate as 'not yet competent' in the knowledge assessment, correctly marked up the knowledge assessment results with an 'N', however he fully completed the NSA / AS document and issued it to each of the candidates. I asked the assessor to check what he had just issued to the candidates and, acting shocked, he had the documents returned to him, removing the NSA section and returned the AS (Assessment Summary) document to each of the candidates."

(xxii) Re condition 98; the assessor failed to record NYC or not yet competent in the NSA section for each assessment summary document issued to Mr Adam Crosland and Mr Michael Galvin.

Issues of Competence

56. In relation to the verification conducted by Inspector David Loveland on 13 August 2015, the HRW conditions 63, 72 and 81 were identified as being in breach. The following was noted by the inspector at the time of the verification:

57. (i) Re condition 63, "The assessor did not ensure that the critical question number 20 of the elevating work platform knowledge assessment had been amended to ensure that the candidates were answering the correct question relating lo safe work distances to power lines."

58. (ii) Re condition 72, "All six candidates undertaking the knowledge assessments for elevating work platforms, provided incorrect answers to question number 20 which related to the safe working distances from power lines, and the assessor had marked all six responses as correct. Note all of the six responses incorrectly stated the answers to working from power lines as 3m, 6.4m, 8m and 10m."

59. (iii) Re condition 81, "During the performance assessments for candidates Jarryd Thompson and Kevin Fodor, the assessor did not mark the relevant performance assessments during the assessments. The assessor advised that he would make a note of any mistakes on a piece of paper and transfer this information onto the assessment paper later on."

60. The Respondent submitted that given the critical nature of the electrical distances question and the fact that candidates may have been assessed with an invalid assessment tool, it is open to the Tribunal to find that Mr Farquhar is not able to competently carry out the assessment process.

61. Inspector Mainland on 16 September 2016 identified that Mr Farquhar failed to secure assessor versions of the NAI, marked incorrect answers correct and prompted candidates for answers.

62. Mr Farquhar had acknowledged in his submission that he incorrectly issued full NSAs (Notice of Satisfactory Assessment) to candidates who were not yet competent. (Mr Farquhar’s submission 1 February 2017). Mr Farquhar had clearly demonstrated a deficient level of competency in regard to management of the NSA process. This had resulted in a serious risk that a licence candidate may have commenced work based on holding a full NSA when they were not yet competent for the class of high risk work.

63. On 21 December 2016 at Somersby, Inspector Chadwick observed Mr Farquhar seeking clarification of an incorrect answer by a candidate to question 41 in relation to forklifts. The initial answer that a work platform could be locked onto a forklift would be in breach of the Work Health and Safety Regulation 2017.

64. The Respondent submitted that the Tribunal could be satisfied that Mr Farquhar is not able to competently carry out the assessment process.

Respondent’s Submissions on the correct and preferable decision

65. The Respondent provided written and oral submissions as set out below.

66. The legislative basis for a decision to suspend or cancel accreditation is prescribed in clause 134 of the Work Health and Safety Regulation 2017.

67. The WorkCover NSW guide ('The guide') for accreditation of assessors for high risk work licenses emphasises the importance of accreditation of assessors in order to provide "a consistently high standard of assessment of individuals applying for high risk work (HRW) licences. This assists employers and others having obligations under the WHS Act to have confidence in the competence of workers performing HRW in order to ensure the health and safety of workers and others in the workplace."

68. In the circumstances of this case, the Tribunal may suspend or cancel an accreditation if satisfied about one or both of the following: the accredited assessor is not able to conduct the competency assessment to which the accreditation relates competently; and/or the accredited assessor has failed to comply with a condition imposed on the accreditation under clause 121. The evidence is capable of satisfying the Tribunal Mr Farquhar is not able to conduct competently high-risk work licence assessments for which he was accredited, as evidenced by the high number and frequency of breaches to the conditions, particularly in the area of new licence applications.

69. Mr Farquhar had been audited a total of at least six times since his initial accreditation. In addition, Mr Farquhar had had a number of opportunities to rectify non-compliant behaviour, but had failed to do so.

70. Mr Farquhar was the recipient of a Corrective Action Notice (CAN) for a verification conducted by Inspector Phillip May on 26 August 2010 for breaches of guidelines for conducting assessments, in particular for a breach of guideline 49, which is similar in context to the now current condition 49. This was due to Mr Farquhar at the time not having a copy of the guidelines and accreditation certificate.

71. On 25 May 2016, Mr Farquhar received a letter of educative advice for the noncompliance with the SafeWork NSW conditions for conducting HRW licence assessments. The letter identified non-compliance with condition 19 "The times and dates for each assessment component must be accurately recorded in the relevant fields in the assessment details area of the NSA/AS form."

72. When Mr Farquhar was assessed for re-accreditation in September 2016 and December 2016, Mr Farquhar did not ensure that he complied with all relevant conditions on his accreditation, despite being clearly on notice that he had previously been in breach of the substance of condition 49 and condition 19 from the CAN and the letter referred to above.

73. Inspectors from SafeWork attended high risk work assessments conducted on 16 September 2016 and 21 December 2016 for the high-risk work licence classes of forklift truck and slewing mobile crane (up to 60 tonnes) for the purpose of verifying Mr Farquhar's compliance with the conditions. A high number of serious breaches were identified at each of these verification visits and a number of those breaches were identified at both visits.

74. In the last four audits conducted, Mr Farquhar had been found to be in breach of fourteen different conditions, six of these conditions were breached on more than one occasion and condition 72 was breached at all four audits conducted. In the Respondent's submission, Mr Farquhar had therefore clearly been in breach of the conditions applicable to his accreditation under clause 121 of the WHS Regulation.

75. In relation to issues of competence, the specific breaches of conditions identified on 13 August 2015, related to critical knowledge that candidates must possess in order to be deemed competent for the purpose of a high-risk work licence. In the Respondent's submission, breach of these conditions by Mr Farquhar demonstrated that he is not competent to conduct assessments.

76. The electrical distance question arising in the verification conducted by Inspector Chadwick on 12 August 2015, was sufficient to indicate Mr Farquhar is not competent to conduct assessments. In addition, it is extremely concerning that a person examining a licence candidate's answers failed to mark incorrect answers as incorrect. In the Respondent's submission, the Tribunal would be satisfied that Mr Farquhar is not able to conduct the competency assessment to which the accreditation relates, competently.

77. Accredited assessors exercise an important work health and safety regulatory function and are required to behave in a manner that maintains public confidence and trust. The serious nature of these breaches and the high likelihood that if left undiscovered high-risk work licences would have been issued to candidates who were not yet competent, poses a significant risk to work health and safety as to warrant the cancellation of Mr Farquhar's accreditation.

78. Additionally, Inspector Chadwick noted during a verification he conducted, "Whilst the assessor was completing the NSA/AS documents in company with both candidates, candidate Michael Galvin commented that he had problems with completing the written knowledge assessment because he wasn't good with words. The assessor commented words to the effect 'They are designed by people who don't live in the real world'; the assessor also openly stated on a number of occasions that he had to complete the 'RTO shit'.

79. The Respondent submitted that the Tribunal should affirm its decision to cancel Mr Farquhar's accreditation as a HRW licence assessor.

Mr Farquhar’s Case

80. Mr Farquhar had written to SafeWork on several occasions responding to notices. These letters were contained in the section 58 documents.

81. The Tribunal had before it letters dated:

• 25 December 2016 responding to Mr Chadwick’s verification report of 21 December 2016;

• 1 February 2017 responding to Mr Chadwick’s verification report of 21 December 2016;

• 25 March 2017 responding to Mr Mainland’s verification report of 16 September 2016; and

• 19 September 2017 explaining why Mr Farquhar had applied to the Tribunal for review.

82. Mr Farquhar also gave evidence before the Tribunal and he was cross examined. Mr Farquhar made oral submissions to the Tribunal.

Evidence of Mr Farquhar

83. Mr Farquhar responded to notices received from SafeWork New South Wales.

Response to the Corrective Action Notice, dated 6 September,2010, by Philip May.

84. This notice had stated that Mr Farquhar had breached Condition 49 by failing to have certain documents with him while conducting an assessment. Mr Farquhar noted in response:

“I did fail to have the document "Guidelines" with me, and I have never conducted any assessments since then without it. It was an oversight at the time, I had learnt my mistakes, for if WorkCover had deemed me incompetent, they surely would have cancelled my accreditation then.”

85. On 2 November 2015 Mr Farquhar completed an acknowledgement of the corrective action follow-up notice and followed this with a letter dated 10 November 2015 in which Mr Farquhar stated that he would follow the advice and change his practices.

Letter of 25 December 2016

86. On 25 December 2016 Mr Farquhar responded to SafeWork disputing the findings of Inspector Chadwick in relation to Mr Chadwick’s inspection at Gosford Quarry on 21 December 2016.

87. Mr Farquhar denied referring during the assessment to “RTO shit”. He had said “RTO sheets.” He stated that he always has master sheets of information with him and he is able to print these off and photocopy from his mobile office. He had told the candidates that Mr Chadwick was there to assess himself - not the candidates. Mr Farquhar referred to a tight site and that he had moved a piece of stone for safety purposes. He said he was not aware he had assisted a candidate to answer questions and denied doing so. He stated that he had marked candidates fairly and did not rely on word perfect answers. He had referred to questions being written in a strange way. He said that he had considered that some of the answers marked correctly were not totally wrong. Mr Farquhar said that Mr Chadwick had not requested the candidates’ Records of Training (ROTs) - although Mr Farquhar had them there with him. He complained about the negative impact of Mr Chadwick’s visit on both staff members and the candidates.

Letter of 1 February 2017

88. On 1 February 2017 Mr Farquhar wrote to SafeWork probably in response to the Notice of proposed cancellation of accreditation dated 6 January 2017.

89. Again, Mr Farquhar asserted that he had the ROT sheets there with him and that he was not asked for them by Mr Chadwick. Again, he asserted that he had master copies of the new candidate information sheet and was able to photocopy them when necessary. He denied showing a candidate the correct answer when the candidate had written an incorrect one. In response to the allegation that he had marked as correct answers which were incorrect, he said he would require different answers in the future.

90. He said that he had not intended to pass a candidate, but had attempted to assess him to see if he should “stay on the logbook”. He referred to his safety concerns at the live site. Again, he asserted that he had not stated RTO shit - but rather RTO sheets.

Letter 25 March 2017 to SafeWork

91. On 25 March 2017 Mr Farquhar wrote to SafeWork responding to Mr Nigel Mainland’s verification report of 16 September 2016. Mr Farquhar said that the area had previously been used for assessment and that he had been vigilant about candidates cheating. He had left the assessment documents in the room as he thought that Mr Mainland needed them. He had not previously had this sort of assessment. He explained that he had allowed three candidates to remain in the room while one was still completing his assessment as the candidate completing his assessment was not going to pass and was very nervous. He had drawn on the board to see if the candidate had sufficient knowledge to continue safely on the logbook. He agreed that he had failed to have candidate Davis initial clarifications and said he would change his practices.

Letter 3 April 2017 to SafeWork

92. On 3 April 2017 Mr Farquhar wrote to SafeWork referring to Mr Chadwick’s assessment of him on 21 December 2016. Again, he stated that he had the completed set of enrolment forms there with him during Mr Chadwick’s assessment and he had not been asked for them.

Letter of 19 September 2017 to the Tribunal

93. In this letter Mr Farquhar affirmed his practice of observing a duty of care to check whether candidates deemed not competent, could stay on log books.

94. He confirmed that in September 2010 as noted by Philip May he did not have the Guidelines document with him - but had learned from his mistakes.

95. He had not received any notification from WorkCover on the change in powerline distances.

96. Sometimes crane assessments had to be cancelled because of unavailability of crane or personnel. He now contacts even if this happens on weekends.

97. He said that an email from Aaron Barker criticising certain practices was misleading and a ploy to destroy his reputation. Adam Toby had chosen the “tall poppy syndrome” against him.

Mr Farquhar’s evidence to the Tribunal

98. Mr Farquhar gave oral evidence to the Tribunal and was cross examined. He said that he was not going to question what Mr Chadwick had said in his evidence. In his defence, he said that when Mr Loveland had inspected his assessments at Lidcombe on 13 August 2015, he told Mr Farquhar that the information about the power lines was incorrect and that he could white it out on the document, as the requirements had changed. Mr Farquhar had not used that same sheet since that time. Under cross-examination, Mr Farquhar conceded Mr Loveland’s observations of August 2015 concerning electrical distances. He agreed that six candidates have given an answer that was inconsistent with the correct answer, but that he had marked them as correct.

99. He had been told by Mr Loveland to use an assessment sheet in the field for each candidate. It had been his practice when out in the field to use one sheet for all candidates and to mark their assessments on it and then transfer the data into individual sheets for each candidate. This was because it is often dirty out in the field and he wanted to provide clean assessment sheets. He was recording the assessments as he progressed. He had changed his practice since then.

100. He disagreed that the assessment space as observed by Mr Mainland on 16 September 2016 at Somersby had been inappropriate. It was a 10-seater table and he did not think that the candidates would have been able to copy from each other. At the time one of the candidates had become panicky. Mr Farquhar knew that the candidate was not going to pass the assessment but had given him some more time. As a result, the other three candidates had been standing nearby having finished their own assessments. He had continued with the assessment of this candidate to ascertain whether the candidate was safe to remain on the log book. He did not give the candidate his licence. When he had left the NSA document on the table, he thought he was doing the right thing by leaving all his paperwork there for Mr Mainland to look at while he went to conduct the assessments on site. When Mr Mainland came to the site where he was doing his practical assessments, Mr Mainland told him that he had left his paperwork up on the table. Mr Farquhar said he was concerned by this and immediately returned to the room to retrieve the NSA documents. Mr Farquhar said that he thought the NSA sheets he left on the table in Mr Mainland’s presence were safe because Mr Mainland was there with the documents. He said that Mr Mainland was the only person who had access even though it was an unlocked room.

98. He did not consider that drawing a diagram on the whiteboard was prompting. He had wanted to help the candidate learn. He had not been passed. He conceded that in relation to Dean Davis that Mr Davis had given an incorrect answer being “elimination” and that he had marked this correct when it should have been “isolation”. He also conceded that he had marked as correct, incorrect answers by Dean Davis to questions 77 and 73

99. Mr Farquhar was adamant that when Mr Chadwick attended on 21 December 2016 at Gladesville that the training records for the candidates had been there. He had not been aware that Mr Chadwick had not seen the training records. He denied that Mr Chadwick had discussed the results of the assessment with him. The only thing Mr Chadwick had discussed with him was the provision of the sheet to candidates. He keeps one in his folder which he then photocopies and gives to candidates. He hadn’t been aware that he had to give them the sheet before then. He conceded that he had stated that the questions were written by people who “were not in the real world of construction.” He said he had stopped a candidate whom he was assessing, because there was a truck coming in and he needed to prevent danger.

100. Mr Farquhar conceded that there had been occasions on which he had not notified SafeWork with 48 hours’ notice when assessments were cancelled. This had not always been possible. With the help of Gary Fish, he got the process right on the third time.

101. He conceded Mr Chadwick’s point that he had issued NSAs by mistake. When he had realised his mistake, he had taken them back. He conceded that he had failed to get candidates to initial corrections. He said that since September 2010 he had not repeated the error - it was one of his very first assessments.

102. Mr Farquhar conceded that it had taken three times to get things right, but he was now aware of his obligations. Mr Farquhar conceded that he did not deny most of the issues that had been raised. He had been stunned when he had received the letter from SafeWork setting out Mr Chadwick’s concerns. He defended his comments about the language in the assessment forms. He said a lot of the candidates had not completed grade 8 and they would find the language difficult. He could not understand why SafeWork would be bringing up all the stuff from the past which had already been rectified. He could not understand why Mr Mainland had left the assessment room and left the NSA documents on the table. In the future he would ensure that his errors were corrected. He would ensure that in future candidates added a bit more to their answers.

103. He said that he was not aware of candidates that he had marked as competent who were not competent. He felt it was inappropriate to crucify him for the fact that the answers in relation to the distance from power lines had changed. He had not made this error again. He said that he was good at his work. Crane operators get him to operate their cranes. He worked with his candidates, not in order to give them licenses to which they were not entitled, but to ascertain that they were safe to stay training and on the log book. He is very strong on that.

104. He had been made to look like he had incorrectly issued licences, when he had asked questions to clarify when the candidates did not supply sufficient information, to allow them to remain on log books.

105. If a person is deemed not yet competent, by him, it was his duty of care to ascertain whether that person could remain being supervised by a licenced person for that class, even though they were still enrolled with an RTO. In the case of the C6 and the two LF, class candidates, he did this. He remarked to them that they would not be deemed competent yet, and that they could re-sit the exam at a later date. He needed to be sure that they could remain on a log book.

106. He said that he had not used the words “RTO shit” but rather “RTO sheet”.

107. He said he had used the words “It’s like reading the bible” to mean that he was always reading, so he could better understand.

108. He had been classed as one of the highest ranked assessors in the State. The whole matter had taken a big toll on him and his family. He has a reputation for safety which is 2nd to none.

The Relevant legislation

Work Health and Safety Act 2011

112. Section 45 makes failure to comply with conditions of authorisation an offence.

45 Requirement to comply with conditions of authorisation

A person must comply with the conditions of any authorisation given to that person under the regulations. Maximum penalty:

in the case of an individual-$20,000, or

in the case of a body corporate-$100,000.

Work Health and Safety Regulation 2017

113. The Regulation provides that an accredited assessor conducting a competency assessment must do so in accordance with the conditions of accreditation imposed under clause 121.

133 Regulator may suspend or cancel accreditation

(1) The regulator may, under this Division:

a.   suspend or cancel an accreditation, and

b.   if suspending an accreditation, vary the conditions of the accreditation,

including by imposing different or additional conditions.

(2) If the regulator cancels an accreditation, the regulator may disqualify the accredited assessor from applying for a further accreditation for a specified period.

134   Suspension or cancellation of accreditation

(l)The regulator may suspend or cancel an accreditation if satisfied about 1 or more of the following:

(a)the accredited assessor is no longer qualified to conduct the competency assessment specified in the assessor's accreditation document,

the accredited assessor is not able to conduct the competency assessment to which the accreditation relates competently,

the accredited assessor has failed to comply with a condition imposed on the accreditation under clause 121,

(d)the accredited assessor, in the application for the grant or renewal of accreditation or on request by the regulator for additional information: (i) gave information that was false or misleading in a material particular,

or (ii) failed to give any material information that should have been given in that application or on that request.

(2) ln subclause (1) (a), qualified has the same meaning in relation to an

accredited assessor as it has in clause 118 in relation to an applicant for accreditation.

(Tribunal’s bolding)

The Tribunal’s consideration of the evidence and the law

114. Section 3 of the WHS Act 2011 states that its main objective is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by protecting workers and other persons against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances.

115. The policy behind the regulatory framework emphasises the importance placed on safety in the workplace which is particularly significant when workers are undertaking high risk work that requires a licence. According to the 'Explanatory Memorandum' of The Work Health and Safety Bill, "licences, permits and registrations are a regulatory tool to control activities that are of such high risk as to require demonstrated competency or a specific standard of safety."

The Tribunal’s findings on alleged breaches of conditions

Section 140 of the Evidence Act 1995

116. Where the Tribunal needs to satisfy itself of the existence of a fact, it does so on the basis of the civil standard of proof – the balance of probabilities - set out in section 140 of the Evidence Act 1995.

140 CIVIL PROCEEDINGS: STANDARD OF PROOF

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

Report of Inspector Mainland 16 September 2016

117. The Tribunal is satisfied that Mr Farquhar breached conditions 27 and 67 when he conducted assessments at a small table which would have enabled the candidates to look at each other’s assessments and therefore undermined the integrity of the assessments. Condition 27 requires an assessor to ensure there are appropriate resources present for an assessment. Condition 67 requires the assessor to ensure that candidates are positioned so they cannot cheat. These breaches may have led to candidates who were not competent being assessed as competent. The Tribunal does not consider it material whether or not candidates were assessed as competent. The integrity of the process was undermined.

118. The Tribunal is satisfied that Mr Farquhar breached condition 49 when he did not hold relevant documentation in his possession at the assessment.

119. The Tribunal is also satisfied that Mr Farquhar breached condition 30 which requires storage of an NSA/AES book in a secure location at all times.

120. The Tribunal was not satisfied that in drawing on a whiteboard for a candidate that Mr Farquhar was in breach of condition 60 and 68. These conditions require that an assessor must not assist a candidate and that the assessment is completed by a candidate without assistance. It was not clear that the assessment was continuing at this time. The Tribunal is not satisfied that Mr Farquhar was prompting the candidate. It may not have been Mr Farquhar’s role to be instructing the candidates, or to assess whether they could stay on their logbooks. However, the Tribunal is not satisfied that he breached these conditions on this occasion.

121. The Tribunal is satisfied that Mr Farquhar breached condition 72 when he accepted incorrect answers, contrary to the requirements in relation to critical questions. The Tribunal is also satisfied that Mr Farquhar breached condition 73 when he obtained clarification and did not get the candidates to initial clarifications.

Mr Chadwick’s report of 21 December 2016

122. Mr Chadwick’s report of 21 December 2016 stated that Mr Farquhar had breached conditions 37, 49, 60 and 73, 72 and 73, 81, 83 and 60 and 97 and 98. He considered that there was repeated non-conformance in relation to conditions 49 and 60, 68, 72 and 73. The Tribunal was not satisfied that Mr Farquhar had been in breach of condition 68 by drawing on the whiteboard on 16 September 2016 as reported by Mr Mainland. Therefore, it does not find that he had a repeated non-conformance with condition 68 on 21 December 2016.

123. The Tribunal is satisfied that on 21 December 2016 Mr Farquhar did breach condition 68. This condition requires that a candidate complete assessment without help. When Mr Farquhar assessed candidate Adam Crosland on Critical question 16 Mr Crosland had not responded to this question. Mr Farquhar sought clarification and recorded the oral response provided, which was incorrect.

124. The Tribunal cannot be satisfied that Mr Farquhar breached condition 37 in that he did not have present complete records of training for the candidates. Mr Farquhar was adamant that he had these records with him and that he was not asked to provide them. The Tribunal cannot be satisfied on the balance of probabilities that Mr Farquhar did not have the records of training with him.

125. The Tribunal was satisfied that Mr Farquhar was in breach of condition 49 in that he did not have copies of the HRW information for candidates. The Tribunal notes that this was raised with Mr Farquhar by Inspector Philip May in September 2010. Mr Farquhar has repeated his breach of condition 49.

Breach of condition 60 and 73 in relation to Mr Crosland

126. The Tribunal is satisfied that Mr Farquhar was attempting to show Mr Crossland the correct response to a question he had answered incorrectly and that he was prevented by Mr Chadwick from doing so. The Tribunal is satisfied that Mr Farquhar breached conditions 60 and 73. These conditions respectively require that an assessor not assist a candidate and that any clarifications be initialled by the candidate. The Tribunal was satisfied that there was a repeated breach of clause condition 73, in that Mr Farquhar had previously sought clarification without having clarifications initialled by candidates, as noted by Inspector Mainland on 16 September 2016.

127. The Tribunal was satisfied that Mr Farquhar breached conditions 72 and 73 in that he accepted incorrect responses as being correct. These conditions require respectively that a candidate must answer all critical questions correctly and that clarifications be initialled by a candidate.

128. The Tribunal was satisfied that Mr Farquhar breached condition 83 in that Mr Chadwick reported that Mr Farquhar had prompted the candidate to complete start-up checks.

129. The Tribunal is satisfied that Mr Farquhar breached conditions 83 and 60 in that he prompted candidates to give the correct answer.

130. The Tribunal is satisfied that Mr Farquhar breached condition 98 in that he failed to record “not yet competent” for each assessment summary document issued to candidates.

The Tribunal’s findings in relation to competency issues

131. The Regulation does not set out the meaning of competent or competency in relation to an assessor.

132. The definition section 5 of the Regulation sets out

"competent person" means:

………

(g) for any other case--a person who has acquired through training, qualification or experience the knowledge and skills to carry out the task.

133. The Tribunal has also considered the definitions of “competence” and “competent” as set out in the Macquarie Dictionary, revised edition 1985.

134. Competence is defined as “the quality of being competent; adequacy; due qualification or capacity.”

135. Competent is defined as being “properly qualified; capable”.

136. These terms must be construed in the light of the Objects of the Act and the role to which competence relates.

WORK HEALTH AND SAFETY ACT 2011 - SECT 3

Object

3 OBJECTS

(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and

(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and

(d) promoting the provision of advice, information, education and training in relation to work health and safety, and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

137. The Act focusses on achieving workplace safety and the contribution of all persons connected with the workplace to this outcome. The role of the high-risk work assessor is clearly to further the cause of safety in the workplace.

138. The Tribunal finds in accordance with Inspector Loveland’s report of 13 August 2015, that Mr Farquhar breached condition 63 in that he had not amended the critical question number 20 setting out the safe distances to power lines in New South Wales. This, in turn, led to a breach of condition 72 in which six candidates gave incorrect answers to the question. The Tribunal is satisfied that Mr Farquhar’s incorrect issuing of full NSAs to people who were not yet competent, demonstrates a lack of capacity on Mr Farquhar’s behalf to ensure he conducted assessments promoting safety in the workplace.

139. The Tribunal is satisfied that Mr Farquhar demonstrated a lack of competence on 21 December 2016 as observed by Inspector Chadwick in accepting incorrect answers.

140. The Tribunal was also satisfied that Mr Farquhar did not mark the assessment on the appropriate assessment paper in breach of condition 81. This left the integrity of the process open to question and error.

141. The Tribunal is satisfied that Mr Farquhar demonstrated a lack of competence on the 16 September 2016 when he failed to secure the assessor versions of the NAI.

Alternatives to cancellation of accreditation

142. The Respondent referred to the “Compliance Threshold Pyramid”. The Tribunal understands this to be an aspect of Safe Work’s Compliance and Complaints Management Procedure. The pyramid classifies identified breaches of conditions as High Risk, Medium Risk and Low Risk. It sets out appropriate action in response to each level of risk.

143. Serious or multiple High-Risk breaches may be subject of prosecution, penalty notice, suspension or cancellation.

144. Less serious high risk and multiple medium risk breaches may be subject to corrective action follow up. Medium risk breaches may be subject of Corrective Action Notice and or corrective action follow-ups. Low risk breaches may lead to an educative letter and/or advice.

145. The Tribunal has found that Mr Farquhar breached 9 high risk conditions 30,60,68,72,73,81,83,97 and 98. The Tribunal considers this constitutes multiple high-risk condition breaches. The Respondent’s Compliance and Complaints Management Procedure indicates appropriate responses as being prosecution, penalty notice, suspension or cancellation.

146. These conditions ensure that candidates are assessed without receiving assistance and without an opportunity to cheat. They also go to the integrity of the assessment system for high risk work. Leaving aside the Respondent’s categorisation under its Complaints Management procedure of these as high-risk conditions, objectively speaking they also go to the primary concern of safety in the workplace. Non-compliance with these conditions risks persons who are not competent being assessed as satisfactory and being permitted to operate in the workplace.

147. Mr Farquhar breached medium risk condition 49. The Respondent’s Compliance and Complaints Management Procedure indicates appropriate responses as being Corrective Action Notice and/ or corrective action follow-ups.

148. Mr Farquhar received Corrective Action Notices dated September 2010 and 22 October 2015, and Educative Advices dated 25 May and 29 November 2016. He received verification reports from Mr Chadwick in August 2015 and December 2016 and Mr Mainland in September 2016 identifying breaches of the conditions.

149. Mr Farquhar regularly responded that he would or had changed his practices. However, the Tribunal is satisfied that Mr Farquhar repeated instances of non-conformance despite being advised of these.

150. Mr Farquhar has continued to breach conditions of his accreditation.

151. No comparators of action taken against other accredited assessors for breaches were provided to the Tribunal by either party.

152. In the circumstances, the decision to cancel Mr Farquhar’s accreditation is consistent with the Respondent’s stated Compliance and Complaints Management Procedure and Compliance Threshold Pyramid.

153. The public and workplace participants should have confidence in the assessment process. The role of the accredited assessor is to ensure that only those who can operate safely in the workplace are certified. Failure of an assessor to observe the Conditions of the assessment process undermines the consistency and integrity of assessment as well as public confidence in the process. It places the safety of workplace participants at risk. Objectively, the decision to cancel Mr Farquhar’s accreditation is consistent with the goal of achieving safety in the workplace.

Decision

154. The Tribunal is satisfied that the correct and preferable decision is for Mr Farquhar’s accreditation as an assessor to be cancelled.

155. The Respondent’s decision is affirmed.

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

Decision last updated: 22 December 2017