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WorkSafe’s audit activities identified some important areas where High Risk Work Licence assessors are not always complying with the requirements of the occupational safety and health legislation. As a result WorkSafe presented a number of seminars to the High Risk Work Licence assessors addressing these issues. A podcast of one of these sessions has been uploaded in two parts as well as supporting information. WorkSafe recommends you listen to both WorkSafe High Risk Work Assessors – Seminar podcast parts and view the accompanying PowerPoint presentation.
Prosecution of WorkSafe Assessor sends message to all assessors
Good morning, thank you for being here this morning. My name is Bill Mitchell, I'm the Manager for Legislation and Policy at WorkSafe, and the Audit and Special Investigations team reports to me.
As you’ll see, we are recording this session with the view to making it available to other assessors.
I would like to introduce you to Lex McCulloch, who is the WorkSafe Western Australia Commissioner, and Denise Rowling, who is Principal Audit and Special Investigations Officer. They’ll be doing the presentations to you today.
During WorkSafe’s audit activities, we have identified areas where we believe that registered WorkSafe assessors are not necessarily complying with the Occupational Safety and Health Act. The Commissioner, Mr McCulloch, is going to take the opportunity to discuss some of these issues, and obviously clarify his expectations in relation to the assessments, and Denise is going to provide further information. So if I can ask Lex to come forward, please. [accordion collapsed]
Thanks everyone, and thanks for coming along today; it’s great to see you here. What I wanted to do just in my little bit was just give you a bit of context as to why we’re here, and how we’ve ended up at this point, and then talk a bit about what I expect and a few things like that.
So I've been at WorkSafe as the Commissioner for five years, and it's virtually the end of my fifth year today. So I've been in government a long time and I've come from other places in government.
When I arrived at WorkSafe and started to really get to understand what it did, what became really clear to me was that there was the opportunity for things to go wrong. We had WorkSafe Inspectors out there just going through workplaces; we had issue licences and a whole range of licences, and we have you guys out there doing assessments. And I was thinking my way through this, and thinking, well, what are the risks to us and how can we make sure that we protect the integrity of WorkSafe and the things that we do on behalf of the citizens of Western Australia.
So my thinking was hurried along when about a year into the job, it might not have even been that much, I had a call from the Corruption and Crime Commission. So they said to me, “We want you,” – me – “to investigate this allegation.” And the allegation was that whenever a complaint came in about a particular workplace, by the time our Inspectors got there, the workplace knew that they were coming and had rushed around and fixed up things before they got there.
So I thought, what do I do? So I went to our computer system and our recording system and I printed off all the stuff in relation to that workplace, trying to get a sense as to which Inspectors had been there, and to be honest with you, I couldn't make heads or tails of it, and then what I said to the Corruption and Crime Commission and they accepted that.
But what it meant for me was, I thought, gee, integrity’s a big issue for us, because if any of us don’t do the right thing then the reputation of WorkSafe will be trashed in the eyes of the community.
So I set up an integrity committee within WorkSafe to begin to identify where our risks were. So I just want to take it a bit broader and then work back to you guys.
So one of the things we did, back to that previous story, is we’ve reworked our information system, so now we can have a look at who’s been in and looked at a record, whether they’ve changed that record, and what they changed it to, and what the record was before they went into it. So if one of those complaints comes again, I’ll be able to go and ask someone, “Well, you’re not even involved in that case, why were you looking at that record?” So we did that. So the message to the Inspectors, “If you’ve been doing it, stop now or I’ll catch you.”
A lot of our licensing, particularly demolition, licences and the asbestos licences – you guys have been in the industry a while, there's only 35 class 1 demolition licensees in Western Australia and 12 unrestricted asbestos licences. It’s a very hard licence to get but a very lucrative thing if you can get it. And we had one person doing that whole process. That’s a huge risk, because there's a potential for that person, for someone desperate to get a licence because they want to get into that, to be influenced. So we split that up, so no one person can sign off on every step of the process, so it makes it very hard for someone to influence and get a licence and when they shouldn't, and for one of our staff to give it.
In relation to our Inspectors, we have a system now, and Inspectors were outraged about this when I did this, their names come up on a random thing that you go in on the computer and you push the button and a name comes up and all our Inspectors are on it. We check for that Inspector the workplaces that they’ve been to in the last two weeks, and we want to know whether they were there, whether they were professional, whether they issued any notices. We don’t want to really know what the notices were, we’re just looking at the system and they system says they issued five notices and the person says they issued five notices, well, they issued five notices, you know what I mean? So we’ve done that as well.
And then what we did, about two and a half years ago we had some of the people in our audit team retire, so we had a look at that and we moved it within the organisation to really separate it out from everything else, so from licensing and the inspectorate they sit in Bill’s area which is policy and that area, so it’s right away from the operational arms. And we’ve upped the ante. So to give you an example, three years, financial years ago, we did 250 assessments on demolition licences, asbestos licences and on assessors. This year we’ll do 700. So we’re really pushing it.
So this is how we’ve ended up here today, we did 400-odd last year, we’re seeing things that we want to bring to the assessors’ attention. So that’s sort of like the background as to us being here, so it’s a bigger context and you’re part of that context.
We’ll work through this quickly today. My bit and Denise’s bit will take about half an hour.
The first point I wanted to make is, when you’re doing your assessments, you’re not doing it for the RTO, you’re not doing it for the candidate, and you’re not even doing it for yourself. You’re doing it for me, because I'm the one that gives you the power under the Act to do it and give you your registration and the conditions that go with that registration. And what that means is you are a public officer, so you’re not a freelancer because I'm giving this to you under our Act; you are a public officer. I'm a public officer, so I'm a public servant, so I'm governed by certain things. So there's requirements around my personal behaviour, what I do in terms of the communication and use of official information, fraudulent and corrupt behaviour, use of the public resources, so what I do with the resources of the citizens, they’re the citizens’ resources, record keeping and use of information and conflicts of interest.
Now not all of those apply to you because you’re not as deep in the public service, but some of them do apply to you. Fraudulent and corrupt behaviour, record keeping and the use of it, I guess, and conflicts of interest.
So what do I expect of you? It’s actually pretty simple. Our bit’s around the assessment, your bit’s around the assessment, and when you’re doing that for me, I just want you to follow the assessment instrument. Nothing more, nothing less. That's what I'm giving you the authority to do on my behalf when you’re out there.
Being a public officer brings you into the purview of the Corruption and Crime Commission which is at the worst end of it, but it's the end that none of us want to end up in. And not like this bloke. So the Department of Transport, and there's been an issue with lots of government agencies have sort of outsourced functions that used to be done within government – and we all know this – over the years. Department of Transports, not only in Western Australia but across Australia, have done this, and there's been issues with vehicle examiners, and there's been issues with people who issue driver’s licences.
Now I don’t remember if you remember this case from last year, this was the driver’s licence assessor that was sitting on his verandah, not doing any testing, and just writing out the form, giving it to the bloke, money hands over. That photo was actually taken by the Corruption and Crime Commission. So I don’t want any of us to end up there, because if any of us – you – end up there, I'm going to end up there, trying to explain how that happened.
So what the assessors have been finding, they’ve been finding some things which Denise will go through now. What I want to do is draw a line under it, and say, “Guys, this is what we’re finding, this is how we want you to do things,” and we go forward from here. There's 500 of you guys, we think about a third aren’t active at the moment, so there's about 360 of you active. We’re doing 12 of these sessions. We probably think with our numbers we’re going to get about 280/300 to the sessions, which is fantastic, because we want everyone to be on the same page, and then we will develop a strategy, like recording it, to get to the others who haven’t been to this session, so everyone’s got the same message, and then we’ll go forward from there.
So I’ll hand over to Denise just to talk about what they’re finding, and then we’ll throw it open to questions.
Thank you for listening to the first part of the seminar’s audio. The second part of the seminar’s audio is presented by WorkSafe’s Principal Audit and Special Investigations Officer, and includes specific information about assessor duties when completing assessments.
Please now listen to part two.
This is the second part of the WorkSafe seminar presented to high-risk work licenses assessors and provides specific information about assessor duties when completing assessments.
Okay, welcome everything, my name’s Denise Rowling, I'm the Principal Audits and Special Investigations Officer at WorkSafe. My role is to conduct audits, well, restricted asbestos licences, our unrestricted asbestos licences, demolition licences holders and our registered WorkSafe assessors.
I've been in the role for two and a bit years now and have been auditing all areas across and have found some anomalies which we wanted to raise to your attention today, and get everybody on the same page.
So today I thought we’d start with the applicable legislation to which our registered assessors are actually bound by, which is regulation 6.20 of the Occupational Safety and Health Regulations, which is the notice of satisfactory assessment and the duties of the assessor before issuing the notice of satisfactory assessment, and it talks about the assessment instrument for high risk work of a particular class.
Now the particular area of legislation that you need to be mindful is 6.20 (2) (a), (b), (c) and (d) where you must not issue a notice of satisfactory assessment unless the person is authorised to issue the notice of satisfactory assessment which goes into having the actual particular class under your certificate of registration, so if you have LF and WP then you can only assess those two classes and not be signing off on anything else.
That you’ve actually assessed the person’s competency in accordance with the approved assessment instrument, so that at the beginning of each of the instructions of the assessment instrument, for the knowledge, the calculations and the performance, there are very clear, guided instructions for you, and the assessment must be conducted as per those instructions.
Having regard to the result of the assessment and they’re satisfied that the person is competent to do the work of that class is that you’ve satisfied yourself that they are competent from the underpinning knowledge, the calculations, and the performance in order to get a high-risk work licence to go and perform those tasks in the workforce. And you’re satisfied that the person has sufficient knowledge of the English language, both written, oral, and to safely do the work of that class.
Now that doesn’t mean that you can’t have somebody who can’t read or write or is illiterate. What that means is that they have an understanding that they can do the job safely at the workplace. So you may have someone that’s not able to write the English language but can speak it and can read it to the point where they can read a load chart, they can read a JSA, and they can actually operate machinery effectively. You can do the actual written knowledge assessments in writing, and it can be done orally. So it’s very clear in those assessment instruments as well.
There is a penalty for breaching any of those regulations. The first offense is $5,000 and for every subsequent offense it’s $6,250. So for every notice of satisfactory assessment that you sign, if there's any false or misleading material in particular, then that could be construed as one offense. So you look at five NoA’s that have been signed incorrectly, and then that’s five offenses that you’re looking at and the sums start to add up very quickly.
As an assessor, you’re required to sign an assessor registration conditions form which you agree to comply with and perform high-risk work assessments in line with the Occupational Safety and Health Act, the Occupational Safety and Health Regulations, and more specifically this regulation 6.20 (2), that the assessment instrument for the particular class applied for has been assessed in accordance with the instructions and any directors from WorkSafe concerning the application and assessment procedure.
Now that falls in line with the directive that went out in August 2014 in relation to the safe distances to be maintained in the vicinity of powerlines when we advised that that question must be changed to meet regulation 3.64 as per State and Territory requirements.
Regulation 6.32 is more for the registered training organisations in that any assessment that’s undertaken, that the information is to be retained and recorded for at least five years, and at the request of an Inspector, which I am a duly authorised Inspector, they are required to produce that information to us. Failure to do that has a penalty attached to it as well for a registered training organisation.
So our audits. Obviously as assessors you’re actually registered under the Occupational Safety and Health Regulations, and you are given that opportunity by the Western Australian Commissioner. We do not audit the practical assessment of the assessment instruments themselves, this is done by the Training Accreditation Council or the Australian Skills Quality Authority.
Now to ensure that our assessors are actually assessing applicants in accordance with the assessment instruments, some of the things that we do look at at audit is the critical questions that are provided to us on the assessment instruments where the answers need to be comparable to the model answers. So if you were to look at it and it says ‘reduce speed’, if they say, ‘drive slower,’ then that would be reducing speed. Not word-for-word, it’s comparable.
Calculations, which must be exact. So the calculations must provide a full formula and provide a corrective response as well in order for the answer to be correct. Now we understand that in some dogging and rigging instruments that sometimes the rounding doesn’t always come across with the applicants but you can see that they’ve got the formula correct and we’re not too hard and fast with those. As long as they’ve got that formula right and you can see that they've got the right figures to begin with, and it’s just a rounding procedure, then we’re not too hard and fast.
The instrument questions must not be modified in any way, shape, or form, unless you have a directive from the WorkSafe Commissioner, again, in relation to the powerline vicinity questions.
Okay, so an example of an instrument. We’ve all seen them. You’ll find that when we talk about the comparable responses, in there you have critical questions that have an acceptable response which is included but not limited to. Now these are answers that are sort of gauged and they go, “These are the things they should be thinking about,” but we understand that there's other things on top of that as well which can be included as well, and it's open for discretion.
You do have questions in there where it requires the acceptable response and it only gives you three acceptable responses. The answers provided by the candidate must be comparable to those acceptable responses only. So when it doesn’t say included but not limited to, then that’s what you need to be training toward – that’s comparable.
So through the assessment instrument and the knowledge instrument as well, there's also the optional questions. These should be identified by the assessors to which one you’d like to have answered prior to this candidate undergoing any assessment. Now they may answer all three options or two options – whatever are there – but you have to clearly identify which one you want them to answer, and that should be the one that they’re actually marked and assessed on. That’s the reason that we ask you to actually identify those optional questions.
Okay, so we’ve just gone through this part of the knowledge assessment. Some other things in the knowledge assessment is that the assessor must supervise the candidate at all times during the assessment, and they must collect the assessment instrument at the conclusion of the assessment.
Now the assessment must be conducted without any access to learning materials or any other assistance as well, and must be conducted in the English language.
We, just two days ago, had a phone call from an assessor to say that one of their students accidentally, or actually took an assessment instrument home. Gone home, written out all the answers, came back the next day and he realised that he was going through and putting all his answers down because he’d gone through it for a reassessment. Found out that not only was he cheating but that he’d actually taken one of the assessment instruments, and we spent all day yesterday trying to recover that instrument from the candidate. So it’s very important that you do collect these documents at the end of each assessment.
Again, must be comparable to the acceptable answers when you’re looking at critical questions for the assessment judgement, and they must answer, respond correctly, to all critical questions through the assessment instrument as well. Now if you find that any of the questions within the national assessment instrument are ambiguous or are incorrect, then these should be put forward to Safe Work Australia in moderation for their consideration for changes to be made.
The knowledge assessment, you’ll find that sometimes through questions that are non-critical, that you need to have a discussion or a verbal with your candidate to make sure that they understand or you get the correct response. When you do have a verbal or a discussion with them, it should be noted on your oral questions from the knowledge assessment page. It should have the question number, the summary of the candidate’s response, and whether it was a correct or incorrect response, and it should be signed off by both parties at the bottom as well at the completion.
The calculations assessment, again, must have correct formula, must have correct answer. We are a little bit relaxed in relation to the rounding of the figures when it comes to those calculations on some of them.
So again, you must supervise the candidate at all times during the assessment, you must collect the assessment instruments at the conclusion, and it must be done in the English language.
The assessment judgement is either satisfactory or unsatisfactory or not yet competent.
The performance assessment, again, the biggest one with this one is supervising the candidate. We’ve actually had some assessors that have stood in a corner and let an unregistered WorkSafe assessor conduct the assessment themselves with them looking on, and then they’ve signed off on a notice of satisfactory assessment. This is in breach of regulation 6.20, and you cannot do it. You must conduct the assessments in full if you’re wanting to sign off on the notice of satisfactory assessment.
In the new instruments you’ll find that the candidate versions don’t have the actual performance checklist anymore, so they are only found in the assessor versions, and you’ll have to amalgamate those in order to get the assessment completed.
The assessment judgements should have a Y , a no, or a not applicable when you’re going through each of the little tasks, and if you have a question that you ask during the performance assessment then it’s a tick or a cross in relation to whether it's a satisfactory or unsatisfactory response that’s been provided to you.
The assessment summary, these aren’t always completed in full either. We’ve had people missing out for the dates, the candidates’ identities, the assessment outcome, not giving the unit of competency course or title, and we’re just asking that you complete these in full prior to signing the declaration which is on the next slide.
This declaration is not only for WorkSafe but it’s also for your registered training organisation to say that you’ve done it in line with the 2015 standards which has changed from the AQTF, and also with the Work, Health, Safety legislation which is your Occupational Safety and Health Regulations. Once you sign that you’re signing a declaration to say that you satisfy the requirements of that assessment instrument.
The notice of satisfactory assessment, again, this is the only document that WorkSafe requires from our registered assessors in order to grant a high-risk work licence. It is the most important document for you and for us in relation to granting these licences, and we do require that you complete them in full, and that there's no false or misleading information that’s contained within them.
The assessment details should always have the start and finish times for your knowledge calculations and performance assessment, and it should actually tell you whether they’re competent, not yet competent, at the time of assessment.
Sometimes there are hierarchical classes that are actually added on there and you can have more than one class on your assessment instrument, but you need to be mindful when completing those, you need to have all the information in full in relation to your knowledge, your calculations and your performance, with start and finish times and whether they were competent at the time of assessment or not.
The declaration still refers to the Australian Quality Training framework. We know that this changed in April last year and came into effect from July, I believe, last year as well, and it also says then that you’ve done it within line with the conditions of your registration as a registered WorkSafe assessor. Once you sign that declaration then you’re declaring that all that information is true and correct.
Now there are further penalties if you do breach regulation 6.20, and this is up to the Commissioner. He can request for a hearing to be done, or be heard, in relation to breaches of regulation 6.20, and that’s for suspension and/or cancellation. You’ll see with the cancellation it’s exactly the same, that if you’ve breached regulation 6.20, the assessor no longer holds a High Risk Work Licence for the class, the assessor no longer has the skills necessary to assess a person’s competency to do work of that class, or information contained within your application is false or misleading in any material particular. The Commissioner has the powers to suspend or cancel. This is not something that the Commissioner takes on board lightly, and will always seek legal advice prior to going down that avenue.
In 2013, an engineering company was fined $10,000 because a worker was allowed on a worksite to actually conduct work without actually having a high-risk work licence, and that went out in a media release.
Last but not least, in May 2009, a registered WorkSafe assessor was actually found guilty on two counts of fraud by the CCC, and was subsequently fined $14,000 plus costs as well for fraudulent NoAs and not conducting assessments in line with the assessment instruments, which is why we want to bring this to your attention.
So any notices of satisfactory assessment that are signed that are found to be false or misleading in any material particular can be reported to the Public Sector Commission and/or the CCC for further investigation.
Any questions can be directed to myself, Denise Rowling, Michael Remaj, or Mark Jenkins. Contact numbers down below there so if you’d like to make a note of that, please feel free to contact us at any time. We’re happy to answer any questions where and when.
And of course any questions in relation to the actual assessment instrument or any complaints with regards to the way the questions are worded or incorrect answers should be forwarded to the email@example.com, and if you could cc. us in (firstname.lastname@example.org) so that we can follow these up on your behalf as well. So what we’ll do is we’ll double check for the responses as well.