Taylor v WorkCover NSW [2006] NSWADT 309

CITATION: Taylor v WorkCover NSW [2006] NSWADT 309

DIVISION: General Division

APPLICANT PARTIES: Taylor RESPONDENT WorkCover NSW

FILE NUMBER: 063017

HEARING DATES: 20/10/06

SUBMISSIONS CLOSED: 10/20/2006

DATE OF DECISION: 11/01/2006

BEFORE: Handley R - 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

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001

McKellar v WorkCover Authority of NSW [2004] NSWADT 136 CASES CITED: Tubaro v WorkCover Authority of NSW [2004] NSWADT 260 Ward v WorkCover Authority of NSW [2004] NSWADT 258

APPLICANT MJ Perry, barrister REPRESENTATION: RESPONDENT W Muddle, barrister

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 On 23 December 2005, Eric Taylor applied to the Tribunal for a review of a decision of WorkCover NSW ('WorkCover'), dated 16 November 2005, confirming a decision dated 19 July 2005 to cancel Mr Taylor's accreditation as an Occupational Health and Safety ('OHS') Certificate Assessor from 1 August 2005. The Regulatory Background 2 Pursuant to the powers in Part 3 of the Occupational Health and Safety Act 2000, the Occupational Health and Safety Regulation 2001 ('the 2001 Regulation') provides for the accreditation of assessors, who are empowered to issue certificates of competency (known as 'tickets') authorising persons to do particular kinds of scheduled work. Accredited assessors are not employed by WorkCover but perform their functions independently in accordance with regulatory requirements, and are paid on a fee for service basis. Clause 287 of the 2001 Regulation empowers WorkCover to suspend or cancel the accreditation of an assessor where the assessor has carried out an assessment of competency "otherwise in accordance with the guidelines issued by WorkCover in relation to the conduct of assessments". This is also an offence under cl 281(3). Clause 351 enables a person aggrieved by a decision under cl 287 to apply to the Tribunal for a review of that decision. The Tribunal's function "is to decide what the correct and preferable decision is having regard to the material before it": Administrative Decisions Tribunal Act 1997, s 63. 3 New 'Guidelines for Certificate Assessors' ('the Guidelines') issued by WorkCover (pursuant to cl 282) took effect on 1 May 2004. These Guidelines include a code of conduct. Assessors were required to sign a declaration acknowledging receipt of the new Guidelines and undertaking to comply with them. Mr Taylor signed such a declaration on 28 April 2004. 4 These general Guidelines must be read in conjunction with National Certification Standard Assessment Instruments ('the Instruments'), which set out specific assessor guidelines and standards of competency for particular assessments. A person who wishes to undertake scheduled work (such as scaffolding, rigging, dogging, operating cranes, hoists, forklift trucks, and other load shifting equipment (for example, excavators, backhoes, bobcats)), must hold a certificate of competency or recognised qualification for that kind of work. The person is required to keep and maintain a record of training (cl 275) and will be issued with a certificate of competency upon satisfactorily completing various theoretical and practical assessment tasks relevant to the particular type of work. Clause 278 requires that a person's competency to do the particular work must be of a standard equal to or better than the appropriate competency standard. 5 Strict compliance with the Instruments is required because the operation of heavy machinery and the performance of scheduled work is hazardous both to the operators and others in the vicinity. The assessment and certification process is fundamental to ensuring the minimisation of risk. (See, for example, the report of the Independent Commission Against Corruption ('ICAC'), Report on investigation into safety certification and training in the NSW construction industry (June 2004), p 70.) Mr Taylor's Evidence 6 Mr Taylor provided an affidavit dated 22 June 2006 and gave oral evidence at the hearing. He lives in Dubbo and was accredited as an assessor on 17 June 1996. In his work as an assessor, Mr Taylor covered western NSW, from Penrith to the South Australian and Queensland borders. The majority of his assessments were undertaken for two or three training organisations. He was "flat out" because there were not enough assessors covering the area. There was one other assessor in Dubbo, who also had other work; there were two or three other assessors in Orange who worked as part-time assessors. In cross-examination, Mr Taylor said he had earned over $300,000 per annum from conducting assessments. The assessments included applicants in correctional centres and the long term unemployed, many of whom had literacy problems and found written tests difficult. 7 Mr Taylor said that in the period to April 2004, WorkCover inspectors audited his work as an accredited assessor on 13 occasions and he was found to be 100% in compliance with the relevant guidelines and legislation. He had an unblemished record. 8 Mr Taylor said at about the time the new Guidelines were introduced, he attended a meeting for assessors held at Parramatta. He then reviewed his assessment practices to ensure they complied with the new Guidelines, although, in his opinion, there were not many significant differences between the old and new Guidelines. Mr Taylor acknowledged that it was not the responsibility of WorkCover to supervise his work. He said he had no reason to believe his work as an assessor did not comply with the new Guidelines until about 10 August 2004 when he asked David Barker, who was conducting an audit of Mr Taylor's work, for feedback on his performance. Mr Barker told him that he had to record individual times for the assessments he conducted. From that time on, Mr Taylor did so. Mr Taylor said that although before this he believed he was complying with the Guidelines, he now recognises that he had not been complying with par 62 of the Guidelines which requires the assessor to accurately record the assessment times for each assessment component. 9 Mr Taylor said he also attended a compulsory briefing on the new Guidelines on about 17 August 2004, when he had a further brief conversation with Mr Barker. In the course of this conversation, Mr Taylor asked whether there were other areas where he needed to improve. Mr Barker said words to the effect of "No it looks fine". On about 28 September 2004, Mr Taylor spoke with Mr Barker again when Mr Barker carried out a surprise audit of an assessment Mr Taylor was undertaking at Narromine. Mr Taylor again asked for feedback, but Mr Barker said words to the effect of "You're going OK". 10 Mr Taylor acknowledged that he made errors in marking assessment papers and agreed this was because of the high number of assessments he undertook. He said he takes cheating seriously and denied being aware of any cheating by two applicants O and P, identified by Mr Barker, whose answers to a number of questions in their test papers were very similar. Mr Taylor said when he assesses a number of applicants at the same time, he positions them so they cannot see each other's work and distributes a number of different question sheets covering the same material in order to prevent cheating. However, he agreed he could better ensure against cheating by assessing applicants individually. 11 Mr Taylor also agreed that neither of these same two applicants had training logs although he ticked that they had. They only had work diaries. He said that at the Parramatta meeting for assessors at the time of the introduction of the new guidelines about 1 May 2004, the assessors were told that if applicants could not comply with this requirement but provided a statutory declaration detailing their compliance with the training requirements, that was sufficient. Mr Taylor said if he assessed applicants as competent, he would issue them with a Notice of Satisfactory Assessment ('NSA') even if they were unable to produce a training log. 12 Mr Taylor said if he was uncertain about an applicant's answer to a particular question, he would make a mark on the answer paper so that he could ask the applicant for clarification at the end of the test. He acknowledged that he did not, as required by par 48 of the Guidelines, note on the answer paper the oral answer given by the applicant when asked by Mr Taylor for clarification. Mr Taylor said this was the situation with many of the cases raised by Mr Barker. Mr Taylor addressed each of the allegations in his affidavit. He said that in the period May to October 2004, he marked between 10% and 20% of applicants as not competent. 13 Mr Taylor stated that where he had made an error, he did not intend to mislead WorkCover. He attempted to be fair with applicants, he never abused his position as an assessor at any time, nor ever engaged in corrupt conduct. Mr Barker's Evidence 14 David Barker, Assistant Principal Inspector for WorkCover, provided an affidavit dated 26 September 2006 and gave oral evidence at the hearing. Mr Barker said he had been employed by WorkCover as an Inspector for five years. Whilst attached to the Audit Management Unit, his duties included monitoring assessors to ensure they were conducting their assessment tasks in accordance with the legislation. 15 In his affidavit, Mr Barker addressed the relevant Instruments for undertaking the various types of scheduled work referred to above, and the Guidelines. He stated WorkCover has the statutory responsibility for ensuring compliance with occupational health and safety legislation in NSW. This includes the monitoring and auditing of assessors to ensure they are adhering to their statutory duty of strict compliance with the 2001 Regulation and the Guidelines. One of the key means of uncovering non-compliance is undertaking audits of NSAs issued by assessors. To enable this auditing to be undertaken effectively, it is critical that the process by which each NSA is granted is transparently documented. Without strict compliance with the documentation requirements, WorkCover's ability to uncover non-compliance or corruption is severely limited. For example, where an assessor seeks oral clarification of an answer given by a student on a test paper, WorkCover has no independent means of checking whether the student reached the required standard in the absence of written proof of clarification from the assessor. 16 Mr Barker said at the time of the ICAC inquiry, WorkCover developed a series of indicators to identify situations where there is a high risk of non-compliance, for example, where an assessor conducts a high number of assessments, or conducts assessments with groups of applicants. Mr Barker's role was to audit assessors, and he started investigating Mr Taylor because of "the extremely high number of assessments carried out by the applicant in relation to all other certificate assessors" (affidavit, par 56). Mr Barker said of approximately 400 assessors in NSW, Mr Taylor had one of the highest numbers of assessments. 17 Mr Barker stated that in the course of his investigation of assessments conducted by Mr Taylor, he uncovered evidence of failure to comply with the Guidelines and also of a failure to conduct the assessment tasks in accordance with the Instruments for particular scheduled work. Mr Barker said, in his opinion, these breaches, when considered cumulatively, justified cancellation of Mr Taylor's accreditation. In his affidavit, Mr Barker then addressed the alleged breaches in turn. These include evidence of cheating, incorrect or incomplete details on the NSA (for example, of assessment times), failure to verify training records, incorrect use of the NSA book, critical questions incorrect, failure to mark in accordance with an Instrument, failure to mark incorrect, incomplete or inadequate answers as incorrect, marking unanswered questions as correct, an NSA issued where the applicant had achieved insufficient performance criteria, and failure to record oral clarification of answers. 18 Mr Barker stated he did not recollect speaking with Mr Taylor on 28 September 2004 as Mr Taylor alleges. Mr Barker said formal cautions were issued to Mr Taylor on 22 June 2004 and 1 September 2004 for breach of the Guidelines. 19 In cross-examination, Mr Barker was asked about the specific assessor guidelines contained in each Instrument. He acknowledged that at par "3.3 Knowledge", the guidelines state, "Use your own judgement when scoring alternative answers". Moreover, at par "4.4 Further Investigation", the guidelines state: "Whenever you are unsure of the applicant's performance or knowledge, ask additional questions, and obtain additional evidence, before making your final decision." 20 Mr Barker was also questioned about the assessment of applicants with literacy problems. He said the assessor had the option of conducting an oral assessment of an applicant away from others, and recording the questions and answers. Mr Taylor's Submissions 21 Mr Perry, for Mr Taylor, submitted that Mr Taylor has a good history in the period prior to 2004, having been audited on 13 occasions with 100% conformity. Mr Taylor was targeted when the new Guidelines took effect in 2004, at the time of the ICAC investigation, because he was a high volume assessor. He has been up front in addressing the matters raised by Mr Barker and seeking feedback. For example, after he became aware of the need for applicants to have a training log, he sent them away when they did not have the proper documentation (Mr Taylor's affidavit, par 19 and par 20). 22 Mr Perry acknowledged that there were clearly deficiencies and breaches of the letter of the Guidelines, and Mr Taylor concedes he used his discretion in ensuring that in their written tests, applicants had a wholistic understanding of the material, for example, in the case of applicants with literacy problems. He contended this was permitted by par 3.3 and par 4.4 of the specific assessor guidelines in the Instruments. Mr Barker submitted that, notwithstanding deficiencies in the paperwork, Mr Taylor went about his work professionally and with integrity, and in accordance with the spirit of the Guidelines and the Instruments. It was not until 10 August 2004, that Mr Taylor understood the need to record individual rather than block assessment times for applicants. As soon as he became aware of this, he changed his practice to comply with the Guidelines. Mr Taylor is also now well aware of the importance of making notations on applicants' test papers where he seeks oral clarification of answers. 23 Mr Perry said if Mr Taylor is allowed to continue his work, he would completely remodel his work to ensure compliance with the Guidelines and Instruments. Many of the breaches identified by Mr Barker are relatively minor, and WorkCover concedes there is no evidence of corruption or collusion by Mr Taylor. Mr Taylor acknowledges his mistakes and Mr Perry submitted that the appropriate and correct and preferable decision is to suspend Mr Taylor's accreditation rather than to cancel it. In considering what is an appropriate period of suspension, it should be noted that Mr Taylor has been without accreditation since 1 August 2005, a period of over 14 months. WorkCover's Submissions 24 Mr Muddle, for WorkCover, said WorkCover's jurisdiction is a protective one. Assessors are the sole gatekeepers to the operation of potentially dangerous machinery, and work unsupervised. It is essential they comply 100% with the Guidelines and in a transparent way, so that non-compliance, and corruption and collusion can be identified. Mr Muddle noted that each breach of the Guidelines is also an offence. 25 Mr Muddle conceded that there is no evidence of corruption or collusion. However, a large number of breaches – approximately 60 - were identified in a period of five months. In many instances, the answers given by applicants to test questions were wrong and even though Mr Taylor states he sought oral clarification, this cannot be checked because he made no notation about the oral component. Mr Taylor is unable to corroborate his claim that he clarified the answers orally, because he has difficulty remembering exactly what happened. Clearly, one interpretation is that the applicants in question were not appropriately qualified. 26 Mr Muddle stated that Mr Taylor was not an employee of WorkCover and WorkCover was not empowered to direct his conduct other than through the Guidelines. Supervision of assessors is not part of the occupational health and safety regime. Mr Muddle noted that Mr Taylor has conceded that he rushed assessments (Mr Taylor's affidavit, annexure C, p 15). With regard to his evidence, it is not open to Mr Taylor substitute his own criteria or allow his own opinion as to the competence of an applicant, based on his own experience, to prevail. For example, sole traders can still get training outside the workplace and it is not open to the assessor to substitute his independent opinion that they are competent in the operation of a machine because of ownership of a machine, and waive training requirements. Allowing people to operate equipment without appropriate experience poses a risk to the public. 27 Mr Muddle referred to the decision of the Tribunal in McKellar v WorkCover Authority of NSW [2004] NSWADT 136, at par 32 to par 33, where Montgomery JM emphasised the importance for workplace and public safety of assessors complying strictly with the prescribed Guidelines and assessment Instruments, and said, "It is vital that assessors understand their obligations and are able to satisfy critical performance criteria". In Ward v WorkCover Authority of NSW [2004] NSWADT 258, the President of the Tribunal, O'Connor DCJ, said at par 27: "It is important to the integrity of a process of this kind (where reponsibilities are given to persons operating as private contractors free from 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." 28 Similarly, in Tubaro v WorkCover Authority of NSW [2004] NSWADT 260, at par 55, O'Connor DCJ noted that WorkCover's inspectorial and audit resources can only ever assess a small sample of the assessments carried out across the State. As a result: "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." 29 Mr Muddle submitted that the relevant considerations for the Tribunal are (a) the very high number of assessments undertaken by Mr Taylor, (b) his admission "what I'm principally guilty of is trying to rush through assessments" (annexure C to his affidavit), (c) the very high number of breaches apparent from an audit of a limited period, (d) evidence that Mr Taylor substitutes his own criteria for those prescribed, for example, marking as 'correct' answers he deems satisfactory even if they do not comply with the prescribed answer, or not requiring log book evidence of training, (e) where Mr Taylor's evidence is that he sought oral clarification of an answer, failure to comply with the requirement that he record this oral clarification, with obvious consequences for the transparency of the process, and (f) the evidence of cheating and Mr Taylor's failure to appreciate his responsibility to ensure this did not happen. 30 Mr Muddle submitted that suspension of Mr Taylor's accreditation is not appropriate given lack of confidence as to his future conduct. Mr Taylor failed to appreciate the requirements of the system and the statutory scheme, which rely on the strict application of criteria and proper documentation, and avoid reliance on individual discretion. Discussion and Findings 31 As stated above, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all the material before it. WorkCover has presented evidence of a relatively large number of breaches - approximately 60 - of the Guidelines and Instruments in assessments conducted by Mr Taylor between 13 May 2004 and 15 October 2004, a period of about five months. WorkCover concedes there is no evidence of corruption or collusion involving Mr Taylor. Indeed, the Tribunal formed the view that he is a person of integrity who sought to be fair in his conduct of assessments. 32 In my view, Mr Taylor's seeking to be fair in his conduct of assessments is in part responsible for the shortcomings identified in the audit of assessments conducted by Mr Barker. In pursuing what he considered to be fair, Mr Taylor at times relied on his own judgement, and was 'flexible' in the application of the required assessment criteria where he considered this appropriate. For example, he was prepared to waive the requirement for a training log where applicants were able to provide evidence of diary entries (see par 11, above) – in breach of Guideline 30, which requires that "[t]he assessor must verify that an applicant kept and maintained a record of training", and that if the applicant is unable to do so, the assessor must not conduct the assessment; he also appears to have allowed a significant degree of latitude in determining what was a correct answer to a test question – for example, in vol 2 of the annexures to Mr Barker's affidavit, applicant BA's answer at qu 106 and BQ's answer at qu 5, were marked 'correct' when they were incorrect. 33 Mr Taylor's evidence was that when he marked the answers to test papers, he made a mark on the paper where he considered there was a need for clarification of an answer and to remind him to seek clarification from the applicant. Having sought oral clarification, and being satisfied with the response, he merely ticked the original answer without noting the clarification given by the applicant. This is in breach of Guideline 48, which requires that where oral clarification is sought, "the applicant's answer must be immediately recorded by the assessor onto the assessment paper ... as stated by the applicant ... [and] [t]he assessment paper is to clearly indicate that it was an oral assessment". In cross-examination, Mr Taylor was taken to a number of papers where he had failed to do this (for example, in vol 2 to the annexures of Mr Barker's affidavit, applicants AA's and AF's answers at qu 73 – a mandatory qu, and applicant AU's answers at qu 2 and qu 4, and applicant AV's answer at qu 135). Mr Taylor's practice in so doing indicates his lack of appreciation of the need for transparency in the assessment process so that WorkCover can be confident that assessments have been properly conducted. 34 In giving oral evidence, Mr Taylor conceded that he made errors because of the large number of assessments he conducted. In a letter of response to WorkCover dated 24 March 2005 (annexure C to his affidavit), he also conceded that he rushed through assessments "to fit in with applicant time frames and plant availability allocated by others". It appears that because he often assessed applicants in a block rather than individually, he entered block rather than individual assessment times on the NSAs issued for applicants, in breach of Guideline 62, which requires that "[t]he times for each assessment component must be accurately recorded". WorkCover submit this also led to Mr Taylor's making a misleading declaration (in breach of Guideline 6) when completing applicants' NSAs, because he stated incorrect start and finish times for the assessment components. 35 When, in September 2004, Mr Taylor became aware that his practice of recording block assessment times was not in accordance with the Guidelines, he changed his practice in order to comply. In my view, this is an example of his general willingness and commitment to comply with the Guidelines and Instruments. The problem in the past has been his lack of appreciation of the need for strict adherence to the Guidelines. 36 With regard to the allegation of cheating by the applicants O and P, I am satisfied, having examined the test answers, that the evidence of the similarity of the test answers certainly raises the possibility of cheating, although in oral evidence Mr Taylor sought to explain this away. He said there were eight applicants in the particular group assessed. They answered the test sitting at two tables, and he used three different sets of questions to avoid cheating. If indeed there was cheating, which seems likely, this raises two issues. First, Mr Taylor should have taken further steps to prevent this occurring. Although in cross-examination, he said that he placed applicants sitting the written test in positions where they would not be able to cheat (as required by Guideline 45), the evidence of the answers suggests this was not effective, and he also conceded he could have done more. Secondly, if Mr Taylor had been vigilant in marking the test answers, he should have recognised the similarity of the answers and the possibility of there having been cheating, and dealt with this appropriately. The fact that he did not identify the cheating is, in my view, a further indication of Mr Taylor's rushing the assessment process and thereby not conducting that process sufficiently rigorously. 37 Mr Taylor's lack of insight into and appreciation of the regulatory system and of the significance of strict compliance and transparency is a matter of concern. In giving oral evidence, he acknowledged that in May 2004 he had not been aware of the ICAC investigation and had only read the ICAC Report on investigation into safety certification and training in the NSW construction industry, published in June 2004, two days before the hearing. 38 In terms of the breaches of the Guidelines and Instruments alleged by WorkCover and identified by Mr Barker in his affidavit, I am satisfied that a significant number of breaches occurred, examples of which I have referred to above. WorkCover was therefore empowered to suspend or cancel Mr Taylor's accreditation pursuant to cl 287 of the 2001 Regulation. In my view, given the relatively large number of breaches over a relatively short period, the correct and preferable decision is that Mr Taylor's accreditation be cancelled. 39 I note, however, that Mr Taylor has obviously been chastened by the course of events leading up to and including these proceedings, and having over the past 18 months addressed the outcome of the WorkCover audit of his past assessment practices. He will, therefore, be particularly conscious of the need for strict compliance with the Guidelines and Instruments and for adherence to the statutory scheme in pursuit of the goal of protecting public safety and minimising risk of harm. He should also understand the importance of a transparent assessment process, amenable to audit by WorkCover. Although in my view, WorkCover's decision to cancel his accreditation as an assessor should be affirmed, should he re-apply to WorkCover for accreditation, his past good history of compliance in the eight years pre 2004 should be taken into account together with my finding that he is a person of integrity. Decision The decision under review is affirmed.