Walden v Chief Executive Officer, WorkCover NSW

[2007] NSWADT 94

CITATION:	Walden v Chief Executive Officer, WorkCover NSW [2007] NSWADT 94
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Walden RESPONDENT Chief Executive Officer, WorkCover NSW
FILE NUMBER:	063380
HEARING DATES:	25 January 2007
SUBMISSIONS CLOSED:	25 January 2007
DATE OF DECISION:	20 April 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	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:	Bibald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 Bogicevic v Commissioner for Fair Trading [2007] NSWADT 49 Borovina v Commissioner for Fair Trading [2007] NSWADT 80 McKellar v WorkCover Authority of NSW [2004] NSWADT 136 NSW WorkCover Authority v Law Society of NSW [2006] NSWCA 84 Taheri v Commissioner for Fair Trading [2006] NSWADT 200 Taylor v WorkCover NSW [2006] NSWADT 309 Tubaro v WorkCover Authority of NSW [2004] NSWADT 260
REPRESENTATION:	APPLICANT L Karp, counsel RESPONDENT S Free, counsel
ORDERS:	Decision under review set aside

1 This is an application for review of a decision of the respondent to cancel the applicant’s accreditation as an assessor under the Occupational Health and Safety Regulation 2001 (‘the OHS Regulation’).

2 The background to the application is as follows. On 15 April 2002 the applicant applied to WorkCover NSW (‘WorkCover’) for accreditation as an assessor for OHS Certificates in LF-Forklift General and WP-WK Platform Boom over 11 metres. In support of that application the applicant provided a Certificate IV in Assessment and Workplace Training dated 17 January 2002 (‘the NSCA Certificate IV’). The applicant was accredited on 4 December 2002 as an assessor for the period 4 December 2002 to 4 December 2005. The applicant was accredited as an OHS Trainer in OHS Induction Training for Construction Work from 11 June 2002 to 11 June 2005. On 9 May 2005 the applicant applied for an additional period of accreditation as a trainer. The respondent contacted the National Safety Council of Australia Ltd (‘NSCA’) to seek verification of the NSCA Class IV Certificate provided in support of the application for accreditation as assessor, and was advised that the NSCA had no record of the applicant and could not verify the certificate.

3 The respondent issued notice of proposed cancellation of the applicant’s accreditation as a trainer and assessor on 19 September 2005. The applicant responded, claiming that the NSCA Certificate IV was valid as he had completed some of the modules with North Melbourne Institute of TAFE in August 2001 and had completed the remainder with NSCA by submitting an assignment in October 2001.

4 Following further correspondence, on 31 March 2006 the respondent cancelled the applicant’s accreditation as an assessor, and his accreditation as an OHS induction trainer. The applicant requested internal review, and on 17 October 2006 both decisions were affirmed. The applicant applied to the Tribunal for review of the decisions on 25 October 2006.

5 The respondent provided to the Tribunal and to the applicant a copy of relevant documents pursuant to s58 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The respondent claimed legal professional privilege in respect of some of the documents (documents 29, 31 and 32). I examined these documents and determined that the content of part of these documents contained information the disclosure of which would reveal confidential communications between the respondent and its legal advisers made for the dominant purpose of giving or obtaining legal advice: NSW WorkCover Authority v Law Society of NSW [2006] NSWCA 84. The applicant was provided with copies of these documents with deletions.

6 The applicant’s accreditation was due to expire on 4 December 2005. This matter has proceeded on the basis that the process leading to the cancellation of the applicant’s accreditation was initiated, through the giving of notice under cl287(2) of the OHS Regulation, before that date.

Relevant legislation

7 Part 9.1 of the OHS Regulation deals with scaffolding, dogging, rigging, the operation and use of plant and other work. Under cl270, a person cannot do any kind of scheduled work unless the person holds a certificate of competency or recognised qualification in relation to work of that kind. The list of scheduled work is set out in cl266. Part 9.1 Division 3 contains provisions for assessment of competency to carry out scheduled work, and Division 4 contains provisions for accreditation of assessors. Clause 287 provides for suspension or cancellation of accreditation as an assessor:

287 Suspension and cancellation of accreditation

(1) WorkCover may suspend or cancel the accreditation of a person who is accredited as an assessor if it is satisfied that:

(a) the assessor is no longer competent to carry out the kinds of assessments for which the assessor is accredited, or

(b) the assessor has been convicted of an offence against the Act or the associated occupational health and safety legislation, or any regulation under the Act or that legislation, or of an offence against a corresponding law or any regulation under a corresponding law, or

(c) the assessor was accredited on the basis of false or misleading information or a failure to disclose or provide required information, or

(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, or

(ii) in the case of an assessor who has carried out an assessment under a corresponding law, otherwise than in accordance with that law or any guidelines in force under that law, or

(e) the person has had his or her accreditation to conduct OHS induction training suspended or cancelled under clause 217A, or has had his or her approval as a Premium Discount Advisor suspended or cancelled under the regulations under the Workers Compensation Act 1987, for reasons of a kind referred to in paragraph (b), (c) or (d).

(2) Before suspending or cancelling an assessor’s accreditation, WorkCover:

(a) must cause written notice of the proposed suspension or cancellation to be given to the assessor, and

(b) must give the assessor a reasonable opportunity to make representations to WorkCover in relation to the proposed suspension or cancellation, and

(c) must have regard to any representations so made.

(3) If, after having regard to any representations made by the assessor, WorkCover decides to proceed with the proposed suspension or cancellation, WorkCover must give to the assessor a written notice:

(a) stating that the accreditation is suspended or cancelled, and

(b) in the case of a suspension, specifying the period for which the accreditation is suspended, and

(c) giving reasons for the suspension or cancellation.

(4) The suspension or cancellation takes effect on the date on which notice of the suspension or cancellation is given to the assessor or such later date as may be specified in the notice.

8 Part 8.2 of the OHS Regulation deals with OHS induction training for construction work. Clause 217A of the OHS Regulation provides for accreditation of individuals to conduct OHS induction training, and for suspension or cancellation of that accreditation:

217A Accreditation of individuals to conduct OHS induction training

(1) An application by an individual to be accredited to provide OHS induction training:

(a) is to be in the form, and accompanied by the particulars, approved by WorkCover, and

(b) is to be accompanied by such application fee as WorkCover determines to cover the expenses in dealing with the application.

(2) WorkCover may approve an application for accreditation (with or without conditions) or may refuse the application for such reason as it considers sufficient.

(3) WorkCover may suspend or cancel the accreditation of a person who is accredited to provide OHS induction training if it is satisfied that:

(a) the person is no longer competent to conduct the training for which the person is an accredited person, or

(b) the person has been convicted of an offence against the Act or the associated occupational health and safety legislation, or any regulation under the Act or that legislation, or of an offence against a corresponding law or any regulation under a corresponding law, or

(c) the person was accredited on the basis of false or misleading information or a failure to disclose or provide required information, or

(d) the person has contravened the conditions of his or her accreditation or a guideline relating to the provision of OHS induction training, or

(e) the person has had his or her accreditation as an assessor suspended or cancelled under clause 287, or has had his or her approval as a Premium Discount Advisor suspended or cancelled under the regulations under the Workers Compensation Act 1987, for reasons of a kind referred to in paragraph (b), (c) or (d).

(4) Before suspending or cancelling a person’s accreditation, WorkCover:

(a) must cause written notice of the proposed suspension or cancellation to be given to the person, and

(b) must give the person a reasonable opportunity to make representations to WorkCover in relation to the proposed suspension or cancellation, and

(c) must have regard to any representations so made.

(5) If, after having regard to any representations made by the person, WorkCover decides to proceed with the proposed suspension or cancellation, WorkCover must give to the person a written notice:

(a) stating that the accreditation is suspended or cancelled, and

(b) in the case of a suspension, specifying the period for which the accreditation is suspended, and

(c) giving reasons for the suspension or cancellation.

(6) The suspension or cancellation takes effect on the date on which notice of the suspension or cancellation is given to the person or such later date as may be specified in the notice.

(7) Any person who, before the commencement of this clause, was accredited by WorkCover to provide OHS induction training is taken to have been accredited under this clause.

(8) WorkCover may take action under subclause (3) in respect of any matter or circumstance (including conduct or a conviction, contravention, suspension or cancellation) that occurred before, on or after the commencement of that subclause.

9 Section 36 of the Occupational Health and Safety Act 2000 (‘the OHS Act’) provides that the regulations may authorise a person to apply to the Tribunal for review of a decision, of a class prescribed by the regulations, that is made under the OHS Act or the regulations. Clause 351 of the OHS Regulation lists the decisions subject to review, and relevantly includes:

351(1) A person aggrieved by a decision that belongs to one of the following classes of decisions made by WorkCover (being a decision made in respect of that person) may apply to the Administrative Decisions Tribunal for a review of the decision:

…

(c) decisions under Chapter 9:

(i) to refuse to issue a certificate of competency, or

(ii) to suspend or cancel a certificate of competency, or

(iii) to refuse to replace a certificate of competency, or

(iv) to refuse to accredit a person as an assessor, or

(v) to suspend or cancel a person’s accreditation as an assessor, or

(vi) to confirm the decision of an assessor on an application for a review of the decision,

10 Clause 351 of the OHS Regulation does not confer jurisdiction on the Tribunal to review a decision under Part 8 of the OHS Regulation to cancel a person’s accreditation to conduct OHS induction training. The respondent’s representative submitted at a directions hearing held on 28 November 2006 that the Tribunal did not have jurisdiction to review the decision to cancel the applicant’s trainer accreditation, and the applicant withdrew that part of the application.

Issues

11 The issue before the Tribunal is whether the decision of WorkCover to cancel the applicant’s accreditation as an assessor under Part 9.1 of the OHS Regulation is the correct and preferable decision, having regard to any relevant factual material and any applicable written or unwritten law: s63(1) ADT Act. The decision under review was based on a finding that the applicant was accredited on the basis of false or misleading information: cl 287(1)(c) OHS Regulation. There is no evidence to suggest that any of the other grounds in subclause 287(1) apply. I must first decide whether the applicant was accredited “on the basis of false or misleading information”, and if so, whether the decision to cancel his accreditation is the correct and preferable one.

Respondent’s evidence

12 The respondent relied on evidence of searches of the National Safety Council of Australia (NSCA) records and submitted that despite those searches the NSCA had found no evidence that the applicant was enrolled in or completed the Certificate IV in Assessment and Workplace Training.

13 Ms Clare Rugg, Quality Systems Manager of the NSCA, provided an affidavit and gave oral evidence. In her affidavit Ms Rugg stated:

5.Student records are retained in a combination of electronic databases and hard copy forms and documents. With respect to electronic records, the NSCA has three separate electronic records systems. Data is entered into these systems by separate NSCA staff members. The databases are:

(a) The student training database called “Workbench”. “Workbench is used to manage all training courses run by the NSCA. Data is entered into Workbench by Training Co-ordinators.

(b) The financial records database called “CBA”. The CBA financial system contains records of all payments received by the NSCA. Data is entered in this database by the Finance Department in the head office in Victoria.

(c) The membership database called “iMus”. The iMus database contains records of all NSCA members and is managed by the head office in Victoria.

6.Each of the three databases exchange relevant information…

7. In addition to the electronic databases the NSCA maintains hard copy files for each course that are managed by Training Co-ordinators. These files contain documents such as enrolment forms, applications for Recognised Prior Learning (“RPL”), the training booking sheet, daily sign on sheets and assignments. Records for courses run in New South Wales are retained at the Harris Park office and managed by the Training Co-ordinators. As a RTO the NSCA is required to retain course files for 30 years.

8. When a student submits a hard copy application to enrol in a NSCA course the Training Co-ordinators enter the details from the application into Workbench. Once these details are entered Workbench generates an invoice. Workbench then links in with imus and when payments are received these are entered by the Finance Department. The NSCA course invoices request payment within 14 days but normal business practices apply to extending to 30 days.

9. When a Trainer has completed presenting a course they return the marked post-course assignments to the Training Co-ordinator. If a student has passed their course the Training Co-ordinator enters their details in Workbench and a certificate (which includes the individual certificate number) is automatically generated and printed. As the certificate number is related to the student number from Workbench, I do not consider it possible for two students to be allocated the same certificate number.

10. Once the certificates for the course are printed the Training Co-ordinator provides them to the trainer for signature. The signed certificates are posted to the students by the Training Co-ordinator.

14 Ms Rugg outlined in her affidavit the steps taken to validate the NSCA Certificate IV in response to the request from WorkCover NSW. Those steps included requesting a check on the Workbench database and the CBA database, and no record of the applicant was found. Ms Rugg stated that the certificate number on the NSCA Certificate IV related to a course held in Parramatta in November 2001, and that the certificate number was that of another student who attended that course. Ms Rugg stated that the Training Co-ordinator had checked the course file for that course, and for all New South Wales Certificate IV courses run in 2001 and 2002, and no documents relating to the applicant had been located.

15 Under cross examination Ms Rugg stated that there was no record kept by the NSCA of mail received or sent. In 2001 there were three Training Co-ordinators working at the NSCA. It was up to the Training Co-ordinators to print out certificates at the end of each course. The certificates were in the form of pre-printed sheets which included the NSCA logo, and needed to have the student’s name and certificate number merged with details from Workbench before printing. This was the job of the Training Co-ordinator. The certificate number combines the student enrolment number and the course number.

16 In her affidavit Ms Rugg stated that there had been a fire on 7 August 2005 in the Harris Park office of the NSCA which had affected a number of hard copy files. Ms Rugg stated that the fire had not affected the course file relating to the applicant’s certificate, and that electronic records had not been affected as back ups of the system occur offsite and the main server is located in Melbourne. In oral evidence Ms Rugg stated that the fire occurred on a Sunday and there was no loss of the electronic database.

17 In an affidavit sworn on 17 January 2007 Mr Rohan Geale, Managing Director of Caradel Hire, stated that the applicant had been employed by Caradel Hire from 12 April 2000 to 26 February 2003. Mr Geale stated that a database report from the company accounting system showing OHS expenses for the period 1 July 2000 to 30 June 2005 showed that an amount of $224.70 plus GST was paid to the NSCA on 22 February 2002. There were no other entries showing payments to the NSCA for the period of the applicant’s employment. Mr Geale stated:

6. If Caradel Hire made a payment to the NSCA for a training course on behalf of Mr Walden during 2001 or 2002 I would have expected any such payment to have been recorded in our separate database report relating to Training. There are a number of payments relating to Mr Walden’s training in this report but no payment to the NSCA is recorded during this period.

18 In oral evidence Mr Geale stated that Caradel Hire had paid for courses undertaken by the applicant. It would have been of benefit to the company and so the company would pay for OHS training. The applicant had been an honest and diligent employee during his period of employment with Caradel Hire.

19 Ms Lorraine O’Sullivan is an Occupational Health and Safety Trainer and was employed by the NSCA as a Trainer from 19 July 1999 to 9 May 2002. In her affidavit Ms O’Sullivan outlined her responsibilities as Trainer:

2 As a NSCA Trainer, I was responsible for presenting the Certificate IV course and assessing students in the course. When I worked at the NSCA I was familiar with the role and duties of Training Co-ordinators. The Training Co-ordinator managed the administration of the course which included maintaining the students’ electronic records and hard copy files. The hard copy files held documents such as enrolment forms, any applications submitted for credits based on Recognised Prior Learning (“RPL”) and the students’ assignments. The Training Co-ordinators also managed and retained the “sign-on sheets” which students signed at the start of each day of the course.

3 Students seeking to enrol in the Certificate IV course contacted the Training Co-ordinators with any inquiries and submitted their enrolment forms to them. Training Co-ordinators then enrolled the students in the course.

20 Ms O’Sullivan outlined the process of printing and signing certificates:

Once I marked the students’ post-course assignments I sent them to the Training Co-ordinators and, for students that had passed, the Training Co-ordinators printed a Certificate for me to sign. When I initially started at the NSCA I signed all certificates. However as I travelled frequently, conducting courses, Training Co-ordinators later used a scanned copy of my signature to issue Certificates. When this practice was introduced I insisted that certificates were not to be printed off in a batch for all students in a course but could only be printed when the training Co-ordinators received the marked post-course assignments indicating which students had passed.

21 Ms O’Sullivan outlined the procedure for determining whether a person could receive credit for RPL:

8 As the Trainer, I was the person who determined whether to grant students credit for RPL. The idea behind RPL is that if a student has already completed equivalent training, and/or gained sufficient experience, that corresponds to a particular aspect of the course, the student is given credit for that prior training/experience and is exempted from that part of the course. Students seeking RPL for section 1 – “Training Small Groups” were required to submit a session plan for training a small group. The session plan was to outline the timeframes in which the training would cover introduction, theory, practical skills and a review. Additionally the Certificate IV students had to submit feedback sheets from students they had presented to and any hand outs they provided to students. If a Certificate IV student was granted RPL for section 1 – “Training Small Groups” they were exempted from the first three days of the course.

9 Students seeking RPL for section 2 –“Conducting Assessments” had to demonstrate experience in “workplace assessment” rather than “classroom assessment”. “Classroom assessment” involves assessing knowledge but “workplace assessment” involves assessing both knowledge and practical skills demonstration. The majority of applicants for RPL for section 2 had experience in “classroom assessment” and not “workplace assessment” and therefore could not get RPL for section 2. If a student had experience in conducting actual workplace assessments and sought RPL for section 2, I required them to submit a portfolio of information in support of their claim. If a student achieved RPL for section 2 I also required them to complete the post-course assignment to refine their knowledge.

10 When I conducted the Certificate IV course for the NSCA from my recollection no student was granted 100 per cent RPL so as to exempt the student from all of the modules for sections 1 and 2 of the course. I did not excuse any student from attending all five days of the course.

11 Students were required to submit any application for RPL three weeks before the commencement of the course to allow me time to consider their prior qualifications and experience. I would then ask the Training Co-ordinators to issue a letter to the students accepting or rejecting their application for RPL. The NSCA retained the material submitted by students to support RPL applications.

22 In relation to the Certificate provided by the applicant, Ms O’Sullivan stated:

12 In approximately August 2005, after I ceased working for the NSCA. Clare Rugg of the NSCA contacted me regarding a Certificate IV granted to a Mr Walden. Ms Rugg faxed me a copy of a Certificate IV purportedly issued with my signature. Annexed hereto and marked with the letter “A” is the Certificate IV Mr Walden claims to have received from the NSCA. It appears that the signature on the Certificate IV is not my signature because of three features namely:

-the “tail” of the capital “L” is a straight, heavy line whereas the “L” in my signature has a more curved “tail”;

-I include an apostrophe in my signature between the “O” and the “S” and there is no apostrophe in the signature in Mr Walden’s Certificate; and

-the last two letters – “an” – are separated from the “v” in my signature but they are not separated in the signature in Mr Walden’s Certificate IV.

23 Under cross examination Ms O’Sullivan stated that while she was at the NSCA she depended on the Training Co-ordinators to do the paperwork and handle inquiries and enrolments. The Training Co-ordinators received assignments, and it was the practice of one of the Training Co-ordinators at Botany to log incoming mail and to keep a manual log. Ms O’Sullivan was not sure whether it was the practice of others. The workload of Training Co-ordinators was demanding and many resigned. The Training Co-ordinators printed out the certificates and the blank certificates had only the NSCA logo on them. Ms O’Sullivan inspected the NSCA Certificate IV (Exhibit 1) and stated that it was the correct paper used by the NSCA. Ms O’Sullivan agreed that the Training Co-ordinators sometimes made mistakes such as spelling errors and typographical mistakes. Ms O’Sullivan stated that she was careful about her signature and it did not vary. She would sign only five or six certificates at a time because she had RSI. The certificates were printed off as students achieved competency, and she might sign 8 to 12, but not in one batch. Ms O’Sullivan conceded that perhaps the pen had been lifted between the “v” and the “a”, and there may have been an apostrophe, in the signature on Exhibit 1. Ms O’Sullivan maintained that she had never signed the “L” in the way it appears in Exhibit 1, and stated that this is not a minor difference. Ms O’Sullivan stated that she had no recollection of having spoken to the applicant, and conceded that she had spoken to hundreds of people. The Training Co-ordinators would give advice, and she would not be aware of the advice given. Ms O’Sullivan was asked whether it was possible that a Training Co-ordinator may not have been paying attention and had printed out a Certificate IV and put it on her desk to sign. Ms O’Sullivan stated that she did not believe there had been a mistake as the certificates were not printed out until she had marked the assignments. Under re-examination Ms O’Sullivan stated that the certificates were printed individually as the assignments were received and for up to 30 days after the end of the course, as sometimes student asked for extensions.

24 Ms Dorothea Betts, Director of Strategic Interventions Group, WorkCover, provided an affidavit and gave oral evidence. In her affidavit Ms Betts outlined the steps leading to the cancellation of the applicant’s accreditation as an OHS assessor and following that decision. In paragraph 5 of her affidavit Ms Betts outlined the requirements for accreditation as an OHS Assessor:

5 Applicants must meet Key Selection criteria to be registered as an OHS Assessor. The basis for these key selection criteria is to ensure that persons undertaking assessments within the national certification system and issuing Notices of Satisfactory Assessment for National Certificates of Competency meet recognised, transparent and consistent criteria for approval as an Assessor. These include appropriate industry experience, assessment competencies and technical qualifications. Key Selection Criteria 4 requires the applicant to demonstrate Assessor competencies in the certificate IV Assessment and Workplace Training modules of “Plan”, “Conduct” and “Review”. The selection criteria are set out at Tab 63. These competencies mean that persons deemed by Registered Training Organisations to be competent in these units have demonstrated that they have the expertise to provide valid, reliable and fair assessments of applicants against the National Certificates of Competency assessment instrument. This includes both practical and theoretical components.

25 In paragraph 11 of her affidavit Ms Betts stated that WorkCover had implemented a new policy from 27 April 2005 to require confirmation of all new and existing trainer educational qualifications by contacting the licensed educational provider. Ms Betts was cross examined concerning the documentation provided by the applicant in support of his application for accreditation, and conceded that the information provided was sufficient for the applicant to have qualified as an assessor whether or not he held a Certificate IV. Ms Betts was asked whether she had received any information as to the applicant’s performance as an assessor and trainer, and conceded that there had been no information concerning any serious difficulties which had come to her as Director.

Applicant’s evidence

26 The applicant provided a written statement dated 22 December 2006 in which he outlined the sequence of events leading to his obtaining the NSCA Class IV Certificate:

1 Since 2000 I have completed a number of courses in occupational Health and Safety, Elevated Work Platform Operations and Workplace Committees. Annexed at Tab 71 of the folder of documents produced by WorkCover are copies of the Certificates achieved by me in the industry to date.

2 After completing a course through North Melbourne Institute of TAFE in August 2001, I wanted to continue my training to qualify for a Certificate IV in Workplace Training & Assessment.

3 I looked on the National Safety Council of Australia (NSCA) website about the Certificate IV training. I recall speaking to Lacey Knight in Queensland and I believe that she may have referred me to a Lorraine Sullivan to talk about it.

4 In about September 2001 I telephoned Lorraine Sullivan, whom I now understand to be Lorraine O’Sullivan. She advised me to send her copies of certificates evidencing my current competencies and she would look at them and let me know what else might be required.

5 I did so and shortly after that Lorrain Sullivan telephoned me and advised that in order to meet the criteria for the Certificate IV I would need to prepare a training and assessment program and submit it for appraisal.

6 I submitted the assignment in or about late October 2001 and I waited to hear back. I was not too concerned about not receiving a response immediately as I thought that my submitted assignment would have to be reviewed and that the onset of the Christmas period might slow things down.

7 In January 2002 I received a Certificate IV in Assessment & Workplace Training in the mail. Annexed hereto and marked “A” is a coloured copy of that Certificate. I assumed that my assignment had been acceptable and, together with my previous competencies, was sufficient for the award of the certificate.

8 At the time of my application I was employed by Caradel Hire in Goulburn. I am aware and believe that Caradel Hire joined NSCA so as to obtain discounts on my and other employees training. …

9 On 15 April 2002 I wrote to WorkCover NSW enclosing an application to be accredited as an OHS Assessor for users and operators of industrial equipment. On 25 November 2002 I was advised that after submitting additional evidence of my industry experience I had qualified to be an Assessor subject to completing a written exam. I sat the Written Assessor Exam on 2 December 2002 and passed. I was invited to attend a briefing seminar and was subsequently accredited as an Assessor effective from 4 December 2002 to 4 December 2005.

10 In 2002 I also gained a Certificate IV in Workplace Safety from Safety Plus and applied for and achieved accreditation from WorkCover NSW to conduct training.

11 In addition I applied for status as a National OHS Assessor, and this was granted in December 2003.

12 I continued to train and assess over the next 3 years, and was not aware of any problems with my qualifications or accreditations.

27 In his written statement the applicant outlined his discussions with Ms Clare Rugg, and Mr Eric Curtis, CEO of the NSCA, and stated that he then contacted Mr Michael Carroll, head of the WorkCover Licensing Unit, who advised him to obtain a new Certificate IV in Assessment & Workplace Training to prove his bona fides. The applicant stated that he did this through a registered RTO (Allen’s Training) and forwarded this certificate to WorkCover. (At this point I should note that Mr Carroll properly took no part in the investigation or decision-making processes in this matter).

28 At paragraph 29 of his statement, the applicant stated in response to a memo from Mr Eric Curtis:

-Mr Curtis states that Lorraine Sullivan was “unequivocal in stating that she ahs never given anyone 100% RPL and had no recollection of Walden or of receiving materials from him”. At no time did I request that I be given 100% RPL. “RPL” stands for Recognised Prior Learning and acts like credits given toward a higher award for study already undertaken and completed. I was aware after speaking with Lorraine Sullivan at the NSCA that I could not achieve Certificate IV status based solely on my current qualifications and I would have to submit assignments.

- I did not keep copies of the assignments that I submitted as I did not think it necessary after I received the Certificate IV in the mail. I do not know what other documents I could have produced.

-At the time that I received the Certificate I assumed that an invoice would be sent to Caradel Hire, my employer and I did not think about it again.

29 In oral evidence the applicant outlined the background to his application for the Certificate IV. He had completed training with North Melbourne Institute of TAFE and wanted to continue and qualify for a Certificate IV. He sent the NMIT certificate to the NSCA and was advised that he needed to prepare a workplace training and assessment package. He sent this in late October or early November 2001. In around January 2002 he received an envelope from the NSCA with the Certificate IV and assumed that he had passed. The applicant stated that he had filled out a form, but could not recall whether it was an enrolment form or a form applying for RPL. He recalled receiving back the marked assignment, and may have kept it for 12 months. He has his certificates but not the notes or assignments. He assumed that Caradel Hire would pay the fee as they had paid for the NMIT training. He needed the Certificate IV to be a “green card” trainer. Caradel had a contract with Rail Infrastructure Corporation and it was his job to find contractors, equipment and labour hire in the area. When he found out there was a problem with the NSCA Certificate IV he contacted Michael Carroll, whom he had known for some time and who looked after the green cards, and asked what he could do. His advice was to requalify, which he did. He completed a Certificate IV course through Allens Training in Goulburn in 2005.

30 Under cross examination the applicant stated that in the conversation with the NSCA in September 2001 he had been asked about what he had previously done, and he sent the NMIT letter, copies of certificates from other courses, copies of his WorkCover certificates and a letter detailing what he did in his job. The workplace training and assessment package he was asked to submit covered the training package he would deliver and the strategies for assessment of competence. He had no further dealings with the NSCA after sending in the assignment. The cost of the course was not an issue as Caradel Hire would meet it. The form he filled in asked for details of his employer so he assumed that NSCA would contact Caradel Hire. He recalled discussing with Rohan Geale that he wanted to go for upgrading and he said to go for it. He discussed the cost of the Certificate IV early in the year, but not specifically the NSCA cost. He knew it was around $800. The applicant rejected the propositions that he did not obtain the Certificate IV from the NSCA or that he had never spoken to Lorraine O’Sullivan.

Consideration

31 The first issue is whether the applicant was accredited as an assessor on the basis of false or misleading information. As the respondent’s representative submitted, that requires consideration of two issues: first, whether the applicant was accredited “on the basis of” the NSCA Certificate IV, and secondly, whether it can be said that the Certificate IV was “false or misleading information”.

32 On the first issue, the respondent relied on the documentary evidence of assessment by WorkCover of the applicant’s claims to meet the criteria for accreditation as an assessor. The WorkCover file includes the application made by the applicant for accreditation, with which he provided several documents, including the NMIT Certificate for Elevated Work Platform, three WorkCover certificates, and the NSCA Certificate IV, and information concerning his experience. The WorkCover documents include a form entitled “File Checklist For an Application to be an Assessor” (document 63). Item 4 of that form states “Demonstrate assessor competencies (Certificate IV – Plan, Conduct, Review)”, and has been ticked. The applicant’s representative argued that the applicant had relied on the Certificate IV in applying for accreditation, but that the wording of item 4 indicated that there was a range of possible ways in which an applicant could demonstrate competency.

33 The documents on the WorkCover file show that the first assessment of whether the applicant met the criteria for accreditation occurred on 11 October 2002, when the applicant was unsuccessful. He was informed by letter dated 11 October 2002 that his application had not demonstrated the following points:

-Extensive industry experience after you obtaining your OHS Certificate of competency to operate an LF and WP

-Experience in a major sector of industry after you obtaining your OHS Certificate of competency to operate an LF and WP.

34 The applicant replied on 29 October 2002, providing a further copy of a statement he had earlier sent to WorkCover, outlining his industry experience from 1990. On 19 November 2002 the applicant provided a further statement outlining his processes for Demonstration of Forklift use to customers, and detailing his specific work experience since August 2001. A further File Checklist form was completed on 25 November 2002, recommending that the applicant be accredited. This form has the notation “Additional supportive information supplied”, includes a total of 11 points for extensive industry experience, and has a tick against item 1: “Applicant has held the relevant certificate of competency (or equivalent) for at least 12 months – NCIS system checked”.

35 Based on these documents, I am satisfied that the NSCA Certificate IV was relied upon by the respondent’s officers in determining whether the applicant met the criteria for accreditation. It is possible that an applicant could meet those criteria through other paths, and the evidence of Ms Betts indicates that the applicant could have met those criteria based on his other experience and qualifications. However, the WorkCover File Checklist documents of 11 October 2002 and 25 November 2002 indicate that in the applicant’s case the NSCA Certificate IV formed part of that determination. On that basis, I am satisfied that the decision to accredit the applicant as an assessor was, at least in part, “on the basis of” that Certificate.

36 The next issue to determine is whether the NSCA Certificate IV was “false or misleading information”. Previous decisions of this tribunal have focussed on the adequacy of assessment practices of accredited assessors rather than the documents on which the initial accreditation decision was made: see for example Taylor v WorkCover NSW [2006] NSWADT 309, McKellar v WorkCover Authority of New South Wales [2004] NSWADT 136, Tubaro v WorkCover Authority of NSW [2004] NSWADT 260. Other decisions of this tribunal have considered the provision of “false or misleading” information in the context of whether its provision indicates that an applicant is not a fit and proper person to obtain, or retain, some occupational licence: see, for example, Borovina v Commissioner for Fair Trading [2007] NSWADT 80, Bogicevic v Commissioner for Fair Trading [2007] NSWADT 49, Taheri v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 200. The respondent relied on the decision of the Supreme Court of New South Wales in Bibald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510, concerning a report provided to creditors by the company administrators which contained information relating to how much money was likely to be recovered by the creditors. A creditor sought to have the company deed of arrangement set aside, relying on s445D(1)(a) of the Corporations Act 2001 (Cth), which provided:

445D (1) the Court may make an order terminating a deed of company arrangement if satisfied that:

(a) information about the company’ business, property, affairs or financial circumstances that:

(i) was false or misleading; and

(ii)can reasonably be expected to have been material to creditors of the company in deciding whether to vote in favour of the resolution that the company execute the deed;

was given to the administrator of the company or to such creditors; or

37 Campbell J held (at [147]):

Concerning the concept of false or misleading information in s445D(1)(a) and (b) I accept the submissions of Mr Aldridge that:
-the expression looks at an objective quality of the information, not whether anyone was actually misled.

- the expression looks at whether the information was actually false or misleading, not whether anyone intended it to be false or misleading, or did not care whether or not it was false or misleading.

- whether the information is false or misleading is judged at the time of the hearing, not on the basis of information available at the time of giving the information.

38 At [152] Campbell J noted that this interpretation of s445D(1)(a) and (b) was “…consistent with the concern of s455D(1)(a) and (b) being with the adequacy of the information base which is presented to the administrator, or to the creditors, to enable them to make decisions”.

39 The significance of accreditation of assessors under the OHS legislation has been noted in previous decisions of this Tribunal. In Tubaro v WorkCover [2004] NSWADT 260 O’Connor DCJ, President of the Tribunal, said (at [55]):

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.

40 Clause 287A reflects the concerns of the regulatory scheme created under the OHS Regulation, in enabling the immediate suspension of a certificate of accreditation if an inspector has “a reasonable concern” about a holder’s integrity or competency. Clause 287 of the OHS Regulation enables an assessor’s accreditation to be suspended or cancelled, following notice and the opportunity to make representations, on a number of grounds. Those grounds include competency as an assessor (paras (a) and (d)), and where an assessor has been convicted of an offence under the OHS legislation, including the Regulation (para (b)). Such offences include making a statement “that the person knows to be false or misleading in a material particular” in connection with the making of a relevant application: cl 356 OHS Regulation. Having regard to the context, I agree with the respondent’s submission that the appropriate approach to adopt to the interpretation of cl 287(1)(c) is that expressed in Bibald Consulting Pty Ltd v Miles Special Builders Pty Ltd, namely, that its concern is with the adequacy of the information base presented to WorkCover to enable it to make its decisions. The objective quality of the information, and not whether it was intended to be false or misleading, is what matters.

41 There is no dispute that the applicant provided the NSCA Certificate IV to WorkCover in support of his application for accreditation. The applicant’s case is that he received this certificate in the mail after he had complied with what he thought were the requirements of the NSCA for its issue, being satisfaction of part of the competency requirements through his prior work experience and training, and the completion of an additional written assignment. The respondent’s case is that there is no record on any of the electronic systems or in the hard copy records of the applicant having enrolled in, or completed requirements for, the Certificate IV.

42 The respondent’s representative argued that for the applicant’s explanation as to how he obtained the Certificate IV to be correct, every one of the NSCA’s series of record keeping systems and practices would have to have failed, or not been followed. It was implausible if not impossible for a student with no record on Workbench to have been issued with a certificate. The applicant’s representative pointed to the evidence of heavy workload and high turnover of staff at the NSCA, and three moves of office premises, the evidence that there was no copy kept of certificates after issue, and the evidence of Ms O’Sullivan that she signed certificates produced by the Training Co-ordinators without further checking. The respondent’s representative submitted that the NSCA Certificate IV was not a certificate legitimately issued by the NSCA, and that even if it had actually been issued by the NSCA would still be “false or misleading” because the applicant did not actually have the qualification. The applicant’s representative submitted that whether the certificate was “false or misleading” depended on Ms O’Sullivan’s authority to sign the certificates on behalf of the NSCA.

43 The NSCA Certificate IV states, under the NSCA logo:

“Certificate IV In Assessment & Workplace Training

This is to certify

Geoff Walden

has met the requirements of the Competency Standard fro [sic] Certificate IV in Assessment & Workplace Training

Training Small Groups Conducting Assessment

BSZ404A BSZ401A

BSZ405A BSZ402A

BSZ406A BSZ403A

BSZ407A

BSZ408A

BSZ40198

44 Based on the evidence of Ms O’Sullivan I am satisfied that this certificate was printed on the paper regularly used by NSCA. Based on Ms O’Sullivan’s evidence I am satisfied that during the relevant period blank certificates (with NSCA logo) were used to print the certificates issued to students who had satisfied competency requirements. Those requirements could be met by attending a 5 day course and satisfactorily completing assessment requirements, or by obtaining recognition of prior learning for part of that course, and completing some additional assessment tasks. Submission of assessment tasks could occur for some time after the completion of the 5 day course. The practice, as least for that part of the NSCA’s operation for which Ms O’Sullivan was able to give evidence, was that on her authorisation that a student had achieved competency, a Training Co-ordinator would print a certificate which included that student’s name, and details of the course included in the number of the certificate, and that she would then sign the certificate.

45 I am satisfied, based on the evidence of Ms Rugg, that there is no record of the applicant in relation to the Certificate IV course of November 2001, either in the NSCA electronic records or in the hard copy files, and that there is no record of payment for the course, either by the applicant or his employer. The evidence of the applicant was that there was no record of him in the relevant course files because he did not do the course, and that he did not concern himself with payment because he assumed that his employer would take care of it n his behalf. There was no dispute as to the applicant’s experience and qualifications obtained either before or after the NSCA Certificate IV dated January 2002. He had significant industry experience, and had undertaken a number of relevant courses. Based on the evidence of Mr Rohan Geale, at least one of those courses was paid for by his then employer, Caradel Hire. There is no apparent reason why the applicant might have sought to obtain a certificate from the NSCA other than by going through the appropriate processes, whether by attending a course or by satisfying the requirements for recognition of prior learning. The applicant’s explanation as to how he obtained the certificate has been consistent throughout his dealings with WorkCover since the issue was first raised in 2005, and throughout his oral evidence and cross examination.

46 The evidence before me does not support a finding that the applicant obtained the NSCA Certificate IV through some improper means. It follows that either the applicant did satisfy the relevant requirements of the NSCA and there is simply no record of that, or the document was issued by mistake. If the former possibility is correct, the document could not be “false or misleading”. I am satisfied that the NSCA Certificate IV was produced, on paper regularly used by the NSCA for that purpose, within the NSCA. I am unable to make a finding as to how that might have occurred in the absence of any record on the NSCA databases, however I consider that the most likely explanation is that urged by the applicant’s representative, namely human error in a busy organisation. While Ms O’Sullivan was initially adamant that the signature on the certificate is not hers, some room for doubt on that emerged under cross examination. The applicant’s explanation as to how he came to obtain the certificate was credible, given the various means by which individuals could satisfy the NSCA as to their competencies in the areas covered by the Certificate IV, and was not shaken under cross examination. On its face, the NSCA Certificate IV is a statement that the named person “has met the requirements” of the relevant competency standards. It is not a statement that that person has attended any formal face-to-face instruction. However, there is no firm evidence that anyone within the NSCA properly turned their mind to the question of whether the applicant in fact met the relevant competency standards. In those circumstances the only conclusion open to me is that the document was issued by mistake. Applying the principles articulated in Bibald Consulting Pty Ltd v Miles Special Builders Pty Ltd, I consider that the document has to be regarded as “false or misleading”.

47 The next issue that arises is whether the decision to cancel the applicant’s accreditation was the correct and preferable decision. Both parties accepted that there is a discretion whether or not to cancel an accreditation even if the requirements of cl287(1)(c) of the OHS Regulation are met. The respondent’s representative conceded that if I found as a fact that the certificate was mistakenly issued by the NSCA, in the exercise of that discretion cancellation of the applicant’s accreditation would not be the correct and preferable decision. Having regard to the applicant’s extensive experience and prior qualifications, his ready demonstration of the competency requirements for the Certificate IV obtained in 2005, and the evidence of his former employer as to his honesty and diligence, I am satisfied that the correct and preferable decision is not to cancel the applicant’s accreditation, and the decision to do so should be set aside. The period for which the accreditation was in force has now expired, and any application for a new accreditation will need to be determined on the basis of the information available at the time of determination.

Order

Decision under review set aside.