Affordable Forklifts v Workplace Health and Safety [2014] QCAT 401

CITATION: Affordable Forklifts v Workplace Health and Safety [2014] QCAT 401 PARTIES: Affordable Forklifts (Applicant) v Workplace Health and Safety (Respondent) APPLICATION NUMBER: GAR122-14 MATTER TYPE: General administrative review matters HEARING DATE: 27 May 2014 HEARD AT: Brisbane DECISION OF: Dr Cullen, Member DELIVERED ON: 14 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The 21 February 2014 decision of Workplace Health and Safety Queensland cancelling Mr Bennett’s accreditation as an assessor is confirmed. 2. The 21 February 2014 decision of Workplace Health and Safety Queensland precluding Mr Bennett from reapplying for accreditation as an assessor is set aside. The Tribunal amends the decision to preclude Mr Bennett from reapplying for accreditation as an assessor for a 6- month period, expiring on 20 August 2014. CATCHWORDS: Administrative Review – Decision by Workplace Health & Safety to cancel license of accredited assessor – cancellation warranted as assessor failed to comply with conditions of licence Work Health and Safety Regulation 2011 (Qld) Vocational, Education and Training Act 2000 (Qld) -- 1 of 8 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Paul Waltham, Senior Legal Officer, Legal and Prosecutions Services, Workplace Health & Safety Queensland for the Applicant RESPONDENT: Dearne Galbraith, of Counsel, instructed by Ferguson Cannon Lawyers for the Respondent REASONS FOR DECISION [1] The Applicant, Jamie Lee Bennett, is the sort of man who, on his own admission, is more comfortable driving a forklift than reading the legislation applicable to his role as a forklift assessor. However, Mr Bennett has found himself working in an area rife with complex regulatory requirements that he unfortunately appears to understand little about. [2] Mr Bennett works for himself under the trading name Affordable Forklift Training as an assessor for persons applying for “high risk work licences” to operate forklift trucks. He was accredited to perform this assessment work by the respondent, Workplace Health and Safety Queensland (“WHSQ”), in 2012. [3] Affordable Forklift Training also assisted with training the persons interested in becoming forklift truck drivers in conjunction with a Registered Training Organisation (RTO) operating under the name First Options Training Solutions. [4] On 29th April 2013, WHSQ Inspector Darren Robinson attended Mr Bennett’s premises in order to conduct an audit of the assessment process. Some 10-months later, WHSQ made a decision to cancel Mr Bennett’s accreditation to perform such assessments. The decision of 21 February 2014 was internally reviewed by WHSQ, and upheld on 10 March 2014. [5] Since this time, Mr Bennett has been unable to perform assessments, and he seeks review of WHSQ’s decision to cancel his accreditation in the Tribunal. WHSQ found that Mr Bennett had failed to comply with several conditions imposed on accredited assessors, as is permitted under s 121 of the Work Health and Safety Regulation 2011 (Qld) (the Regulation). Regulatory Framework [6] A complex regulatory regime exists in relation to accredited assessors and the RTOs that they are affiliated with. [7] In order to obtain a licence to work in a “high risk work activity,” it is necessary for the licensee to complete the required vocational education and training course (“VET” course). These VET course work requirements -- 2 of 8 -- 3 are listed in Schedule 4 of the Work Health and Safety Regulation 2011 (Qld). [8] VET courses are conducted by Registered Training Organisations (‘RTOs’) that are registered under the provisions of the Vocational, Education and Training Act 2000 (Qld). Whilst RTOs conduct the teaching aspects of VET courses, the assessment aspects are conducted by an assessor, such as Mr Bennett. It is not in dispute that Mr Bennett wore two different hats – one in his capacity as an accredited assessor; the second in his role as an employee involved in the teaching of a VET course for an RTO (First Options Training Solutions). Regulation of Accredited Assessors [9] In order for a person, such as Mr Bennett, to become an accredited assessor, they must apply for such accreditation and complete training provided by the Workplace Health and Safety Queensland (‘WHSQ’). [10] The Regulation imposes a number of conditions on the accreditation of assessors including conditions relating to the competency assessment and the circumstances in which assessment activities may be carried out. [11] An assessor is required to comply with these conditions under s 4 of the Regulation. Contravention can result in suspension or cancellation of the grants of accreditation by the regulator, WHSQ. Regulation of Registered Training Organisations [12] The respondent in this matter, WHSQ, has no regulatory role vis-à-vis RTOs. Rather, that falls within the realm of the Australian Skills Quality Authority (“ASQA”), the national regulator for the Australian vocational education and training sector. [13] ASQA is responsible for the actual content of the VET courses, as well as for regulating the RTOs that provide nationally accredited vocational education and training. [14] The various license conditions that WHSQ alleges Mr Bennett breached are addressed, in turn, below. Providing copies of test answers [15] WHSQ alleges that Mr Bennett breached condition 3.2.9 of his licence conditions: You must not supply or otherwise provide a copy of any national or Queensland assessment instrument or part thereof or any model answers to any person other than to an applicant in the ordinary course of an assessment. [16] Mr Bennett admitted that he had provided a training book to students that contained answers to some of the assessment questions in sections flagged “critical” within the book. It is rather obvious that supplying the -- 3 of 8 -- 4 exam answers to students defeats the purpose of the exam. Mr Bennett did not produce the training book himself; it had been provided to him by the RTO that he is aligned with, First Options Training Solutions. He explains that after being advised of WHSQ’s concerns in this regard, he asked his RTO to remove the answers from the materials they supplied him with, in order to rectify the problem. It appears that this did, in fact, happen prior to Mr Bennett’s accreditation being cancelled. [17] Whilst the Tribunal acknowledges the steps taken by Mr Bennett to rectify WHSQ’s concerns once brought to his attention, the Tribunal finds that Mr Bennett did breach Condition 3.2.9. It should have been apparent to Mr Bennett that he could not allow the testing to have taken place with the materials as they were. Mr Bennett did not ensure students had completed a training course prior to assessment [18] WHSQ alleges that Mr Bennett breached condition 3.3.2 of his licence conditions: “[B]efore conducting any assessment you must ensure that the applicant has completed the course of training. That is, the applicant has completed all formal training delivered by a RTO and all informal learning conducted on the job”. [19] WHSQ alleges that Mr Bennett knew, on his own admission, that some of the students he assessed had not completed all of the formal and informal training required by his RTO, First Options Training Solutions. During the investigation by WHSQ, Mr Bennett admitted that, prior to assessment, the training he provided the students with as part of his role working for the RTO involved his merely providing the students with the workbook supplied to him by the RTO and conducting classroom training only when requested. [20] In his affidavit material, Mr Bennett submits that he did not assess a student before he thought they were ready. Whilst the Tribunal accepts that Mr Bennett genuinely believed this to be the case, it also finds that such a belief could not be reasonably held. It should have been readily apparent to Mr Bennett that the training prior to assessment should have included as a compulsory component classroom training, given the reference to “formal training” within Condition 3.3.2. It is unreasonable for Mr Bennett to have believed that the “course of training” would involve nothing more than passage of a workbook between teacher and student. The Tribunal finds that Mr Bennett has failed to comply with Condition 3.3.2. Mr Bennett did not ensure that the RTO had deemed students ready to complete assessment before doing so [21] WHSQ alleges that Mr Bennett failed to comply with Condition 3.3.3 in that he did not ensure that his RTO, First Options Training Solutions, deemed -- 4 of 8 -- 5 certain students ready to undertake relevant assessment before assessing them. [22] Mr Bennett admits that this did not occur, but asks that the Tribunal consider the agreement he had in place with his RTO, First Options Training Solutions. The agreement was essentially to the effect that First Options Training Solutions would engage Mr Bennett to conduct its courses with their materials. The Tribunal finds that Mr Bennett has failed to comply with Condition 3.3.3, and considers that Mr Bennett’s submissions about First Options Training Solutions are a matter that should be considered in relation to the appropriate period of cancellation. [23] It appears reasonably clear to the Tribunal that First Options Training Solutions had delegated a significant amount of its own responsibilities to Mr Bennett, with little, or no, instruction. However, given the dichotomy between regulators (WHSQ regulating accredited assessors and ASQA regulating RTOs), WHSQ (and therefore the Tribunal) is constrained to an examination of Mr Bennett’s conduct. WHSQ has not established that Mr Bennett assisted students during the assessment, or conducted calculations orally [24] WHSQ alleges that Mr Bennett failed to comply with Condition 3.4.16 in that, on his own admission, he provided certain students with assistance in completing the written knowledge and calculations portions of the assessment. Condition 3.4.16 requires that students complete the assessment without the assistance of any other person. [25] The evidence in respect of this issue rises no higher than Mr Bennett’s own admission that he assisted students on particularly difficult or misleading calculations questions. As the Tribunal understood Mr Bennett’s evidence, he did not tell students the answers, but perhaps explained the question in alternative terms. Without further evidence, the Tribunal is unable to find that Mr Bennett failed to comply with Condition 3.4.16. [26] Similarly, the Tribunal is unable to find that Mr Bennett failed to comply with Condition 3.4.19, which prohibits calculations assessments being conducted orally. WHSQ admits that, as is a common feature of exam invigilation, questions may be read aloud to students who require clarification. Again, without further evidence, the Tribunal cannot conclude that Mr Bennett has engaged in anything more than this. Mr Bennett has breached the requirement to complete a checklist for practical assessments [27] WHSQ alleges that Mr Bennett has contravened Condition 3.4.24, in that assessors are required to complete a “checklist” when students complete practical assessments. This is part of the prescribed manner for conducting practical assessments set out in the national assessment instrument. Mr Bennett admits that he was not completing a checklist, but -- 5 of 8 -- 6 says that he did require students to perform all portions of the practical assessment. He also indicates that he has now put in place a checklist in respect of the practical assessments he conducts. [28] The Tribunal finds that Mr Bennett has contravened Condition 3.2.24. In failing to complete the checklist, it is also the case that Mr Bennett has breached Condition 3.4.26, which requires that assessors have a comprehensive understanding of the performance assessment, and the tasks that the assessor is required to carry out. The Tribunal considers that Mr Bennett’s own admission that he was unaware of the need to complete a checklist is sufficient basis to find that he did not have a comprehensive understanding of the performance assessment he was completing. [29] The Tribunal considers it appropriate to consider the steps Mr Bennett has taken to rectify WHSQ’s concerns vis-à-vis the checklist, in implementing it once he became aware of the requirement, in regards to the appropriate period of cancellation. Mr Bennett has not breached Condition 3.4.30 in relation to loads [30] Finally, WHSQ alleges that Mr Bennett failed to comply with Condition 3.4.30 of his licence in that he did not have available all the equipment necessary for students to complete their practical assessments. As Mr Bennett is assessing forklift drivers, part of the practical assessment involves students lifting loads. Mr Bennett admits that he did not have his own loads, but says that he borrowed them from the business next door when conducting assessments. [31] There is no requirement contained in Condition 3.4.30 that Mr Bennett actually own the loads utilised, and the Tribunal is therefore not able to make a determination that Mr Bennett acted in breach of this condition. It may be the case that the loads need to weigh particular amounts, and that it is difficult for Mr Bennett to ensure compliance when he borrows loads from a business where the weights are presumably in flux. However, there is no evidence before the Tribunal in this regard. In any event, Mr Bennett indicates that he has now obtained a number of his own loads. Decision [32] Having determined that Mr Bennett contravened several conditions of his accreditation, the Tribunal must consider whether WHSQ’s decision to cancel Mr Bennett’s licence as a high risk work assessor for the operation of fork lift trucks should be confirmed, amended, or set aside. [33] The Tribunal has found that Mr Bennett contravened 5 of the 8 conditions that WHSQ alleged were contravened:  Condition 3.2.9 – providing copies of test answers  Condition 3.3.2 – failing to ensure that students completed a course of training prior to assessment -- 6 of 8 -- 7  Condition 3.3.3 – failing to ensure that the RTO deemed students ready to complete assessment before doing so  Condition 3.4.24 – failing to complete a checklist for practical assessments  Condition 3.4.26 – failing to have a comprehensive understanding of the performance assessment and tasks required [34] Whilst WHSQ elected to cancel Mr Bennett’s accreditation, s 133 of the Regulations provides that WHSQ has the options to either suspend or cancel as follows: WORK HEALTH AND SAFETY REGULATION 2011 - SECT 133 133 Regulator may suspend or cancel accreditation (1) The regulator may, under this division— (a) suspend or cancel an accreditation; and (b) if suspending an accreditation, vary the conditions of the accreditation, including by imposing different or additional conditions. (2) If the regulator cancels an accreditation, the regulator may disqualify the accredited assessor from applying for a further accreditation for a specified period. Cancellation was warranted [35] The Tribunal considers that Mr Bennett’s conduct was of a nature sufficient to warrant cancellation. It is obvious that the point of assessment is to determine a student’s own knowledge, and that supplying (intentionally or otherwise) test answers along with the assessment defeats this purpose. The primary purpose of work health and safety legislation is to ensure the safety of both workers, and the wider public. Allowing students to escape the intended rigour of a training course through lack of awareness of the applicable assessment standards potentially poses a significant risk of having untrained workers in high risk areas. [36] It became clear during Mr Bennett’s oral evidence that he was confused about the process for the training and assessment of his students. It appeared that he was unaware of many of the conditions imposed upon him as an accredited assessor and the repercussions of breaching those conditions. There is no doubt that some of Mr Bennett’s confusion is attributable to his also wearing a training hat for a RTO that appears to provide him with little, if any, instruction about training, and unsuitable materials. Regardless, Mr Bennett was, in his assessor role, in a position where it was his responsibility to ensure that certain conditions were met, and in these respects, his conduct fell short. [37] The Tribunal accepts that Mr Bennett has made a significant effort to rectify the conditions that he failed to comply with initially under the Regulation. This is demonstrated by Mr Bennett’s efforts to formulate a -- 7 of 8 -- 8 checklist and obtaining his own equipment in order to undertake assessments (so that he does not have to borrow from next door). Mr Bennett also undertook re-training after the cancellation of his licence, and this is acknowledged by WHSQ. [38] Mr Bennett has been unable to work since his licence was cancelled 21 February 2014. It took WHSQ approximately 8 months following its 29 April 2013 interview with Mr Bennett to proceed with the cancellation. No doubt, this is because WHSQ undertook a further investigation. However, it has now been approximately 16 months that this matter has been lingering over Mr Bennett, and nearly 6 months that Mr Bennett has been unable to work as an assessor, in his own business. This would create significant stress for anybody, and the Tribunal is aware that Mr Bennett has a young family to support. At the time the investigation was conducted by WHSQ, Mr Bennett had a young child who was unwell and having hospital visits. All of these mitigating factors must be considered by the Tribunal in reaching its decision in relation to the period of time that is appropriate for Mr Bennett’s licence to be cancelled. [39] Mr Bennett has been found to have “not contravened” 3 of the 8 conditions that WHSQ argued he had failed to adhere to. On balance then, WHSQ has been successful in 5 out of 8 conditions – just over half. WHSQ had precluded Mr Bennett from making a further application for accreditation as an assessor until 21 February 2015 based upon its view that he had failed to comply with all 8 conditions alleged. Accordingly, the Tribunal considers that it is appropriate, and in consideration of the mitigation factors discussed above, to confirm the cancellation of Mr Bennett’s licence on 21 February 2014, but to set aside the decision in relation to the period of time within which Mr Bennett is precluded from making a further application. The Tribunal considers that the appropriate period to preclude Mr Bennett from making a further application for accreditation is 6 months, expiring on 20 August 2014. Orders [40] The 21 February 2014 decision of Workplace Health and Safety Queensland cancelling Mr Bennett’s accreditation as an assessor is confirmed. [41] The 21 February 2014 decision of Workplace Health and Safety Queensland precluding Mr Bennett from reapplying for accreditation as an assessor is set aside. The Tribunal amends the decision to preclude Mr Bennett from reapplying for accreditation as an assessor for a 6-month period, expiring on 20 August 2014. -- 8 of 8 --