Ward v WorkCover Authority of New South Wales
[2004] NSWADT 258
•11/10/2004
CITATION: Ward v WorkCover Authority of New South Wales [2004] NSWADT 258 DIVISION: General Division PARTIES: APPLICANT
Daniel John Ward
RESPONDENT
WorkCover Authority of New South WalesFILE NUMBER: 043284 HEARING DATES: 26/10/2004 SUBMISSIONS CLOSED: 10/26/2004 DATE OF DECISION:
11/10/2004BEFORE: O'Connor K - DCJ (President) APPLICATION: Occupational Health and Safety Act - OHS Certificate Assessor - suspension of accreditation - OHS Certificate Assessor - suspension of accreditation MATTER FOR DECISION: Principal matter LEGISLATION CITED: Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001CASES CITED: McKellar v WorkCover Authority of New South Wales [2004] NSWADT 136 REPRESENTATION: APPLICANT
In person
RESPONDENT
W Muddle, barristerORDERS: 1. The decision under review is affirmed; 2. The Tribunal’s stay order made 31 August 2004 to continue until the date of resumption of suspension specified by the Respondent; 3. Respondent to notify the applicant within seven days as to when he is to resume serving the suspension of six months and as to the date when it expires, taking account of the period that has already been served.
1 This application for review relates to a decision by WorkCover, as the administrator, to suspend the accreditation of a person appointed 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 assessor, Mr Ward, has applied under cl 351 to the Tribunal for review of the decision. Mr Ward’s accreditation was for assessing applicants for certificates in the use and operation of a fork-lift truck, a kind of scheduled work (see item 10.1 of cl 266). The suspension is for six months.
2 The matters giving rise to suspension all involved, according to WorkCover, breaches of relevant guidelines issued by WorkCover. 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’.
3 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.)
4 WorkCover found that Mr Ward had failed on 24 May 2004 to observe the guidelines in relation to five matters. The original decision (one of cancellation) was notified on 21 June 2004, and took effect on 25 June 2004. That decision was reduced to one of suspension following internal review. On 31 August 2004 the Tribunal stayed the decision of suspension pending further order.
5 Accredited assessors are required to give notice to WorkCover of forthcoming assessments. WorkCover inspectors sometimes attend assessments without notice to assess the competence of the assessor. The required assessment takes the form of a knowledge assessment and a practical assessment in the use of the machinery. There are required elements in respect of both parts of the assessment. The assessor must take steps to prepare the applicants for assessment, by, for example, giving them the information on which they will be tested in relation to their knowledge and in relation to the requirement that they undertake training in the operation of the equipment and maintain a training logbook.
6 Mr Ward gave notice that he would be testing two applicants (Ms Pu, Mr Lester) on 24 May 2004. Inspector Clampett attended. Afterwards, the inspector reported that Mr Ward had failed to observe various requirements of the guidelines. This report gave rise to issuance of notice on 27 May 2004 to Mr Ward to show cause why his accreditation should not be cancelled.
7 On the day Mr Ward commenced with the knowledge assessment. At this point Ms Pu withdrew. Ms Pu was the owner of the business that used a fork-lift truck. Mr Lester was to be the driver. After Ms Pu’s withdrawal, Mr Ward proceeded to assess Mr Lester. Mr Ward’s assessment of Mr Lester was found by the inspector to have contravened the guidelines in various ways, namely:
- 1. That he did not have in his possession at the time of the assessment a current version of the National Assessment Instrument for Fork-lifts or the Assessor Guidelines. Guideline 12 states that ‘[b]efore conducting an assessment assessors must ensure they have the current version of the assessment instrument and the Guidelines. All assessments must be conducted according to the relevant version of the National Certificate of Competency Assessment Instrument that is current at the date of assessment in respect of the class of competency being assessed and the Guidelines.’
2. That before conducting the assessment he failed to verify that the applicant (Mr Lester) had kept and maintained a record of training in accordance with the requirements of cl 275 which provides:
- ‘ 275 Trainee’s obligations
(1) A trainee must keep and maintain a record of training.
(2) The record must contain the following information in relation to scheduled work of the kind to which the training relates:
(a) the name and address of the trainee,
(b) the name and address of each employer for whom the trainee does that work,
(c) the name of each person who supervises the trainee while the trainee is doing that work,
(d) a description of that work as it is actually done by the trainee in the course of training,
(e) a record of the dates on which that work was done.
Maximum penalty: Level 1.’
4. That he failed to record the correct start and finish times for the assessment on the Notice of Satisfactory Assessment. Guideline 62 provides that ‘The times for each assessment component must be accurately recorded on the Assessment Summary and signed by the applicant.’
5. That he left the performance assessment paper on the seat of the fork-lift in a position for the applicant to be able to read the questions and answers.
8 WorkCover presented to the Tribunal a bundle of documents (Ex A) setting out the relevant Regulations and Guidelines, statements from Inspector Clampett, records completed by Mr Ward, relevant correspondence between it and Mr Ward and records of its decisions. At hearing Inspector Clampett gave oral evidence, and was cross-examined. Mr Ward gave evidence and was cross-examined. Mr Lester gave brief evidence and was cross-examined.
9 There was, in the Tribunal’s view, no serious challenge made by Mr Ward to the facts upon which WorkCover relied. He sought to put before the Tribunal various extenuating explanations for the conduct observed.
10 As to 1, he said that the current version of the Guidelines had only come into effect earlier in the same month, on 1 May 2004. Mr Ward stated that he did not have the current Guidelines because his briefcase containing them had been stolen on 7 May 2004. He had reported this event to WorkCover at the time. WorkCover accepted this explanation – as far as it goes. This does not explain why he did not obtain a replacement set of Guidelines.
11 As to this omission, he said in evidence at hearing that he had been told over the phone by an officer of WorkCover that assessors had been given a ‘month’s grace’ before being required to implement the new Guidelines. He was cross-examined. He declined to name the officer said to have given this information. Mr Ward produced no other evidence as to such a conversation.
12 The obligation on Mr Ward was clear. When the new Guidelines were issued to assessors in April 2004 he signed a formal receipt acknowledging their status and that they came into effect on 1 May 2004. It is a matter of concern that Mr Ward has admitted undertaking 39 assessments in the period between 11 May and 24 May 2004 while not having in his possession the current guidelines.
13 As to 2, he acknowledged that this conduct had occurred, but sought to play down the significance of the requirement, largely on the basis that many applicants in his experience did not maintain a training record.
14 Mr Muddle who appeared for WorkCover asserted that the most serious of the allegations was no. 3, falsification of the Training Logbook. The explanation given by Mr Ward was that it was not unusual for assessors to fill out logbooks for applicants.
15 While the Tribunal doubts that it would ever be permissible for an assessor to do this, there might be cases where such an explanation made some sense – say in dealing with someone with limited ability to write English. In such a case one would expect that the information would be inserted in the logbook following a question and answer process.
16 That is not what Inspector Clampett observed on this occasion. Mr Ward simply proceeded to write something in the logbook, and then gave it to Ms Pu to sign on the basis that she had been the trainer of Mr Lester. This was a ludicrous situation. The Tribunal is satisfied that Mr Ward had no reasonable basis for assuming that Ms Pu could possibly have had status as a trainer. She herself had booked in to be assessed for an operator’s certificate; and had now withdrawn. It was clear from Mr Lester’s evidence at hearing that he had come to the assessment with some (limited) prior acquaintance with fork-lift driving, and had prepared by studying the information which Mr Ward had given him ahead of the assessment.
17 As to 4, Mr Ward acknowledged that he had not filled out the document in the way required, but had simply given an estimate of the time taken, one and half hours. He based this estimate on what he found was the average time to do an assessment.
18 As to 5, he said that he had simply left the assessment instrument on the seat of the fork-lift for about thirty seconds while he had gone away to wash his hands which had come into contact with grease. Nothing untoward had, in his opinion, occurred. Mr Lester had not actually sighted the sheet. Mr Lester gave evidence that he had not actually sighted the sheet, which the Tribunal accepts.
19 As to whether such an occurrence created any risks for the integrity of the assessment process, Mr Ward considered it did not, because all the topics set out on the sheet would already be known to the applicant, by dint of the comprehensive information that he had been given in advance. Sighting the sheet would not, in his view, make any difference to the soundness of the assessment of the applicant.
20 None of Mr Ward’s explanations, in the Tribunal’s view, has any substance. The explanations, in the Tribunal’s view, were those of a person who was indifferent to the importance of relevant standards.
21 The picture which emerged was of a person who did not, the Tribunal considers, take seriously those requirements which he saw as not bearing upon the core driving competencies of the person being assessed.
22 Mr Ward indicated in reply to a question from the Tribunal that he saw as the matter of greatest importance whether the driver displayed the necessary skills in respect of driving. He asserted to the Tribunal that he would never licence someone who did not have the necessary driving skills. The Tribunal accepts that he is sincere in his expression of that attitude. But this response fails to give weight to the importance of the other requirements laid down by WorkCover.
23 As to matter 1, it is critical that assessors be seen to take seriously the current guidelines, and ensure that their requirements are strictly observed in the assessment process. The Tribunal does not give any weight to Mr Ward’s statement that he thought he had a month’s grace.
24 Matters 2 and 3 go to the training and logbook requirements. In the Tribunal’s opinion, Mr Ward sees as critical the question of whether the applicant is a capable operator in a practical sense. He does not share fully WorkCover’s view as to range of other matters (knowledge requirements, evidence of training) that it also sees as critical. This is unacceptable. The accredited assessor must embrace fully the standards laid down by WorkCover.
25 Training may have exposed the applicant to circumstances and situations that are not replicated at the test on the day. It provides an additional degree of assurance that if the applicant experiences an awkward or dangerous situation they may have some capacity to respond well. The training relationship provides the applicant with a person to whom he or she may be able to turn for advice and help in the future. The logbook is a way of gauging the hours of driving experience and the diversity of work situations to which the trainee has been exposed.
26 Mr Ward’s conduct in proceeding to fill in the logbook and give it to Ms Pu while a formal inspection was being conducted points to an entrenched indifference on his part to the importance of that aspect of the requirements.
27 As to 4, it is clear that Mr Ward should have filled out an exact time sheet. It is important to the integrity of a process of this kind (where responsibilities are given to persons operating as private contractors free of any continuous public service oversight) that there be exactness as to the time spent on that task. Otherwise there may be an increased temptation for people who work on a fee-for-service basis to crowd the day with an inappropriate number of assessments. Mr Ward displayed little insight into the regulatory value of a requirement that the assessment sheet show exact start and finishing times.
28 As to 5, the Tribunal is of the view that Mr Ward’s carelessness points again to him having little insight into the integrity issues involved in this system of assessment. It is not unusual for applicants for certificates in industrial occupations to be given ahead of time question and answer information to help them prepare for the tests on the day. But it remains important that on the day they not have an extra opportunity to refresh their memory. At that point they are expected to have absorbed the information. One of the questions on the information sheet that was exposed went to the potential hazards that a fork-lift driver should have in mind and look out for. Clearly, if the applicant could immediately before being asked such a question refresh his or her mind as to the hazards that WorkCover has identified as important, that might bear on the weight to be given to an accurate answer going to that topic.
29 All five breaches are proven. They are serious breaches, especially those relating to the lack of possession of the current guidelines, the failure of Mr Ward to satisfy himself that the applicant had a training record and the making of a false log book entry. The case revealed a significant lack of appreciation by Mr Ward of the seriousness of his misconduct.
30 The internal reviewer’s decision to reduce the order from cancellation to six months’ suspension was based on the fact that the breaches identified had occurred in respect of one case only.
31 Mr Ward stated that he had completed more than 2000 assessments since obtaining his accreditation in 2002. He told the Tribunal that he had for many years managed warehouses and had driven fork-lifts. He said that he had obtained a similar accreditation in Queensland in or about 1997 and had moved to New South Wales in 2002, at that time taking out an accreditation here. He said his age was 71 years. He said that he had no real prospect of other work if he could not continue as an assessor. He said that he charged a $90 fee for an individual assessment, and more if a company was involved with a number of drivers. His letterhead refers to his accreditation and to his being available as a trainer of fork-lift drivers. (There is no requirement requiring accreditation as a trainer.)
32 The bundle of documents includes some testimonials from people in the industry praising Mr Ward. They do not comment on the detail of the provisional findings of WorkCover.
33 Mr Ward’s evidence raised real doubts in the Tribunal’s mind as to whether Mr Ward has any real commitment to the standards in issue in this case, which he referred to dismissively on more than one occasion as ‘paperwork’ requirements. The Tribunal asked Mr Ward what steps he had taken to rectify his procedures so as to avoid the problems identified by this case, and no satisfactory response was provided. The Tribunal was left with the impression that there was a real risk that Mr Ward might repeat the errant conduct.
34 The regulatory system in which Mr Ward plays a part can only function properly if every assessor shows a commitment to the requirements imposed by WorkCover and sees that they are strictly observed in practice. WorkCover should not have to send inspectors constantly back to the same assessors to see that they are doing their work properly. The Tribunal’s concern is that that is precisely what may be required if Mr Ward does not rethink his present attitude to the regulatory requirements.
35 Clearly, WorkCover has made the correct and preferable decision.
36 Mr Ward must resume serving the period of suspension. The Tribunal’s understanding is that the period served so far is two months and 6 days (25 June to 31 August). The balance therefore, according to the Tribunal’s calculation, is three months and 24 days.
37 The Tribunal’s order will be that Mr Ward is to resume serving the period of suspension on a date to be advised by WorkCover with the date of expiry of the suspension to be advised by WorkCover. By leaving the date of resumption to WorkCover to set, the Tribunal is providing some allowance for it to decide whether any allowance needs to be made to permit Mr Ward to complete assessments that have already been booked in. The Tribunal’s stay order continues therefore until the date of resumption of suspension set by WorkCover.
Order
- 1. The decision under review is affirmed.
2. The Tribunal’s stay order made 31 August 2004 to continue until the date of resumption of suspension specified by the Respondent.
3. Respondent to notify the applicant within seven days as to when he is to resume serving the suspension of six months and as to the date when it expires, taking account of the period that has already been served.
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