Tubaro v WorkCover Authority of New South Wales

[2004] NSWADT 260

CITATION:	Tubaro v WorkCover Authority of New South Wales [2004] NSWADT 260
DIVISION:	General Division
PARTIES:	APPLICANT Alfred Tubaro RESPONDENT WorkCover Authority of New South Wales
FILE NUMBER:	043254
HEARING DATES:	27/10/2004
SUBMISSIONS CLOSED:	10/27/2004
DATE OF DECISION:	11/12/2004
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Occupational Health and Safety Act - OHS Certificate Assessor - cancellation of accreditation - OHS Certificate Assessor - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001
CASES CITED:	McKellar v WorkCover Authority of New South Wales [2004] NSWADT 136
REPRESENTATION:	APPLICANT A Cooley, counsel RESPONDENT W Muddle, counsel
ORDERS:	1. The decision under review is affirmed

1 This is an application for review of a decision made by WorkCover, as the administrator, to cancel the applicant’s accreditation as an assessor under Division 4 of Chapter 9.1 of the Occupational Health and Safety Regulation 2001 (the Regulation) made under the Occupational Health and Safety Act 2000. The applicant is Mr Tubaro; the application is made pursuant to cl 351 of the Regulation.

2 Chapter 9.1 of the Regulation governs certificates of competency for scaffolding, dogging, rigging, the operation and use of plant and other work. Cl 270 provides that a person must not do any kind of scheduled work unless the person holds a certificate of competency or recognised qualification in relation to work of that kind. Certificates of competency are issued by persons appointed as assessors pursuant to cl 284. (A more detailed account of the relevant legislative scheme can be found in the Tribunal’s decision in McKellar v WorkCover Authority of New South Wales [2004] NSWADT 136.)

3 Clause 282(1) of the Regulation provides that an assessor who assesses an applicant’s competency to do scheduled work must do so in accordance with the guidelines issued by WorkCover in relation to the conduct of assessments. The matters giving rise to cancellation in this case all involved, according to WorkCover, breaches of relevant guidelines issued by WorkCover.

4 Cl 287 empowers WorkCover to suspend or cancel an accreditation:

‘if it is satisfied that: …

(d) the assessor has carried out an assessment of competency:

(i) otherwise than in accordance with the guidelines issued by WorkCover in relation to the conduct of assessments’.

5 As the Independent Commission Against Corruption has observed in its recent report, Report on investigation into safety certification and training in the NSW construction industry (June 2004) at ch 5:

‘Workplaces where heavy machinery is operated are essentially hazardous, both to operators and to other workers in the vicinity. The assessment and certification processes for operators are fundamental to ensuring that only competent people operate dangerous machinery, and that the risks associated with this activity are minimised and controlled.’

6 Mr Tubaro’s accreditation allowed him to assess applicants for certificates in the use and operation of fourteen kinds of scheduled work (see generally cl 266). He was initially granted accreditation in February 1999 and it covered 13 of the competencies set out in the Schedule to cl 266. In late 2002 he was accredited in respect of one more competency (Tower Cranes).

7 The guidelines governing assessors are contained in a document issued by WorkCover entitled ‘Guidelines for Certificate Assessors’ (the version relevant to this case being those that applied between 1 September 2002 and 30 April 2004). These general Guidelines need to be read in conjunction with the specific Guidelines that apply to particular categories of assessment.

8 The general Guidelines include a Code of Conduct. Assessors are required to sign the Code of Conduct at the time the Guidelines are issued to them. The Guidelines state that all assessors will be audited at least once in each three year period. The Guidelines envisage at least one performance audit and one paper audit. Under the process WorkCover makes findings and issues a result, known either as a ‘conformance’ result or a ‘non-conformance’ result.

9 The specific Guidelines clearly designate which elements of the assessment of the applicant for a certificate of competency to the particular kind of scheduled work are critical elements and which are non-critical. The difference is that a failure in respect of a critical element means that an application must be refused; whereas a prescribed percentage of failures is allowed in respect of the non-critical element before an application will be refused.

10 WorkCover commenced an investigation into Mr Tubaro’s conduct after examining documents supplied by Mr Tubaro to an audit dated 7 July 2003. This information led WorkCover to interview some applicants whose written answers to knowledge assessments had been included in the audited material. In consequence, Inspector Clampett called Mr Tubaro in for formal interview. The interview took place on 30 April 2004. The interview was conducted subject to the provisions of the Act. Mr Tubaro has raised a number of concerns over the process adopted by WorkCover. They are dealt with later in these reasons.

11 After giving Mr Tubaro a show cause notice, WorkCover cancelled his accreditation on 28 May 2004. WorkCover found breaches of the guidelines in respect of seven assessments conducted by Mr Tubaro. The breaches related to three competencies - operation of a Non-Slewing Mobile Crane (see item 4 of the Schedule to cl 266), operating an Elevating Work Platform (also, item 4), and Dogging (item 2).

12 This decision was affirmed on internal review on 6 July 2004. Mr Tubaro’s application for review was filed on 3 August 2004.

13 In the internal review determination, the delegate (Mr Ron Keelty, Manager, Audit Management Unit) stated:

‘The cancellation of an accreditation is only taken when there are serious breaches of the Guidelines, taking into account their impact on the safety of the applicant [for a certificate], his or her co-workers and the general public. The failure to ascertain the knowledge and competence of an applicant for a certificate of competency by way of proper and thorough assessment can lead to major consequences, such as plant failure, collapsed scaffolding and cranes. The national certification system, which is adopted in the OHS Regulation, recognised through industry experience that equal emphasis should be placed on both the knowledge assessment and the field performance assessment.’

14 The seriousness of Mr Tubaro’s conduct, as found by WorkCover, is reflected in the offence provisions in the Regulation. For example, cl 281(3) provides that certain conduct of assessors is an offence, including where an assessor assesses an applicant’s competency to do scheduled work otherwise than in accordance with the guidelines applicable under cl 282 in relation to the conduct of assessments for such work. It also provides that the issuance of a notice of assessment without assessing the applicant as being competent is an offence; as is falsely assessing an applicant as being competent to do the scheduled work.

15 The Tribunal’s task is to ascertain after inquiry the ‘correct and preferable decision’ in the circumstances. Section 63 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 63 provides:

‘ 63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.’

16 At hearing Mr Cooley for Mr Tubaro submitted that, even if the Tribunal is satisfied that WorkCover has made out its case, the Tribunal should vary WorkCover’s decision so as only to preclude Mr Tubaro from continuing to assess in respect of the three competencies that had given rise to their action. If the Tribunal was minded to go further, it should at least leave Mr Tubaro free to continue as an accredited assessor in respect of the following five competencies: Fork-lift Truck (item 10 in the Schedule to cl 266), Rigging – Basic (Item 3.1), Rigging – Intermediate (Item 3.2), Scaffolding – Basic (Item 1.1) and Scaffolding – Intermediate (Item 1.2).

17 Mr Muddle for WorkCover opposed this submission, arguing that the powers of WorkCover and the Tribunal could only be exercised against the accreditation itself. Any decision applied to all of the kinds of assessment for which the assessor is accredited.

18 WorkCover presented to the Tribunal a bundle of documents (Ex A) setting out the relevant Regulations and the general Guidelines in force from 1 September 2002, the specific Guidelines relating to the competencies relevant to these proceedings, statements from Inspector Clampett, records completed by Mr Tubaro, relevant correspondence between it and Mr Tubaro and records of its decisions. Mr Tubaro filed an affidavit, gave oral evidence and was cross-examined.

19 Mr Tubaro sought to put before the Tribunal various extenuating explanations for the conduct observed. They were similar to those he gave to WorkCover in response to its notice to show cause, and by way of submissions to the internal review.

20 Mr Tubaro did not deny the substance of the various matters upon which WorkCover had relied in taking disciplinary action against him. The matters of concern and Mr Tubaro’s reply follow. The first two matters involved similar conduct.

1. On 29 January 2003 Mr Tubaro conducted assessments for Non-Slewing Mobile (NSM) Crane certificates of three applicants named Nicolas De Bie, Philip Aquilina and David Ciano. WorkCover asserts that Mr Tubaro breached the following requirements of the Guidelines: (i) he did not ensure that the practical assessment was carried out on proper equipment, the crane on site being fitted with a forklift attachment instead of being set up to operate as a crane; (ii) consequently, he did not test the applicants in respect of a mandatory item, slinging a load on a hook; (iii) he did not require two of them, De Bie and Ciano, to demonstrate hand signals; and (iv) De Bie and Aquilina each gave an identical incorrect answer to a mandatory part of the written assessment and both were wrongly marked correct as to both aspects of the answer in one case, and as to one of the two aspects of the answer in the other case.

2. On 26 February 2003 he conducted an assessment of an applicant for a NSM Crane certificate named Alan Pegler. WorkCover asserts that he breached the prescribed standards contained in the Guidelines in the following respects: (i) did not ensure that the practical assessment was carried out on proper equipment, the crane on site being fitted with a forklift attachment instead of being set up to operate as a crane; (ii) consequently, he did not test him in respect of a mandatory item, slinging a load on a hook; and (iii) he did not test him in the use of hand signals.

21 As to both occasions, Mr Tubaro admitted that he had not required the applicants for the NSM Crane certificates to sling a load attached to a hook. He said that when he arrived on site no such equipment was present. Instead he tested them on a ‘Manitou’, which has a fork attachment. He said that ‘Manitous’ are now commonly used especially on big construction sites. He said another difficulty in proceeding with the slinging test was that there often was no dogman present (the person who slings the load). He said that at that time if a dogman was not available, his practice had been to do the dogging and gave the signals to the driver.

22 It is clear from the Guidelines that he must advise the applicants as to the equipment that must be on site for the assessment, and about the need for a dogman to be available.

23 In his letters to WorkCover Mr Tubaro had contended that general words used at page 51 of the general Guidelines allowed him to test applicants on any generally suitable equipment found on site. He referred to the statement ‘The crane or hoist must be: … rigged in a manner that is suitable for the range of practical tasks to be assessed.’ It is clear, the Tribunal considers, that such a general statement must be read in conjunction with the specific Guidelines governing the category of crane in relation to which the applicant is being tested. The Non-Slewing Mobile Crane Guidelines (at tab 34 of Ex A) have markings indicating that the following matters are critical elements relevant to the need to ‘Demonstrate all crane movements (where applicable)’: load correctly slung and conduct trial lift, followed by several other critical requirements. It is clear from the list that a load needs to be slung on a hook, and a number of movements involving that situation demonstrated.

24 At hearing, Mr Tubaro conceded that he should have administered the required test on the required equipment in the required way. He acknowledged in cross-examination that he could have conducted so much of the assessment as was possible to be done, and then come back on a later date to test in respect of compulsory equipment that was not on site.

25 In relation to non-administration of the hand signals test, he agreed that he had not required applicants De Bie and Ciano or Pegler to demonstrate hand signals but had simply ascertained whether they understood the signals as would be given by a dogman. The specific Guidelines require the applicant to ‘demonstrate’ their knowledge of hand signals. In cross-examination he said that he had thought that all that was required by being able to ‘demonstrate’ the signals was that they could demonstrate an understanding of them. This kind of misinterpretation of the word ‘demonstrate’ is, the Tribunal thinks, possible; but later answers in cross-examination on other matters where Mr Tubaro used the word ‘demonstrate’ lead the Tribunal to conclude that he would ordinarily use the word ‘demonstrate’ to mean direct display of the prescribed skill by the applicant.

26 He agreed that he had made the marking errors alleged. As to why he had failed to pick up that De Bie and Aquilina had given the identical answer (possibly pointing to collusion) he offered the explanation that he had marked the papers at different times. He said that were he to suspect copying, he would then ask the applicants further questions on the subject.

27 The next matter is:

3. On 11 November 2003 Mr Tubaro assessed Phillip Garvan for Dogging. WorkCover asserts that he breached the prescribed standards contained in the guidelines in the following respect: (i) he wrongly marked three answers to critical questions as correct, with the result that the applicant was wrongly assessed as competent.

28 As to his marking of the answer to one of the critical questions, he said that this was due to a misunderstanding on his part. He said that in his view the ‘working out’ stage of the answer had been correct, but the actual conclusion was wrong. He said when this occurred at the TAFE College where he was a part-time instructor people were given a 50/50 grade (i.e., as the Tribunal understood the practice, a partially correct marking). He said this may have influenced him to give a correct assessment here. He now realised that this was wrong.

29 As to the other answers, he accepted that he had erred. He offered a further explanation in relation to the third of the errors. He said that he has developed four different test papers for Dogging. He normally administers either papers A, B or C. He said he thought they were in order in relation to the minimum number of questions. On this occasion he had used paper D which he now realised was deficient in relation to the number of questions in section 2. He could not offer any cogent explanation as to why on this occasion he took D to the test rather than the usual papers A, B or C.

30 The next matter is:

4. That on 23 December 2003 Mr Tubaro assessed Wayne Bulmer and Colin Camilleri for Elevating Work Platform. In each case he wrongly marked an answer to a critical question as correct.

31 Mr Tubaro claimed in his reply to WorkCover that Mr Bulmer had satisfied him that he knew about the need to lower the valves fitted to an Elevating Work Platform when lowering it. There had been no emergency descent device fitted to the Platform on which the applicant Bulmer had been tested. WorkCover was satisfied that Mr Bulmer’s answer did not explain the procedure to be followed for using the emergency descent device. At hearing Mr Tubaro conceded this criticism. He accepted that he had not marked Mr Camilleri correctly.

32 Mr Tubaro asked the Tribunal to have regard to the following further matters. Mr Tubaro referred to his background in the construction industry. He had obtained his qualifications in rigging and scaffolding at the Wollongong TAFE in 1987 and 1988. He said that after suffering a work injury in 1996 he could no longer continue with heavy work. He had sought to qualify himself as an accredited assessor. He did the relevant courses, and, as noted earlier, attained accreditation in early 1999. When he was granted accreditation he kept in regular contact with two officers at WorkCover, Mr Jim McAuliffe and Mr Keith Smith to obtain advice on any problems. He said he would often call them from the site if he was uncertain as to any aspects of the testing procedure. He has conducted 917 assessments since being accredited.

33 Mr Tubaro said that he was first audited in mid-1999, not long after grant of his accreditation. He said this had been a paper audit, i.e. he submitted representative paperwork relating to assessments as requested by WorkCover. The paperwork had covered Dogging, Basic Rigging, Scaffolding – Basic, Intermediate and Advanced. He was assessed as achieving ‘conformance’.

34 The next audit he said had been a practical audit. He had been assessed in relation to administering practical and knowledge tests in respect of Fork-lift Truck. He was again assessed as achieving ‘conformance’.

35 On 19 August 2002 WorkCover held a meeting with assessors in preparation for the coming into force of the Guidelines that commenced on 1 September 2002. On that occasion he was required to produce documents relating to his assessments, did so and they were later returned to him. He said that he was told by Mr McAuliffe (there was no direct evidence from Mr McAuliffe) that because of his previous good results it had not been necessary to audit him.

36 He said that in April or May 2003 he had submitted further documents in respect of the audit ultimately dated 7 July 2003 (another paper audit). It is this audit that identified some of the problems that led WorkCover to conduct an internal investigation giving rise to the interviews of applicants De Bie, Aquilina, Ciano and Pegler.

37 Mr Tubaro complains that he was never informed of the outcome of the audit of 7 July 2003 and was not told that an investigation had been commenced. A further audit was undertaken after he was required on 30 January 2004 to provide a representative sample of assessments across certain categories giving rise to a further audit conducted on 19 February 2004. Mr Tubaro complains that he was never given any feedback in the usual way in relation to either of these audits.

38 His evidence (not contested) was that on 21 April 2004 he received a phone call from Inspector Clampett. Mr Tubaro states in his affidavit (not contested): ‘[H]e asked me if I can come up to Sydney so he could talk to me about my audit report, I said OK we made an appointment on 30 April 2004 at 10.30am at level 10, 300 Elizabeth Street Sydney.’

39 When he arrived he was handed a four page document by Inspector Clampett and was given ten minutes to read it. This document contained various formal notices required under the Act as to such matters as the nature of the interview, the requirement to answer questions and the privilege against self-incrimination. He said he was called in after two minutes of reading time. He said he was feeling very surprised and stressed. He feels that his answers may have been affected by the tension he was feeling. A number of the warnings were repeated orally by Inspector Clampett and he was the subject of a recorded interview. He said he tried to answer all the questions truthfully. It was during the interview that he was first informed that the audits had revealed unsatisfactory matters.

40 Mr Cooley for Mr Tubaro submitted that the processes followed by WorkCover were procedurally unfair to his client. In particular he submitted that he should in accordance with the Guidelines governing audits have been given advice as to the outcome of the audits dated July 2003 and February 2004, and given an opportunity to respond. He should have been given an opportunity to rectify any instances of inadequate performance rather than learning for the first time that there might be a problem and the nature of the problems by the medium of a formal interview, held at short notice and with only learning of its potential gravity ten minutes before it started.

41 Mr Muddle in reply submitted that the task before the Tribunal is simply to ascertain whether the decision made by WorkCover is the correct and preferable one. The issue before the Tribunal is not one of procedural fairness or the lack thereof. In any case he submitted that it was open to WorkCover to refer serious items of possible misconduct revealed by an audit to an internal investigation, and to use its formal investigative powers, rather than follow the usual practice set out in the audit guideline.

42 Mr Tubaro indicated in evidence that he now realised that he had made serious errors and regretted them. In explanation of his failure to adhere strictly to the guidelines he said that he thought that they were ‘just guidelines’ as, he said, was the case for Rigging.

43 He said that the cancellation of his accreditation had had serious consequences for him. He had lost his part time instructor position at the TAFE College (in rigging, scaffolding, fork-lift driving and elevating work platform), a position he had held for over five years. He noted that he had since losing his accreditation successfully completed a Certificate 4 Occupational Health and Safety Course.

44 The Tribunal gained the impression from Mr Tubaro’s evidence that he may find it difficult to reject applications for certificates; and this may be a factor in explaining his failure to observe exactly the requirements of the guidelines. The Tribunal questioned Mr Tubaro on the extent of his supervisory experience when he had worked in the construction industry. He said that he had been a leading hand, but never a foreman. The Tribunal also referred to the private fee basis for this work and whether he might be concerned that if on arriving a site the requisite equipment was not in place, he might be forced to end the test and may be not receive any fee.

45 In reply he referred to the occasion of the three assessments in January 2003. He said that it had been at a Mirvac site at Chatswood, and he had driven from his home near Wollongong. He acknowledged that he would be very inconvenient if he had to come back again to complete the test; and that he would not be able to charge an extra fee. He also said that he would refuse about one in twenty applications.

46 These answers were pursued in further cross-examination by Mr Muddle. Mr Tubaro said that he would not be concerned if he had to refuse a certificate to people working for a major developer such as Mirvac. He said that he had simply thought at the time that a ‘Manitou’ was adequate. He now realised that use of chains must be tested. He was asked to give instances of refusal of certificates. In the Tribunal’s view instructively, the answers all involved examples of unsafe equipment.

Assessment

47 The Tribunal has set out in some detail Mr Tubaro’s responses to the matters of concern to WorkCover. It will be seen that he has no real answer to offer for any of his failures. The Guidelines that took effect on 1 September 2002, as has been customary and in conformity with the national standards, covered practical skills and knowledge skills. In each instance there are critical and non-critical elements. Mr Tubaro’s failures involve: non administration of critical elements (both in respect of practical and knowledge skills); and marking errors of significance. The breaches also point to failures of organisation. Mr Tubaro must advise the applicants as to what equipment is to be on site for a test. It is not acceptable for him to adjust his testing to the equipment he happens to find on the day on site.

48 All of the matters relied upon by WorkCover in the internal review determination were proved.

49 The Tribunal adds that there is not sufficient evidence to find proven further matters raised by Mr Muddle, i.e. that there may have been some improper practice followed by Mr Tubaro which enabled applicants Aquilina and De Bie to collude in their wrong answers, or that Mr Tubaro may have improperly failed to follow up the possibility of collusion that their giving of identical answers suggested.

50 The Tribunal is satisfied that WorkCover was correct to take disciplinary action, and that view has not been seriously contested either by Mr Tubaro or his counsel Mr Cooley.

51 As noted earlier, Mr Tubaro seeks to retain his accreditation on a more limited basis. Such an outcome would allow Mr Tubaro to retain his livelihood as an assessor; and, possibly, to obtain reinstatement as a TAFE instructor.

52 Mr Cooley invited the Tribunal to ‘vary’ the decision, referring to the power in s 63(3)(b) of the Tribunal Act (set out earlier in these reasons).

53 Mr Muddle submitted, on two bases, that such a decision should not be made by the Tribunal. First, he submitted that the Tribunal could not ‘vary’ the decision in this way as it did not have power to make a qualified decision once satisfied that cancellation of the accreditation was the correct and preferable decision: it could not, as was being urged by Mr Cooley, cancel the accreditation as to part of its area of application.

54 Mr Muddle submitted, secondly, that the failures revealed by this case are ones pertinent to Mr Tubaro’s conduct of assessments in general; and had been properly treated by WorkCover as going to the accreditation as a whole. As to this matter, the Tribunal agrees that the conduct that has come to notice is not intrinsic or unique to the three kinds of assessment where breaches were found. All of the competencies involve the testing of practical and knowledge skills, and all have critical and non-critical elements. While there was some evidence of a gap in technical knowledge on the part of Mr Tubaro as it relates to cranes and elevating work platforms (the incorrect marking of the papers), the other failures involved ignoring critical requirements or not carrying them out properly. These failures suggest an attitude or state of mind that might be carried over in to testing in respect of the other competencies.

55 Mr Tubaro appeared to believe that he had some discretion in following the Guidelines. It is clear - and the Tribunal considers that this would have been well known to Mr Tubaro, given the training he had undergone and the inductions sessions held by WorkCover prior to the Guidelines coming into effect - that the Guidelines have mandatory (‘critical’) and non-mandatory (‘non-critical’) elements. He would have known, as Mr Muddle submitted, that assessors must observe certain of the standards to the letter. As Mr Muddle said, assessors carry out numerous assessments across the State every day, and there is no possibility that WorkCover’s inspectorial and audit resources could ever assess other than a small sample of that activity. WorkCover, and the community as a whole, places great trust in the personal integrity and personal competence of assessors for ensuring that there is full compliance with the Guidelines.

56 An alternative way of reaching the result sought by Mr Tubaro would be for the Tribunal to set aside the decision to cancel (as permitted by s 63(3)(a) of the Tribunal Act, quoted earlier), and in its place substitute a decision (see, s 63(3)(c), quoted earlier) which restricts the accreditation to either the remaining eleven competencies or, at least, the five more basic competencies that Mr Tubaro is most desirous of retaining. This possibility was not canvassed during the hearing.

57 Under this approach the Tribunal’s substitute decision would involve the exercise of WorkCover’s power to grant an accreditation in respect of a more restricted group of competencies. WorkCover’s power to grant accreditation is conferred by the Regulation, cl 284 which provides:

‘ 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.’

58 The above provision is silent as to the position where WorkCover thinks that the accreditation should be varied so as to reduce the number of kinds of assessments (or ‘competencies’ as they have usually been referred to in this decision) to which it should apply. Presumably, WorkCover can not intervene in this way until the time is reached for renewal of the accreditation. The Tribunal does not have any direct power to review WorkCover’s decision as to the kinds of assessment which the assessor is authorised by the accreditation to carry out. This may be contrasted with the position that applies in relation to decisions concerning licences made by WorkCover under Chapter 10 of the Regulation. WorkCover may issue licences subject to conditions. The Tribunal has the power to review not only a decision to suspend or cancel a licence but also a decision ‘to impose a condition on a licence’: cl 351 (1)(d) (ii). There is no doubt that it would be open to the Tribunal in a licence cancellation case to set aside the decision to cancel and reinstate the licence on conditions.

59 As to whether as a matter of law the Tribunal can pursue the course it has canvassed (set aside and make substitute decision pursuant to cl 284), the Tribunal does not express a concluded view on this occasion, especially as this option was not canvassed at hearing. (In the Tribunal’s view, there may be value in clarifying the position by amendment, so as to allow the Tribunal to make a decision in substitution for a decision of cancellation which might allow the applicant for review to continue as an accredited assessor on a more restricted basis.)

60 In any case the Tribunal would not be minded to pursue this option, as it is satisfied that cancellation was, and remains, the correct and preferable decision.

61 The other alternative, suspension, is not a sound option. Once the period of suspension expires, Mr Tubaro would be free to resume testing in all fourteen competencies. This is an undesirable outcome. The evidence, viewed most favourably to Mr Tubaro, reveals significant incompetence in crane testing. He should not be allowed to return to that area in the near future. As this case demonstrates, one of the risks an assessor runs in obtaining permission to test across a range of competencies is that shortcomings in performance in some categories may lead to his accreditation being placed at risk in respect of all categories.

62 However, the Tribunal is not convinced that the misconduct revealed by this case is such that no favourable consideration should ever again be given to a fresh application for accreditation from Mr Tubaro, especially if it is limited to the five competencies that he wishes to continue to assess (none involving cranes).

63 Mr Tubaro’s recent history is one of a person who has made considerable efforts to improve himself and to deal positively with a serious injury that prevented him from continuing to do heavy work. He did the courses required to win accreditation and he has worked for several years as a part-time instructor at the local TAFE. His efforts at self-improvement have continued since his accreditation was cancelled, and he has completed successfully another TAFE course.

64 The case reveals a failure on Mr Tubaro’s part to apply strictly the guidelines in relation to some fundamental matters. It also suggests some personal shortcomings in not insisting that essential requirements for testing be present on site on the day of the test; and in giving in to the pressure to hold the tests. Mr Tubaro needs to address these weaknesses. The Tribunal’s impression is that he has taken to heart the criticisms that were made of his conduct, and did not persist to the same extent at hearing with the excuses he gave to Inspector Clampett at interview.

65 Mr Tubaro now needs, the Tribunal considers, to satisfy WorkCover that he has fully embraced the need for strict compliance in relation to both practical and knowledge assessments; and that he has a satisfactory understanding of what the correct answers are to all questions (especially critical questions) in the competencies covered by the accreditation.

66 In the Tribunal’s view Mr Tubaro is capable of learning from this experience, and is, it thinks, likely in future to conduct assessments responsibly especially if limited to the five competencies mentioned.

67 The Tribunal recommends to WorkCover that these observations be taken into account if Mr Tubaro reapplies for accreditation on a more restricted basis.

68 As noted earlier, Mr Tubaro objected to the process to which he was subjected. In the Tribunal’s opinion, it is open to a regulatory body to deal with matters of concern that first come to its attention via audit either within the context of the audit, or by referring them out for special investigation. In order to protect the special investigation it may be that nothing should be said to the assessor.

69 The Guidelines deal, as the Tribunal sees it, with the usual practice to be observed in relation to apparent failures in performance revealed by the audit process. There will be exceptions, and this case was treated in that way. It may be that the Guidelines should refer to the possibility of exceptions.

70 That said, it is not at all obvious to the Tribunal why Mr Tubaro was not given (accepting his evidence) a fuller indication when he was contacted by phone on 21 April as to what the purpose of the meeting on 30 April was to be. At that stage WorkCover had completed its process of investigation.

71 It is also difficult in the circumstances of this case (the risk of compromise of the special investigation would appear to have been minimal) to understand why WorkCover did not convey its concerns over, at least, the knowledge test errors to Mr Tubaro at a much earlier stage, as there must be a real possibility that Mr Tubaro repeated the errors in other assessments done in the several months that passed between July (the audit that triggered concern) and April (the interview).

Order

1. The decision under review is affirmed.