SIMONS & DEPARTMENT of JUSTICE and COMMUNITY SAFETY (Occupational Discipline)
[2012] ACAT 39
•22 June 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SIMONS & DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY (Occupational Discipline) [2012] ACAT 39
OR 12/14
Catchwords: OCCUPATIONAL DISCIPLINE assessor of plant users and operators – competency assessments under the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 – disciplinary action - cancellation of assessor authorisation – procedural fairness – the applicant’s assessment process – recognised prior learning – whether assessments done in accordance with guidelines – propriety of the processes undertaken by the applicant - fraudulent recording of assessments – weighing up the applicant’s evidence with evidence from assessment candidates – whether the applicant’s conduct facilitated cheating
Legislation:ACT Civil and Administrative Tribunal Act 2008, ss. 8 and 68
Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (repealed), ss. 5, 7, 10, 11, 25, 27, and 30, and Schedule 1 (ss. 1.28, 1.29, 1.30, 1.31 and 1.36)
Guidelines:ACT WorkCover Guidelines for Competency Assessors 2002
Explanatory Statement to the Occupational Health and Safety Act 1989 (repealed)
Explanatory Statement to the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (repealed)
Tribunal: Ms E. Symons, Presidential Member
Date of Orders: 22 June 2012
Date of Reasons for Decision: 22 June 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
OR 12/14
BETWEEN:
RICKY WILLIAM SIMONS
Applicant
AND:
JUSTICE AND COMMUNITY
SAFETY DIRECTORATE
Respondent
TRIBUNAL: Ms E. Symons, Presidential Member
DATE: 22 June 2012
On being satisfied that:
1.the applicant conducted the competency assessments of Mr Duncan Bennett-Burleigh for basic and intermediate rigging in accordance with the Guidelines;
2.the applicant conducted the competency assessments of Mr David Martin for non-slewing mobile crane and dogging in accordance with the Guidelines; and
3.the applicant did not conduct the competency assessments in accordance with the Guidelines when assessing Mr Matthew Fisher’s competency to operate a fork lift and when assessing Mr Toby Ryan’s and Mr Ashley Mitchell’s competency to operate a materials hoist;
the Tribunal makes the following order:
ORDER
The Tribunal confirms decision under review to cancel the applicant’s ACT Assessor authorisation pursuant to section 27(2) of the 2000 Regulation.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
1.Ricky Simons (“the applicant”), on 8 July 2011, lodged an application for review of a decision (the decision) by the Justice and Community Safety Directorate of the ACT Government on 9 June 2011 to take disciplinary action against him and to cancel his ACT Assessor authorisation under section 27(2) of the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (repealed) (“the 2000 Regulation”). The 2000 Regulation was made under the Occupational Health and Safety Act 1989 (repealed).
2.The decision was taken by WorkSafe ACT as it found that Mr Simons had carried out assessments otherwise than in accordance with the guidelines for competency assessment which had been approved as Guidelines pursuant to section 10 of the 2000 Regulation.
3.Pursuant to section 29 of the 2000 Regulation the decision is a reviewable decision. Subsection 30(b) of the 2000 Regulation provides that any other person whose interests are affected by the decision may apply to the ACT Civil and Administrative Tribunal (“the Tribunal”) for a review of a reviewable decision.
THE HEARING
4.The matter came before the Tribunal for hearing on 23 and 24 April 2012.
The material before the Tribunal
5.The Tribunal marked, for convenience, a number of documents as exhibits even though the rules of evidence do not apply to these proceedings (section 8, ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act)), for ease of tracking and referring to the documents. It should not be seen as an indication that the Tribunal acted on the belief that it should apply the rules of evidence.
6.The documents received were as follows:
Exhibit R1 = Statement by Arthur Reilly dated 13 April 2012.
Exhibit R2 =Statement by Mathew Fisher dated 12 April 2012.
Exhibit R3 = Statement by Douglas Ainley dated 13 April 2012.
Exhibit R4 = Statement by Duncan Bennett-Burleigh dated 12 April 2012.
Exhibit R5 = Statement by Ryan Toby dated 24 April 2012.
Exhibit R6 = Statement by Ashley Mitchell dated 24 April 2012
Exhibit R7 = an April 2011 Minute, Office of Regulatory Services by Cody Morgan with Redactions.
Oral Evidence
7.The applicant Mr Ricky Simons, and Mr Arthur Reilly, Mr Matthew Fisher, Mr Douglas Ainley, Mr Duncan Bennett-Burleigh, Mr Ryan Toby and Mr Ashley Mitchell gave oral evidence.
The background to the application for review:
8.The applicant has been an accredited industry assessor since 22 February 2007. In that capacity, pursuant to the 2000 Regulation, he assessed the competency of candidates for scheduled work including licences to operate a Forklift, Materials Hoist, Non-Slewing Crane and Dogging. A competency assessment must comply with the Chief Executive’s ‘Guidelines for Competency Assessors’, which are approved guidelines under Section 10 of the 2000 Regulation.
9.WorkSafe ACT conducted an audit of the applicant’s files after allegations were made in 2010 that the applicant had been performing assessments pursuant to the 2000 Regulation otherwise than in accordance with this Regulation. After the audit, the applicant attended an interview with WorkSafe officers, Inspector Alan Dean and Arthur Reilly on 7 December 2010. A letter from the Office of Regulatory Services dated 29 March 2011 (T2) was sent to the applicant which stated:
“Re Desktop Audit of Assessments
There are concerns about the assessment instruments you have been using not being consistent with the published assessment instruments, your administrative record keeping and marking of assessment papers.
The outcome of the audit is to allow you to continue as an assessor providing that (sic) comply with the following requirements:
· You use only published assessment instruments.
· Other than the must know questions, questions from the assessment instrument are to be randomly selected on the day of the assessment. The assessment instrument is to be marked to indicate which questions are to be answered. Where you have a group assessment, other than the must know questions, questions are to be randomly selected (sic) for each applicant’s assessment instrument.
· Any verbal answers provided by the applicant are to be written as the applicant has said the response.
· Any changes to answers or changes to documentation made by you are to be initialed (sic) with a single strike out line through the incorrect information. A red pen should be used for doing this. You will also advise applicants if they make a mistake to strike it out with a single line and initial the mistake. An applicant may use the colour pen they are using for completing the assessment instrument to do this.
· Your hand written information needs to be legible.
· That you won’t accept or request alcohol as payment for an assessment.
· You will ensure any person who operates a piece of plant assisting you with an assessment are licensed to operate the plant and a record of the name and licence number of the person assisting you.
· Answers marked correct on the assessment instrument should reflect the model answer given for the assessment question.
· Recognised prior learning (RPL) given for an assessment must be recorded and the reason why RPL was given for that assessment. If giving RPL you must keep a copy of the evidence provided by the applicant for RPL and attach this to the other records relating to that applicant’s assessment.
In order to ensure that you are complying with these conditions and the conditions set out in the Chief Executive Guidelines for Competency Assessors, another audit of your assessments will be undertaken in the future.
A recent Guidance note for record keeping for Competency Assessors has been approved by the Commissioner for WorkSafe ACT. Ms Morgan, Certification Control Officer, WorkSafe ACT will provide you a copy of these guidelines in the near future. You will also be required to comply with these guidelines .....”
10.Between 1 January 2011 and 31 March 2011 the applicant carried out around 182 assessments in respect of the competency of candidates to carry out particular classes of scheduled work.
11.The respondent conducted another audit and by letter dated 10 May 2011, the WorkSafety Commissioner wrote to the applicant. This letter stated as follows:
“NOTICE OF IMMEDIATE SUSPENSION AND PROPOSED CANCELLATION OF ACT ASSESSOR ACCREDITATION
I am writing to you to advise that I have received allegations that you have been issuing Notices of Satisfactory Assessment under the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (the regulation) without conducting a competency assessment which complies with the Chief Executive’s ‘Guidelines for Competency Assessors’, being approved guidelines under Section 10 of the regulation.
These allegations are of sufficient substance and of such a serious nature that I intend to cancel you ACT assessor accreditation under Section 27(2) of the regulation, on the grounds that you have assessed persons in the Act otherwise than in accordance with the approved guidelines under Section 10.
Accordingly I direct you to provide to WorkSafe ACT with the full records of all competency assessments which you carried out in the ACT during the period of `1 January 2011 to 31 March 2011, within 5 working days of the date on which you receive this notice.
Under section 27(3) of the regulation you have 14 days from the date that you receive this notice to give reasons why your ACT assessor accreditation should not be cancelled. Any information received from you during this period will be taken into account before a final decision is made.
In the interim, I have suspended your ACT assessor accreditation under Section 28(1) of the regulation, effective immediately. This suspension will remain in effect for 28 days from the date you receive this notice.
Under section 28(4) of the regulation, you may make representations to the Chief Executive to give reasons why the suspension should [not] be cancelled. .......”
12.On 23 May 2011 the applicant provided written submissions pursuant to
section 27(3) of the 2000 Regulation to the Work Safety Commissioner.13.On 7 June 2011 WorkSafe ACT interviewed:
a. Ryan Toby and Ashley Mitchell both of whom the applicant had assessed for competency to operate a materials hoist on 2 or
3 February 2011 and issued notices of satisfactory assessment;b. Duncan Bennett-Burleigh whom the applicant had assessed for competency to carry out basic and intermediate rigging on
2 February 2011 and had issued notices of satisfactory assessment; andc. David Martin whom the applicant had assessed for competency to carry out dogging and operate a non-slewing mobile crane in early February 2011 and had issued notices of satisfactory assessment for dogging on 9 February 2011 and non-slewing mobile crane on 10 February 2011.
14.On 9 June 2011, the applicant attended an interview with Arthur Reilly and Matt Henry, WorkSafe ACT representatives.
15.By letter dated 9 June 2011, Mark McCabe, Senior Director WorkSafe ACT, notified the applicant as follows:
“Accordingly, I have now cancelled your authorisation to carry out competency assessments in the ACT under Section 27 of the regulation, effective from the date on which you receive this notice.
This decision is a reviewable decision under Section 29 of the regulation and you may appeal to the ACT Civil and Administrative Tribunal for a review of this decision. ....”
16.Arthur Reilly hand delivered this letter to the applicant on 10 June 2011.
17.On 15 June 2011, WorkSafe ACT interviewed Matthew Fisher whom the applicant had assessed for competency to operate a forklift on 2 or
3 February 2011 and had issued a notice of satisfactory assessment.Legislative Regime
18.The Explanatory Statement to the Occupational Health and Safety Act 1989 states that the objectives of the legislative regime include securing the health, safety and welfare of employees at work; protecting persons at or near workplaces from risks to health and safety arising out of the activities of employees at work and promoting an occupational environment for employees that is adapted to their health and safety needs.
19.The objectives of the 2000 Regulation are to establish a requirement for the users and operators of potentially hazardous plant to hold certificates as a means of ensuring, as far as possible, that there is a minimum standard for its safe use and operation. (See, the Explanatory Statement to the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000.)
20.The 2000 Regulation established a regulatory system for the licensing of persons using and operating plant, a requirement to meet competency standards in order to gain certification and a system of accreditation for assessors of competency. The 2000 Regulation is consistent with the framework outlined in the National Occupational Health and Safety Certification Standard for Users and Operators of Industrial Equipment developed by the National Occupational Health and Safety Commission.
21.The 2000 Regulation provides that:
a. scheduled work, being work listed in Schedule 1.2, could only be carried out by a person holding a certificate of competency for that class of scheduled work (section 25);
b. to obtain a certificate of competency for a particular class of scheduled work, a person has to obtain a notice of satisfactory assessment relating to that class of scheduled work (section 11);
c. to obtain a notice of satisfactory assessment for a particular class of scheduled work, a person has to satisfy an accredited assessor of his or her competency to do that class of scheduled work (section 7); and
d. an assessor is required to conduct the assessment of any applicant for a notice of satisfactory assessment in accordance with guidelines issued by the (then) Chief Executive (now Director-General) pursuant to section 10 of the 2000 Regulation (section 5).
22.ACT WorkCover Guidelines for Competency Assessors (the Guidelines) were issued in 2002. The Guidelines (page 21) require an assessor to use Assessment Instruments issued by WorkCover when conducting assessments of competency to undertake particular classes of scheduled work.
23.Assessors were, themselves, accredited under section 20 of the 2000 Regulation and were also subject to regulation. Pursuant to section 27(2)(c) of the 2000 Regulation, the chief executive may suspend or cancel a certificate of accreditation if the assessor has assessed the competency of a person otherwise than in accordance with the Guidelines under section 10.
24.Section 68 of the ACAT Act governs this review process. It states:
(1)This section applies if the Tribunal reviews a decision by an entity.
(2)The Tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3)The Tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the Tribunal.
25.The Tribunal is hearing the matter de novo and is able to exercise any function given by an Act to the entity which made the decision. As such the Tribunal is conducting a merits review rather than a process review.
What the Tribunal was asked to consider
26.The Tribunal was asked by the applicant to review the respondent’s decision on the basis that the applicant:
a)conducted the assessments in accordance with the Guidelines;
b)was not afforded procedural fairness as the respondent’s decision to suspend his accreditation was made before interviewing the candidates and he has not been provided with any material relating to the respondent’s decision to suspend his accreditation;
c)was not afforded procedural fairness as the respondent’s decision to cancel his accreditation was made before his interview on 9 June 2011;
d)is not seeking an order that he be granted fresh status; and
e)will suffer a significant impact on his future employment opportunities.
27.The respondent submitted that:
i.the Tribunal was being asked to review the decision to cancel the applicant’s accreditation, not the decision to suspend his accreditation;
ii.the evidence will show that the decision to cancel the applicant’s accreditation was clear-cut and simple and was based on the applicant repeatedly carrying out assessments which did not comply with the Guidelines, in particular the assessments by the applicant of:
(a)Mathew Fisher on 2 or 3 February 2011 in relation to his competency to carry out work involving the operation of a fork lift;
(b)Ashley Mitchell and Ryan Toby on 2 or 3 February 2011 in relation to their competency to carry out work involving the operation of a materials hoist;
(c)Duncan Bennett-Burleigh on or about 2 February 2011 in relation to his competency to carry out work involving basic and intermediate rigging.
iii.the protective nature of the legislation required that the applicant’s accreditation be cancelled;
iv.the facts will establish that the applicant was not denied procedural fairness in that:
(a)he was subject to Regulatory attention;
(b)he knew that he had been investigated and interviewed in 2010 in relation to concerns about the assessment instruments he had been using not being consistent with the published assessment instruments, his administrative record keeping and marking of assessment papers;
(c)he had been notified by letter dated 29 March 2011, from the respondent, of the outcome of this investigation and advised that another audit of his assessments will be undertaken in the future;
(d)he was notified by letter dated 10 May 2011 of the decision to suspend him and to consider cancelling his accreditation;
(e)he was given an opportunity in that letter to make submissions, which he did on 23 May 2011; and
(f)he participated in an interview on 9 June 2011.
28.At the hearing Mr Crispin acknowledged that the applicant was not asking the Tribunal to review the decision to suspend his accreditation referred to in paragraph 26 (b) above. Accordingly, the Tribunal is not reviewing the respondent’s decision to suspend the applicant.
Issues
29.Whether the applicant conducted the competency assessments in respect of each of Matthew Fisher, Ashley Mitchell, Ryan Toby, Duncan Bennett-Burley and, although he did not give evidence, David Martin, in accordance with the Guidelines?
Procedural Fairness
30.The Tribunal is not conducting a judicial review of the decision making process undertaken by the respondent. The Tribunal is conducting an administrative or merits based review. It is sitting in the position of the decision maker. It is not this Tribunal’s role to enquire into whether the applicant was afforded procedural fairness by the respondent in reaching its decision in June 2011.
31.However, the Tribunal has considered both counsels’ submissions and the material presented in relation to procedural fairness as it contributes to the Tribunal’s understanding of the background of this application.
32.While it is true that the issue of procedural fairness was not specifically raised in the applicant’s statement of facts and contentions, it was raised in Mr Crispin’s opening address, albeit in relation to the decision to suspend the applicant.
Mr Crispin submitted that this decision was influenced by allegations that were not investigated until after the decision to suspend the applicant was made. The Tribunal has earlier dealt with the nature of this review and notes that the decision to suspend is not before the Tribunal.33.Mr Crispin submitted that as a number of interviews were conducted on
7 June 2011 and the applicant’s interview, which went late into the day, was conducted on 9 June 2011, the same day as his status was cancelled, it is apparent that this decision to cancel his licence had already been made when the applicant was interviewed. Accordingly, he submitted that the applicant was not extended procedural fairness.34.The Tribunal had the benefit of hearing sworn evidence from Arthur Reilly, WorkSafe ACT Manager, who holds the position of managing the regulatory services team. This includes accreditation of plant operator assessors. For the past five years part of his function has been to manage the Certification area of WorkSafe ACT. The regulatory regime changed about 18 months ago and is now known as a High Risk Work Scheme.
Arthur Reilly’s evidence
35.Mr Reilly said that the applicant came to his attention during 2009 and 2010 when a number of allegations about his assessments were made. In 2010, Inspector Alan Deane conducted an audit of the applicant’s assessments on behalf of WorkSafe. The applicant attended an interview with him and Inspector Alan Dean on 7 December 2010 as part of the audit. In that interview the applicant had agreed he would undertake to improve his compliance with the Guidelines. WorkSafe’s letter to the applicant dated 29 March 2011 referred to the interview on 7 December 2011 and confirmed the outcome of the audit and proposed future action.
36.As a result of the allegations about the applicant’s assessments continuing to be made in 2011 and the seriousness of the allegations, WorkSafe decided to suspend the applicant’s accreditation on 10 May 2011 for 28 days. WorkSafe sent a letter dated 10 May 2011 to the applicant notifying him of this decision and requesting he provide all competency assessments he had conducted between 1 January 2011 and 31 March 2011. This letter also informed the applicant of his right, under section 27(3) of the 2000 Regulation to give reasons, within 14 days of receipt of the notice, why his ACT assessor accreditation should not be cancelled.
37.After this material was provided by the applicant and audited by WorkSafe,
Mr Reilly and WorkSafe ACT Inspector Matt Henry interviewed some of the candidates who had been assessed by the applicant in the period 1 January 2011 to 31 March 2011 and then interviewed the applicant on 9 June 2011. After the interview Inspector Henry prepared a Minute (T484) to Mark McCabe, WorkSafe ACT Senior Director, recommending action be taken to cancel the applicant as an assessor. Mr Reilly said that he saw this Minute when it was prepared.38.In cross examination, Mr Reilly said that it was not his role to decide to suspend or cancel the applicant’s accreditation. He had been assigned to investigate the allegations. Two days before he interviewed the applicant on 9 June 2011, he had interviewed four of the candidates assessed as competent by the applicant, Duncan Bennett-Burley, Ashley Mitchell, Ryan Toby and David Martin.
39.His recollection was that the interview with the applicant went late in the day, until around 5pm. Mr McCabe was aware that the applicant was being interviewed that day and Mr Reilly said that to the best of his recollection he was at work at the end of the interview. After the interview Mr Reilly spoke with Mr McCabe and he and Mr Henry were instructed to prepare the documentation. The letter cancelling the applicant’s accreditation was authored on 9 June 2011 and Mr Reilly said that he delivered it to the applicant on 10 June 2011.
Consideration of the evidence
40.It is clear from Mr Reilly’s evidence that the applicant had been the subject of regulatory attention from the respondent for some time. The applicant attended an interview in December 2010 in respect of allegations about him made that year. He was sent a letter dated 29 March 2011 (T2) which referred to these concerns, advised him another audit of his assessments would be conducted and that he was required to comply with the Guidelines for record keeping.
41.In the letter to the applicant dated 10 May 2011, he was informed of the allegations that he had been issuing Notices of Satisfactory Assessment under the 2000 Regulation without conducting a competency assessment which complies with the Guidelines. This letter advised of his immediate suspension and proposed cancellation and set in train a process. He was directed to provide full records of all assessments carried out between 1 January 2011 and
31 March 2011 and notified under section 27(3) of the 2000 Regulation, that he had 14 days to give reasons why his accreditation should not be cancelled. He provided written representations on 23 May 2011.42.Mr Reilly was questioned at some length about the wording of the letter to the applicant dated 10 May 2011, in particular, the reference to the Senior Director of WorkSafe ‘intending to cancel the applicant’s assessor accreditation’, as evidencing a clear intention to cancel his accreditation at the end of 28 days; in other words this decision had already been made. Mr Riley was of the view that the reference to ‘intending to cancel’ may have been a typographical error. At the end of the day, the Tribunal accepts Mr Hassall’s submission that nothing turns on this evidence as, relevantly, this letter set out a process, the process was followed and the decision to cancel was not made until 9 June 2011, after the applicant had earlier that day participated in a lengthy interview.
43.A perusal of the record of the applicant’s interview with Mr Reilly (T340 – T483) shows that the various allegations which formed the basis for the respondent’s concern about the applicant’s conduct were put to him and he was given ample opportunity to respond to these allegations. Mr Crispin conceded this in his submissions.
44.While, on the one hand, it might be considered that the decision to cancel the applicant’s accreditation on the same day as the applicant’s interview demonstrated some undue haste, on the other hand, Mr Reilly’s evidence, which the Tribunal accepted, was that once WorkSafe had interviewed the applicant it then had sufficient evidence for the applicant’s accreditation to be cancelled and Mr McCabe made this decision that day.
45.While Mr Reilly thought, as it transpired mistakenly, the matter had to be finalised within 28 days following the respondent’s decision to suspend the applicant’s accreditation, Mr Reilly also said that he was aware that an increasing number of allegations about the applicant’s assessment methods were coming into WorkSafe and that their senior legal officer’s advice was that they did not need to get further evidence. The decision to cancel was made by
Mr McCabe.46.Further, and the Tribunal found this submission very persuasive, this case involved public safety and in such circumstances, once the process, which had been set in train with the letter to the applicant dated 10 May 2011, had concluded it was appropriate that the respondent act as quickly as possible once it reached a final view as to the particular allegations of the applicant’s misconduct and make a decision.
47.Mr Crispin also raised the fact that Mr Fisher was not interviewed until after the cancellation letter had been written and delivered to the applicant as further evidence that the decision had been made to get rid of the applicant before the investigation was over.
48.Mr Reilly did not agree with this claim. He said that he had been to the Hindmarsh site and spoken to a number of people there including Mr Fisher, before interviewing the applicant on 9 June 2011. Mr Reilly said that arrangements had been made with Mr Fisher to interview him at a later time. Matt Henry had conducted the interview with Mr Fisher on 15 June 2011 in accordance with these arrangements.
49.As stated above, the decision to cancel the applicant’s accreditation was made on 9 June 2011, after the interview with the applicant and in the knowledge that WorkSafe’s senior legal officer decided they had sufficient evidence. There was nothing before the Tribunal which would satisfy it that WorkSafe was unable to pursue obtaining further evidence supporting the allegations against the applicant when the decision to cancel his accreditation was made on
9 June 2011.50.It is also true that the applicant had available to him and exercised his right to have the decision made by the respondent to cancel his accreditation reviewed by this Tribunal. He has been represented by solicitors in the carriage of this matter and he was represented by counsel at the two day hearing. The hearing is a hearing de novo and this Tribunal is not bound by the previous decision. The applicant has had every opportunity at the hearing to present his evidence, to respond to the respondent’s allegations and to hear and test the evidence called by the respondent. For reasons not explained, the applicant did not attend the second day of the hearing, when the bulk of the respondent’s witnesses gave their evidence. However, his counsel vigorously cross examined these witnesses on behalf of the applicant. The applicant has had the opportunity of a fair hearing.
The applicant’s assessments
51.WorkSafe’s decision to cancel the applicant’s accreditation was based on his assessments in February 2011 of the competencies of (i) Duncan Bennett-Burleigh; and (ii) David Martin, and (iii) Ashley Mitchell, Ryan Toby and Matthew Fisher to undertake scheduled work.
52.The applicant participated in an interview with Arthur Reilly and Matt Henry on 9 June 2011. The transcript indicates that this interview commenced at 11.09, was suspended at 13.09, resumed at 13.57 and concluded at 16.49. In it the applicant sets out his version of his competency assessments of (i) Duncan Bennett-Burleigh, and (ii) David Martin, and (iii) Ashley Mitchell, Ryan Toby and Matthew Fisher. The applicant denied the allegations that he had not complied with the Guidelines in assessing the competency of each of these candidates.
53.The Tribunal proposes to separately consider the evidence in relation to each of the assessments referred to in paragraph 52 above. However, prior to considering that evidence, the Tribunal will refer to the expert evidence from Douglas Ainley, who was called by the respondent, in relation to the conduct of competency assessments.
Douglas Ainley’s evidence
54.Douglas Ainley, a teacher and an assessor in relation to the competency of candidates to operate high risk machinery, said, in his evidence, that he has worked with the applicant at the CIT for about four or five years and has seen him teaching there. He said that the applicant took his teaching responsibility seriously. He has also assessed the applicant. When asked if he was surprised by the allegations against the applicant, Mr Ainley said “I am not surprised by anything.”
55.Mr Ainley said that he is able to assess candidates for competency in operating forklifts and hoists; he let his accreditation for crane assessments go a few years ago. He has worked as an assessor in the ACT for 16 to 17 years, although he has not assessed any candidates this year due to the legislative changes. He has not been present when an assessor has been conducting assessments.
56.He is familiar with the assessment requirements which he described as candidates having to undergo both a written and a practical assessment. He said that in the written assessment candidates are only able to refer to documents he, as assessor, has given them, and he does not give candidates answer sheets. Except in rare circumstances e.g. when a candidate has produced a satisfactory log book, he requires every candidate to do some kind of practical assessment whether or not the candidate has recognised prior learning (RPL). An assessor needed to ensure that a candidate can do the work and in order to be satisfied about this he had each candidate do a practical assessment. He also said, when assessing dogging candidates, he believes it is not permissible for people to be given RPL; he does not recognise it.
57.He conceded in cross examination that the assessment instruments were prepared a considerable time ago, but said that the instruments still work. While some of the checks are now redundant due to technological changes, the assessor would still ask the candidate questions.
58.He said that candidates needed to have a level of English sufficient to receive and give instructions, e.g. they are able to say “stop” and be understood.
The applicant’s evidence
59.The applicant told the Tribunal that he had been an industry assessor and conducted assessments of workers to carry out scheduled work under the 2000 Regulation for a number of years. He said that the assessment process was a three stage process. Firstly, he provided each candidate with study material for each piece of machinery they were seeking a ticket to operate; secondly, he conducted a practical assessment of each candidate; and thirdly, he assessed each candidate by setting a written assessment for them to complete. If they passed each assessment he deemed them competent and he provided them with a docket of satisfactory assessment, which the candidate could use to obtain their ticket to operate the particular piece of machinery.
(a) The assessments of Duncan Bennett-Burleigh’s competency for basic and intermediate rigging.
The applicant’s evidence
60.The applicant said that he personally knew Duncan Bennett-Burleigh and had known him professionally since 2003/2004, describing him as a very experienced man in his trade. He had worked with him before and seen him on about 10 sites. Mr Bennett-Burleigh was also an assessor who was quite aware of all the rules and regulations. The applicant’s evidence in relation to these assessments was as follows.
61.When Mr Bennett-Burleigh contacted him about these assessments he did not need to provide him with the reading material referred to above. Mr Bennett-Burleigh had provided him with original documents for an exam (the TAFE exam) he had sat at an interstate TAFE so he prepared Mr Bennett-Burleigh’s written exams using different questions to those asked in that TAFE exam. He had supervised Mr Bennett-Burleigh undertaking the written assessments for basic and intermediate rigging on 2 February 2011 adding that Mr Bennett-Burleigh “flew through it”.
62.The applicant said that a normal practical assessment for basic rigging would take an hour and for intermediate rigging the practical assessment would take a couple of hours. He considered Mr Bennett-Burleigh “an ideal candidate for Recognised Prior Learning (RPL)”. He was not intending to conduct a practical assessment because he had worked with him before and knew of his experience.
63.However, Mr Bennett-Burleigh had insisted that he come to the Woden Hospital construction site where he was employed so he could observe him undertaking practical work. The applicant also said that he was aware that he was being looked at by WorkCover so he observed Mr Bennett-Burleigh operating a crane for about 45 minutes from just outside the gate at the Woden Hospital construction site a few days before Mr Bennett-Burleigh sat for the written assessments.
64.The applicant conceded he did not do a practical assessment of Mr Bennett-Burleigh on the same day as he had undertaken his written assessment and that, while he was relying on Mr Bennett-Burleigh’s RPL, he had also ticked Mr Bennett-Burleigh’s Basic Rigging practical assessment form (T98) boxes except for FSWR splicing, which he marked with an “X”.
65.The applicant agreed, in cross examination, that someone reading this practical assessment (T98) could think that he, as the assessor, had seen Mr Bennett-Burleigh doing all of the practical tasks. He also agreed that the same applied to the practical assessment for intermediate rigging (T52), however, in this assessment he said that he had seen Mr Bennett-Burleigh do some of the practical tasks. He had relied on his own observations of Mr Bennett-Burleigh’s work over a number of years for his practical assessments of him.
66.The applicant acknowledged that the assessments played an important role in safety at work sites and if an assessor was not relying on RPL it would be improper conduct to assess a person as competent if they had not passed a practical assessment.
67.In re- examination, the applicant was asked how he indicated on the assessments if he had recognised a candidate’s RPL. The applicant said that WorkCover did not say how to do this, and that he had filled out Mr Bennett-Burleigh’s practical assessments relying on what he knew of his skills from the past.
68.The applicant said that he believed other assessors conducted the practical tests the same way he did, especially when it came to ticking a box for observing a candidate operating equipment that was no longer in use.
Duncan Bennett-Burleigh’s evidence
69.Mr Bennett-Burleigh told the Tribunal that he is a trainer and, for a number of years, has been an assessor for self-erecting tower crane, dogging, hoists and forklift truck qualifications and, more recently, for self-erecting tower crane and materials hoist. He undertook an assessment by the applicant in February 2011 for basic rigging and intermediate rigging. He and the applicant had previously worked as crane operators, dogmen and riggers for the same crane hire company, B & D Crane Hire.
70.When he contacted the applicant to arrange the assessments he and the applicant spoke about his prior experience. The applicant told him, because of his underpinning knowledge, he was a classic candidate for RPL and that he did not really need to see him do any of the practical.
71.Mr Bennett-Burleigh said that, as he is himself an assessor, he was fairly familiar with how assessments are done. He pushed the applicant to come to the Woden Hospital site, where he was then working, to watch him driving a tower crane. The applicant came and observed him at this site for about one and a half hours a couple of days before he sat the written assessments in a shed at the applicant’s home.
72.Mr Bennett-Burleigh said that he wrote out the theory exam and then he did the second written exam. After that the applicant asked him a couple of things about the assessment and then wrote out the assessment summary for him to take to WorkCover. This is the same process Mr Bennett-Burleigh followed for the written assessments when he was assessing a candidate.
73.Mr Bennett-Burleigh said, further, that he had not given the applicant any logbooks, and that he was under the assumption that because of all of the documents he had given the applicant relating to his ability and past work history and the applicant’s knowledge of his ability, he would not need to be using a log book.
74.Mr Bennett-Burleigh confirmed that it was his handwriting on the written and intermediate rigging written assessments but it was not his handwriting on the cover of the intermediate practical skills assessment (T51) or in the practical skills assessment form (T52). Mr Bennett-Burleigh said that he did not do any of the practical tasks for intermediate rigging on the day he did the written assessments, and he tied a couple of knots using rope which was on the floor to show the applicant he could tie some of the knots in the basic practical assessment (T99 – T101), adding that the applicant knew that he, Mr Bennett-Burleigh, did all that ‘stuff’ anyway.
75.In cross examination, Mr Bennett-Burleigh said that the work he was doing at the Woden Hospital site when the applicant observed him was not the practical work in the intermediate rigging practical assessment (T52). At the hospital site he was putting steel structure lids together, picking them up, flipping them over, building them and putting them on the top of the lift pit and the intermediate rigging practical assessment was putting up and pulling down tower cranes and removing lattice booms.
76.However, he said that the applicant had seen him doing the tasks in the intermediate rigging practical assessment on numerous occasions including when he was driving a franner for B & D Cranes when they were putting tower cranes up. The work the applicant observed him doing at the Woden Hospital site was more applicable to the basic rigging practical assessment (T93). The applicant had also seen Mr Bennett- Burleigh teaching the practical tasks in the basic rigging practical assessment.
77.Mr Bennett-Burleigh said that he, himself, had not assessed people in basic and intermediate rigging and, while as far as he was concerned the way the applicant conducted the assessment was fairly fine, he, Mr Bennett-Burleigh, “may have done it a little bit different because I might have been a bit more pedantic on the practical – but that is just me, because I’m a, sort of a, pedantic –type person. I like to do everything, you know, 100%. But as far as I’m concerned, if he says it is fine he is the assessor – he knows what’s going on. I’m the student.”
78.When it was put to Mr Bennett-Burleigh that there was nothing about the assessment that struck him as being outside of the Guidelines he replied “No. Not really.” He told the Tribunal that the industry he and the applicant work in is not the sort of industry that you cannot take your job seriously; he had never seen the applicant do anything at work untoward and while he “was always getting up him at the London Circuit job he (the applicant) always drove the crane .... the mobiles – he always drove them to, you know, a high standard. As far as I’m concerned, I would be happy to work under his hook anytime if I was a dogman.”
79.In re-examination, Mr Bennett-Burleigh was asked
“....what additional things would you have done on a practical that Mr Simons didn’t do with you?
...I would have....said ‘Let’s go out’ and I would have been there. It would have been only a formality, but I would have made sure I was there. Just to cover my arse and his. Because at the time, there was a lot of stuff going down with WorkCover. They were sending us letters all the time, ‘Now you have to do this. When you do an assessment, if someone gives you an incorrect answer, you have to record their response.’ And it just made the assessment process a nightmare. Instead of taking two hours to do it, if someone’s a bit slow, it took a phenomenal amount of time to do it. And I was religious about how I did it, because I didn’t want to get hung, you know what I ‘m saying? Ricky’s probably a little bit more casual than me. That’s just the nature of him compared to me, so.”
80.Mr Bennett-Burleigh told the Tribunal that he would not issue a notice of assessment in circumstances where, disregarding RPL cases, there had been no practical assessment at all and he never, ever, had anyone in an open book exam.
Consideration of the evidence
81.Rigging is specified as scheduled work in class 1.29 of Schedule 1 of the 2000 Regulation for which qualifications are required. Class 1.29(1) refers to basic rigging and class 1.29(2) refers to intermediate rigging.
82.In considering whether the applicant’s assessments of Mr Bennett-Burleigh’s competency to carry out basic rigging and intermediate rigging were in accordance with the Guidelines, the Tribunal noted that both Mr Bennett-Burleigh and the applicant stated that no practical assessment was carried out on 2 February 2011 and this is contrary to what the applicant recorded on the intermediate rigging practical assessment (T98). The Tribunal finds that the applicant did not carry out a practical assessment for either basic or intermediate rigging for Mr Bennett-Burleigh on 2 February 2011.
83.There was no dispute that the applicant and Mr Bennett-Burleigh had known each other professionally and worked together on a number of sites over a reasonable period of time and, because of this and the material Mr Bennett-Burleigh had provided to him, the applicant regarded him as a suitable candidate for RPL. Indeed, the Tribunal noted that the applicant had recorded at T95 and T114 that he had assessed Mr Bennett-Burleigh’s RPL for both basic practical rigging and intermediate practical rigging.
84.However, the expert witness, Mr Ainley, and Mr Bennett-Burleigh both said that they would, even in cases where RPL was recognised, carry out ‘some form of practical assessment’.
85.The Tribunal is satisfied, from the evidence, that the applicant did observe
Mr Bennett-Burleigh operating machinery for about 45 minutes on his evidence and about an hour and a half on Mr Bennett Burleigh’s evidence at the Woden Hospital site a few days before the written assessments. It was, indeed, fortuitous for the applicant that Mr Bennett-Burleigh insisted that the applicant observe him.86.In these circumstances, the Tribunal is satisfied that the applicant carried out “some form of practical assessment” which Mr Bennett-Burleigh and Mr Ainley both said that they would require when conducting assessments relying on RPL.
87.The Tribunal finds that the applicant’s assessments of Mr Bennett-Burleigh for basic and intermediate rigging were in accordance with the Guidelines.
(b)The dogging and non-slewing crane assessment of David Martin
The applicant’s evidence
88.The applicant recalled conducting an assessment for David Martin’s dogging and non-slewing crane tickets around 9 and 10 February 2011.
89.While he agreed Mr Martin lived at Gunning, he said that he had not travelled outside the ACT to meet and/or assess Mr Martin. He had assessed Mr Martin at the same time as a candidate named Sean. For the practical non-slewing crane assessment he had borrowed a non-slewing crane from a wood mill site in Hume. He recorded the details of the crane in the application (T153) but did not record where the crane came from. He said that he had approached the site officer of the Hume wood mill and asked if he could borrow the machine to let the applicant drive it for an assessment. He did not know who owned this crane, the name of the site officer or who the site officer worked for. He also said that he could not remember their reaction to his asking for an unlicensed person to operate the crane.
90.He had the use of the crane for more than half an hour as he had more than one assessment. A non-slewing crane assessment can be more or less than an hour with the minimum time being 35 to 40 minutes. The applicant agreed that he had recorded that this test took from 11am to 12 for David Martin on his practical assessment (T183) as this was the time he allowed and he had finished by 12. He also agreed that he had assessed Sean on this crane and was unable to recall if he had asked the site officer if he could have the use of the crane for two hours. He said that he did not have to pay anything for the use of the crane.
91.The applicant denied that Mr Martin had carried out his practical assessment on a Catco franner at Tarago, as stated by Mr Martin in his interview with WorkSafe inspectors on 7 June 2011. He said that he would have remembered if he had been to a Catco site as, like every other site, he would have done an induction process and been signed in and out. He said that he did not have to do this at the Hume site as he had a verbal arrangement with the officer before he went there and he did not need to sign in and sign out. The Hume site was closing down and almost all the equipment had been pulled down.
92.The applicant said that he had used Vince Bradley as the assistant whose role was to follow Mr Martin’s instructions in the practical dogging assessment. He had used Mr Bradley for this purpose a few times before. Mr Bradley was now interstate. He had not approached him about this matter. He said that Mr Martin did not do the assessments for his non-slewing crane ticket and his dogging ticket over a period seven hours on the same day, as Mr Martin had said in his interview.
93.In relation to questions about Mr Martin’s written assessment, the applicant said that he saw him write out his own answers and rejected any suggestion that
Mr Martin was illiterate or that he, the applicant, had written out the answers on Mr Martin’s behalf.Documentary evidence
94.The applicant’s records show that he assessed Mr Martin’s competency for carrying out dogging on 9 February 2011 and for operating a mobile non-slewing crane on 10 February 2011.
95.The documents provided by the applicant to WorkSafe ACT in relation to
Mr Martin’s Dogging Assessment show that on 9 February 2011 between
8.00 am and 9.00 am Mr Martin had completed and passed “Part 3: Oral/Written Assessment” (T191-T204); between 9.00 am and 9.30 am Mr Martin had completed and passed “Part 2: Written Assessment” (T205-T214) and between 9.30am and 10.15am Mr Martin had completed and passed “Part 1: Practical Skills Performance Assessment” (T215-T217).96.The documents provided by the applicant to WorkSafe ACT in relation to Mr Martin’s Non-Slewing Mobile Crane Assessment show that on 10 February 2011 between 8.00am and 9.00am Mr Martin had completed and passed “Written Assessment” (T155-T171); between 9.00am and 10.00am Mr Martin had completed and passed “Oral/Written Assessment” (T172-T182) and between 11.00am and 12 midday Mr Martin had completed and passed “Performance Assessment” (T183-T187).
97.The documents also show that the applicant issued Mr Martin with Certificates of Competency for Dogging (T223-T224) on 9 February 2011and for Non-Slewing Mobile Crane (T189-T190) on 10 February 2011.
98.WorkSafe ACT interviewed Mr Martin on 7 June 2011 and the Tribunal had the Record of Interview (T287-T305) before it. In considering this transcript the Tribunal notes that Mr Martin did not give evidence before the Tribunal.
99.In the interview, Mr Martin stated that the practical and written assessments were done two days apart. He sat for the written assessments in a function room down the street in Gunning, where he lives, which took seven hours and he did both of the practical assessments at a wind farm in Tarago which took two to three hours all up. In the practical assessments he was using a non-slewing crane called a franner which was owned by Cat Con, “a mob” he worked for, for both non-slewing crane competency and for dogging when assessment for dogging requires the use of a slewing-crane.
100.He said that he is illiterate and could not read the written assessments, the applicant read out and explained the questions and when he, Mr Martin, gave the answer, the applicant formatted it and wrote it down for him.
Consideration of the evidence
101.Dogging and Non-Slewing cranes are specified as scheduled work in classes 1.28 and 1.30 respectively in the 2000 Regulation for which qualifications are required.
102.In considering whether the applicant’s assessments of Mr Martin’s competency to carry out dogging and to operate a non-slewing crane were in accordance with the Guidelines, the Tribunal noted that the applicant’s version of events was significantly at odds with the information Mr Martin provided in his interview to WorkSafe. He said that he had not driven outside the ACT to meet Mr Martin, nor had he conducted any part of Mr Martin’s assessments outside the ACT. He had borrowed a non-slewing crane at a wood mill site in Hume for the non-slewing crane practical assessment and he used a small slewing crane in Mitchell for the dogging practical. He was adamant that he had not read out the questions or written the answers for Mr Martin. On his evidence, he had carried out both assessments in accordance with the Guidelines.
103.The applicant’s evidence in relation to the use of a crane at the Hume site was less than satisfactory. He was not sure who owned the crane; he did not know the name of the site officer or for whom the site officer worked and he was unsure of the length of time he asked to borrow the crane, variously stating half an hour and then an hour. He conceded he had written ‘start 11 - finish 12.00’ on Mr Martin’s non-slewing mobile crane practical assessment, then explained that this was the period of time during which he did the performance and that he was not saying that he took the whole 60 minutes. He volunteered that he was also assessing a second applicant for non-slewing mobile crane competency at this time and when he was asked if he had arranged to have this crane available for two hours, he said that he did not recall the actual arrangement. His evidence was, indeed, vague.
104.As Mr Hassall submitted the Tribunal might wonder what possible reason Mr Martin would have for stating that the written assessments took place in Gunning, New South Wales, and the practical assessments took place at a wind farm in Tarago which is also in New South Wales using a non-slewing crane there which was owned by Cat Con, a company with whom Mr Martin worked. While the applicant said, and the documents show, that Vince Bradley had assisted him at the practical assessment, the Tribunal notes that neither party called evidence from Mr Bradley.
105.The Tribunal finds itself in the position where it only has the applicant’s oral evidence of his assessments of Mr Martin. While the Tribunal found this evidence vague and less than helpful, in the absence of sworn evidence from Mr Martin, or from anyone else which contradicted the applicant’s evidence it cannot be satisfied, to the requisite degree, that the applicant’s assessments of Mr Martin’s competency for non-slewing mobile crane and dogging were not carried out in accordance with the Guidelines.
(c) The materials hoist assessments for Ashley Mitchell and Ryan Toby and the forklift assessment for Matthew Fisher.
The applicant’s evidence
106.The applicant recalled a number of people undertaking assessments for competency to operate a materials hoist and/or a forklift at a Hindmarsh site in early February 2011. He said that there were between six and eight candidates including some Asian gentlemen and some Hindmarsh employees. He thought six were assessed for the materials hoist ticket on the first day and the forklift assessments were carried out the next day. He was only able to recognise their names from these proceedings.
107.He told the Tribunal that he did not conduct a training course for these candidates as he had not been asked to; he had only been asked “to do the assessment.” He also said “you can’t do the training and assessment on the same day.” The applicant’s evidence was as follows.
108.When conducting the written assessments he had provided the test papers, pens and pencils to the candidates. He did not provide answer sheets. If the candidates had had answer sheets these sheets would have been provided by the safety officer. He used the test which WorkCover had set and highlighted the questions for each candidate to answer. The written assessment was not a multiple choice assessment nor was it a whole book. Each candidate answered the list of highlighted questions on their own paper. None of the candidates assisted any of the other candidates. While the Korean candidates spoke ‘pigeon’, they all had their driver’s licences, and they were able to express themselves quite adequately and to read and write quite adequately. They had sufficient language skills to get by. All of the candidates passed the written assessment.
109.The applicant said that there were four new materials hoists directly outside and about 20 feet away from the room where the written assessments had been carried out. Each of the candidates passed the practical assessment. He assessed them by ticking and flicking the items on the practical assessment sheet.
110.The applicant was questioned extensively about his method of recording the start and finish times on the written and performance (practical) assessments in cross examination. He agreed that it was his normal practice to record the times when the written assessments started and finished and when the test had finished and that it was very unlikely that he would make a mistake in recording these times.
111.He also agreed that it would be highly improper to represent a person had passed the assessment if they had not sat for a part of the assessment, adding that to do so would be dangerous and not worth his while as he relies on Hindmarsh for a lot of work. He agreed that assessors determined that people were competent to operate the equipment and that it would be serious to represent that a candidate had undertaken a practical assessment when they had not.
112.He said that he had arrived to do the assessments at the Hindmarsh site around 7.30 am. When he was asked if it could have been 7 am he said that he thought it had been around 7.30pm; he thought he had been about 10 minutes late and the assessment was delayed because no tables had been set up. The actual written assessment started around 8am.
113.When the applicant was shown the cover sheet of the materials hoists written assessment by Ashley Mitchell (T237), he agreed that the date on this assessment was “2.2.11” and that he had written “start 700AM-715AM RS pass”. He denied that he had lied when telling the Tribunal that he had arrived at 7.30 am, adding that he might have started at 7am and that he could have arrived at 6.50 am. He told the Tribunal that his actual recollection, now that he had seen the document, was that he had started the assessment at 7.00 am. He agreed that he had written the same start and end time on Ryan Toby’s materials hoists written assessment (T255). He denied that he had put the start and end time of the assessments on the cover sheets some time later.
114.The applicant was then asked about the times written on the second part of the materials hoists written assessment for Ryan Toby (T247) conducted on the same day. He agreed that the times had been overwritten and initialled by him and now showed that the assessment had started at 7.15AM – 8AM. When it was put to the applicant that the original written start time had been 10.30AM – 1100 AM he told the Tribunal that he “could not see the 10”.
115.When asked about Ryan Toby’s performance (practical) assessment (T243) the applicant said that he wrote the times “10.30AM to 11.00AM” on 2 February 2011 as it was during this half hour that he was observing Mr Toby looking at the buttons. He had ticked each box when Mr Toby had carried out that part of the practical assessment. He had not seen Mr Toby do all of the practical assessments for the boxes he had ticked as the materials hoists machine did not have some of the equipment listed in the practical assessment. When asked why he had ticked these boxes when he had not seen the candidate undertake that work he said that he had been told by WorkCover officer, Cody Morgan, that he cannot write “n/a” in any of the boxes and he cannot pass candidates if he has written “n/a” on their assessments.
116.The applicant expressed his opinion that the assessment papers were pointless, adding that they were 15 years out of date and appear to be drafted for university students. When he raised these concerns with Cody Morgan at WorkCover she had said that she would take his comments on board but she could not change these papers as they are drafted in NSW.
117.When asked if he could give a reason why Ryan Toby and Ashley Mitchell had stated in their witness statements that they did not undertake a practical assessment, the applicant said that he could not. He said that he did not know these people but he had observed them doing the practical. In relation to Ryan Toby’s practical assessment (T243-T245), he said that he could not specifically recall him doing it but as it was his, the applicant’s, handwriting he (Ryan Toby) must have done it. In relation to Ashley Mitchell’s practical assessment (T233) the applicant agreed that he had ticked boxes on the form even though this candidate had not carried out some of the practical tasks. He explained this by saying “all the shaded boxes have to be ticked for the applicant to pass.”
118.When the applicant was asked if he had taken short cuts because of his opinion about the inadequacy of these assessments, he answered that he “had been in the game for 25 years and you know if an applicant is an experienced person”.
119.The applicant was asked other questions about the written assessments for candidates sitting for forklift and or materials hoists assessments. He said that he sat at the front of the room watching the applicants and marking papers, while the applicants completed their assessments. He denied he had grouped the applicants into separate groups depending on whether they were undertaking one of the assessments or both. He told the Tribunal that, while he had put the Asian applicants together, no one did both assessments on the same day.
120.He said that the only material he handed out to the applicants was the written assessment, and that he did not hand out answers. If he had provided the answers it would not have been responsible conduct. He also said that there was no way one applicant could have written a mate’s exam, and he was not sitting that far away from them (the applicants) so he thought he would see if someone was trying to cheat. He did not use one or two of the Asian applicants, who had better English, to explain the assessment to the other. If he was using an interpreter he would have conducted individual assessments.
121.The applicant emphatically denied that he had conducted both assessments for forklift and materials hoists on the same day; that he had handed out material with answers for the written assessments; and that he had not carried out any practical assessments of the candidates.
122.In response to specific questions alleging he had not conducted a practical assessment for the forklift candidates, the applicant said that he did not recall a conversation with Matthew Fisher shortly after the written assessment when Mathew Fisher asked if they were going to go out the back and have a go on a forklift and that he (the applicant) had replied, shaking his head, that there was no need for that.
Mathew Fisher’s evidence
123.Mr Fisher said that he has been a site supervisor for Hindmarsh Construction for between two and a half and three years and in that capacity is responsible for managing people on site including their safety. At present he is responsible for between 160 and 180 people a day. Further, he said as follows.
124.He currently holds a licence to operate high risk machinery, namely materials hoist and forklift. He had been assessed for a forklift licence by the applicant in February 2011. His employer had paid for him to be assessed. Sub-contractors were also given the opportunity to have their workers assessed then too. He had been given a log book a few weeks before the assessment and told to make sure he was ready for the assessment.
125.The assessment was conducted by the applicant and took place at the beginning of February 2011 at the Verve site in Bruce which was one of Hindmarsh Construction’s sites. Around 15 candidates were being assessed for either or both of the forklift or materials hoist licences. The assessment had been booked to commence between 7.00 am and 7.30 am and the applicant had arrived around 8.30am.
126.In cross examination Mr Fisher said that one of the biggest things in his job was remembering time frames and things that have happened. He was confident that the applicant was at least an hour or one and a half hour late.
127.When the applicant arrived, the candidates moved to a room which was a former office which had three collapsible tables set up. The forklift candidates sat at one of these tables, the candidates doing both forklift and materials hoist assessments sat at a table in the middle and the materials hoist candidates sat at the far table.
128.The applicant gave the candidates a very short talk about the different processes, handed them the test and another sheet, which was an answer sheet, and the written assessment commenced at 9.30 am. Mr Fisher aligned the answers provided with the questions in the assessment and filled out the assessment using the answers “word for word” from the answer sheet. Everyone else went through this same process.
129.When shown the Forklift Truck written assessment (T127) Mr Fisher told the Tribunal that his name was in his handwriting but the other handwriting “start 700AM-830AM” was not his handwriting. He said that he did not undertake any part of this written exam between 7.00 AM and 8.30 AM as the applicant was not on the site until 8.30 AM. Mr Fisher said that the answers (T129 – T140) were in his handwriting and were based on the answers in the answer sheet which the applicant had provided to the applicants sitting for this assessment.
130.Mr Fisher told the Tribunal that he had never seen the Forklift Truck Performance assessment (T120 -126) before, the handwriting on this document was not his, he did not do any practical assessment and he did not do any of the checks ticked in this document. He added that the time recorded on the practical assessment of 11.30 and 12.30 was their lunch hour and, being construction workers, there was no way they would ever do anything during their lunch time.
131.In cross examination, Mr Fisher agreed that his name and his signature were on the Forklift Truck – Assessment Summary (T143) which showed the results of the Oral/Written Assessment and the Performance (Practical) Assessment. He said that he can’t remember signing the Performance Assessment and when asked if he might have been foolish enough to have signed that he had undertaken a performance assessment when he had not he said that he might have been. He also said that the start and finish times written on the oral/written assessment, namely 7.00AM to 8.30 AM, were incorrect, adding that the finish time should probably be the start time, or closer to the start time.
132.His employer, Hindmarsh Construction, decided not to recognise some of the licences which resulted from the assessments conducted by the applicant that day because the assessment process had not been adequate. His licence and Dave Norton’s licence had been recognised.
133.He disagreed, in cross examination, that he did not hold a valid licence and was a cheat. He said that he could drive a forklift, having previously not needed a ticket, where he then lived, to operate one. He had done other exams and knew the applicant’s assessment was wrong, however, he had done what the assessor (the applicant) told him to do in the assessment.
134.Mr Fisher said that he had worked, for two years, with a group of five or six Koreans who were also sitting the assessment. Their English speaking ability was very broken and still is. One of the Koreans had better English and he translated for the rest of them during the assessment. The applicant spent the majority of his time with the Koreans as they had a lot of questions. In cross examination, Mr Fisher said that the Koreans’ English was not a concern for him as a site supervisor as they cannot discriminate against non-English speakers, but they can deem them not competent to operate Hindmarsh forklifts.
135.His evidence was that the assessment was over well before lunch; and it took a maximum of one and a half hours. The written assessment was the only assessment conducted for these licences. He had asked the applicant if they were going to do their practical assessment on a forklift in the basement as it was raining that day and the answer was ‘no’. He was not required to operate the forklift for a practical assessment. He did not see any of the other candidates do a practical assessment on either the forklift or the materials hoist.
Ryan Toby’s evidence
136.Mr Toby said that he had undertaken an assessment for his materials hoist ticket in February 2011 at the Hindmarsh site. He said that he had arrived at the site at 6.45 am expecting the assessment to commence at 7 am; and that the assessor was late, arriving between 7.15 am and 7.30 am and they started the assessment about 8 am. He also said that somewhere between 13 and 20 people were sitting for assessments that day, including Ashley Mitchell, Matt Fisher and a few Koreans. Five or six people were sitting the forklift assessment and the rest were sitting the materials hoist assessment.
137.When asked to tell the Tribunal about the assessment process and if the assessor issued any instructions he said “No, just handed out paper work, run us through a bit of paperwork and pretty much told us to read through, gave us the answer booklet that was, most of the answers were highlighted. Yes, ‘Don’t be too, don’t copy it word-for-word, basically. Don’t make it so obvious. And yes, just, yes, pick your answers as you go along. Try not to be the same as everyone else.”
138.He said this written assessment took close to an hour. He left the job site before 11 o’clock; he did not go near a hoist that day and it was not possible he had operated a hoist that day and forgotten. He had not done any of the tasks ticked in his performance assessment for materials hoists (T244 – 246). When asked if there was any conversation about the use or otherwise of a hoist he said “No, just basically a run down on what we should and shouldn’t be doing on it and that was pretty much it.”
139.Mr Toby said that he had not done any part of a written exam between 7am and 7.15 am on 2 February 2011 or started this exam at 7.15 am and these times recorded on his materials hoist written assessment (T247) were not in his handwriting. He agreed that these times appear to have been overwritten. The answers in this written assessment were in his handwriting and when asked where the information for those answers came from he said “From the booklet he handed us. There wasn’t a booklet per person. There was only a set amount of them, so we were basically – some between three, some between two, sharing the booklet, and yes sort of waiting between people to finish up the answers.”
140.In cross examination, when it was put to Mr Toby that some of his answers to the Tribunal did not mesh with his answers given in his interview with WorkSafe, Mr Toby said that he was not aware of that and that his memory is terrible. He was then asked why he had described the assessment as a multiple choice test in his interview with WorkSafe. He said “Multiple choice, as in the paper he’d given us with the answers, was we had to choose certain answers to put down on the paper which is basically multiple choice – in my eyes, to me anyway.” He agreed that he had cheated by copying the answers off the answer sheet. He said that the reference in his interview to “at least 10 people” sitting the assessment was “the minimum”.
141.Mr Toby also said that he thought he was going to be doing an all-day course which he described as the half day course being on the books and the other half day was supposed to be the practical. He had not undertaken a practical assessment that day. He conceded that he had signed the practical assessment Declaration by Applicant and had ticked that he had provided Records of Training such as log books to the assessor when he had not provided such records stating “he didn’t need to see it (records of training), he didn’t run us through anything , he basically said ‘tick the box, it’s all good.” Mr Toby conceded that in signing a declaration that his application was true and giving it to WorkSafe “it looks like...” he fraudulently obtained a qualification.
142.Under cross examination, he maintained that he had not undertaken a written assessment where there was no answer sheet, and that he had not undertaken a practical exam. When it was put to him “And that you passed the [practical] exam?” he replied “I passed the exam that didn’t exist, yes.”
143.In re-examination Mr Toby reiterated that he had obtained his answers from the answer booklet that had everything highlighted in green which was given to him by the assessor, and that it was the assessor who brought about his cheating and in doing this assessment he was required to choose from a multiple choice of answers rather than a multiple choice of questions.
Ashley Mitchell’s evidence
144.Mr Mitchell told the Tribunal that he had obtained his materials hoist ticket after doing a course at the Hindmarsh job site in Canberra in early February 2011. At the time he was working for a sub-contractor who was doing work for Hindmarsh. He also said that he had arrived at the course at 7am with Ryan Toby, with whom he had been working on the site, and that a group of “8,10,12 people, something like that” was attending for the purpose of getting a ticket, the majority for goods hoist and a couple were doing forklift as well. He said that Matt, the foreman of the Hindmarsh job site, was also doing an assessment with them.
145.His evidence was that the assessor, whose name was ‘Kiwi Rick’, arrived 15 to 20 minutes after he had arrived and then they had to set up tables and chairs in the old site shed which took probably another 15 to 20 minutes. He and the other candidates milled around and the assessor handed them a booklet which he described as “a few page booklet which had all the relevant information in it. Had some areas that were highlighted.” He said that he had a quick flick through the booklet, the assessor handed them an exam paper, the assessor did not take the booklet back, and the candidates had the booklet with them at all times. As best as he could recall he started to write the exam at 8.30 or 9.00 or maybe a bit later. He said “the exam paper was just a combination of – there was multiple choice I think, there were some written, like you had to go through a[nd] pick out a paragraph that best suited, you know, the scenario, and yes.” He said that he completed the written exam using the information from the booklet which he explained as “Basically we were given a booklet and told to flick through it and write the answers down out of the booklet. It was basically an open exam.” When asked “Who told you that?”, he replied “The assessor.”
146.In cross examination he described this booklet as a printed sheet that had highlighted paragraphs adding “What it did have though was you’ll find the answers to question 1 to whatever in section whatever” and “this was also verbally stated by the assessor as well.” He said that there was no indication that it was an examination other than an open book examination and “if we were cheating the assessor would have put a stop to it, as is with every exam I’ve ever done.”
147.Mr Mitchell said that, after they had finished the written exam, they were told to go and have a smoko and then come back and see if the paperwork to take into the Office of Regulatory Services was ready. When they returned to collect the paperwork it was not ready and they were told to pick up the forms the next day.
148.When shown his written assessment (T237), he said that he did not sit any part of the exam between 7.00 am and 7.15 am which were the times written on that page.
149.He said that he did not get any practical examination, was not shown how to operate a materials hoist, did not see anybody else operating a materials hoist and it was not possible that he had operated the materials hoist and forgotten, adding “Hard thing to forget.” He was not on the site between 11.00 am and 11.30am which were the times written on his performance (practical) assessment (T233).
150.When asked about the writing on the Application for Assessment (T239-T242) he said that he had not provided any records of training and assumed that he would have crossed “none provided” (T240) and that he would not have shown, by a cross, that he had provided such records. He could not recall writing the initials “AM” next to the box ‘None provided’ but in cross examination agreed that they were his initials and the handwriting may well be his. He disputed that he had ticked the box showing he had provided records “because I have no records of training log books or otherwise.”
151.He also said that, while he had signed this application, and the application included details of the make and model of the plant and equipment, these details were not in his handwriting and he did not operate any materials hoist on that day. In cross examination he repeated that he had not done a practical examination.
152.Mr Mitchell said that he first operated a [materials] hoist a few days after the assessment. He said, “I went to actually shut the gate and send some materials up and the thing wouldn’t work and I could not figure out for the life of me why it [had not] worked and then one of the foreman came past me and [said] ‘You’ve got to make sure the slide’s closed’ and then he had a bit of a – a bit of a – he questioned me about whether I’d just done the course.” In re-examination he said that he had no idea how to slide the bolt home to get the hoist to operate.
Consideration of the evidence
153.The operation and use of hoists is specified as scheduled work in class 1.31 of Part 1.2 of Schedule 1 in the 2000 Regulation for which qualification is required. The operation and use of a forklift truck is specified as scheduled work in class 1.36(a) of Part 1.2 of Schedule 1 in the 2000 Regulation for which qualification is required.
154.The applicant’s evidence differed from the evidence of Mr Fisher, Mr Toby and Mr Mitchell in a significant number of areas, namely:
a. whether the assessments took place on one or two consecutive days;
b. whether or not the applicant was late;
c. the number of candidates sitting for these assessments;
d. whether or not the written assessments were “open book exams”;
e. the start and finish times the candidates sat for each assessment; and,
f. in relation to whether or not the applicant had undertaken a practical assessment of Mr Fisher, Mr Toby and Mr Mitchell, prior to issuing certificates of competency.
155.In cases where there is a direct conflict in the evidence of what happened at a particular time, the Tribunal has to proceed on the basis of its own assessment of the credibility and any motive of the witnesses. The Tribunal notes that the witnesses were giving evidence of their recollection of what occurred in February 2011, some 14 months earlier, and regard must be had to ordinary human failings in recalling events in such circumstances. The Tribunal has to make findings of fact on the basis of the evidence given and which evidence is to be preferred when there is a conflict, and why. The Tribunal has to consider all of the available evidence and this includes the interviews with WorkCover and the exhibits.
156.The Tribunal, in weighing up this evidence, must be satisfied on the balance of probabilities, whether or not the applicant conducted the assessments in accordance with the Guidelines.
157.The applicant’s evidence was that he had conducted the assessments over two consecutive days, materials hoists on the first day and forklift trucks on the second day. The only evidence that the Tribunal could find which appeared to corroborate this evidence was the dates written on the actual assessments for these candidates, the Notices of Satisfactory Assessment and the Assessment Summaries. The applicant’s evidence was that he had written the dates on the actual assessments and completed the Notices of Satisfactory Assessment and the Assessment Summaries himself.
158.The applicant maintained that he conducted closed book assessments.
159.He initially conceded that he might have been late in arriving at the Hindmarsh assessment site and that he did not start the assessments at 7.00 am. He then changed that evidence, after he was shown the start time of 7.00 am in his writing on an assessment cover sheets. The Tribunal had the benefit of observing the applicant while giving his evidence. This change in his evidence was unconvincing. His subsequent evidence, when asked about the changed times recorded on Mr Toby’s assessment (T247), was not responsive, evasive and also unconvincing.
160.His evidence was that about 8 candidates had attended the assessments. The typed list of the applicant’s assessments (T43-T50) between 1 January 2011 and 31 March 2011, initialled by the applicant and dated 9 June 2011, shows six materials hoists candidates on 2 February 2011 and six forklift candidates on
3 February 2011. Mr Mitchell’s name has been added to this list by hand, which brings the total number of candidates to 13.161.The applicant’s evidence was that he had conducted practical assessments for each of these candidates and he had ticked off the respective boxes as he observed each of the candidates perform each task. However, he conceded that he had also ticked some of the boxes on the practical assessment sheets when the applicants had not undertaken those particular tasks as the machinery did not have the relevant equipment. He said that he had told WorkCover that the forms were out of date, and he was told he could not write “n/a” in these boxes. He had ticked all of the boxes as an applicant had to have all of the boxes ticked to pass. This evidence was troubling and it was not corroborated. If the applicant was acting in accordance with WorkCover instructions it would seem reasonable and relevant that corroborative evidence would have been placed before the Tribunal. As it is, the only evidence the applicant has provided is his own evidence in support of his application.
162.In contrast, the evidence of Mr Fisher, Mr Toby and Mr Mitchell was that they had each sat for their assessments on the same day and not over two days and that the candidates for the materials hoists and for the forklift licences sat their exams at the same time, in the same room and were sitting at different tables. They had not written the dates or the times on their assessments. They each gave evidence that the applicant was late, which the applicant himself initially conceded and then retracted.
163.While their evidence differed in relation to how late the applicant was, the Tribunal is not satisfied that the differences in this part of their evidence detract from the inescapable conclusion that the applicant was late. They each said that not one of them had commenced their assessment at 7.00 am which was the start time the applicant had recorded on their first assessments.
164.This evidence is compelling as it supports the finding that as none of the candidates had started their assessment at 7.00 am the applicant’s recording of this time is false. Mr Fisher also said that there was no way he did any assessment between 11.30 am and 12.30 pm, the time recorded by the applicant on his performance assessment (T120,) as this was lunch time in the construction industry. This evidence was not successfully challenged.
165.Mr Fisher said that there were 15 candidates, Mr Toby said that there were 10 to 12 to 15 candidates and Mr Mitchell said that there were between 8 and 12 candidates.
166.Each of these witnesses said that the applicant had provided written material to them before they commenced the written assessments and that each of them was able to find the answers to the questions in the written assessments from this material, in other words, it was conducted as an open exam. While their evidence differed in some of the detail such as whether they were given an answer sheet or booklet, and whether the answers were multiple choice, critically their evidence was that they each used the material provided by the applicant to find the relevant answers. They each referred to the applicant informing them when using the material, to, essentially, make sure that they did not copy the answers word for word from the material. In this regard their evidence corroborated each other’s and refuted the applicant’s evidence.
167.Each of these witnesses said that did not undertake a practical assessment for either forklift or materials hoists and they did not observe anyone else carrying out a practical assessment that day. Again their evidence corroborated each other’s evidence and refuted the applicant’s evidence.
168.Mr Crispin questioned the credit of Mr Fisher and Mr Toby referring to their evidence that they conceded they had cheated or obtained their licences fraudulently as they had signed a sheet which included scores from a practical examination which they say had not taken place. On behalf of the applicant,
Mr Crispin submitted that they had lied, and their evidence was unsatisfactory and ought to be rejected.169.However, this ignores their evidence that they had followed the applicant’s instructions and it was the applicant’s conduct which brought about their cheating. Mr Hassall posed the question, in these circumstances “Who bears the greater guilt? The candidate that accepts an easy passage to getting a licence or the assessor who actually facilitates this process? The respondent says that the answer to that question is unambiguous, and that it is the assessor who bears the greater guilt.” The Tribunal notes that Mr Bennett-Burleigh’s evidence essentially echoed this when he said to the Tribunal (paragraph 77) “... But as far as I’m concerned, if he says it is fine he is the assessor – he knows what’s going on. I’m the student.”
170.The Tribunal had the opportunity of observing the demeanour of Mr Mitchell, Mr Toby and Mr Fisher while giving their evidence. They each gave their evidence in a forthright manner and, in comparison to the applicant, readily made concessions. Where the evidence of the applicant and the evidence of Mr Fisher, Mr Mitchell and Mr Toby differed, having considered all of the evidence and for the reasons set out above, the Tribunal had no hesitation in preferring the evidence of Mr Fisher, Mr Mitchell and Mr Toby.
171.Having considered all of the evidence before the Tribunal, the Tribunal finds that the applicant conducted the assessments in respect of Mr Fisher, Mr Mitchell and Mr Toby other than in accordance with the Guidelines, in that he conducted open book assessments when the assessments were supposed to be closed book, and he failed to conduct a practical or performance assessment for any of these candidates when assessing their competency when such practical assessments were required.
172.It follows that the Tribunal is satisfied and finds that the applicant completed false documentation to suggest that such practical assessments had been carried out and finds that the applicant had not been truthful with the investigators who were carrying out their investigation.
173.For these reasons, the Tribunal is satisfied and finds that the applicant assessed the competencies of Matthew Fisher, Ashley Mitchell and Toby Ryan to undertake scheduled work otherwise than in accordance with the Guidelines.
174.The Guidelines state in the Preface:
“An accredited assessor who conducts an assessment in breach of these Guidelines commits an offence against the Regulations, which may lead to suspension or cancellation of accreditation.”
175.Section 27(2)(c) of the 2000 Regulation provides that the Chief Executive may suspend or cancel a certificate of accreditation if the assessor has assessed the competency of a person otherwise than in accordance with the Guidelines under section 10.
176.Given the objects and protective nature of this legislation and the seriousness of the Tribunal’s findings the Tribunal’s decision is to confirm the decision under review to cancel the applicant’s ACT Assessor authorisation pursuant to section 27(2) of the 2000 Regulation.
………………………………..
Ms E. Symons
Presidential Member
PUBLICATION DETAILS
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PART B
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