Hawke v Chief Executive Officer, WorkCover NSW (No 2)

[2009] NSWADT 63

CITATION:	Hawke v Chief Executive Officer, WorkCover NSW (No 2) [2009] NSWADT 63
DIVISION:	General Division
PARTIES:	APPLICANT Dominic Hawke RESPONDENT Chief Executive Officer, WorkCover NSW
FILE NUMBER:	083089; 083318
HEARING DATES:	13 March 2009
SUBMISSIONS CLOSED:	13 March 2009
DATE OF DECISION:	25 March 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Occupational health and safety – refusal of application for accreditation as an assessor
LEGISLATION CITED:	Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Administrative Decisions Tribunal Act 1997
CASES CITED:	Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 320
REPRESENTATION:	APPLICANT In person RESPONDENT G De Courcey, solicitor
ORDERS:	The decision to refuse Mr Hawke’s application for accreditation as an assessor is affirmed.

1 This matter involves a review of a decision of WorkCover NSW (‘WorkCover’) made under cl 284 of the Occupational Health and Safety Regulation 2001 (‘the OHS Regulation’) to refuse Mr Hawke’s application for accreditation as a WorkCover assessor.

Background

2 On 23 October 2008, Mr Hawke applied to the Tribunal for a review of two decisions made by WorkCover: (1) to refuse his application for accreditation as a WorkCover assessor, and (2) to refuse his application for accreditation as a WorkCover trainer. At that time, Mr Hawke had another similar application before the Tribunal, file number 083089. On 13 November 2008, I conducted a preliminary hearing in that matter on a jurisdictional issue. My decision on that issue - Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 320 – was published on 2 December 2008. Following publication of that decision, I conducted a Planning Meeting with the parties in relation to file no.s 083089 and 083318 on 23 December 2008 and gave directions for the exchange of documents.

3 At the hearing on 13 March 2009, Mr Hawke confirmed that he no longer wished to proceed with his application in file no 083089, which I have therefore dismissed. He also confirmed that he no longer wished to pursue that part of his application in file no 083318 concerning the refusal of his application for accreditation as a WorkCover trainer. The focus of the hearing and, therefore, of my decision is on WorkCover’s refusal of Mr Hawke’s application for accreditation as an assessor.

4 Mr Hawke has, in the past, held various accreditations as a trainer and assessor. On 21 April 2008, he made a new application to WorkCover for accreditation as an assessor. In a letter dated 2 May 2008, WorkCover sought further information from Mr Hawke, to which Mr Hawke responded by letter dated 20 June 2008. By letter dated 25 July 2008, WorkCover informed Mr Hawke that his application had been refused because, despite the request for further information, he had been “unable to demonstrate sufficient relevant industry experience” or evidence that he held a National Certificate of Competency for six classes of activity: basic scaffolding, intermediate scaffolding, basic rigging, intermediate rigging, hoist operation and materials operation, and concrete placing boom operation. Mr Hawke sought an internal review of this decision.

5 By letter dated 19 September 2008, WorkCover notified Mr Hawke that it had confirmed its original decision:

“Your representations and additional information supplied have been reviewed and after further consideration the internal review has supported our reason for rejection, being:

* Relevant Industry Experience – after an extensive review of your relevant industry experience and information provided by your referees, the required benchmark, set by WorkCover, has not been met.

* Evidence of competency – National Certificates of Competency for Hoist Personnel and Materials Operation (HP) and Concrete Placing Boom Operation (PB) have not been held for a minimum of 2 years, as required by the accreditation criteria.”

6 This is the decision in respect of which Mr Hawke seeks a review by the Tribunal. However, the focus of the hearing was on the issue of relevant industry experience, and I have confined this Statement of Reasons to that issue.

The Relevant Legislation

7 The power to accredit assessors is contained in cl 284 of the OHS Regulation, which states:

284 Accreditation of assessors

(1) Any person may apply to WorkCover for accreditation as an assessor.

(2) The application:


(a) must be in the approved form, and

(b) must be accompanied by such material or information to support the application as WorkCover may require, and

(c) must be accompanied by the fee fixed for the time being by WorkCover to cover expenses in connection with the regulation of assessors.


(2A) WorkCover may accredit the applicant as an assessor or may refuse the application for such reason as it considers sufficient, even if it is satisfied that the applicant is competent to carry out the functions of an assessor under this Chapter.

(3) WorkCover must not accredit a person as an assessor unless it is satisfied that the applicant is competent to carry out the functions of an assessor under this Chapter.

(4) If WorkCover accredits a person as an assessor, it must issue to the person a certificate of accreditation for the kinds of assessments for which the person is accredited.

(5) If an application is refused, WorkCover must ensure that written notice of the refusal, and of the reasons for the refusal, are given to the applicant.

8 Pursuant to s 8 of the Administrative Decisions Tribunal Act 1997, “[a] ‘reviewable decision’ is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review”. Section 36 of the Occupational Health and Safety Act 2000 provides that regulations made under the Act Òmay authorise a person to apply to the Tribunal for a review of a decision, of a class prescribed by the regulations, that is made under this Act or the regulationsÓ. Clause 351(1) of the OHS Regulation sets out the classes of decisions made by WorkCover in respect of which an aggrieved person may apply to the Tribunal for a review, which include decisions to refuse to accredit a person as an assessor.

WorkCover’s Evidence

Meagan McCool

9 Ms McCool said she is the Coordinator of WorkCover’s Third Party Management Unit, a position she has held for the past two years. She previously worked for one and a half years in another position in the same unit. Her current duties include the accreditation of trainers and assessors, the monitoring of their performance, and other duties. She was involved in the handling of Mr Hawke’s application for accreditation as an assessor.

10 Ms McCool said an assessor is accredited to assess applicants for competency in particular tasks. The assessor is required to check the applicant’s evidence of identity and other information of an administrative nature, have the applicant complete a written test that the assessor compiles from a bank of relevant WorkCover questions, and assess the applicant in a practical demonstration. Applicants must meet the required standard of competency, which is set by a national instrument. If an applicant’s assessment is satisfactory, the assessor issues the person with a certificate of competency, which the person lodges with WorkCover to obtain a licence for the particular task.

11 Ms McCool said once a person is accredited as an assessor, the person is able to set up a business to conduct assessments, charging market rates. Assessors must conduct a minimum number of assessments in a 12 month period. Because assessors are, essentially, acting as agents for WorkCover, they are required to comply with a code of conduct, and are subject to random ‘on the spot’ audits, which check for matters such as the correct use of machinery and marking of written tests, and on the administrative process followed, including the accurate recording of a start and finish time for the assessment. Safety is a critical issue. If an audit reveals deficiencies, the matter will be case-managed: the assessor may be issued with a warning letter, and/or be called for interview to explain or address issues raised, and ultimately their accreditation may be suspended or cancelled. Prosecutions may also follow in appropriate cases.

12 Ms McCool referred to information provided in the ‘Assessors Accreditation Manual’ in respect of new applications for accreditation as an assessor. The copy provided to the Tribunal is dated April 2008, but Ms McCool said this was merely an update in relation to matters such as privacy. The criteria and application process are the same as those in the previous version. She said there are three stages that applicants must satisfy. The first stage involves the written application, including verification and review of qualifications and experience. Ms McCool said WorkCover is looking for direct operator experience together with supervisor experience in respect of particular tasks. The second stage is a criminal record check, which also includes checking for any cancellations or suspensions of accreditation in any State or Territory. The third stage is satisfactory completion of the induction program. This is a two day program including such matters as ethical behaviour, occupational health and safety knowledge and knowledge of instruments used in assessment. In the course of that program, applicants are subject to tests, which they must pass. Ms McCool said the three stage process is managed by a WorkCover project officer, who reports to the Coordinator, who in turn will make a recommendation to the Team Manager.

13 Ms McCool said in Mr Hawke’s case, his application for accreditation never got beyond the first stage in the process because he did not supply the necessary information to support his application. The required information is set out in the ‘Assessors Accreditation Manual’, which provides templates for use by applicants as a guide in assisting them to ensure that relevant information, for example as to industry experience, is included. Despite WorkCover’s letter dated 2 May 2008 identifying deficiencies in his application and requesting him to supply further information, and a later invitation to supply such information for the internal review, there were still deficiencies in the references he provided. It was Mr Hawke’s responsibility to supply this information. It is not the role of WorkCover, as suggested by Mr Hawke, to contact WorkCover inspectors operating in his geographical area to obtain feedback on his work or to contact his referees for further information about his relevant experience.

14 Ms McCool said WorkCover only contacts referees to verify information provided in the written references, which should describe how the applicant has been involved in operating and supervising particular equipment or undertaking particular tasks. She noted that some of Mr Hawke’s references were provided by the company which he operates and by his staff. Mr Hawke failed to provide sufficient information about his recent operator and supervisory experience with different equipment. She also noted that the criteria for accreditation are different to those in 2003 when Mr Hawke last applied for accreditation as an assessor. (His accreditation was cancelled in September 2004.) Applications now require recent operator and supervisory experience.

WorkCover’s Submissions

15 Mr De Courcey, for WorkCover, noted that working in the construction industry can be dangerous and that safety issues are paramount. WorkCover must ensure that those who are accredited as assessors are competent to undertake that role.

16 Mr De Courcey submitted that the decision to refuse Mr Hawke’s application was made in accordance with cl 284 of the OHS Regulation. Mr Hawke was aware of the requirements and procedure to be followed for accreditation as an assessor, and was advised of deficiencies in his application on several occasions. Notwithstanding this, he failed to provide the information required by WorkCover in relation to his operator and supervisory experience for different equipment. Instead, Mr Hawke sought to rely on his experience in conducting training programs and his prior experience as an accredited assessor in the period up to the cancellation of his accreditation in September 2004. Mr De Courcey said that Ms McCool had provided clear evidence of what was required. The fact that Mr Hawke is the executive director of a training company running relevant courses is not sufficient.

17 Mr De Courcey also noted that Mr Hawke had amended the declaration at the end of the Application for Accreditation as a WorkCover Assessor where he was required to declare that he had not been suspended or cancelled as an accredited assessor. Mr Hawke added the words “currently subject to an appeal process in NSW, and based on merit, the judgement will be to the applicant when it goes to hearing”. A declaration in this form is not acceptable.

Mr Hawke’s Submissions

18 Mr Hawke pointed to his experience in the construction industry over a period of many years, including as an accredited assessor. He said WorkCover’s requirement for references detailing relevant industry experience does not seem to provide for those who are self-employed. He is self-employed as a manager of his own companies operating as “MAP Scaffolding & Rigging” and “MAP Training”. Those who would be in a position to provide detailed references will often be competitors. He questioned why those operating in his own business who have knowledge of his experience could not provide references. Mr Hawke said he had provided further information to WorkCover including the names of referees but WorkCover did not contact them. They also did not contact WorkCover’s inspectors in the geographical area where Mr Hawke conducts his business and where his reputation is well-established.

Discussion

19 Mr Hawke has asked the Tribunal to conduct a review of the decision dated 19 September 2008 to refuse his application for accreditation as an assessor. Pursuant to cl 284 of the OHS Regulation, quoted above, a person applying for accreditation must apply in the approved form (cl 284(2)(a)), and the application “must be accompanied by such material or information to support the application as WorkCover may require” (cl 284(2)(b)).

20 Section 3 of the ‘Assessors Accreditation Manual’ (‘the Manual’), titled ‘Accreditation Criteria’, sets out the three stages involved in an application, described by Ms McCool in oral evidence. I accept Ms McCool’s evidence that the provisions of the April 2008 version of the Manual, a copy of which has been provided, are the same in all material respects as those of the version in effect pre-April 2008. I note Mr Hawke’s application for accreditation was dated 21 April 2008 and that the previous version of the Manual may have been the one he consulted in completing his application.

21 In relation to stage 1, the ‘Application’, the Manual states:

“Applicants must satisfy the accreditation criteria for each of the certificate classes for which they are applying. WorkCover will assess the application based on:

1. evidence of competency in the certificate Class – A current National Certificate of Competency for the class(es) applied for in the application, held for a minimum of two years

2. satisfactory evidence of extensive industry experience in the chosen area(s) of accreditation (class)

3. evidence of formal training qualifications Certificate IV in Assessment and Workplace Training (BSZ4019S) or higher training qualification. (See Formal Qualifications – page 10).”

22 Under the subheading ‘Extensive industry experience’, the Manual states:

“The applicant must provide evidence of appropriate industry experience gained after obtaining the certificate of competency, or qualification, for each of the requested class(es). All claims must be supported by written references on the employer’s/company’s letterhead and contain contact details. All claims must be able to be verified.

Evidence of industry experience must be provided in the format shown on the Proof of Industry Experience application form provided in this package. Evidence of appropriate industry experience must include:

* relevant operational experience in the requested class, eg scaffolding and rigging, cranes and hoists, boilers and pressure vessels, or load shifting equipment

* supervisory experience – details of work undertaken in areas where the item of equipment/certificate class applied for is a ‘fundamental’ piece of equipment utilised with the conduct of the work.

WorkCover NSW will conduct checks with employers or contractors (if self-employed) named in your application to validate your experience.”

23 The Manual also includes a template for those providing a reference for an applicant in relation to industry experience, which indicates the level of detail required as to a person’s operational and supervisory experience. I note that in relation to stage 2 of the application process - the ‘Criminal Records Check’, the Manual notes “WorkCover NSW will confirm with all State or Territory OHS agencies that the applicant has not been suspended or cancelled as an accredited assessor or other OHS service provider in any State or Territory”.

24 WorkCover contends that Mr Hawke has not properly completed the first stage of the application process. In particular, WorkCover’s submissions emphasised that he has not provided satisfactory evidence of relevant industry experience for the classes of accreditation for which he applied. I note the classes of accreditation for which Mr Hawke applied were as follows: Basic Scaffolding, Intermediate Scaffolding, Advanced Scaffolding, Basic Rigging, Intermediate Rigging, Advanced Rigging, Fork-Lift Truck Operation, Materials Hoist (Cantilever Platform), Hoist (Personnel and Materials), and Concrete Placing Boom Operation.

25 I note that with his application dated 21 April 2008, Mr Hawke completed ‘Relevant Industry Experience’ forms in relation to each of the classes for which he sought accreditation, as manager of his companies. No independent references were provided. In his letter dated 20 June 2008, Mr Hawke supplied some additional independent references but these did not, in my view, provide sufficient detailed information about Mr Hawke’s industry experience to meet WorkCover’s stated requirements. One of the additional references supplied, dated 13 June 2008, was from Mandy Inwood, Course Coordinator of MAP Training, a company owned by Mr Hawke. This refers to Mr Hawke’s experience in running training courses.

26 In my view, it is reasonably clear that WorkCover needs references from persons other than the applicant or those employed in his business, for example, in the case of those who are self-employed, the Manual refers to contractors. It is also clear from the Manual that WorkCover requires a level of detail about the person’s relevant industry experience, which most of Mr Hawke’s referees do not provide.

27 While I am not unsympathetic to Mr Hawke’s situation of having many years experience in the activities in the construction industry in which he is involved, and having previously held accreditation as a WorkCover assessor, nevertheless, I am satisfied that his application does not meet WorkCover’s requirements detailed in the Manual. In particular, he has not provided evidence of relevant industry operational and supervisory experience to satisfy WorkCover’s requirements. Thus, Mr Hawke has not completed an application as required by cl 284(2)(b) of the OHS Regulation, and WorkCover’s decision made under cl 284(2A) to refuse Mr Hawke’s application for accreditation as an assessor must be affirmed.

Decision

28 The decision to refuse Mr Hawke’s application for accreditation as an assessor is affirmed.