Report on investigation into safety certiﬁcation and training in the ...€¦ · Section 74A(2) statement – Certiﬁcates of Induction Training 69 Chapter 5: Corruption prevention

J U N E 2 0 0 4

Report on investigation into safetycertification and training in theNSW construction industry

I C A C R E P O R T

J U N E 2 0 0 4

Report on investigation into safetycertification and training in theNSW construction industry

I C A C R E P O R T

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2 I C A C R E P O R T: Investigation into safety certification and training in the NSW construction industry

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ISBN 1 920726 49 7

© June 2004 – Copyright in this work is held by theIndependent Commission Against Corruption.Division 3 of the Commonwealth Copyright Act 1968recognises that limited further use of this material canoccur for the purposes of “fair dealing”, for examplefor study, research or criticism, etc. However if youwish to make use of this material other than aspermitted by the Copyright Act 1968, please write tothe Commission at GPO Box 500 Sydney NSW 2001.

This report and further information about theIndependent Commission Against Corruption can befound at www.icac.nsw.gov.au

Independent Commission Against Corruption

ADDRESS Level 21, 133 Castlereagh StreetSydney, New South Wales, Australia

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The Hon. Dr Meredith Burgmann MLC The Hon. John Aquilina MP

President SpeakerLegislative Council Legislative AssemblyParliament House Parliament HouseSydney NSW 2000 Sydney NSW 2000

Madam PresidentMr Speaker

In accordance with section 74 of the Independent Commission Against Corruption Act 1988, I am pleased to presentthe report of the Independent Commission Against Corruption of an investigation into safety certification andtraining in the NSW construction industry.

I presided at the hearings and my findings, opinions and recommendations are contained in this report.

I draw your attention to the recommendation that the report be made public forthwith pursuant to section 78(2) ofthe Independent Commission Against Corruption Act 1988.

Yours sincerely

Irene Moss AO

Commissioner

Executive summary 6

Chapter 1: Introduction 9

Why the Commission investigated these matters 9

The conduct of the investigation 10

The investigation outcomes 11

Outline of this report 12

Section 78(2) recommendation 12

Chapter 2: Jurisdiction 13

Corrupt conduct defined 13

Are accredited “assessors” public officials withinthe meaning of the ICAC Act? 13

Are trainers accredited by WorkCover NSW publicofficials within the meaning of the ICAC Act? 15

Does a TransGrid employee conducting electrical safety courses for private fee fall within the Commission’s jurisdiction? 15

Chapter 3: Competency assessment 17

Preliminary matters 17

How the competency assessment processes should have operated 17

What in fact occurred 17

Approach taken in this report to the applicants 18

Alan Roy Fizelle 18

Evidence of the applicants 19

Mr Fizelle’s evidence 20

Findings of corrupt conduct 22

Section 74A(2) statement 22

Armando Fassone 25


Mr Fassone’s evidence 26



Andrew Alexander Williams 28


Mr Williams’s evidence 30



John Arthur Webb 32


Mr Webb’s evidence 38



Brian Cecil Hill 40


Evidence of Rosaline Moera 42

Evidence of Mr Webb 43

Evidence of Mr Macri 44

Mr Hill’s evidence 44



Alexander Dougall 46


Green Cards – Mr Holopainen and Mr Dougall 48

Mr Dougall’s evidence 49



Chapter 4: Electrical safety training andOHS induction for construction work 54

Raymond William Anthony 54

Background 54

What the training course should involve 54

Matters of interest in relation to Mr Anthony’s conduct 55


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Contents

The death of Michael John Boland 55

Circumstances of Mr Boland’s death 55

Mr Shaw’s electrical safety training certification 56

Mr Anthony and his “short course” 57

What findings should be made in relation toMr Boland’s death? 60

Findings of corrupt conduct – training of Mr Shaw and others 60

Section 74A(2) statement – death of Mr Boland 60

False certificates – refresher courses 61

Distribution of false certificates 61

Evidence of certificate holders 61

Mr Anthony’s evidence 65

Findings of corrupt conduct – refresher course certificates 66

Section 74A(2) statement – refresher course certificates 67

Certificates of Induction Training 67

Construction induction training 67

Evidence of certificate holders 68

Mr Anthony’s evidence 68

Findings of corrupt conduct – Certificates of Induction Training 69

Section 74A(2) statement – Certificates of Induction Training 69

Chapter 5: Corruption prevention –competency assessment 70

Introduction 70

The corrupt conduct in context and implications for OHS 70

The construction environment 71

The assessment process and how assessors organise their work 71

Corruption and fraud risk management 71

Response by WorkCover NSW and next steps 72

Compliance 72

Audit 72

Monitoring 74

Response by WorkCover NSW 75

Complaint and investigation management 77


Deterrence and promotion of ethical standards 79


Chapter 6: Corruption prevention –OHS induction training 80

Introduction 80

The history and regulation of OHS induction training 80

Deficiencies in the system 81

Unclear procedures 81

Monitoring and compliance 81

Response from WorkCover NSW and next steps 81

Chapter 7: Corruption prevention –safe operation of cranes in proximityto power lines 83

Introduction 83

The regulatory and operating environment 83

Deficiencies in the regulation of training andcertification 84

Monitoring and compliance 84

Appendix 1: Corrupt conduct definedand the relevant standard of proof 86

Appendix 2: List of witnesses whogave evidence at Commission hearings 88

Contents 5

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This report concerns an investigation by theIndependent Commission Against Corruption(“the Commission”) into aspects of safety certificationand training in the NSW construction industry.

On 26 February 2003 the Commission wasapproached by WorkCover NSW, a statutoryauthority which works to promote workplace healthand safety and administers related legislation, toprovide assistance in investigating the activities ofcertain assessors accredited by WorkCover NSW.

WorkCover NSW is responsible for accreditingassessors who operate under the Occupational Healthand Safety Regulation 2001 to assess the competency ofoperators of specified heavy plant and equipment.Operators assessed as meeting nationally-agreedcompetency standards are issued with a Notice ofSatisfactory Assessment by the assessor. These Noticesof Satisfactory Assessment are the prerequisite toobtaining the Certificates of Competency required tooperate specified heavy plant and equipment onconstruction sites. Accredited assessors receivepayment for each assessment they undertake.

The Commission’s investigation commenced on27 February 2003 and focussed on the conduct of anumber of accredited assessors. As further informationcame to light as a result of the Commission’sinvestigation, the Commission broadened the scope ofits investigation to include two further areas ofrelevance to occupational health and safety (OHS).The Commission also examined the conduct of OHSinduction training in the construction industry andtraining in the safe operation of cranes and plant inproximity to overhead power lines, in particular thetraining provided by an employee of TransGrid, aState Owned Corporation responsible for themanagement and development of the New SouthWales high voltage electricity network.

In the course of its investigation the Commissionobtained and analysed a large amount ofdocumentation from WorkCover NSW andTransGrid, interviewed a number of witnesses andobtained and executed a number of search warrantson premises associated with persons of interest.

After obtaining the necessary warrants, telephoneinterceptions and a listening device were used.A number of private hearings were held. Publichearings were held on a number of days in August,September and October 2003. In November 2003 anotice seeking further information was served onWorkCover NSW under section 21 of the IndependentCommission Against Corruption Act 1988. In December2003 submissions outlining the findings of factavailable on the evidence were circulated to affectedparties. WorkCover NSW’s response to the s.21notice and submissions from affected parties havebeen considered in the preparation of this report.

The Commission’s investigation disclosed deliberateand widespread abuse of the competency assessmentregulations by six accredited assessors. TheCommission found evidence that these assessors hadissued some thousands of Notices of SatisfactoryAssessment without having properly conducted thespecified assessment procedures. In some casesindividuals were provided with Notices of SatisfactoryAssessment without any testing at all of their actualcompetence in operating the specified equipment.

The Commission also examined the issuing ofOHS induction training certificates, as well as thetraining and certification of crane operators workingin proximity to overhead power lines. TheCommission found that an accredited trainer andTransGrid employee, Raymond William Anthony, hadissued induction certificates in circumstances whereno actual induction had taken place and hadimproperly manipulated training and certificationpractices designed to ensure the safe operation ofcranes and other heavy plant operating near overheadpower lines.

The Commission looked into the circumstances of thedeath of Michael John Boland, who was electrocutedin February 2003 while working as a dogman with amobile crane operating near overhead electricaltransmission lines. The crane operator, Ricky AlanShaw, was at the time in possession of a TransGridcertificate, issued at Mr Anthony’s direction,certifying that he had completed a two-day Crane andPlant Electrical Safety Training Course. However, theCommission established that Mr Anthony hadprovided training to Mr Shaw and others in one dayrather than the mandatory two days. No specificfindings are made in this report in relation to thecause of Mr Boland’s death, this being a matter for acurrent coronial inquiry.


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Executive summary

Executive summary 7

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Findings are made in this report that the followingpersons engaged in corrupt conduct:

Alan Roy Fizelle;

Armando Fassone;

Andrew Alexander Williams;

John Arthur Webb;

Brian Cecil Hill;

Alexander Dougall;

who were formerly accredited by WorkCover NSWas assessors: and

Raymond William Anthony;

who was formerly accredited by WorkCover NSWas a trainer.

Recommendations are made in this report that theDirector of Public Prosecutions (DPP) giveconsideration to the prosecution of the above-listedpersons for various criminal offences as specified inChapters 3 and 4 of this report.

A recommendation is also made that the DPP giveconsideration to the prosecution of:

Terry Donald Whyte;

the Managing Director of Whyco Crane Services PtyLtd for a possible offence under s.87 of the ICAC Actof giving false or misleading evidence to theCommission.

Corruption prevention

Workplaces where heavy machinery is operated areessentially hazardous, both to operators and to otherworkers in the vicinity. The assessment andcertification processes for operators are fundamentalto ensuring that only competent people operatepotentially dangerous machinery, and that the risksassociated with this activity are minimised andcontrolled.

It should be noted that because the certificationsystem in New South Wales is part of a nationalcertification system, operators are able to use theirCertificates of Competency – whether properly orimproperly issued – interstate as well as inNew South Wales.

The matters that were dealt with in this investigationconcerned three distinct areas of operation in theNSW construction industry: the assessment andcertification process for machinery operators, OHSinduction for construction work training andcertification, and the training and certification ofcrane operators working in proximity to overheadpower lines.

Each of these areas is essentially high-risk; when theprocedures and practices for minimising andcontrolling risks are compromised through corruptpractice the potential for harmful consequenceescalates.

Chapters 5, 6 and 7 of this report address thecorruption risks that are inherent in each of theseareas and provide guidance as to how those risks canbe mitigated and managed.

Chapter 5 deals with the corruption risks associatedwith the competency assessment process. WorkCoverNSW’s responses to the problems raised during theinvestigation are canvassed, and recommendations forfurther action are outlined. Chapter 6 deals withcorruption prevention in OHS induction training andcertification. Chapter 7 deals with corruptionprevention in the matter of training and certificationfor crane operators seeking to undertake work in closeproximity to overhead power lines.

The Commission notes that while WorkCover NSWhas already taken steps to address many of theproblems identified, it is imperative that the agencysustains its reform agenda.

A series of specific recommendations are made inthis report to address identified corruption risks,as follows:

R E C O M M E N D AT I O N 1 :

That WorkCover NSW conducts a detailed fraud andcorruption risk assessment of the certification systemand develops a prevention plan that is linked toWorkCover NSW’s corporate risk management plan.


That WorkCover NSW ensures that a rigorous andongoing program of random site visits and re-testingof operator competence is developed and maintainedas part of its compliance monitoring regime.


That WorkCover NSW ensures that resources appliedto audit and investigation are sufficient to match thedesired outcomes of the certification system and areconsistent with requirements of the fraud andcorruption prevention plan.


That WorkCover NSW ensures that it develops aprocedure whereby applicants for assessment verify inwriting key aspects of the training they have received.


That amendments to the accidents data base are madeto enable relevant training and certificationinformation to be gathered in relation to licensedoperators involved in accidents.


That WorkCover NSW ensures that it develops andpromulgates clear and comprehensive policyguidelines associated with its revised complaint-handling procedure.


That WorkCover NSW provide initial and in-servicetraining for assessors in ethical conduct.


That WorkCover NSW develops screening options,including probity checks, for potential assessors.


That WorkCover NSW ensures it becomes the issuingauthority for the Construction Induction Certificateand that this is issued after the completion ofverification checks.

R E C O M M E N D AT I O N 1 0 :

That WorkCover NSW conducts an informationcampaign within the construction industry aboutlegislative requirements and proper proceduresassociated with the accredited training system.Information about reporting trainers who do notcomply with requirements should be included.


That WorkCover NSW conducts a comprehensivecorruption risk management plan for its accreditedtraining system. This plan should include probityscreening for accredited trainers.


That an offence of issuing a false statement oftraining be created under the Occupational Health andSafety Regulation 2001.


That WorkCover NSW, in conjunction withelectricity authorities and the Department of Energy,Utilities and Sustainability, develops an IndustryCode of Practice drawing on the “interim guide” toset a minimum standard.


That WorkCover NSW, in conjunction with theDepartment of Energy, Utilities and Sustainability,develop a monitoring and auditing program to ensureproper adherence to the Code.


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Workplaces where heavy plant and equipment is usedare essentially hazardous, both to operators and toother workers. According to WorkCover NSW’sworkers compensation statistical bulletins, only themining industry has a higher level of employeeinjuries than the construction industry.

A regulatory system operates in the constructionindustry to ensure that workers are competent andappropriately trained in safe work practices.This regulatory system is established by various piecesof legislation, including the Occupational Health andSafety Act 2000 (“the OHS Act”) and theOccupational Health and Safety Regulation 2001(“the OHS Regulation”).

The implementation of the OHS Act supersededparticular aspects of the prescriptive regulatory systemestablished under the Construction Safety Act 1912and the Construction Safety Regulation 1950, a matterwhich will be discussed in some detail in this report.

The Commission’s investigation concerned threedistinct areas of activity in the construction industry:the assessment and certification process for operatorsof heavy plant and equipment, the provision of OHSinduction training and certification, and the trainingand certification of crane and plant operators workingin proximity to overhead power lines.

Each of these areas of activity is subject to specificforms of regulation and control.

Operators of heavy plant and equipment are requiredto be assessed by accredited assessors againstnationally-agreed competency standards. Operatorsthat meet the prescribed standards are issued withNotices of Satisfactory Assessment, as the prerequisiteto obtaining the Certificates of Competency requiredto operate specified heavy plant and equipment onconstruction sites.

Except in specified circumstances, all persons engagedin work on construction sites are required to receiveOHS induction training prior to their commencementon the site. This training is to be given by anaccredited trainer and in accordance with guidelinesissued by WorkCover NSW.

Relevant to this investigation, the regulatoryframework for operating cranes and other plant closeto overhead power lines has changed in recent years.Some brief contextual background is necessary.Prior to the enactment of the OHS Act in 2000, theConstruction Safety Act 1912 and the ConstructionSafety Regulation 1950 specified set distances fromoverhead power lines within which cranes and otherplant could not operate without an exemption.This exemption was issued by WorkCover NSW asCertificate of Exemption 5099, and required thatpersons operating cranes and other plant in proximityto overhead power lines successfully completed theCrane and Plant Electrical Safety Course.

With the implementation of the OHS Act, theseprovisions became redundant, and a less prescriptiveregulatory environment was established. However, itwas recognised within the industry that working closeto power lines is inherently dangerous and theprovisions of Exemption 5099 were reflected inoperational guidelines produced by the ElectricityAssociation of NSW and in the Overhead Power LineElectrical Safety Training Course which wasdeveloped as a successor to the Crane and PlantElectrical Safety Course. Until its dissolution in 2001-2002, the Electricity Association of NSW deliveredthis training course; subsequently individual electricalsupply companies, including TransGrid, took on thetraining role and issued their own certificates forsuccessful completion.

Why the Commission investigatedthese matters

The principal functions of the Commission, asoutlined in s.13 (1) (a) of the Independent CommissionAgainst Corruption Act 1988 (“the ICAC Act”),include:

(a) to investigate any allegation or complaint that, orany circumstances which in the Commission’sopinion imply that:

(i) corrupt conduct, or

(ii) conduct liable to allow, encourage or causethe occurrence of corrupt conduct, or

(iii) conduct connected with corrupt conduct,

may have occurred, may be occurring or may beabout to occur.

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Chapter 1: Introduction

Information available to the Commission prior to thecommencement of its investigation indicated that anumber of assessors involved in conductingcompetency assessments under the provisions of theOHS Regulation were conducting improper orinadequate assessments.

These allegations would, if proven, constitute corruptconduct within the meaning of the ICAC Act.Furthermore, it is clearly in the public interest toensure that assessments designed to ensure the safetyof workers and others on construction sites areconducted properly, and that any deficiencies in theregulatory systems and procedures that might allowcorrupt conduct to occur are identified and addressed.

Information available to the Commission indicatedthat the alleged improper practices were occurring ona significant scale. WorkCover NSW approached theCommission for assistance, and the Commissiondetermined that it was best placed to furtherinvestigate these matters, in view of its moreextensive investigative powers and expertise.

The initial stages of the Commission’s investigationdisclosed additional information suggesting improperpractices in the conduct of OHS induction trainingand certification and crane and plant electrical safetytraining and certification. As such practices would, ifproven, constitute corrupt conduct and also raisesignificant corruption prevention issues as well as thepublic interest issues outlined above, I determinedthat it was in the public interest for these matters tobe pursued as part of the investigation.

The conduct of the investigation

Prior to the commencement of the Commission’sinvestigation, WorkCover NSW had investigated anumber of assessors who it suspected of improperpractices. WorkCover NSW had also spoken to anumber of witnesses.

The Commission commenced its investigation byholding discussions with staff from WorkCover NSWand obtaining a substantial quantity of documentationfrom that authority. The Commission spoke towitnesses identified by WorkCover NSW and then tofurther witnesses who came forward as theinvestigation proceeded. Ten search warrants wereobtained and executed on premises associated withpersons of interest. Seven telephone interceptionwarrants were obtained and applied. A listeningdevice warrant was obtained and applied.The telephone interceptions and the listening devicewere used to record conversations between relevantpersons. Eight private hearings were conducted tofurther inform the investigation.

Public hearings commenced on Monday, 25 August2003 and proceeded to Thursday, 28 August 2003.They resumed on Monday, 8 September 2003 andcontinued to Thursday, 11 September 2003. Furtherhearings took place on 7 and 8 October 2003. Thenames of persons who gave evidence in the course ofthese public hearings are outlined in Appendix 2.A notice in writing seeking answers to specifiedquestions was served on WorkCover NSW unders.21 of the ICAC Act on 10 November 2003.These questions generally related to theadministration of relevant regulatory regimes.A response from WorkCover NSW was received on12 December 2003.

Counsel Assisting the Commission preparedsubmissions in relation to the factual matterscanvassed in the Commission’s hearings as distinctfrom the systemic matters relevant to theCommission’s inquiry. This was circulated to affectedparties on 13 December 2003. Submissions inresponse to this have been received and considered inthe preparation of this report.


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The investigation outcomes

The Commission’s investigation disclosed deliberateand widespread abuse of the competency assessmentprocess by six accredited assessors. The nature andscale of this abuse had the effect of substantiallyundermining the regulatory system designed to ensureproper standards of safety in the construction industry.

A submission was made that as only six accreditedassessors from a total of 400 accredited assessors inNew South Wales were identified as having engagedin improper practices, this did not indicate thatimproper practices were widespread. I reject thiscontention. Although the Commission focused on theactivities of six accredited assessors, these assessorswere responsible for issuing a significant percentage(12.6 per cent) of the total number of Notices ofSatisfactory Assessment issued in New South Walesbetween 1996 and 2003.

In addition, there was evidence that these improperpractices extended beyond the operations of the sixidentified assessors. The Commission has anobligation to deploy its investigative resources asefficiently and effectively as possible, and approval touse statutory powers for purposes such as telephoneinterceptions is granted for limited time periods ineach instance. Once a clear pattern of improprietyhad been established and systemic deficiencies in theadministration of the regulations had been adequatelyexplored, I was of the view that responsibility foridentifying and investigating other offenders couldproperly be passed back to WorkCover NSW.

WorkCover NSW has been responsible for theadministration of these regulations. WorkCover NSWelected to outsource the conduct of assessments, thecentral tenet of this safety regime, however theauthority remained responsible for ensuring thataccredited assessors were complying with therequirements of the legislation and conductingproper assessments.

The evidence which has emerged from theCommission’s investigation has shown that thesystems in place to ensure the integrity of theassessment process were seriously deficient. It shouldbe noted that WorkCover NSW sought out theassistance of the Commission in investigating thesematters. WorkCover NSW has acknowledged theexistence of deficiencies and to its credit it has actedpromptly to address apparent deficiencies in itsmanagement of the assessment process.The deficiencies identified, the actions taken to dateto address these and the Commission’srecommendations for further improvement areoutlined in Chapter 5 of this report.

The Commission’s investigation also disclosedimproper practices relating to the conduct of OHSinductions for persons who are to operate onconstruction sites. There were instances where falsecertificates or Green Cards were circulated.There were other occasions where a properlyaccredited trainer distributed apparently legitimatecertificates in circumstances where no induction hadtaken place. The Commission examined the systemsin place to ensure the proper application of theseregulations, and recommendations for theimprovement of these are made in Chapter 6.

The Commission considered closely thecircumstances that led to the death of Mr MichaelBoland on 26 February 2003. While makingsubstantive findings with respect to the cause of deathis the responsibility of the NSW State Coroner, theCommission’s investigation demonstrated that apublic official attached to TransGrid was improperlymanipulating training and certification practicestaking place under the auspices of The Interim Guidefor Operating Cranes and Plant in Proximity to OverheadPower Lines, issued by the Electricity Association ofNew South Wales. This was operating as the industrystandard with respect to steps that should be taken toensure safety when using specified heavy equipmentin the vicinity of high voltage electricity.The relevant regulations, industry standards andthe processes in place to administer these have allbeen closely examined during the course of thisinvestigation and recommendations for improvementare made in Chapter 7.

Chapter 1: Introduction 11

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The Commission found that six accredited assessorsand one accredited trainer had engaged in corruptconduct. Recommendations are made thatconsideration be given to the prosecution of each ofthese persons for specified criminal offences.A recommendation is also made that consideration begiven to the prosecution of one other person withrespect to a possible offence under s.87 of theICAC Act of giving false or misleading evidence tothe Commission.

Outline of this report

Chapter 2 of this report examines the Commission’sjurisdiction with respect to the persons and activitiesthat are the subject of this investigation.

Chapter 3 details evidence and the Commission’sfindings in relation to the accredited assessorsMr Fizelle, Mr Fassone, Mr Williams, Mr Webb andMr Hill. Evidence and findings in relation toMr Dougall, who was also a person of interest inrelation to the provision of OHS induction training,are also presented in this chapter.

Chapter 4 details evidence and the Commission’sfindings in relation to the accredited trainer,Mr Anthony, with respect of the provision of OHSinduction training and training to operate cranes andother heavy plant in close proximity to overheadpower lines.

Chapters 5, 6 and 7 explore the structures and systemswhich were intended to ensure the integrity ofassessment, training and certification processes, butwhich in practice failed to prevent widespreadimproper behaviour. These chapters detailimprovements that have subsequently been made tothese structures and systems in order to buildcorruption resistance and make recommendations forfurther improvement.

Section 78(2) recommendation

Pursuant to section 78(2) of the ICAC Act, theCommission recommends that this report be madepublic immediately. This recommendation allows thepresiding officer of either of the Houses of Parliamentto make the report public, whether or not Parliamentis in session.


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Corrupt conduct defined

Corrupt conduct is defined in s.7 of the ICAC Act asany conduct which falls within the description ofcorrupt conduct in either or both sub-sections (1) or(2) of s.8, and which is not excluded by s.9 of theAct. An examination of conduct to determinewhether or not it is corrupt thus involves aconsideration of two separate sections of the Act.The first (s.8) defines the general nature of corruptconduct. It provides that corrupt conduct is:

1. any conduct of any person (whether or not apublic official) that adversely affects, or thatcould adversely affect, either directly or indirectly,the honest or impartial exercise of officialfunctions by any public official, any group or bodyof public officials or any public authority; or

2. any conduct of a public official that constitutes orinvolves the dishonest or partial exercise of any ofhis or her official functions; or

3. any conduct of a public official or former publicofficial that constitutes or involves a breach ofpublic trust; or

4. any conduct of a public or former publicofficial that involves the misuse of informationor material that he or she has acquired in thecourse of his or her official functions, whether ornot for his or her benefit or for the benefit of anyother person.

Section 8(2) defines conduct, including conduct ofany person (whether or not a public official) thatadversely affects, or that could adversely affect, eitherdirectly or indirectly, the exercise of official functionsby any public official, any group or body of publicofficials, or any public authority and which, inaddition, could involve a number of specific offenceswhich are set out in that sub-section. Such offencesinclude official misconduct, bribery and the obtainingor offering of secret commissions.

Section 9(1) provides that, despite s.8, conduct doesnot amount to corrupt conduct unless it couldconstitute or involve:

1. a criminal offence; or

2. a disciplinary offence; or

3. reasonable grounds for dismissing, dispensing withthe services of or otherwise terminating theservices of a public official; or

4. in the case of a Minister of the Crown or aMember of a House of Parliament – a substantialbreach of an applicable code of conduct.

In applying the provisions of s.9 of the ICAC Act,the Commission has regard to the approach ofPriestley JA in Greiner -v- Independent CommissionAgainst Corruption (1992) 28 NSWLR 125 whereHis Honour said that the word “could” was to beconstrued as meaning “would, if proved”. In thecourse of discussing the proper construction ofs.9(1)(a) of the ICAC Act, he said:

Despite s.8 conduct does not amount to corruptconduct unless, in the case of a criminal charge whichcould be tried before a jury, the facts found by theCommission as constituting corrupt conduct, would ifthe jury were to accept them as proved beyondreasonable doubt, constitute the offence charged …

Are accredited “assessors” publicofficials within the meaning of theICAC Act?

As mentioned in the introduction to this report,except when undergoing training in specifiedcircumstances, persons can only lawfully operatespecified plant and equipment if they have beenassessed as competent to do this safely. Thisassessment is based on nationally agreed standardsand the assessment process takes place under theauspices of WorkCover NSW.

Both the Occupational Health and Safety Certificates ofCompetency Regulation 1996 and Chapter 9 of theOccupational Health and Safety Regulation 2001permitted the outsourcing by WorkCover NSW ofthis assessment function. Clause 279 of the OHSRegulation provides as follows:

279.Assessors

The following persons are assessors for thepurpose of this Chapter:

(a) WorkCover,

(b) a person who is accredited as an assessorunder Division 4,

(c) a registered training organisation,

(d) a person who is authorised under acorresponding law to carry out functionsequivalent to those carried out by assessorsunder this Chapter.

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Chapter 2: Jurisdiction

The ICAC Act applies, inter alia, to public authoritiesand public officials as described in s.3 of the Act.WorkCover NSW is a public authority and itsemployees are “public officials” within the meaning ofthe Act. Accredited assessors, accredited underDivision 4 of the OHS Regulation, are not employeesof WorkCover.

Division 4 of the OHS Regulation outlines theprocess for the accreditation of assessors. WorkCoverNSW accredits assessors on the basis that they arecompetent to carry out the functions of any assessorunder Chapter 9 of the Regulation (Clause 284(3)).Once accredited, WorkCover NSW is required toissue to the assessor a Certificate of Accreditation forthe kinds of assessments for which the person isaccredited (Clause 284(4)). An assessor’saccreditation remains in force for a period of threeyears (Clause 286(1)). WorkCover NSW has power tosuspend and cancel an assessor’s accreditation(Clause 287).

Although assessors accredited by WorkCover NSWare not employees of a public authority, I am satisfiedthat they are “public officials” within the meaning ofthe ICAC Act.

Section 3(1) of the ICAC Act defines “publicofficial” as follows:

“Public official” means an individual having publicofficial functions or acting in a public official capacity,and includes any of the following:

…

(m) an employee of or any person otherwiseengaged by or acting for or on behalf of, orin the place of, or as deputy or delegate of, apublic authority or any person or bodydescribed in any of the foregoing paragraphs.

Under s.22(1)(a) of the Workplace Injury Managementand Workers’ Compensation Act 1988, one of thegeneral functions of WorkCover NSW isresponsibility for ensuring compliance with theOHS legislation. When undertaking assessments,accredited assessors are individuals fulfillingWorkCover NSW responsibilities, accordingly theyare exercising “public official functions” within themeaning of s.3(1) of the ICAC Act.

The public official nature of the functions performedby these persons is highlighted by the regulatory anddisciplinary role of WorkCover NSW with respect tothe issue of Notices of Satisfactory Assessment. I amsatisfied that, when accredited assessors are issuing aNotice of Satisfactory Assessment, they are exercisingpublic official functions within the meaning of s.3 ofthe ICAC Act.

I am also satisfied that, on the proper construction ofs.3(1)(m) of the ICAC Act, accredited assessorsundertake assessments on behalf of WorkCover NSW.Indeed, this is the way in which WorkCover NSWhas historically approached its relationship withaccredited assessors. WorkCover NSW’s publicationGuidelines for Certificate Assessors, which was issued inOctober 1995 and reissued in September 2002following the introduction of the OHS Act and theOHS Regulation) makes this relationship clear. Part 5 of the 1995 Guidelines contains a Code ofConduct, which under the heading “PrincipalResponsibility” states:

A certificate assessor is an agent of the NSWGovernment authorised to carry out an importantstatutory function. Your principal responsibility is todischarge this function in full compliance with theRegulation.

You may hold views or opinions regarding certificationwhich differ from the process and standards set out inthe Regulation but such views must not interfere withthe performance of your duties as a certificateassessor.1

Although this statement is not repeated in the 2001Guidelines, Guideline 2, which incorporates a Codeof Conduct, states:

An assessor should keep in mind their role as a publicofficial and should act accordingly.2

I am satisfied that the conduct of the accreditedassessors that was the subject of this investigationtook place at a time when each was operating as apublic official for the purposes of the ICAC Act.


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1. OHS Certification Australia, Guidelines for Certificate Assessors, WorkCover NSW, October 1995, Part 5, p.2.2. WorkCover NSW, Guidelines for Certificate Assessors, September 2002, p. 14.

Are trainers accredited byWorkCover NSW public officialswithin the meaning of the ICAC Act?

Clause 213 of the OHS Regulation requires thatprincipal contractors for a construction site not director allow another person to carry out a constructionproject unless the principal contractor is satisfied thatthe person has undergone OHS induction training.Clauses 214 and 215 of the Regulation place similarobligations on employers and self-employed people.

Clause 216 of the Regulation defines and outlines thethree separate stages of OHS induction forconstruction work training as follows:

(a) General health and safety induction training thatcomplies with clause 217;

(b) Work activity health and safety inductiontraining that complies with clause 218 and relatesto the particular type of construction work to becarried out;

(c) Site-specific health and safety induction trainingthat complies with Clause 219 and relates to theparticular site at which the construction is to becarried out.

This investigation relates only to general health andsafety induction training.

Clause 217 requires any general health andsafety induction training to be approved byWorkCover NSW.

Administratively, WorkCover NSW will only approvetraining if it is conducted by a trainer accredited byWorkCover NSW for this purpose. Accreditedtrainers are authorised to issue WorkCover NSWCertificates of Completion.

Under s.23 of the Workplace Injury Management andWorkers Compensation Act 1988, WorkCover NSW ischarged with the function of ensuring the availabilityof high quality education and training in preventionmanagement and rehabilitation.

WorkCover NSW would not be able to perform thisfunction without the involvement of accreditedtrainers performing duties as specified above inClauses 213 to 219 of the OHS Regulation.In addition, WorkCover NSW exerts control overthe conduct of these trainers through the requirementof accreditation and the need for strict compliancewith WorkCover NSW directions in order to retainthis accreditation.

In the context of the function performed by theseaccredited trainers, the nature of WorkCover NSW’sresponsibility for ensuring the availability of highquality education and training in the OHS area andthe control that WorkCover NSW exerts over theconduct of accredited trainers, I am satisfied that,when conducting this training, accredited trainers arealso exercising “public official functions” within themeaning of s.3(1) of the ICAC Act.

In addition, I am satisfied that accredited trainers,when conducting OHS induction for constructionwork training, are doing so on behalf of WorkCoverNSW for the purposes of s.3(1)(m) of the ICAC Act.

Does a TransGrid employeeconducting electrical safety coursesfor private fee fall within theCommission’s jurisdiction?

As mentioned in Chapter 1 of this report, operatingcranes and heavy plant in proximity to overheadpower lines was previously regulated by Exemption5099 to the Construction Safety Act 1912.This required operators working within specifieddistances to overhead power lines to have successfullycompleted the Crane and Plant Electrical SafetyCourse. This course was devised and delivered by theElectrical Association of New South Wales (“theAssociation”). When Exemption 5099 was repealedwith the passing of the Occupational Health and SafetyAct 2000, this course continued to operate and berecognised within the construction industry.

At all times relevant to this Commission’s inquiry,Ray Anthony was employed by TransGrid as a SafetyOfficer. He was first appointed as a Safety Officer in1987. As such, he gained accreditation from theAssociation to run the Crane and Plant ElectricalSafety Course from 1995 until the winding up of theAssociation. At this time Mr Anthony continued toprovide the course on behalf of TransGrid andcertificates issued bore a TransGrid logo andcertificate number. External contractors were trainedby Mr Anthony on behalf of TransGrid.These persons were assessed and registered, andfee payments were required by TransGrid.The evidence before this Commission was thatMr Anthony also conducted courses for private,fee-paying customers, in circumstances where the feeswere paid directly to him.

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There is no doubt that Mr Anthony, as an employeeof TransGrid, was a public official. The moresignificant issue is whether the conduct that theCommission inquired into, that is, his provision ofthe Crane and Plant Electrical Safety Course (whichlater became the Overhead Power Line ElectricalSafety Course) for private fee-paying customers waspart of his role as a public official, as defined in s.3(1)of the ICAC Act.

I am satisfied that this conduct did relate sufficientlyto Mr Anthony’s public official functions as anemployee of TransGrid. Mr Anthony’s accreditationto conduct the course was gained for the purpose offacilitating his work on behalf of TransGrid.All certificates issued following this training wereissued by and on behalf of TransGrid. Eachcertification involved registration of course details inthe TransGrid registry. Mr Anthony was granted noauthority by TransGrid to conduct this course outsidethe ambit of his employment with TransGrid.


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Preliminary matters

How the competency assessment processesshould have operated

Chapter 9 of the OHS Regulation sets out the currentprovisions for certification of workers. Chapter 9 setsout the types of work for which “recognisedqualifications” (that is, a certificate of competencyapproved by WorkCover or a qualification in forceunder a corresponding law) are required. Chapter 9also contains specific provisions for the accreditationof assessors, the issue of certificates of competencyand the suspension or cancellation of certificates ofcompetency.

Relevant to this investigation, Part 9.1 of theRegulation sets out provisions for the assessment andcertification of competency for scaffolding, dogging,rigging, the operation and use of plant andother work.

Clause 266 defines “scheduled work”, that is, specificwork activities for which recognised qualifications arerequired. In terms of the operation and use of plant,this includes the operation and use of cranes, hoists,truck-mounted concrete placing booms, boilers, steamturbines, reciprocating steam engines, and loadshifting machines.

Clause 270 prohibits persons from carrying outscheduled work unless they hold the relevantrecognised qualification, namely a certificate ofcompetency approved by WorkCover for the purposesof Clause 266 or a qualification in force under acorresponding law. An exception is made in relationto trainees so they can obtain on-the-job experiencewhich will assist them in ultimately obtainingcertification. Clause 271 permits persons to engage inscheduled work provided they are engaged in arecognised course of training, they do such workunder the supervision of a supervisor and they keepand maintain a record or log of their training inaccordance with the requirements of Clause 275.

Division 3 of Chapter 9 of the Regulation sets out theprovisions for the assessment of competency. Clause278(2) states that:

The appropriate competency standard for work thatinvolves scaffolding, dogging or rigging or the operationor use of a crane, hoist, truck-mounted concrete-placing boom, boiler, steam turbine or reciprocatingsteam engine is:

(a) the standard of competency set out in ScheduleA, B or C to the National Certification Standardin relation to that work, or

(b) any other standard of competency thatWorkCover considers to be equivalent to thatstandard.

Assessors who assess an applicant’s competency to doscheduled work are required to do so in accordancewith guidelines issued by WorkCover NSW(Clause 282). In general, the assessment processshould involve a written assessment and apractical assessment.

What in fact occurred

I am satisfied that the system for assessing thecompetency of operators of heavy plant andequipment operated in a seriously deficient mannerin the period investigated by the Commission.The activities of the six accredited assessors examinedby the Commission accounted for 12.6 per cent of allassessments conducted in New South Wales during1996-2003. At the relevant time, there wereapproximately 400 accredited assessors operating inNew South Wales.

Specifically, the evidence showed that:

1. These six assessors had issued large numbers ofNotices of Satisfactory Assessment incircumstances where:

(a) either no or no proper written assessment hadbeen conducted;

(b) either no or no proper practical assessmenthad been conducted.

2. In one instance, there had been no contact at allwith certain applicants before they were issuedwith Notices of Satisfactory Assessment.

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Chapter 3: Competency assessment

While the Commission focused its investigations onsix accredited assessors, there were clear indicationsthat other accredited assessors were also engaged insimilar improper practices.

Before dealing with the conduct of each of the sixaccredited assessors who were the subject ofinvestigation, a brief point needs to be madeconcerning the many applicants who received Noticesof Satisfactory Assessment from these assessors.

Approach taken in this report to the applicants

The Commission is authorised to make findings ofcorrupt conduct and is required, in respect of personsagainst whom substantial allegations have been made,to state whether in its opinion consideration shouldbe given to the prosecution of these persons forspecified criminal offences.

I intend to adopt the submissions of Counsel Assistingwith respect to the position of the applicants whogave evidence before the Commission.

All assessors and applicants gave evidence underobjection. Accordingly, each person’s evidence to theCommission will not be available to be used in anycriminal prosecution of that person, except for aprosecution for an offence under the ICAC Act(ICAC Act, s.37 (3) and (4).

In the event that criminal proceedings aresubsequently brought, the prosecuting authorities willhave to consider providing indemnities to a numberof witnesses who may have involved themselves incriminal conduct. In this event, it is likely thatproceedings will be commenced against accreditedassessors, and the indemnified evidence of certainapplicants is likely to be important if not decisive.While the prosecution of certain accredited assessorsis a realistic possibility, the same cannot be said inrelation to prosecutions of individual applicants.It is unlikely that the prosecuting authorities wouldconsider providing indemnities to accredited assessorsso that their evidence could be given in a consistentmanner against the applicants who came before theCommission. Without such evidence, there would belittle other admissible evidence for use againstapplicants. In all the circumstances, I am not of theopinion that consideration should be given to theprosecution of any of the applicants for anycriminal offence.

The situation is more complex as to whether Ishould make corruption findings against applicants.Material that would not be available for criminalprosecution purposes, including an applicant’s ownevidence given under objection, is available forthis purpose.

A necessary part of showing that an applicant actedcorruptly involves showing that he or she not onlyparticipated in a criminal transaction, but that he orshe understood, at the time, the wrongful nature ofthis activity. The state of mind of the applicants wasnot a central issue at the hearing and was notcomprehensively or consistently explored. In thesecircumstances, I am reluctant to make findings thatdistinguish between different applicants and I do notconsider it appropriate to make any corrupt conductfindings in relation to any particular applicant.

Alan Roy Fizelle

Mr Fizelle obtained accreditation from WorkCoverNSW as an assessor in October 1996. Since the early1970s he had been employed in the operation ofheavy machinery including loaders, excavators,backhoes and cranes. During the period October 1996to May 2003, Mr Fizelle issued 5,932 Notices ofSatisfactory Assessment. The Commission heardevidence from Inspector Newman, a member ofWorkCover NSW’s Certification Standards Unit, thatin general the time necessary to complete anassessment would be between one and three hours,depending upon the nature of the equipment onwhich the applicant was being assessed. On manyoccasions Mr Fizelle issued a daily quantity of Noticesof Satisfactory Assessments (see Figure 1) which farexceeded the number which could have been issued ifproper assessments had been carried out.

If an average amount of $80 is applied to theassessments carried out by Mr Fizelle (thisconservatively accords with Mr Fizelle’s evidence inrelation to the fees he charged) during the periodOctober 1996 to May 2003, he received in the orderof $470,000.


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Evidence of the applicants

The Commission called a small number of applicantswho had obtained Notices of Satisfactory Assessmentfrom Mr Fizelle. I am satisfied, based upon Mr Fizelle’sown admissions, that his improper conduct was farmore extensive than the examples provided by thissmall number of applicants might suggest.

Garry Robert Williams was, in December 2002,employed as a Supervisor/Plant Operator for HardyBros Civil Constructions Pty Ltd (“Hardy Bros”). InDecember 2002, Hardy Bros was carrying out work atthe Ulan coal mine which is located near Mudgee.On or about 21 December 2002 Mr Williams obtainedfrom Mr Fizelle a Notice of Satisfactory Assessmentfor a slewing mobile crane. It appears that Mr Fizelleand another accredited assessor, Armando Fassone,had previously arranged to attend the Ulan site withMr Alan Fuchs who, from time to time, worked as amanager on behalf of Hardy Bros. Mr Williams gavethe following evidence to the Commission:

Q: Let’s go back a step. I think on the day in question,which was 21 December 2002, you were introducedto three people, is that right?

A: Yeah.

Q: Was one of those people a man by the name ofArmando, or Mandy, Fassone?

A: Yes.

Q: Was the other fellow Alan Fizelle?

A: I think that was the name, yeah.

Q: I take it from what you said that you weren’t the onlyperson who was going to be tested on that day?

A: That’s correct.

Q: Were there other employees of Hardy Bros that weregoing to be tested as well?

A: Yeah.

Q: Who were they?

A: Well, all the blokes that were on site, most of them.I can’t remember them whole lot of them. There was a few there.

Mr Williams obtained his “ticket” for a slewingmobile crane without having undergone anyknowledge or practical assessment at the Ulan site.Subsequently, the relevant written test was providedto Mr Williams and others by Mr Fuchs. Mr Williamswas also supplied with the answers. It appears thatMr Fizelle sent the questions and answers to Mr Fuchswho arranged for them to be completed in theHardy Bros office and returned to Mr Fizelle.


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Figure 1 – Notices of Satisfactory Assessment issued by Mr Fizelle

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In his evidence Mr Williams described the process asfollows:

Q: Can we take it as being the case that what you did isthat you walked into the crib room, you filled outsome paperwork, you paid your $200, you walkedout and that’s all you did on that day?

A: Yeah.

Q: Subsequently, did something happen at Hardy BrosYoung in relation to these applications?

A: Yeah, — I asked for assistance because I am a littlebit illiterate and I can’t read and write and spellproperly and I obtained some assistance with the test.

Q: Wasn’t this the case, that you were not only providedwith a test but you were provided with the answers?

A: Yes.

Q: All of them, I suggest?

A: Yes.

Q: Who was it who provided those to you?

A: Alan Fuchs.

Q: What was his position within the company?

A: I think he works as a Manager for us on occasions. Idon’t know whether he’s full time with us or not.

Q: Does he still work for the company?

A: Sometimes. As I said I don’t know whether he’s fulltime with us. We had several different constructionsites going. So, you know, I might be on one andanother say — I don’t know whether he was with usor not, I just can’t track …

Q: So Alan Fuchs gave you the written test with theanswers and you filled them out, is that right?

A: Correct.

On the same day and in the same manner,Mr Williams obtained a dogging “ticket” fromMr Fassone.

Mr Williams was not the only person who obtainedfalse Notices of Satisfactory Assessment in December2002 at the Ulan site.

Garry Edward Lucas attended the Ulan site withanother friend, Mr Brad Smith. He was thenemployed by Southcon. Mr Lucas obtained Notices ofSatisfactory Assessment from Mr Fizelle in respect of aslewing mobile crane, loader and backhoe, andexcavator. He also obtained Notices of SatisfactoryAssessment from Mr Fassone in respect of a fork-lifttruck and dogging.

Each of these Notices of Satisfactory Assessment wasobtained without having undergone any knowledge orpractical assessment. Mr Lucas gave the followingevidence:

Q: What did you do when you got there?

A: Sat down, filled out a couple of forms, paid somecash, that was it.

Q: I think you paid $500, is that right?

A: Yes.

Q: That was to get a front end loader/backhoe ticket, anexcavator ticket, a fork-lift truck, a slewing mobilecrane, and a dogging ticket?

A: Yes.

The details appearing on the various Notices ofSatisfactory Assessment were demonstrably false.The items of equipment listed in the Notices ofSatisfactory Assessment were never used by Mr Lucasand the times specified related to knowledge andpractical assessments which did not occur. LikeMr Williams, Mr Lucas subsequently received theknowledge test and answers. The knowledge test wascompleted by Mr Lucas using the answers which hadbeen supplied and the documents were then returnedto the person who had given them to him.

The evidence of Matthew John Hardy was to similareffect. Mr Hardy improperly obtained six Notices ofSatisfactory Assessment, three from Mr Fizelle andthree from Mr Fassone. He also completed therelevant written exams subsequently at the premisesof Hardy Bros in Young.

Mr Fizelle’s evidence

Mr Fizelle made extensive admissions concerninghimself and others. He admitted:

1. obtaining his own fork-lift and dogman Notices ofSatisfactory Assessment from Mr Fassone withoutany assessment;

2. issuing Notices of Satisfactory Assessmentwithout requiring applicants to complete aknowledge test, or assisting them to complete theknowledge test and not undertaking any practicalassessment;

3. having his ex-wife and daughter completeknowledge tests after the issue of Notices ofSatisfactory Assessment “hundreds of times”;


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4. with Mr Fassone, he issued Notices of SatisfactoryAssessment in December 2002 at the Ulancolliery without carrying out any knowledge orpractical assessment of the applicants. Knowledgetests and answers were subsequently supplied.In this regard he gave the following evidence:

Q: How many days were you there?

A: One.

Q: So you put through 50 on a day. Do you knowhow many, roughly, Mr Fassone put through?

A: I don’t know.

Q: Was it a large number?

A: Yes.

Q: How was it done? I mean, you went out to a cribroom, did you?

A: Yes.

Q: What happened?

A: The boys just came in the crib room in groups offour or five and we just asked them what theywere after, what sort of tickets, what sort ofcertification they were after and we just did a lotof paperwork for them.

Q: Did they fill out answers whilst they were there?

A: Some of them did, yes.

Q: By reference to the answer sheets that you’vegiven?

A: Well I think they did, I really can’t remember.I thought we left all the questions and answersthere with them.

Q: They sent them in later?

A: I knew they sent them back to us.

5. that the Notices of Satisfactory Assessment issuedfor Lester Neil Potts on 11 August 2002, SuatiAykut dated 14 August 2002 and Samuel Borgdated 11 August 2002 were “probably” examplesof instances where the knowledge tests weresubsequently completed by his ex-wife ordaughter;

6. that people came to know that he was an assessorwho would issue tickets without properassessments;

7. that he commenced to issue false Notices ofSatisfactory Assessment in approximately 1998.In the last 12 months “probably 50 per cent” ofthe Notices of Satisfactory Assessment whichwere issued by him were false. In the last sixmonths between 80 and 100 per cent of theNotices of Satisfactory Assessment issued by himwere false;

8. that the Notices of Satisfactory Assessment issuedto Adam Williams on 17 August 2003 was also aninstance where the knowledge test component ofthe assessment had been filled out by his ex-wifeor daughter subsequently;

9. that in July 2000 he issued 19 Notices ofSatisfactory Assessment to six persons from theCoonabarabran region, namely, Andrew Harris,Margaret Prugger, Mark Prugger, Michael Hindsand Neil Taylor without meeting any of them faceto face with the exception of Mr Harris. None ofthe applicants, with the exception of Mr Harris,signed the Applications for Assessment.Mr Harris signed for himself and on behalf ofthe other applicants. No written assessmentswere ever carried out.

The Commission also heard some evidence that falseNotices of Satisfactory Assessment may have beenissued to a number of persons including Joseph Orroand Grant Silver on 10 April 2003 at Erina on theCentral Coast.

The evidence of Mr Orro and Mr Silver did not goas far as definitely establishing impropriety onMr Fizelle’s part. It was common ground that atsome time prior to Mr Fizelle attending the Erinasite he had supplied questions and answers to theapplicants. However, they maintained that they didnot have access to the answers whilst doing thewritten assessment or, alternatively, if the applicantshad access to answers, it was material which had beenobtained from WorkCover NSW, being the modelquestions and answers. Both Mr Orro and Mr Silvermaintained that there had been a practicalassessment.


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It is likely that Mr Fizelle improperly provided toMr Orro the precise questions and answers whichwould be the subject of the assessment on the day inquestion. A document seized during a search ofMr Fizelle’s business premises is reproduced asFigure 2.

Mr Fizelle was prepared to concede that he had“probably” provided the answers to the very questionshe was proposing to ask. He gave the followingevidence:

Q: But what you were doing here was giving him theanswers to precisely the questions you were going toask?

A: I would say that would be nearly 70 per cent correct.I’m not sure of what I did send him but I would say itwould be 70 per cent correct that I would have senthim the questions and the answers that I was going toask him on the day.

Q: That makes sense, does it not, because otherwisethere would have been no need to conceal it becauseyou would have been supplying something that hecould have got down the …?


Q: When you say it’s illegal to do it, it must follow, mustit not, that what you were giving him were the veryanswers to the very questions you were going to ask?

A: That’s probably true, yes.

Findings of corrupt conduct

I am satisfied that Mr Fizelle engaged in corruptconduct on many occasions, not just those occasionsrelating to applicants who were called before theCommission. As previously noted in this report,Mr Fizelle was prepared to concede that over theprevious twelve months at least 50 per cent of theNotices of Satisfactory Assessment issued by him hadbeen issued improperly and between 80 and 100 percent of the Notices he had issued during the previoussix months had been issued improperly. Mr Fizelle’sconduct involved the dishonest exercise of his officialfunctions within the meaning of s.8(1)(b) of theICAC Act.

As to the limitation imposed by s.9(1) of the ICACAct, I am satisfied that Mr Fizelle’s conduct couldconstitute or involve a criminal offence within themeaning of s.9(1)(a) of the ICAC Act, and inparticular, could also constitute an offence underClause 281(3) of the Occupational Health and SafetyRegulation 2001, which provides as follows:

(3) An assessor (other than WorkCover or aregistered training organisation), or a personemployed or otherwise engaged by a registeredtraining organisation, who does any of thefollowing is guilty of an offence:

a. assesses an applicant’s competency to doscheduled work other than in accordance withthe guidelines applicable under clause 282 inrelation to the conduct of assessments forsuch work;

b. issues a Notice of Satisfactory Assessmentwithout assessing the applicant as beingcompetent to do the scheduled work specifiedin the Notice;

c. falsely assesses the applicant as beingcompetent to do scheduled work;

d. assesses an applicant’s competency to doscheduled work being aware that the applicanthas been assessed in relation to the same kindof work within the previous 21 days;

e. refuses to issue a Notice of SatisfactoryAssessment in respect of the scheduled workdespite having assessed the applicant as beingcompetent to do the work.

Section 74A(2) statement

Section 74A(2) of the ICAC Act requires that theCommission’s report include in respect of each“affected” person, a statement as to whether or not inall the circumstances the Commission is of theopinion that consideration should be given to theprosecution of a person for a specified criminaloffence, or the taking of action against a person fora specified disciplinary offence, or the taking ofaction against public officials on specified groundswith a view to dismissing, dispensing with the serviceor otherwise terminating the service of thepublic official.


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Figure 2

Mr Fizelle is an “affected” person within the meaningof s.74A(3) of the ICAC Act. He is a person againstwhom substantial allegations have been made in thecourse of or in connection with the investigationconcerned.

Mr Fizelle’s evidence was given under objection.A declaration was made pursuant to s.38 of theICAC Act. The effect of that section is that theevidence given by him is not admissible in evidenceagainst him in any criminal, civil or disciplinaryproceedings other than in proceedings for an offenceagainst the Act.

I am satisfied that there is cogent independentevidence that on a number of occasions Mr Fizelleengaged in conduct in contravention of Clause281(3) of the Occupational Health and SafetyRegulation 2001.

I have also given consideration as to whetherMr Fizelle should be prosecuted for offences againsts.178BB(1) of the Crimes Act 1900 (obtaining moneyetc by false or misleading statements).

There is ample evidence that Mr Fizelle made andpublished statements in Notices of SatisfactoryAssessment on a number of occasions incircumstances where he knew these statements to bematerially false. An issue may be whether Mr Fizelleengaged in such conduct with the intention ofobtaining a “financial advantage” for himself orsomeone else.

A submission was made to the Commission that thepayment of a fee by applicants to Mr Fizelle in returnfor a false Notices of Satisfactory Assessmentconstituted a “financial advantage” for the purposes ofthis section of the Crimes Act. I am concerned thatthe benefit received by Mr Fizelle may not besufficient to constitute a “financial advantage”.

The statements were not false or misleading asbetween Mr Fizelle and the applicants. The applicantshad a true understanding of the nature of thedocuments and the statements made within them.The false and misleading nature of these documentsand their contents only operated when they wereforwarded to WorkCover NSW and deceived thatauthority into believing a state of affairs that did notexist. Accordingly, it may be necessary to show thatthis action, in which Mr Fizelle was clearlycomplicit, generated a “financial advantage”.

In this case, the “financial advantage” would be thatbestowed on an applicant through their entitlementto use the specified equipment for commercialpurposes. Whether this type of “licence” benefit issufficient to make out an offence pursuant to s.178BBof the Crimes Act 1900 is less clear.

In Coelho -v- Durbin (unreported, Supreme Court(NSW) 29 March 1993) His Honour Justice Badgery-Parker considered whether a false statement allegedlyused to secure the registration of a car couldconstitute the obtaining of a “financial advantage”.Justice Badgery-Parker held:

I have no doubt that to obtain the registration of amotor vehicle is an advantage in a practical sense tothe person by whom that step is achieved, but it doesnot appear to me to be an apt use of English todescribe the benefit as a financial benefit, except(perhaps) in circumstances where the evidence showedan intention on the part of the person involved toutilise the vehicle thus registered in some way whichcould confer upon him benefits which could bedescribed as financial benefits.

The circumstances arising in this investigation aredifferent from those considered in Coelho -v- Durbin.With the registration of a car, there is always thepossibility that a person would merely wish to use thecar for his or her own private purposes, thus securingno commercial advantage. However, the nature of aCertificate of Competency and the circumstances inwhich the Notices of Satisfactory Assessment areprepared are such as to indicate a clear intention tofacilitate access to greater employment opportunitiesand associated financial gains that were not previouslyavailable to the applicant. Therefore, situationsemerging in the evidence in relation to Mr Fizelle’sconduct may fall within the second category describedin the passage above.

I am of the opinion that consideration should begiven to the prosecution of Mr Fizelle for offencesunder Clause 281(3) of the Occupational Health andSafety Regulation 2001 and s.178BB of the Crimes Act1900 in relation to the Notices of SatisfactoryAssessment issued at the Ulan colliery site inDecember 2002 and in relation to the 19 Notices ofSatisfactory Assessment issued to six applicants fromCoonabarabran in or about July 2000.


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It is acknowledged that, in relation to the 19 Noticesof Satisfactory Assessment issued to six applicantsfrom the Coonabarabran region, none of thoseapplicants was called before the Commission. I amsatisfied, however, that evidence may becomeavailable to a prosecuting authority and that it isentitled to have regard to the answers given byMr Fizelle in this regard. In an earlier report of theCommission (Report on Investigation into the State RailAuthority – TrackFast Division, September 1992 at P4)Mr Sackville QC (as he then was) expressed thefollowing view:

… the Act expressly contemplates that “all thecircumstances” should be taken into account informulating the opinion referred to in s.74A(2).These include, for example, the possibility that furtherinvestigation or analysis may produce admissibleevidence that could be taken into account by theprosecuting authorities in determining whether toinstitute a prosecution. They also include thepossibility that the prosecuting authorities may be able,independently, to adduce admissible evidence tosupport factual findings which have been supportedbefore the Commission through evidence that wouldnot be admissible in criminal proceedings. It is, afterall, the prosecuting authorities which are entrustedwith the responsibility of deciding whether theadmissible evidence is sufficient to warrant aprosecution being instituted.

It is noted that Mr Fizelle’s accreditation as anassessor has been cancelled by WorkCover.Accordingly it is not necessary to makerecommendations under s.74A(2)(b) and (c) of theICAC Act that WorkCover NSW consider takingdisciplinary or other action against Mr Fizelle with aview to terminating his services as a public official.

Armando Fassone

Mr Fassone became an accredited assessor inOctober 1995. During the period October 1995 toFebruary 2003 he conducted some 11,932 assessments.On many days Mr Fassone issued a quantity ofNotices of Satisfactory Assessment (see Figure 3)which far exceeded the number which could havebeen issued if proper assessments had beencarried out.

It should be noted that some of the assessmentsreflect notices which were issued following training byapplicants at TAFE. In these circumstances a series ofactivities, over a number of training days, could quiteproperly have culminated in a large number ofNotices of Satisfactory Assessments being issued onthe one day. Accordingly, on those occasions thenumber of Notices of Satisfactory Assessment issueddoes not necessarily reflect impropriety on the partof Mr Fassone.


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Figure 3 – Notices of Satisfactory Assessment issued by Mr Fassone

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Mr Fassone was accredited to carry out assessments inrespect of forklift trucks, basic scaffolding,intermediate scaffolding, advanced scaffolding,dogging, basic rigging, intermediate rigging, advancedrigging, vehicle loading cranes, derrick cranes, non-slewing mobile cranes, slewing mobile cranes (up to20 tonnes), slewing mobile cranes (up to 60 tonnes),slewing mobile cranes (over 100 tonnes), materialshoists and boom type elevating work platforms.


Reference has already been made to the evidenceof Messrs Williams, Lucas and Hardy in relation tothe Notices of Satisfactory Assessment issued byMr Fizelle and Mr Fassone at the Ulan colliery site inDecember 2002.

Mr Paul Tholief Pedersen was employed by WhycoCrane Services Pty Ltd as a crane operator. In July2001, he held a ticket to drive a mobile crane up to1000 tonnes. On 23 July 2001, he arranged toobtain a number of further tickets from Mr Fassone.As to why he approached Mr Fassone, he gave thefollowing evidence:

Q: How did that come about? Did you ring him or didsomebody put you in touch with him?

A: Yes, I spoke to him, yes. I rang him.

Q: Did you believe at the time of speaking to him thathe would be able to issue Notices of Assessment inrespect of the classes you were applying for withoutyou having to undergo any practical orknowledge tests?

A: Yes.

Q: How did you come to that understanding, that hewould do that for you?

A: He was just one of those people that you knew issuedtickets without full training.

Q: That was something that you heard within theindustry?

A: Yes.

On 23 July 2001, Mr Pedersen obtained Notices ofSatisfactory Assessment for a forklift truck, forrigging, for intermediate rigging, for advanced rigging,for an elevated work platform, and for a slewingmobile crane over 100 tonnes.

Mr Pedersen did not do any written or practical testin relation to any of the tickets obtained on 23 July2001. As a consequence of lodging the Notices ofSatisfactory Assessment, he obtained tickets fromWorkCover NSW.

Mr Fassone’s evidence

Mr Fassone admitted that on many occasions he hadimproperly issued Notices of Satisfactory Assessment.He gave the following evidence:

Q: At the time you obtained your accreditation you wereissued with guidelines by WorkCover as to how theassessment should be carried out?

A: Correct.

Q: They required that amongst other things that youwould have to conduct tests on the basis there wouldbe a written component and a practical component?

A: Yes, sir.

Q: Is it fair to say that on many, many occasions youdidn’t follow those guidelines?

A: That is correct.

Q You issued tickets without any theoretical or practicalassessment?


According to Mr Fassone he commenced to engage insuch conduct “… about 12 months ago – 18 monthsago”. Although the precise number of false Notices ofSatisfactory Assessment issued by Mr Fassone willnever be known, it is clear that the number wassubstantial. He gave the following evidence:

Q: Would it be fair to say that in this 12 to 18 monthperiod more often than not you issued the ticketsillegally?

A: More often than not.

Q: More often than not, that would be a 50-50,wouldn’t it?

A: I did a lot illegally. I couldn’t say — I’d be telling alie if I said it was 50 per cent or 60. I don’t know tobe honest.

Q: There were many, many of them, weren’t there?

Q: There was many of them.

Q: [THE COMMISSIONER]: Did you do moreillegally than legally?

A: I probably did more illegally than legally.


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There were a number of techniques used by MrFassone to avoid detection. If a number of tests werecarried out on one day, the Notices of SatisfactoryAssessment would be dated on various dates. Hewould also lodge Notices of Satisfactory Assessment atvarious WorkCover NSW offices rather than in theone place to avoid detection.

As to Mr Fassone’s motivation, he gave the followingin answer to questions put to him by theCommissioner:

Q: Can you offer me any particular reason why youstarted doing that?

A: Well, Commissioner, to survive. It’s the — a victimof circumstances where if you do it properly you’dnever get any — any job. I’ll be honest with you.Instead by doing illegally — which I’m very sorry, Iregret that I ever started doing this. I’m getting tooold. It was quicker and easier and the money, and Iwas getting a lot of calls. I used to knock back 50 percent of my work. But I just wouldn’t handle it.

Q: You told me a bit earlier that 12 to 18 months agothat you think that you ended doing more of themillegally than legally?

A: Correct, Commissioner.

Q: In that time, in that 12 or 18 months, how many doyou think you would have done?

A: Illegally or overall?

Q: Overall.

A: Thousands.

Q: And if you’ve done more illegally than legally, couldbe talking about 50 per cent?

A: I’m over the Bible now, but I’d say 50-50, but Idon’t know. I’d say 50 per cent were illegals.

Mr Fassone expanded on this evidence a little lateras follows:

Q: I think you said in answer to the Commissioner that ifyou didn’t do them illegally you wouldn’t get anywork. Were you intending to convey by that that youwere competing as you understood it, against peoplewho were doing the same thing and you’d be undercutin some way?

A: Yes, sir.

In relation to the Notices of Satisfactory Assessmentissued at the Ulan colliery Mr Fassone confirmed thathe had engaged in the improper issue of Notices ofSatisfactory Assessment with Mr Fizelle. He admittedthat between “35 and 40” Notices of SatisfactoryAssessment were issued by him on that day, althoughhe could not be exact. After issuing the Notices ofSatisfactory Assessment, he mailed exam papers tothe applicants and to Mr Alan Fuchs.


I am satisfied to the required standard thatMr Fassone issued many hundreds, if not thousands,of false Notices of Satisfactory Assessment.The number far exceeded the occurences identified bythe Commission’s investigation, being Mr Pedersen’stickets and those issued at the Ulan colliery. Indeed,Mr Fassone claimed that his business had increased by“about 50 per cent” once he commenced to actillegally.

In the circumstances, I find that Mr Fassone engagedin corrupt conduct within the meaning of s.8 of theICAC Act in that he engaged in conduct thatconstituted or involved the dishonest exercise of hisofficial functions. The limitation imposed by s.9(1) ofthe Act has been satisfied. Mr Fassone’s conductcould constitute or involve a number of criminaloffences, namely offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001.


In all the circumstances I am of the opinion thatconsideration should be given to the prosecution ofMr Fassone for specified criminal offences, namely,offences under Clause 281(3) of the OccupationalHealth and Safety Regulation 2001 in respect of theNotices of Satisfactory Assessment issued inDecember 2002 at the Ulan colliery. Considerationshould also be given to the prosecution of Mr Fassonefor offences under s.178BB of the Crimes Act 1900 inrespect of the Notices of Satisfactory Assessmentissued at the Ulan colliery and those issued toMr Pedersen on 23 July 2001. Although Mr Fassonegave evidence under objection, there are a number ofapplicants such as Mr Pedersen who, subject toindemnities, may be able to give evidence.

It should be noted that further investigation byWorkCover NSW may reveal that additional falseNotices of Satisfactory Assessment were issued byMr Fassone at the Ulan Colliery.


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It is noted that Mr Fassone’s accreditation as anassessor was terminated by WorkCover NSW on23 February 2003. Accordingly it is not necessary tomake recommendations under s.74A(2)(b) and (c) ofthe ICAC Act that WorkCover NSW consider takingdisciplinary or other action against Mr Fassone with aview to terminating his services as a public official.

Andrew Alexander Williams

Mr Williams was accredited as an assessor in October1995. He was accredited to carry out assessments forscaffolding, rigging, dogging, personnel hoist andmaterial hoist. During the period October 1995 to22 August 2003, Mr Williams conducted 3,915assessments. On a number of days he issued a numberof Notices of Satisfactory Assessment (see Figure 4)which far exceeded the number which could havebeen issued if proper assessments had beenconducted by him.


Mr Jesus Luquin gave evidence before theCommission through a Spanish interpreter.In September of 2002 he obtained a Notice ofSatisfactory Assessment for basic scaffolding fromMr Williams. Having first claimed that Mr Williamsdid not carry out any practical assessment, he later

claimed that a practical assessment had beencarried out.

I am satisfied that Mr Luquin’s evidence wasinherently unreliable and I disregard it.

Mr George Paki obtained a Notice of SatisfactoryAssessment for basic scaffolding from Mr Williams on5 April 2001. Although Mr Paki had previouslycarried out scaffolding work in New Zealand andobtained an advanced ticket, the Notice ofSatisfactory Assessment he received (Figure 5)expressly disclaims that the Notice of SatisfactoryAssessment was issued on the basis of RecognisedPrior Learning. The Notice of Satisfactory Assessmentalso records that there was a “Performance/Practical”.

Although it appears that Mr Paki participated in aknowledge assessment, no practical assessment wascarried out prior to the issue of the Notice ofSatisfactory Assessment.

On 11 March 2002 Mr Paki also obtained Notices ofSatisfactory Assessment for intermediate andadvanced scaffolding. Again, both Notices ofSatisfactory Assessment expressly disclaimed relianceon Recognised Prior Learning. These Notices ofSatisfactory Assessment also record that there was a“Performance/Practical” assessment. Once again,no practical assessment was carried out.


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Figure 4 – Notices of Satisfactory Assessment issued by Mr Williams

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Figure 5

In respect of a number of competencies, exemptionsdo apply in relation to the form of practicalassessment. For example, the assessment guidelines forintermediate scaffolding state, inter alia, the following:

An applicant who produces a satisfactory record oftraining (such as a log book) which establishes at least50 working days of experience in the erection anddismantling of tube-and-coupler scaffold does notrequire a practical skills performance assessment forintermediate scaffolding.

At no stage in any of the matters canvassed bythis Commission was any reliance placed byMr Williams on these “exemptions”. On all theseoccasions he certified that there had been a“Performance/Practical” assessment when no suchpractical assessment had been carried out.

Mr Oliver Moemai obtained a Notice of SatisfactoryAssessment from Mr Williams in August 1999 foradvanced scaffolding. He had six months’ previousexperience in scaffolding. A written assessment wascompleted by him at Mr Williams’ residence at Bondi.Mr Williams did not carry out any practicalassessment of Mr Moemai.

Mr Ngarometua Joseph obtained Notices ofSatisfactory Assessment for basic, intermediate andadvanced scaffolding from Mr Williams in January2001. No practical assessment was conducted byMr Williams in respect of the basic and intermediatescaffolding tickets. A practical assessment was carriedout in relation to Mr Joseph’s advanced ticket.

Mr Siaosi Toleofoa obtained Notices of SatisfactoryAssessment from Mr Williams for basic, intermediateand advanced scaffolding. The basic and intermediatetickets were obtained on the same day in August2001. Each of the Notices of Satisfactory Assessmentwas obtained from Mr Williams at his house at Bondi.Although Mr Toleofoa completed a writtenassessment in respect of each ticket, no practicalassessment was carried out by Mr Williams.

Mr Williams’s evidence

Mr Williams was aware that the guidelines forscaffolding assessments required both a written andpractical assessment. He gave the following evidence:

Q: Dealing with the first one, what does the practicalinvolve?

A: The constituent of the paper.

Q: You’ll have to keep your voice up a little, I can’t hearyou.

A: Sorry. The constituent of the paper involved.

Q: I don’t follow you.

A: The — whatever the practical says.

Q: Is it, for example, the case that the paper contains adiagram of a scaffold structure?

A: A suggestion, yes.

Q: Is it your practice to require the applicant for a ticketto then build that structure?

A: Yes.

Q: Is there similarly a practical component involved inboth the advanced and intermediate ticket?

A: Yes, there is.

Q: Is it safe to say that in respect of all levels ofscaffolding there is a knowledge component and apractical component?

A: Yes.

Mr Williams was referred to the evidence of MessrsPaki, Moemai, Joseph and Toleofoa and was asked toexplain their evidence that there had never been anypractical assessment. He gave the following evidence:

Q: You’ve been sitting here during the course oftoday and heard a number of witnesses say thatthey did their theoretical or written, for example,at your home?

A: Yes.

Q: But never carried out any practical assessment?

A: That’s right.

Q: How did that come about?

A: The people that’s involved there, I work for theemployers also. They build the scaffolds right where Iwork. So I’m really assessing them on their ability tobuild. It’s just that I didn’t do it the right way around.


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This evidence was further developed by Mr Williamswho claimed that he was able to assess the applicants’practical ability by watching them work on-site.He gave the following evidence:

Q: So you’re actually on-site while these particularindividuals were doing their work?

A: Every day.

Q: What about the first witness who gave evidence herethis afternoon who was assessed by you originallydown at Pyrmont?

A: No, he wouldn’t have known me.

Q: Are you saying that you were on the site, looking athim erecting scaffolding, unbeknown to him?

A: Yeah.

Q: You never, I take it, made it known to any of thewitnesses who were called to give evidence thisafternoon that you had in fact carried out a practicalassessment on them?

A: No, I didn’t.

Q: Not to your knowledge?

A: No.

Q: That’s bizarre, is it not?

A: M’mm.

Q: Why would you, you might care to tell us, carry out awritten assessment of these individuals but not eveninform them that you had carried out a practical onthe building site?

A: Yeah. These gentlemen here, I consider excellentscaffolders. I’ve taken people through for thescaffolding ticket that really shouldn’t have it but theystill qualified because they adequately passed.These guys are working 30, 40 levels above theground. They make one mistake and it’s the last onethey make. I consider them to be adequate in theirduties. That’s the wrong way round, sure, but I stillconsider them safe. At least they won’t die.

Q: Mr Williams, it’s not just the wrong way round.It’s completely contrary to the guidelines that youwork to, is it not — isn’t it?

A: Yes.

Q: Indeed, when you issued Notices of Assessment youindicated that they had been practically assessed at aparticular location, did you not?

A: I understand.

Q: And that was false?

A: Yes.

Q: Isn’t it the case that you just didn’t bother assessingthem at all, practically?

A: No, not at all.

Q: Isn’t it the case and I don’t question this for onemoment, that with some of them you assumed,because of their previous experience that they musthave been practically sound?

A: No. I’ve watched them.

Mr Williams claimed that there was about “half adozen” applicants which he had assessed in themanner referred to above.


I am satisfied to the required standard thatMr Williams engaged in corrupt conduct within themeaning of s.8(1) of the ICAC Act in that in issuingthe Notices of Satisfactory Assessment to GeorgePaki, Oliver Moemai, Ngarometua Joseph and SiaosiToleofoa, he engaged in conduct which constituted orinvolved the dishonest exercise of his officialfunctions. The limitations imposed by s.9(1)(a) of theICAC Act is satisfied in that Mr Williams’ conductcould constitute or involve offences under Clause281(3) of the Occupational Health and SafetyRegulation 2001.


In all the circumstances I am of the opinion thatconsideration should be given to the prosecution ofMr Williams for offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001.

It is noted that, with respect to some of the incidentscanvassed above, the relevant activity took placein excess of two years ago and accordingly, withrespect to these incidents, proceedings cannot beimplemented for offences under Clause 281(3)(a) ofthe Occupational Health and Safety Regulation 2001.

Consideration should also be given to the prosecutionof Mr Williams for offences under s.178BB of theCrimes Act 1900.

It is also noted that WorkCover NSW has, since theconduct of these hearings, cancelled Mr Williams’accreditation as an assessor. Accordingly it is notnecessary to make recommendations unders.74A(2)(b) and (c) of the ICAC Act thatWorkCover NSW consider taking disciplinary orother action against Mr Williams with a view toterminating his services as a public official.


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John Arthur Webb

Mr Webb obtained accreditation as an assessor inOctober 1995 . He was accredited to carry outassessments for a number of items of heavy plant andequipment including cranes, dogging, rigging,and hoists.

During the period October 1995 to 22 August 2003Mr Webb carried out 11,772 assessments. On manydays the number of Notices of Satisfactory Assessmentissued by him (see Figure 6) far exceeded the numberwhich could have been issued if proper assessmentshad been carried out.

Mr Webb claimed that he charged between $80 and$150 per Notice of Satisfactory Assessment. If aconservative average figure of $100 per assessment istaken, then Mr Webb received at least $1,177,200during the period October 1995 to August 2003,or approximately $150,000 a year.


On 13 August 2003 Mr Webb issued 21 false Noticesof Satisfactory Assessment at the business premises ofPace Farms. The business is located at the oldClydesdale Dairy, Richmond Road, Marsden Park.

Mr Webb’s attendance on that day was organised byMr Thomas Gregory Saliba who was a self-employedexcavator operator. Mr Saliba sought and obtained aNotice of Satisfactory Assessment in relation to afork-lift truck. In his evidence Mr Saliba said thatMr Webb supplied himself and the other applicantswith the written knowledge tests and answers.No practical assessment was undertaken by Mr Webb.Mr Saliba paid Mr Webb the sum of $100 for theNotice of Satisfactory Assessment.

Matthew Pace also gave evidence before theCommission confirming that Notices of SatisfactoryAssessment were issued by Mr Webb without properassessments. Mr Pace is the Transport Manager ofPace Farms. Pace Farms Pty Ltd employsapproximately 500 people, 70 of whom are employedwithin the Transport Division.

Mr Pace sought and obtained Notices of SatisfactoryAssessment in relation to a fork-lift truck, a front-endloader and a skid steer loader.


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Figure 6 – Notices of Satisfactory Assessment issued by Mr Webb

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Each of the Notices of Satisfactory Assessmentindicated (falsely) that written and practicalassessments had been carried out at particular timeson 13 August 2003. Mr Pace gave the followingevidence as to what occurred on-site:

Q: What happened when you got there?

A: I got there in the morning. It was quite early. I’m notsure whether it was 6 o’clock or 7 o’clock — 6:30 or7 o’clock, I’m not quite sure. The — machines wereon-site. I — I honestly can’t remember. It was — themachines were on-site, and then the instructor donesome paperwork and that was the end of it. I didn’tknow that until I got there.

Q: When you say he did some paperwork did he ask youto complete a written test?

A: We had — there was a test given to us, yeah.

Q: He also gave the answers, did he not?

A: Yes, he did.

Q: There was no practical test carried out on any of themachinery, was there?

A: No, there wasn’t.

It is clear that Mr Pace was well aware that hisconduct was improper. In answer to questions fromcounsel for WorkCover, Mr Muddle, the followingevidence was given by Mr Pace:

Q: You were given a test paper, weren’t you?

A: Yes.

Q: At the same time, you were given the answers to thattest paper?

A: Yes, yes. That’s what I said.

Q: Were you instructed to copy out the answers onto thepaper?

A: Yes.

Q: You knew that to be dishonest, didn’t you?

A: At that point of time, yes.

Q: Then you filled out the declaration that you’ve givenout earlier?

A: Yes.

Q: Then some time after that, did you submit the Noticeof Satisfactory Assessment to WorkCover?

A: Yes.

Q: When you submitted that, you understood that it wasrequired that you had undergone a knowledge and apractical assessment?

A: Yes.

Q: In submitting the form to WorkCover with yourapplication, you intended to deceive WorkCover intobelieving that had been done, didn’t you?

A: I guess so, yes.”

On the three Notices of Satisfactory Assessment,Mr Pace signed the following declaration:

I declare that I am 18 years or older, and theinformation provided and the supporting documents,are true and correct in every particular.

Mr Pace admitted that these declarations were false.

No further witnesses were called before theCommission in relation to the Notices of SatisfactoryAssessment which were issued by Mr Webb on13 August 2002. It is clear, however, that a number ofother false Notices of Satisfactory Assessment wereissued by him on that day. These were:

• Peter Colin Sayers – fork-lift truck, front-endloader, skid steer loader;

• Glenn Robert Clarke – fork-lift truck, front-end loader, skid steer loader;

• Paul Edward Turner – fork-lift truck, front-endloader, skid steer loader;

• Bernard Lee Newland – excavator, skid steerloader, front-end loader;

• Andrew John Zahra – fork-lift, front-endloader, skid steer loader.

Stephen and Nathan Prior were also called to giveevidence before the Commission.

On 4 August 2003 Nathan Prior obtained a falseNotice of Satisfactory Assessment from Mr Webb inrelation to a backhoe and his father, Stephen Prior,obtained a false Notice of Satisfactory Assessment inrelation to an excavator. The Notices of SatisfactoryAssessment were issued by Mr Webb at the premisesof S.J. Prior Pty Ltd, electrical contractors of 37Caroline Chisholm Drive, Camden. On the same dayfalse Notices of Satisfactory Assessment were issued toMichael Thomas Jensen, Darren Charles Balding andColin Stanford in respect of excavators.


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The procedure which took place at Camden wasdescribed by Mr Stephen Prior as follows:

Q: Mr Prior, as I understood your evidence given earlier,you said you understood that on 4 August 2003 asfar as you were concerned tests were going to be doneproperly?

A: Yeah, we didn’t know. I didn’t know what to expect.I didn’t know what he was going to do. I had heardthat he short-tracked things, fast-tracked things. Butto what, I don’t know. We were prepared — we hadmachines there. We were prepared to do whatever wehad to do.

Q: All right?

A: As simple as that. I mean we just followed suit.

Q: When he got there what happened?

A: He got there, we had a bit of a yarn about whatever,machines and that, and then he gave us thequestionnaire and then proceeded to give us ananswer sheet and we proceeded to fill it out. And hesaid “Do it that way” and that was it.

Q: And after the written work had been done he issues aNotice of Assessment?

A: Not straight away. I mean well, he did but notstraight then. I assumed that — we stood there talkingfor a little while, probably five minutes, I don’t knowif he went on that long, and I assumed that we weregoing to get the machines on. But then nothinghappened and he said, “Well, here you are, fill theseout”, and he filled these assessment sheets out and wesigned them, and that was it.

Mr Stephen Prior gave Mr Webb a cheque for $750.Mr Prior’s evidence was confirmed by his son,Nathan Prior.

Mr Joseph Anthony Azzopardi gave evidenceconcerning the issue of false Notices of SatisfactoryAssessment by Mr Webb to Mr Azzopardi, his wife,Sylvia Azzopardi, Philip Cavallaro andWilliam Butler.

On 12 August 2003, Mr Azzopardi obtained falseNotices of Satisfactory Assessment for an excavator,front-end loader and a fork-lift truck. Mrs Azzopardiobtained false Notices of Satisfactory Assessment for afront-end loader and a fork-lift truck. Mr Azzopardipaid a sum of $500 and a receipt was issued byMr Webb.

On the same day a false Notice of SatisfactoryAssessment was issued to William Butler for a front-end loader and two false Notices of SatisfactoryAssessment were issued to Mr Cavallaro for a front-end loader and a fork-lift.

It was Mr Azzopardi’s understanding when hecontacted Mr Webb that Mr Webb was a person whowould issue tickets without requiring a practical test.As to what occurred on 12 August 2003,Mr Azzopardi gave the following evidence:

Q: On 12 August there was some written paperwork youhad to do?

A: Yeah.

Q: Some of the written paperwork consisted of writtenassessments — sorry, written tests?

A: I didn’t write nothing.

Q: Did you write out anything, that you know, questionsand answers?

A: No.

Q: Perhaps you could tell us what happened when yougot there?

A: Well, they’ve filled in the form on top, and that wasit.

Q: There was no long series of questions you had to fillout?

A: No.

Q: There was no practical test carried out?

A: No.

Q: There was no practical test carried out for eitherexcavator, front-end loader or fork-lift?

A: No.

Q: When you say “No”, you’re agreeing with me?

A: That’s right, yeah, yeah.

Q: That was the case both in respect of you and yourwife?

A: Yes.

Q: Also in relation to Mr Cavallaro and Mr Butler?

A: Yeah, I think so.

Although there had apparently been a loader andfork-lift on-site at Blaxlands Ridge Road, there was noexcavator on the site.

Mr Charles Paul Bonanno gave evidenceconcerning a Notice of Satisfactory Assessment issuedby Mr Webb on 29 July 2003 for an excavator.His brother, Mr Sam Bonanno, obtained two Noticesof Satisfactory Assessment on the same day in relationto an excavator and a front-end loader.


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At the time of making contact with Mr Webb for thepurpose of obtaining the Notice of SatisfactoryAssessment, Mr Charles Bonanno was of theunderstanding that Mr Webb would issue the Noticeswithout carrying out proper assessments.

Mr Charles Bonanno was asked to bring the serialnumber of the excavator which was owned by him.The Notices of Satisfactory Assessment were issued byMr Webb at Mr Webb’s home. As to what occurredon 29 July 2003, Mr Charles Bonanno gave thefollowing evidence:

Q: On 29 July did you go to Mr Webb’s home address?


Q: What happened there?

A: I seen Mr Webb. Asked me for my licences. He hadthe forms filled out. We signed the forms. I paid $150and that was all.

Q: There was no knowledge test carried out?

A: No.

Q: And there was certainly no practical test assessment?

A: No.


A: Yes.

Mr Sam Bonanno also paid $150 for each of theNotices of Satisfactory Assessment which he obtainedon 29 July 2003. The payment, totalling $450, wasmade in cash and no receipt was provided byMr Webb.

Mr Sam Bonanno also gave evidence before theCommission. Although he owned a front-end loaderhe did not own an excavator and only had limitedexperience in the operation of an excavator. He gavethe following evidence:

Q: Had you ever had any experience operating anexcavator?

A: Very limited.

Q: Well, when you say “very limited”, how limited?

A: Approximately 10 hours maximum.

Mr Sam Bonanno agreed that the arrangements toobtain the false Notices of Satisfactory Assessmentwere made by his brother, Mr Charles Bonanno.The Notices of Satisfactory Assessment issued toMr Charles Bonanno and Mr Sam Bonanno contain anumber of false particulars such as particulars of theassessment times in relation to both the knowledgeand the practical component of the assessment whichclearly did not occur.

Philip James Hemers gave evidence to theCommission concerning the issue of a Notice ofSatisfactory Assessment to him on 18 August 2003 fora front-end loader.

Mr Webb had been recommended to him by a Mr ColJensen from Jensen’s Nursery at Glenmore. As to whatoccurred on 18 August 2003, Mr Hemers gave thefollowing evidence:

Q: Did he [Col Jensen] indicate to you at any stage thatyou would be able to obtain your front-end loaderticket without undergoing any testing?

A: He did. Yes.

Q: What happened on 18 August? Could you tell us?

A: Right. Made an appointment at Mr Webb’s place at 7o’clock, 7 in the morning. Went in, shook hands andwent down the back office and they just gave me theappropriate papers, the ID papers and filled them outand that was it.

Q: Did you complete a written examination?

A: No.

Q: And you didn’t certainly do any practical?

A: No.

Q: And was that the process carried out at Mr Webb’shome address?

A: It was.

It became apparent from the terms of a telephonediscussion between Mr Webb and Mr Hemers whichhad been intercepted that Mr Webb had requestedMr Hemers to bring a serial number of a front-endloader to his home for the purposes of completing thepaperwork. Despite the terms of the conversationwhich indicated that Mr Hemers would “nick” theserial number from Mr Col Jensen, Mr Hemersmaintained that the serial number had come from hisown front-end loader.

Mr Hemers did not complete any written examinationon the day. Rather, he was given an exam paper tocomplete in his own time and return to Mr Webb.This exam paper was found in his possession whenMr Hemers was stopped by Commission officers on18 August 2003. Mr Hemers paid Mr Webb the sumof $100 cash for the Notice of SatisfactoryAssessment. He did not receive any receipt.

Brian Lewis Zammitt gave evidence to theCommission concerning a number of Notices ofSatisfactory Assessment which had been issued tohim by Mr Webb.


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It is clear that in a number of instances Mr Zammittobtained Notices of Satisfactory Assessment without aproper assessment being conducted by Mr Webb.With the exception of a Notice of SatisfactoryAssessment issued in respect of a vehicle crane,Mr Zammitt claimed to be unable to identify preciselythe occasions upon which Mr Webb had issuedNotices of Satisfactory Assessment withoutundertaking a practical assessment of Mr Zammitt.However, Mr Zammitt claimed that, in respect of allNotices of Satisfactory Assessment issued by Mr Webbto him, Mr Webb supplied him with the answers tothe knowledge test. He gave the following evidence:

Q: Did you complete a knowledge test in respect of thosetwo tickets?

A: Yes. I remember basically doing a knowledge test onpretty much all the licences I’ve done.

Q: But was it done where you were given the answers?

A: Yes, I think all of them. In fact I can’t remember if itwas me or one of my supervisors. I’m sure if you askMr Webb we actually picked up errors in his answersand he had to correct them, yep, and the formulas,I think, on the classification of a sling. …

A lawfully intercepted telephone conversationbetween Mr Webb and Mr Zammitt which occurredon 29 July 2003 indicated that Mr Zammitt had alimited understanding of the “tickets” which had beenissued to him by WorkCover NSW as a consequenceof false Notices of Satisfactory Assessment issued byMr Webb. The following exchange occurred:

ZAMMITT: Yeah. How things been going anyway?

WEBB: Good.

ZAMMITT: Yeah, what about, ah, you know the hirefrom the back of the truck?

WEBB: Yeah.

ZAMMITT: Why did you have licensing laws on that?

WEBB: Ah, CV.

ZAMMITT: CV?

WEBB: CV, which stands for Crane Vehicle.

ZAMMITT: And that’s what I got?

WEBB: You’ve got it have you?

ZAMMITT: I don’t know, let me have a look. Hope so.I think I have. Oh, fuck, I can’t pull it out,mate. My arse has squashed it that fuckin’much.

WEBB: Mmm, yeah, so you have got one, yeah.

ZAMMITT: Yeah, CV HM.

WEBB: HM?

ZAMMITT: Yeah.

WEBB: That’s Materials Hoist.

ZAMMITT: Materials Hoist LB.

WEBB: You’re supposed to know all these.

ZAMMITT: Oh.

WEBB: Backhoe.

ZAMMITT: And then there’s the excavator.

WEBB: LE.

ZAMMITT: Yeah, fork-lift.

WEBB: LF.

ZAMMITT: Skid steer.

WEBB: LS.

ZAMMITT: What’s the L for?

WEBB: Load shifting.

ZAMMITT: Oh, SB?

WEBB: Scaffolding Basic.

ZAMMITT: Oh, yeah, and Work Platform.

WEBB: Yeah.

Daniel Lee Vlaar also gave evidence before theCommission. In November 2002 Mr Vlaar took stepsto obtain Notices of Satisfactory Assessment inrespect of a fork-lift, backhoe, skid steer andexcavator. Mr Vlaar’s former boss, Mr Y, arrangedwith Mr Webb for Mr Vlaar to attend premises atLlandilo to obtain the Notices of SatisfactoryAssessment.

The Notices of Satisfactory Assessment were issuedon 9 November 2002. Mr Vlaar gave the followingevidence as to what occurred:

Q: Can you tell us in your own words what happened on9 November 2002 when you obtained your Notices ofSatisfactory Assessment? Where did you go and whathappened?

A: Just went out to a farm in Llandilo, I think it was andjust, like, showed up early in the morning and handedover money and filled in the paperwork and that wasbasically it.

Q: There was no practical test carried out, was there, inrelation to your tickets?

A: There was not.

Q: In relation to the knowledge test that you did, was itthe case that you were provided with the answers?

A: No, I just signed — signed my name.


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Q: You just signed your name?

A: Yeah.

Q: So you didn’t actually physically fill out a knowledgetest?

A: No, I did not.

The Notices of Satisfactory Assessment were issued toMr Vlaar by Mr Webb at a cost of either $400 or$500. The money was paid in cash. No receipt wasprovided by Mr Webb.

Mr Vlaar was not the only person in attendance atthe Llandilo site on 9 November 2002 who obtainedfalse Notices of Satisfactory Assessment. According toMr Vlaar there were “seven or eight” otherindividuals who also received Notices of SatisfactoryAssessment. One of those individuals was JustinLuke Emerton.

Mr Emerton gave evidence that he too obtained falseNotices of Satisfactory Assessment for a fork-lift,backhoe, skid steer loader and excavator. Mr Emertonhad no prior experience in relation to operation of abackhoe or a skid steer loader or an excavator. Indeed,the false Notices of Satisfactory Assessment issued byMr Webb to Mr Emerton in relation to those items ofequipment were completely irrelevant to hisemployment. He gave the following evidence:

Q: Mr Emerton, in November 2002 were you employed?

A: Yes.

Q: In what capacity?

A: Refrigeration Mechanic.

Q: Did you, along with the last witness, Mr Vlaar,obtain tickets for a fork-lift, backhoe, skid steer andexcavator as consequence of assessments, and I usethat word loosely, on 9 November 2002?

A: Yes, I did.

Q: Could you tell us how that came about?

A: Daniel, Mr Vlaar, just ring up, because I’d been aftera fork-lift licence for a while because I was a bit busyto go the assessment and that, so I just — he said,“You know, you’ll get a dodgy licence”. I went,“Okay”, and took advantage of it.

Q: You were keen to get your fork-lift licence, obviously?

A: Yeah.

Q: Had you ever operated a backhoe?

A: No.

Q: A skid steer?

A: No.

Q: Or an excavator?

A: No.

Q: Can I suggest this to you, on the basis of youremployment then and now, you probably had no needfor one, did you?

A: Never have. I just got it for – maybe it might come inhandy one day.

As to what happened on 9 November 2002Mr Emerton gave the following evidence:

A: Turned up on the day. Paid some money. Signed mename. That’s it.

Eammon John Martin gave evidence of obtaining afalse Notice of Satisfactory Assessment in relation toan excavator from Mr Webb on 20 June 2000.Mr Martin’s evidence was important because itdemonstrated that Mr Webb’s initial claim that hehad engaged in improper conduct for a period of sixmonths only was incorrect. At the time, Mr Martinwas employed by Transfield in relation to theNorthside Tunnel Alliance project which involvedthe construction of a tunnel between Manly andLane Cove to take sewerage overflows. At the timeMr Martin was Chairman of the Delegates Committeewhich represented all unions on-site as well asChairman of the Safety Committee. Mr Martin wasalso an assessor who had received his training fromthe Business College of North Sydney, TAFE Campus.

On 20 June 2000, some concerned employeesrequested that Mr Martin proceed to a location onsite at which a number of assessments were beingcarried out by Mr Webb to observe what wasoccurring. Mr Martin observed that there werebetween 10 and 20 applicants who were obtainingNotices of Satisfactory Assessment. Those applicantswere being supplied with written answers to the examquestions. Mr Martin identified Mr Webb as theperson who was responsible for issuing the Notices ofSatisfactory Assessment on that day. It was Mr Webbwho signed Mr Martin’s Notice of SatisfactoryAssessment in relation to an excavator and a backhoeon 20 June 2000. Mr Martin gave the followingevidence:

Q: Can we take it that there was no practical test carriedout on you for that?

A: There was not, no, nor – nor were any of the other15 to 20 people that were there at the time.


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Q: Nobody was practical-tested on that day?

A: No, no.

Q: To the extent that there was a knowledge test, to yourobservation they were all supplied with the answers?

A: That’s right.

According to Mr Martin, the rationale behind somany employees obtaining numerous Notices ofSatisfactory Assessment was so that they could obtain“points” to avoid redundancy. He said:

I believe there was probably petty political reasons forit on the job itself. Towards the cessation of a job,redundancies are given on a point system based on thenumber of tickets etc. will give you more points.We had quite a number of competent people that didn’thave legitimate tickets and had been driving machinesfor years on permits. A change in middle managementsuperintendent took place where a lot of unskilledpeople were brought on board and the people that werepotentially creating industrial problems as regards theway the job has been driven were let go through thesystem of the points assessment further down the trackafter the Olympics was finished and the completion ofthe job was coming to an end, and I do believe that –that has actually filtered through now. The last twoand a half years I have been out of work, unable to getwork. I’m deemed too safe by some of the middlemanagers because of some of the issues that I used toraise, etc. as regards On-the-Job Safety CommitteeChairman, and I believe that’s filtered through to the –the tunnelling industry that’s going on now in Sydney.

Mr Martin claimed that he had raised his concernswith the Site Safety Manager who informedMr Martin that he “didn’t want to know about it”.Mr Martin understood that the issue of the falseNotices of Satisfactory Assessment on 20 June 2000had been organised by the Site Superintendent.The identity of both the Safety Manager and the SiteSuperintendent were identified by Mr Martin inconfidential exhibits.

Mr Webb’s evidence

Mr Webb was aware that the Guidelines for CertificateAssessors published by WorkCover NSW3 containedguidelines to which he was required to work.

Mr Webb knew that applicants were required tocomplete written test papers without access to answersand complete a practical test. Initially, Mr Webb

claimed that he had begun issuing Notices ofSatisfactory Assessment without proper written orpractical tests “about six months ago”. He laterconceded that this practice probably commencedaround 1999. He gave the following evidence:

Q: See, I want to suggest to you that this proposition thatyou put forward this morning that you only did thisover the last six months is incorrect.

A: Well, it’s not totally incorrect, but it’s — all right,I might have done a few others but there was certainlythe number that you’ve got there now.

Q: All right. Well is this the position. That over the lastsix months, you did them with greater frequency?

A: Pardon?

Q: Over the last six months —

A: Yes. Yes.

Q: You did them with greater frequency.

A: Yes.

Q: But before this six month period you did them fromtime to time in an —

A: Time to time.

Q: [indistinct] Yes, thank you.

A: Depending on the circumstances.

Q: Well, doing the best you can and you’ll understandthat this is important to us because we want to findout just for how long it’s been going on, for whatperiod of time — sorry, I withdraw that. When didyou first carry out an assessment which was improperin the sense that there was no proper knowledge testor no proper practical test?

A: I can’t put a time on that.

Q: Well, would it be a number of years ago?

A: Not a number of years ago. No.

Q: You got your licence in 1996. Would it be safe to saythat by 1999 you had commenced to do that fromtime to time?

A: That’s probably on the mark. Yeah.

Mr Webb admitted that there had been no properknowledge or practical tests administered to thefollowing applicants:

• the Pace Farm employees;

• Nathan and Stephen Prior, Darren CharlesBalding, Colin James Stanford and MichaelThomas Jensen;


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3. OHS Certification Australia, Guidelines for Certificate Assessors, WorkCover NSW, October 1995; WorkCover NSW, Guidelines forCertificate Assessors, September 2002.

• Mr Charles Bonanno and Mr Sam Bonanno;

• Mr and Mrs Azzopardi, although Mr Webbthought he may have carried out a practicalassessment in relation to the fork-lift noticebut not the backhoe or excavator notices;

• Shaun McAloon. Although Mr McAloonwas not called to give evidence before theCommission, the Commission’s surveillancerecords support the admissions made byMr Webb in relation to the Notice ofSatisfactory Assessment issued to Mr McAloonon 28 July 2003;

• Mr Hemers;

• Mr Zammitt in relation to a vehicle crane.In relation to the other Notices of SatisfactoryAssessment which Mr Zammitt obtained fromMr Webb, he thought he had carried out apractical assessment but “probably” did notcarry out any knowledge assessment.

Although Mr Webb was not questioned about theevidence of Mr Vlaar or Mr Emerton, theCommission can safely conclude that he did notcontest their evidence. Mr Vlaar and Mr Emertonwere not questioned by Mr Webb’s legalrepresentative.

The only matter of dispute concerned the evidence ofMr Martin in relation to the Notices of SatisfactoryAssessment issued by Mr Webb on 20 June 2000 onthe Transfield site. I am satisfied to the requisitestandard that Mr Martin gave the Commission atruthful account of his observations on thatday because:

1. Mr Martin had no apparent reason to giveuntruthful evidence to the Commission.Mr Webb was unable to advance to theCommission any reason why Mr Martin mightbe telling lies;

2. at least in relation to providing answers tothose persons on the Transfield site whoobtained Notices of Satisfactory Assessmenton 20 June 2000, Mr Webb was not preparedto deny this occurred. He was prepared toconcede that it was “possible” that theapplicants had access to the answers.


I am satisfied to the required standard that Mr Webbissued a substantial number of false Notices ofSatisfactory Assessment from at least 1999.This conduct amounted to corrupt conduct withinthe meaning of s.8(1) of the ICAC Act in that hisconduct constituted or involved the dishonestexercise of his official functions.

The limitation imposed by s.9(1) of the ICAC Acthas been satisfied in that Mr Webb’s conduct couldconstitute or involve the commission of criminaloffences, namely offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001 and/ors.307C of the Crimes Act 1900.


In all the circumstances I am of the opinion thatconsideration should be given to the prosecution ofMr Webb for offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001 ands.307C of the Crimes Act 1900.

As is apparent from the discussion above, a number ofthe false Notices of Satisfactory Assessment wereissued by Mr Webb in 2003. Section 307C of theCrimes Act 1900, which section came into operationin January 2003, deals with false or misleadingdocuments and provides as follows:

307C(1) A person is guilty of an offence if:

(a) a person produces a document toanother person, and

(b) the person does so knowing that thedocument is false or misleading, and

(c) the document is produced incompliance or purported compliancewith a law of the State.

Maximum Penalty: Imprisonment for twoyears or a fine of 200 penalty units, orboth.


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The false Notices of Satisfactory Assessment issued byMr Webb during 2003 were documents produced in“purported compliance with a law of the State”.Clause 281(2) of the OHS Regulation providesas follows:

If the assessor assesses the applicant as beingcompetent to do scheduled work, the assessor mustissue to the applicant a Notice of SatisfactoryAssessment specifying the scheduled work that theapplicant has been assessed as being competent to do.

Consideration should also be given to the prosecutionof Mr Webb under s.178BB of the Crimes Act 1900.

It is noted that WorkCover NSW has now cancelledMr Webb’s accreditation as an assessor. Accordingly itis not necessary to make recommendations unders.74A(2)(b) and (c) of the ICAC Act thatWorkCover NSW consider taking disciplinary orother action against Mr Webb with a view toterminating his services as a public official.

Brian Cecil Hill

Mr Hill became an accredited assessor in February1997. His accreditation extended to fork-lifts only.

During the period February 1997 to 22 August 2003Mr Hill issued 4,686 Notices of Satisfactory

Assessment. On certain days he issued a number ofNotices of Satisfactory Assessment (see Figure 7)which far exceeded the number which could havebeen issued if proper assessments had been carried outby him.


Rik Jay Zane obtained a Notice of SatisfactoryAssessment issued by Mr Hill on 31 March 2003.The Notice of Satisfactory Assessment was obtainedby Mr Zane at the Wise Driving School, WoodvilleRoad, Villawood. Prior to attending the Wise DrivingSchool on 31 March 2003, Mr Zane had obtained acopy of the assessment instrument from WorkCoverNSW and had studied it.

As to what occurred on 31 March 2003, Mr Zanegave the following evidence:

When I got there, I just filled out some paperwork,and then the lady went through with me and we did thetest. She gave me the questionnaire and answer sheet,but because I had spent so much time studying for it,I didn’t use the answer sheet because I spent so muchtime trying to get up-to-date with it. We went throughthat, and then she took me on to the fork, wearing allthe safety gear and she went through the wholeprocedure of — from start to finish, turning the thingon to putting stuff away, and stuff like that.


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Figure 7 – Notices of Satisfactory Assessment issued by Mr Hill

21/1

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Mr Zane identified the lady he referred to asRosaline Moera.

Although Mr Zane had been given access to theanswer sheet and could have used it if he had sowished, he did not do so because he had spent somuch time studying for the test.

Mr Hill did not arrive at the premises of Wise DrivingSchool until approximately 2:00pm. In this regardMr Zane gave the following evidence:

Q: I was going to ask you about that. It’s been signed bya Mr Brian Hill?

A: Mmm, mmm.

Q: You say, do you, that he attended at the premises laterin the afternoon?

A: Yeah, it was — it was only like 2 o’clock. It wasn’t— because I — I rung my girlfriend at, like, 2.00 or3.00 or straight after and said “I got my ticket” to tellher about it and I was home by, like, 4 o’clock.

Q: Did you have any dealings with Mr Hill at all onthat day?

A: Only when he came in and filled out some paperworkand I was actually expecting him to go on the fork-liftand do the test with him.

Q: That didn’t happen?

A; And that didn’t happen and I — when he was filling itall out, I said, “Do I have to do anything else?” andhe goes, “No, that’s it”.

Q; You see on the document I’ve shown you that it says“Assessment Times” and it’s got “1600 to 1635”which is —?

A: 4.00.

Q: Yes, 4.00 to 4.35. Is that correct that it happenedduring that period?

A: No. It would have been for the — for my test, thatwas done in the morning, like — like 10 o’clock inthe morning because I got there at 9.30.

Q: Did Mr Hill get there around 4.00?

A; No, he would have got there about 2.00.

Q: Then you see it’s got the performance start time“17.15”, finish time, “17.50”?

A: No, I was – I was long gone by then. I was, like,at home by 4.00.

Q: You were at home and in any event there was nopractical test carried out by Mr Hill?

A: No.


A: Yeah, I’m agreeing with you. There wasn’t any test.

Mr Charles Tsai gave evidence to the Commissionconcerning a false Notice of Satisfactory Assessmentissued to him by Mr Hill on 9 April 2003. Mr Tsaialso obtained his Notice of Satisfactory Assessmentfor a fork-lift at Wise Driving School. A “gentleman”at Wise Driving School had provided the knowledgetest to Mr Tsai together with the answers to thosequestions. Mr Tsai used the answers when completingthe questions. After he had completed the knowledgetest he waited for a period of time whilst the“gentleman” was conducting testing of other personson fork-lifts. He believed that the “gentleman” leftthe premises to go “truck driving”, at which time hewas then shown how to operate the fork-lift by awoman who he identified as Rosaline Moera.

According to Mr Tsai, once the “gentleman” hadgiven him the test paper he left and the “… lady justtake over”. He did not see the “gentleman” again.The Notice of Satisfactory Assessment issued toMr Tsai discloses that a practical test was carried outby Mr Hill between 2.15pm and 3pm. Clearly, nopractical test was administered by Mr Hill at thistime. If he was on the premises earlier in the day hewas not present during the times indicated on theNotice of Satisfactory Assessment.

William Ahokava gave evidence in relation to theissue of a Notice of Satisfactory Assessment byMr Hill in respect of a fork-lift on 12 April 2003.Again, the Notice of Satisfactory Assessment wasissued at the Wise Driving School. At the timeMr Ahokava worked for Linfox. Approximately aweek earlier he had been provided with the questionsand answers for the written test. When carrying outthe written test on 12 April 2003 Mr Ahokava wasagain given the answers by a woman he identified asRosaline Moera. He gave the following evidence:

Q: Sir, I’ll show you Exhibit P10 in these proceedings.Is that the form of questions and answers that youwere given?

A: Yeah, yep.


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Q: That’s got the Wise Driving School logo at the top?

A: Yeah.

Q: That was given to you prior to the test on 12 April?

A: Yeah.

Q: Was it?

A: Yeah.

Q: When you were completing the test on 12 April, didyou have access to that document?

A: Yeah.

Q: You did?

A: Yeah, we did.

Q: Was there anybody supervising the exam?

A: Yeah.

Q: Who was that?

A: The lady.

Q: Same lady that the other witnesses have identified?

A: Yeah.

Following the completion of the written test paper,Ms Moera had Mr Ahokava and other applicants whoattended on that day carry out some exercises on afork-lift. He said:

We were on the fork. She took us to the fork and shewas just showing us bits and pieces about the fork-liftand then she assessed us. There was some — and aguy was there as well.

Although it appears that Mr Hill may have beenpresent at the time, it was Ms Moera not Mr Hill whocarried out performance testing. Whether or notMr Hill was present, it is clear enough that there wasno written test properly administered by him on12 April 2003 and Mr Ahokava was informed byMs Moera that he was required to copy the answersfrom the question and answer sheet. Ms Moera had noauthority to administer either the knowledge test orthe practical test for forklift trucks.

Evidence of Rosaline Moera

Rosaline Moera gave evidence concerning heractivities at Wise Driving School. She commencedemployment at Wise Driving School in 1998 as areceptionist and took up the appointment as OfficeAdministration Manager in 2000. In that role she wasinvolved in training applicants for fork-lift tickets.

Ms Moera admitted that she had “supervised” thetaking of the written test by applicants who would beassessed by Mr Hill. She would have each applicantfill out the written test before he arrived at thepremises. Ms Moera also admitted that she wouldpermit applicants to use the document providinganswers to the questions (referred to above as ExhibitP10) whilst they completed the written test.

Although there was no equivocation in her evidencegiven in a private hearing of the Commission on24 September 2003 that she had provided the answerson instructions from Mr Hill, there was considerableequivocation in her evidence in relation to this aspectof the matter in public hearing. Her evidence was,inter alia, as follows:

Q: When you had conducted testing for Mr Hill, and I’mtalking about theoretical testing, you have permittedapplicants to have the answers in front of them whilethey complete the test haven’t you?

A: Yes.

Q: Was that done on the instructions of Mr Hill?

A: Yes.

Q: You were intending to convey to the Commissioner on24 September 2003 that you had been instructed byMr Hill to provide the applicants with the answers tothe tests when they completed them, weren’t you?

A: Yes.

Q: Was that evidence true or false?

A: True.

Q: So is it a fact that Mr Hill told you that you were tosupply the applicants with the answers to the questionsas they were completing their questionnaire?

A: Yes, it’s as in the manual.

Q: What manual?

A: The manual you have, got questions and answers.Anybody can copy it.

Q: Were you or were you not told by Mr Hill to allowthe applicants to have the answers in front of themwhile they completed the test?

A: Yes.

Q: He told you to do that?

A: Not in so many ways.

Q: How could you tell us back on 24 September,madam, if you’re telling the truth now, that he did?

A: He just says to me, “Make sure that they understandthe questions and get them all correct”.


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Q: Make sure they understand all the questions —?

A: M’mm, M’mm.

Q: — and get them all correct?

A: But he doesn’t specifically say, “Give them theanswers”. That’s what I’m trying to tell you.There’s a difference.

Ms Moera agreed that there had been occasions whereNotices of Satisfactory Assessment had been issued byMr Hill without any practical test. She gave thefollowing evidence:

Q: There were occasions, were there not, where not onlydid you carry out such theoretical testing as there wasbut there was no practical test carried out by Mr Hill,isn’t that right?

A: Correct.

Q: That happened frequently, didn’t it?

A: Correct.

Q: In those circumstances would Mr Hill arrive after theapplicants had done their written and their trainingand just fill out the forms?

A: Their written but they’re still doing their trainingwhen he arrives.

Q: He would then just fill out the form?

A: Correct.

Q: He didn’t carry out any practical testing on them,did he?

A: No.

Evidence of Mr Webb

Mr Webb also gave some evidence which is relevantto the position of Mr Hill. Some time in July 2003Mr Webb was approached by Charles Macri whoowned Macri Driving School. The approachconcerned issuing fork-lift licences to applicantsengaged at the Flemington Markets. It would appearthat Mr Hill’s accreditation as an assessor wassuspended in June 2003 and subsequently cancelled inJuly 2003. In his approach to Mr Webb, Mr Macri wasseeking another assessor to issue (improperly) Noticesof Satisfactory Assessment. Mr Webb gave thefollowing evidence:

Q: Did it come to your attention that his accreditationwas cancelled by WorkCover?

A: Yes.

Q: As you understand it, was it as a consequence ofalleged improprieties in relation to the issuing of fork-lift tickets?

A: Yes.

Q: Following that coming to your attention, were youapproached by somebody from Flemington Markets toengage in the improper issue of fork-lift tickets?

A: I was engaged — I was approached by a person fromFlemington Markets to do his assessing for fork-lifts,yes.

Q: As you understood it, the approach was on the basisthat you would issue them improperly?

A: Basically, yes.

Q: Did that person let you know that Mr Hill had carriedout improper assessments on his behalf?

A: His — I asked who did them before. He said,“Brian Hill”, and I said, “What happened toBrian?”. He said, “He’s been suspended”, but hemade no further comment than that.

Q: Did he draw to your attention a suggestion thatMr Hill had gone about business by leaving hisassessment books?

A: No.

Q: At Flemington Markets?

A: No, I’d heard that but I didn’t know it wasFlemington either.

Q: After it came to your attention that Mr Hill had beensuspended this person approached you to carry outassessments for fork-lift tickets?


Q: Did you have an understanding one way or the otheras to whether that was going to be done properly orimproperly?

A: My second guess — second sense told me it wasexpected to be done improperly.

Q: Did he say anything to you that indicated that thatwas going to be the case?

A: No.

Q: What was it that —?

A: Well he just — it was the monetary, I can’t rememberthe exact amounts mentioned, but he was, “I’ll takeX and I’ll give you X”.

Q: Right, I see, and on the basis you assumed that he’dget a cut of the action for you between these tickets?

A: Whatever.


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Q: Quickly and improperly? Is that right?

A: That’s the general idea of it, yes.

Q: Was the first name of the person Charles?

A: Yes.

Q: Was his second name Macri?

A: I don’t — can’t recall but…“

Mr Webb subsequently identified from a recording ofan intercepted telephone conversation that Mr Macrihad been the person who had made the approach.

According to Mr Webb he did not accept Mr Macri’soffer because Mr Macri had “already crucified oneassessor”.

Evidence of Mr Macri

Mr Macri’s evidence in relation to his dealings withMr Hill was difficult to follow. Nevertheless, heultimately agreed that on occasions Mr Hill hadissued Notices of Satisfactory Assessment withouthaving conducted any knowledge or practical testing.He gave the following evidence:

Q: He couldn’t carry out any knowledge test becausethey couldn’t do them?

A: Yep.

Q: He didn’t carry out any practical tests. Isn’t that right?

A: Well, he was there early, saw they were driving,you know.

Q: But he didn’t carry out any practical testing, did he?

A: You could say that.

Q: He didn’t do what you said you did, that is to goaround, get them to do the safety check and all ofthat, did he?

A: Okay.

Q: Is that right?

A: You’re right, sir.

Mr Hill’s evidence

Mr Hill admitted that he would often issue Notices ofSatisfactory Assessment without having supervised awritten knowledge test and that there were occasionswhere he provided the answers to the applicants.Initially, he also agreed he had not carried outpractical tests as required by the Guidelines but hadbeen present observing applicants driving thefork-lifts.

Mr Hill acknowledged that on occasions he had filledout paperwork which was intended to deceiveWorkCover NSW into believing that he had carriedout a practical test when no such practical test hadbeen carried out.

As to Mr Zane, Mr Hill acknowledged that he hadnot carried out a practical test. He also agreed that onmany, many occasions Ms Moera would “do thetraining” and he would merely turn up to fill out thepaperwork without having carried out any testing.

In relation to the applicants introduced to him byMr Macri, Mr Hill claimed that he had verbally testedsome students but not others “… because theycouldn’t understand me”.

Mr Hill agreed that in permitting Ms Moera toadminister the knowledge test he was breaching theGuidelines.

One of the documents seized by the Commission is aNotice of Satisfactory Assessment dated 20 May 2003which concerned a “test” carried out using Mr Macri’sfork-lift at Flemington Markets. All of the details onthis Notice of Satisfactory Assessment have beencompleted by Mr Hill including assessment times anda positive assessment of competency with theexception of that part of the Assessment Summarywhich contains the applicant’s details. That part ofthe document is blank.

Mr Hill agreed that his diary indicated that he hadattended the markets at 9:00am for fork-lift tests on20 May 2003.

It emerged by reference to the Notice of SatisfactoryAssessment dated 20 May 2003 (referred to above)that Mr Hill had engaged in a practice of filling outNotices of Satisfactory Assessment in advance andthen attending the premises of Wise Driving Schoolor Macri Driving School for the purpose of obtainingthe applicants’ details. He gave the followingevidence in relation to this document:

Q: Look, Mr Hill, this tells the reader that between 9:15and 9:50 you carried out a practical test on somebodywho appears to be a ghost?

A: Well, I don’t know who the practical ghost is, sir.

Q: Isn’t that the very point. That you’re prepared to fillthese forms out with dates, times …?

A: Yes, sir.


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Q: Competency, without having contact with theapplicant?

A: Yes, sir.

Q: And how often did you do that?

A: I wouldn’t have a clue, sir. Probably a lot, sir.

Q: Thank you —

A: Because I was —

Q: Thank you very much for that and that was withMr Macri?

A: As well as Wise Driving School, yes, sir.”

Mr Hill gave the following further evidence inrelation to the Notice of Satisfactory Assessmentdated 20 May 2003:

Q: How are you certifying somebody as competent whenthey haven’t given you any details or signed the format all?

A: Yeah, but like I said, sir. I’ve probably filled out onetoo many forms, like I’ve tried to explain, sir.

Q: Does that mean you were filling out the forms andmarking them as competent before they’d put theirdetails in?

A: It looks that way, sir, yeah.

Q: Did that happen often?

A: If — yes, sir.

Q: You would turn up, I suggest, to Wise Driving Schoolfor Mr Macri, with a number of pre-prepared formsand when you got there, you would fill in the relevantapplicant details?

A: Yes, sir.

Q: And before you got there, all other details such astimes of testing and competency, were ticked andchecked and signed, weren’t they?

A: Not all the time, sir. But I believe so. I would havedone that when I was there.

Q: But sometimes it happened that way, didn’t it?

A: Yes, sir.

Q: Isn’t that an explanation for the document that I justgave you. That you went along to Sydney Markets,Flemington to test one of Mr Macri’s clients. You hadpre-prepared the ticks and crosses in your section andwhen you got there, there was no applicant or therewas one application too little?

A: Yes, sir.

Q: And that happened from time, didn’t it?

A: Yes, sir.

In relation to the graph prepared by the Commissionsetting out the number of assessments carried out byMr Hill on each day between 21 November 1998 and21 May 2003, Mr Hill agreed that if he had issued 14,15 or 16 Notices of Satisfactory Assessment on anyone day it would mean that assessments had notbeen properly conducted. He also agreed that ifsummary of assessments completed by Mr Hillwhich was tendered in the Commission’s hearing(a somewhat more detailed version of Figure 6 above)was accurate it would follow that certain entries on itindicated days where he was involved in improperactivity.


I am satisfied to the required standard that Mr Hillengaged in conduct which was corrupt conduct withinthe meaning of s.8(1) of the ICAC Act. His conductinvolved the dishonest exercise of his officialfunctions. The limitation imposed by s.9(1) of theICAC has been satisfied in that Mr Hill’s conductcould constitute or involve criminal offences, namelyoffences under Clause 281(3) of the OccupationalHealth and Safety Regulation 2001 and/or s.307C of theCrimes Act 1900.


In all the circumstances I am of the opinion thatconsideration should be given to the prosecution ofMr Hill for offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001 ands.307C of the Crimes Act 1900. The incidentsinvolving Messrs Zane, Tsai and Ahokava all occurredafter s.307C came into operation on 10 January 2003.

Consideration should also be given to the prosecutionof Mr Hill for offences under s.178BB of the CrimesAct 1900.

It is noted that WorkCover NSW has alreadyterminated Mr Hill’s accreditation. Accordingly it isnot necessary to make recommendations unders.74A(2)(b) and (c) of the ICAC Act thatWorkCover NSW consider taking disciplinary orother action against Mr Hill with a view toterminating his services as a public official.


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Alexander Dougall

Mr Dougall was accredited as an assessor in July 1997.His accreditation extended to the granting of Noticesof Satisfactory Assessment in relation to front-endloaders, backhoes, skid steer loaders and excavators.

During the period July 1997 to July 2003 Mr Dougallissued 3,706 Notices of Satisfactory Assessment.

Figure 8 depicts the assessments carried out byMr Dougall in the period 2 January 2000 to 2 August2002. On a number of days during this period MrDougall issued a number of Notices of SatisfactoryAssessment which far exceeded the number whichcould have been issued if proper assessments hadbeen carried out by him.


David Gordon Gorrell gave evidence in relation toa false Notice of Satisfactory Assessment issued tohim by Mr Dougall on 6 August 2002. He alsogave evidence concerning a so-called Green Cardwhich was supplied to him by his employer,James Francis Field, in August 2002 which containedfalse particulars that he had undertaken an OHSinduction for construction work on 25 February 2002at Penrith.

Mr Field and his son, Andrew Field, conduct abusiness known as Yass Earth Movers which businesswas, in 2002, engaged on the Woolworthsconstruction site at the corner of Comur andPolding Streets, Yass.

On 6 August 2002, Mr Field and Mr Gorrell wentto the Hamilton Hume Motel where they metMr Dougall. Mr Gorrell was seeking a Notice ofSatisfactory Assessment in relation to an excavator.He completed the written test by giving his answersto Mr Dougall who wrote them out for him.He claimed not to have had his glasses with him atthe time. At the end of that process a Notice ofSatisfactory Assessment was issued by Mr Dougallwho insisted that his fee of $200 be paid in cash.That amount was paid by Mr Field.

Mr Gorrell agreed that no practical testing was carriedout in relation to the issue of this Notice ofSatisfactory Assessment despite the fact that theNotice indicates that there was such a practical test.

As to the so-called Green Card, Mr Gorrell said thatit had been given to him by his employer. The cardbears Mr Gorrell’s name and particulars of the “coursedate”, being 25 February 2002. Mr Gorrellacknowledged that he had never undertaken anycourse on 25 February 2002 at Penrith or elsewhere.


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Figure 8 – Notices of Satisfactory Assessment issued by Mr Dougall

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Mr Gorrell was unable to identify the “trainer”described on the false Green Card, G. Evans.

Mr Field also gave evidence to the Commission. He is the Managing Director of Hubu Pty Ltd, whichtrades as Yass Earth Movers. His evidence concernedhis business’s involvement in the Woolworths site atYass, his dealings with the Site Foreman, MarkHolopainen, the issue of a number of false Notices ofSatisfactory Assessment by Mr Dougall and the issueof false Green Cards by either Mr Holopainen orMr Dougall.

Mr Field confirmed that he had engaged one AaronMcMillan as a sub-contractor on the Woolworths siteat the request of Mr Holopainen. Mr Holopainen hadindicated to Mr Field that Mr McMillan did not haveany heavy machinery tickets but that he, MrHolopainen, could obtain such tickets for MrMcMillan. Subsequently, Mr Field received an invoicefrom Mr Holopainen for the supply of four tickets at$160 each, one Green Card at a cost of $110 and aso-called “consultation fee” of $50. The total amountinclusive of GST was $880.

Mr Field said that the head contractor at theWoolworths site, Adco, had insisted that employees ofthe Yass Earthmoving have Green Cards to work onthe site. Mr Holopainen indicated that he couldobtain such Green Cards. Subsequently, the sum of$540 was paid by way of cheque to Mr Holopainen.The payment was made on 15 August 2002.

In relation to the excavator ticket obtained byMr Gorrell, it was Mr Field’s understanding thatMr Dougall’s presence at the Hamilton Hume Motelhad been arranged by Mr Holopainen. Mr Fieldconfirmed the evidence of Mr Gorrell that nopractical test had occurred. He said:

Q: No practical test occurred?

A: No. No, there wasn’t.

Q: Did that surprise you?

A: Yes, it did. Yes.

Q: Was it your understanding that to obtain a ticket tooperate a piece of heavy machinery that you not onlyhad to do a written test but you had to be practicallytested on that machine?

A: Definitely, yes.

According to Mr Field, Mr Dougall had indicated hecould not carry out the practical test because his wifehad left him and he had two children to look after.Accordingly, he could not leave the motel room.

A statement by Mr McMillan dated 25 March 2003was tendered. In his statement, Mr McMillan claimedthat at the request of Mr Holopainen he had attendedthe Hamilton Hume Motel on 9 August 2002 at about6:30pm. Another person “known as Mr T”, a NewZealander, was also present. He was supplied with fourNotices of Satisfactory Assessment for a skid steerloader, bobcat, backhoe and front-end loader. He wasalso supplied with a Green Card. The Green Card wasnumbered C121291 and was dated 7 February 2002.The card represented that the induction had occurredat Penrith. The Green Card was false. There was noknowledge or practical testing carried out in respectof the four Notices of Satisfactory Assessment. Eachof the Notices of Satisfactory Assessment appeared tobe signed by Mr Dougall. That part of each Notice ofSatisfactory Assessment reserved for the applicant’ssignature contained a signature which was not that ofMr McMillan.

Mr Holopainen also gave evidence to theCommission. He claimed that he had arranged forMr Dougall to carry out certain assessments at Yass.He said:

Mr — Alex Dougall was going to Canberra to dosome assessment and I said, “Basically I do have guyshere who need assessment as well”. So, no, I did notarrange it but he was already coming and basicallyAlex said, “Have you got any people who needassessments”?

Mr Holopainen had indicated to Mr McMillan thathe could obtain work for him as a labourer forMr Field, but not as a machinery operator. However,if he had machinery tickets he had the possibility ofobtaining this work with Mr Field in the future.Mr Holopainen indicated to Mr McMillan that heknew a WorkCover NSW assessor and “… basicallytickets are available”. It was Mr Holopainen’sunderstanding that Mr Dougall would be prepared toissue Notices of Satisfactory Assessment withouthaving carried out a proper assessment as he hadpreviously observed Mr Dougall issuing Green Cardswithout conducting any induction.


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Mr Holopainen disputed Mr McMillan’s version ofevents. He recalled handing Mr McMillan a GreenCard but did not recall handing him four Notices ofSatisfactory Assessment. Although the issuing of theinvoice was consistent with Mr Holopainen havinghanded over the Notices of Satisfactory Assessmentto Mr McMillan he claimed that the invoice was sentto Mr Field so that payment could be made toMr Holopainen as he had previously made payment toMr Dougall for the Notices of Satisfactory Assessmentin Sydney. Mr Holopainen was not prepared to go sofar as to deny that he had handed the Notices ofSatisfactory Assessment to Mr McMillan. He gave thefollowing evidence:

Q: You know that Mr McMillan says that he met withyou and you handed him pieces of paper?

A: That’s right.

Q: Is your evidence that you deny that or you justcan’t recall?

A: I cannot recall, so I cannot say yes or not. But to thebest of my knowledge, no.

Q: Can you advance any reason to the Commission, andyou may know one, but can you advance any reasonto the Commission why Mr McMillan would saythese things about you if they weren’t the truth?

A: I do not know.

Green Cards – Mr Holopainen and Mr Dougall

As canvassed in Chapter 4 of this report, Part 8 of theOHS Regulation imposes a requirement uponemployers and others to ensure that workers whoattend the site have undergone “OHS inductiontraining”. Pursuant to Clause 217 of the Regulation,the general health and safety component of thetraining must cover certain topics set out in theCode of Practice for Occupational Health and SafetyInduction Training for Construction Works 1998;must be approved by WorkCover NSW and, inter alia,must be conducted by a person who has a Statementof Attainment in Training Groups issued by aregistered education or training provider, whichmeans an education or training provider registeredunder the Vocational Education and TrainingAccreditation Act 1990.

WorkCover’s role in the issue of documentation topersons who have undergone the general health andsafety induction training is to permit trainers to issueCertificates of Training which bear the WorkCoverNSW logo.

WorkCover NSW does not issue “Green Cards”.However, it would appear that it is the practice ofcertain of these trainers to also create and issue a formof card similar to the Green Card issued by theConstruction Industry Training Advisory Board(CITAB).*

It is clear that Mr Holopainen handed over falseGreen Cards to a number of persons on theWoolworths site. It is not clear, however, whetherthose Green Cards were created by Mr Holopainen orMr Dougall.

The Commission obtained a photocopy of a fax fromMr Holopainen to Mr Dougall requesting thatMr Dougall organise Green Cards for five personsnamed in an attachment. One of these persons wasMr Gorrell. What is not clear, however, is whetherthe Green Cards which were ultimately supplied byMr Holopainen to Mr Gorrell, Mr McMillan andothers were created by Mr Dougall or were created byMr Holopainen. In this regard Mr Holopainen gavethe following evidence:

Q: Was that a fax sent by you to Mr Dougall for thepurpose of having him organise Green Cards for thenames which were attached to it?

A: That’s right.

Q: If you go to the next page, is that document in yourhand as well?

A: No, that’s not. That’s in Jim Field’s handwriting orYass Earth Movers, I believe, if you read up the top.Mine says, “This one too”, that is my handwriting.That has been underlined on the side, beside No. 3,what was Les Sarkory, I think it was.

Q: It seems to indicate although Les Sarkory has beentaken off the list he was back on it again?

A: He was. He had — he actually had a certificateissued from a course that he had done that was,according to Alan Stone from Adco that wasirrelevant and was not accepted by WorkCover.He had to have a Green Card.


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* Prior to 1999 CITAB had issued a Green Card to construction workers who had undergone voluntary OH&S induction training. In 1999 an amendment to the Construction Safety Regulation introduced for the first time a system of compulsory OH&S inductiontraining. From this time on WorkCover NSW issued OH&S Induction Certificates, through accredited trainers, to applicants who hadundergone the training specified under the new compulsory regime. Officially, the OH&S Induction Certificate was all that was required todemonstrate the required OH&S competencies. See also Chapter 6 for a discussion of these matters.

Q: Can we take it that you actually received GreenCards for the people named on Mr Field’s documentand subsequently distributed?

A: Yes, I did.

Q: If you go to the next —?

A: Can I just say something on that?

Q: Yes, certainly.

A: I gave them to Mr Field. Mr Field laminated themand basically distributed them to these gentlemen.

Mr Holopainen agreed that the Green Cards werefalse in the sense that the persons named on themhad never attended the induction course. He claimednot to have noticed that the trainer’s name was listedas a “G. Evans” rather than Mr Dougall.

Again, Mr Holopainen claimed that the invoiceprepared by him and given to Mr Field for the supplyof Green Cards was to obtain reimbursement formoney which he had paid to Mr Dougall.

Mr Holopainen confirmed that he never had anyauthority to conduct OHS induction training, to issuestatements of training on behalf of WorkCover NSWor to issue Green Cards. He also confirmed that hewas aware that he had been supplying Green Cards tothe employees of Mr Field which had been improperlyobtained.

Mr Dougall’s evidence

Mr Dougall initially claimed that he had only everissued Notices of Satisfactory Assessment incircumstances where applicants had completed thenecessary written test and, with one exception, hadalways carried out the requisite practical test.The exception concerned circumstances where thecorrect machinery might not be available. He gavethe following evidence:

Q: But do you say in certain circumstances that youwouldn’t do a practical test, but at all times or on alloccasions you ensured that the written test wasproperly done?

A: That is correct.

Q: You were aware, were you not, that the guidelinesrequired that the operators of heavy machineryundergo a practical test as well as a written test?

A: No, I regularly spoke to WorkCover. There wasoccasions when it became a grey area in my mind thatthe likes of going to a scrap metal yard where theexcavator was fitted with a magnet, what do I doabout this guy. He’s not equipped to dig holes or dovarious other things, and I was told that if theemployer or whoever was the supervisor said that hewas fit and competent to use the machine to do thework that he was doing, then that was sufficient.

Mr Dougall claimed to be unable to recall the identityof the officer of WorkCover NSW who had given himthis advice. In any event, Mr Dougall admitted thathe had issued a Notice of Satisfactory Assessment toMr Gorrell in circumstances where no practicalassessment was carried out by him and thecircumstances fell outside the exception canvassedabove. He gave the following evidence:

Q: There was no suggestion in this case, was there,that there was no equipment available on which toconduct the test?

A: No, there was no suggestion.

Q: You were prepared just to rely upon what you weretold by the employer, is that what you say?

A: I did on that occasion.

Q: That was quite contrary to the guidelines, wasn’t it?

A: Well, I didn’t believe so at that time.

Q: Because of this conversation with somebody inWorkCover that you can’t identify?

A: That’s correct. It was more than one conversationwith WorkCover with regard to this.

Q: Many conversations with one or more people?

A: Several.

Q: None of whose names you can tell us?

A: Correct.

Mr Dougall appeared to resile from this evidencelater, during cross-examination by Counsel forWorkCover NSW:

Q: Mr Dougall, the evidence that you’ve given to theCommission about someone from WorkCover tellingyou that you could rely on the word of an employerhas been untruthful, hasn’t it?

A: So I now believe.


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Mr Dougall agreed that the Notice of SatisfactoryAssessment issued to Mr Gorrell on 6 August 2002was false because it indicated that a practical test hadbeen carried out when it had not been carried out.

Mr Dougall claimed that he had only ever carried outone assessment at Yass. He said:

I think I only did one. Mark told me there was five orsix assessments to be done and when I got there, therewas only the one.

This evidence was significant because it supported thestatement made by Mr McMillan that the Notices ofSatisfactory Assessment obtained by him on 6 August2002 were provided to him by Mr Holopainen andnot by Mr Dougall.

Mr Dougall was shown a Notice of SatisfactoryAssessment and Assessment Summary X154615relating to Mr McMillan, dated 6 August 2002.He agreed that the words “Yes” which were writtento indicate that there had been a knowledge test anda practical test were in his hand. It was clear also thatMr Dougall’s signature appeared on the Notice.He claimed, however, that although his writingappeared on the document as referred to above, thesignature was not his. He was completely incapable ofproviding a satisfactory explanation for thecircumstances of this Notice of SatisfactoryAssessment. He gave the following evidence:

Q: One of the documents you were given was a copy ofMr McMillan’s statement and he says a number ofthings. Firstly he says that on that day, 6 August2002, “He turned up to the Hamilton Hume Hotel atYass and you weren’t there but Mr Holopainen was”.That’s the first thing he says. The second thing he sayswas “That he filled out an application for anassessment and was given a blue and a pink”.

A: If I give an assessment for this gentleman he wouldhave got the blue and the pink from me.

Q: He couldn’t have, you see, because that is 6 August,when on your own evidence you’ve only ever doneone test and it wasn’t Mr McMillan. It was adocument I previously showed you.

A: I can’t answer this.

Q: Isn’t this the case that you left some of the paperworkwith Mr Holopainen so that he could issue thesetickets without any testing on your behalf?

A: I couldn’t do that. I would have to take the book withme and I would never leave the book with anybody.

Q: You could just tear the pages out.

A: You can’t just tear the pages out, there’s triplicate.

Q: Of course you can. You can take the pink and theblue out and leave the white, can’t you?

A: You can tear the pink and the blue out and leave thewhite but you wouldn’t have the writing on the white.

Q: What if it was filled out beforehand by you? You fill out the details, you sign it, you give the blueand the pink to Mr Holopainen and you walk awaywith the white?

A: I don’t think that’s my signature.”

Mr Dougall denied that he had issued the paperworkto Mr Holopainen knowing full well that no test wasgoing to take place, but was unable to offer anyexplanation for the existence of the documentconsistent with his innocence.

Mr Dougall then claimed that he was “not too sure”that any of the writing in X154615 was his writing.He also suggested that he had “reservations” that hiswriting appeared on the other Notice of SatisfactoryAssessment, X154614, that was issued to MrMcMillan under his name on 6 August 2002.

Mr Dougall subsequently changed his evidence.In relation to Notice of Satisfactory Assessment andAssessment Summary X154614, he admitted thatthe words “Yes” and “N/A” together with AssessorDetails, including his signature, were in his hand.He also ultimately admitted that this was the case inrelation to X154615. However, no explanation wasoffered by him as to how the Notices of SatisfactoryAssessment were issued to Mr McMillan incircumstances where Mr Dougall had only conductedone test (i.e. knowledge test) at Yass, and that was inrelation to Mr Gorrell. As to situations where herelied on the word of an employer that a particularapplicant was competent to operate specificmachinery rather than conducting a practical test,Mr Dougall ultimately admitted that he had issuedNotices of Satisfactory Assessment in suchcircumstances “possibly as many 50 times” and thaton such occasions the Notices of SatisfactoryAssessment were “falsely” filled out by him.


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In this regard he gave the following evidence:

Q: I asked you some questions yesterday concerningwhether you had ever issued Notices of Assessmentwithout following the guidelines and you informed theCommission that you, from time to time, had notpractically tested an applicant and then you went onto explain why. Were there any other respects inwhich you didn’t comply with the guidelines?

A: Having understood the situation with reflection Ibelieve that I didn’t comply with the guidelines in thatI did falsely fill out the Assessment Summary, as youhave there, as to say, yes, they had completed thingswhere there’s times when they hadn’t.

Q: What were the things that they hadn’t completed butyou said that they had?

A: Well, generally it would be not actually havingdriven for me.

Mr Dougall denied issuing any of the Green Cards toMr Holopainen in the name of “G. Evans”. AlthoughMr Dougall admitted that the cards were in the sameformat as were issued by him, he claimed that he hadbeen unable to issue any such cards after November2001 because his computer was in the possession ofMr Holopainen.


I am satisfied to the requisite standard thatMr Dougall engaged in corrupt conduct in issuingNotices of Satisfactory Assessment to Mr Gorrell,Mr McMillan and the “possibly as many as 50” otherapplicants referred to by Mr Dougall. With respect tothe Notices of Satisfactory Assessment issued toMr McMillan, I am satisfied, to the requisite standard,that Mr Dougall facilitated this through the provisionof documentation with relevant sections completed byhimself. I had before me the original Notices ofSatisfactory Assessment provided to Mr McMillan,X154615 and X154614. I also had a copy of theNotice of Satisfactory Assessment provided toMr Gorrell, X154622. There was clear agreementthat Mr Dougall was responsible for the completion ofthe document provided to Mr Gorrell. I did not havethe benefit of expert evidence in comparing thehandwriting appearing in the document given toMr Gorrell and the document given to Mr McMillan.

However, the similarity in the handwriting on eachdocument, particularly the signature on eachdocument, was striking. In addition, all thesedocuments had the same date, they clearly came fromthe same Notice of Satisfactory Assessment book andthe document provided to Mr Gorrell by Mr Dougallwas apparently completed after the documentsprovided to McMillan. In all these circumstances,I reject the suggestion made by Mr Dougall that hewas not involved in the completion of the Notices ofSatisfactory Assessment provided to Mr McMillan.I found Mr Dougall’s evidence in this respectinconsistent and completely unconvincing.He commenced by agreeing that the words “Yes”completed twice on X154615 were in his handwriting.He then said in relation to the signature on thedocument, that purported to be his signature, “I don’tbelieve that is my signature”. This firmed to “Yes I seethat, but I don’t believe – that isn’t my signature.”Subsequently he moved away from his initial evidencesaying that he was “not too sure” that any of thewriting on X154615 was his writing and that he had“reservations” that his writing appeared on the otherdocument issued to Mr McMillan. In evidence thefollowing day he changed again, conceding that thewriting on both documents provided to Mr McMillan,including the signature, was his.

I am satisfied that Mr Dougall facilitated theprovision of these documents to Mr McMillan. It is not necessary to determine the precise mannerin which Mr McMillan came to receive thesedocuments. What is clear is that Mr Dougallfacilitated a process whereby Mr McMillan receivedthe Notices of Satisfactory Assessment documentsin circumstances where no testing took place.Mr Dougall’s conduct in facilitating this processconstituted or involved the dishonest exercise of hisofficial functions within the meaning of s.8(1) of theICAC Act.

The limitation imposed by s.9(1) of the ICAC Acthas been satisfied. Mr Dougall’s conduct couldconstitute or involve the commission of criminaloffences, namely offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001.


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In all the circumstances I am of the opinion thatconsideration should be given to the prosecution ofMr Dougall for offences under Clause 281(3) of theOccupational Health and Safety Regulation 2001.

Consideration should also be given to the prosecutionof Mr Dougall for offences under s.178BB of theCrimes Act 1900.

It is noted that WorkCover NSW has terminatedMr Dougall’s assessor accreditation. Accordingly it isnot necessary to make recommendations unders.74A(2)(b) and (c) of the ICAC Act thatWorkCover NSW consider taking disciplinary orother action against Mr Dougall with a view toterminating his services as a public official.

Counsel Assisting has submitted that I should includea statement to the effect that consideration should begiven to the prosecution of Mr Dougall for an offenceof giving false and misleading evidence under s.87 ofthe ICAC Act. The basis of the submission was thatin answer to the question:

Q: It was issued at Yass, do you see that on 6 August 2002?

Mr Dougall answered:

A: Yes, I see that but I don’t believe — that isn’t mysignature.

which Counsel Assisting submitted was evidence thatwas to the knowledge of Mr Dougall false in amaterial particular.

Certainly, this evidence related to a matter that wasmaterial to the Commission’s inquiry, that beingwhether Mr Dougall, as an accredited assessor, hadbeen involved in the provision of a completed Noticeof Satisfactory Assessment in circumstances where notesting had taken place.

I am satisfied that the evidence was false. The keyissue is whether, at the time that it was given,Mr Dougall knew that it was false. This issue wasraised in submissions on behalf of Mr Dougall whichcorrectly stated “There is a distinction betweenknowingly giving false or misleading evidence andanswering a question wrongly but still to the best ofyour belief at that time”.

It has been submitted that at the time of giving hisevidence Mr Dougall was answering the question tothe best of his ability. It was submitted that thisability in this respect was diminished on account ofthe effect of medication. Mr Dougall gave evidence inrelation to this medication as follows:

Q: You've given evidence here today in relation to yourmemory and lack of memory in relation to certainevents. Are you currently on any medication?

A: I am. For the last 18 months I've been takingtwo pills. One is something that puts me to sleep.I usually take it about 8 o'clock and I'm still foggy tillsome time later in the morning. Do you want thename of that?

Q: You can give us the name?

A: I've got a couple with me somewhere. At night I take— I'm not taking it so much anymore but I used totake Stilnox and in the daytime I still take Xanax.

Q: What effect do you find that that medication has onyour memory?

A: The Stilnox leaves holes in memory. I never realisedhow much until I've had to answer questions but theStilnox certainly gives me a very difficult memory.

Q: You were asked some questions about whether youwere deliberately untrue or evidence that you gaveyesterday was an attempt to guess an answer?

A: Yesterday I believe I made many guesses to givean answer.

Q: Was that because you were deliberately trying tomislead this Commission?

A: No, I was trying to be overly helpful and I madeguesses where my memory had gaps.

I did not have any expert evidence before me inrelation to the effect that this medication might beexpected to have and Mr Dougall’s evidence in thisrespect was not particularly reliable. Although he hadbeen taking this medication for 18 months, he neverrealised that it had any impact on his memory“until I’ve had to answer questions”, presumablybefore this Commission.


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The relevant evidence was not in relation to eventsthat took place some period of time ago, it related towhether the signature he was observing at that verytime was in fact his signature. Any impact on hismemory as a result of medication would not haveprecluded him from answering the questionaccurately.

Mr Dougall’s evidence was clearly deficient in manyrespects. He changed his position constantly. He mayhave had some difficulty recalling events in the pastthat combined with anxiety about his position as anaffected person and witness before the Commission’shearing to diminish the quality of his evidence. I amnot convinced that this is necessarily the case.This vagueness might also be explained as resultingfrom ongoing attempts by Mr Dougall to avoidresponsibility for improper behaviour on his part or atleast to minimise the level of his culpability.However, with respect to the specific evidence inrelation to the presence of his signature on X154615,as quoted above, this being evidence that related to aconcise issue and that was clearly within Mr Dougall’ssphere of knowledge and immediately apparent tohim, I am of the opinion that consideration should begiven to the prosecution of Mr Dougall for an offenceunder s.87 of the ICAC Act.


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Raymond William Anthony

Background

As canvassed in Chapter 1 of this report, the use ofcranes and other plant in the vicinity of power lineswas previously regulated by the Construction Safety Act1912 and the Construction Safety Regulation 1950.The latter specified minimum distances from activepower lines beyond which workers could not legallygo. The regulation specified that WorkCover NSWhad the power to issue Certificates of Exemptionrelevant to this and WorkCover NSW did just thiswith the issuing of Certificate of Exemption 5099.This outlined specific requirements for the conduct ofauthorised work within the proscribed distances.One of these requirements was that the crane or plant“operator” and the “safety observer” must haveundergone specified training, the Crane and PlantElectrical Safety Course, which had been developedby the Electrical Supply Industry Training AdvisoryCommittee for this purpose.

The repeal of the Construction Safety Act 1912 inNovember 2001 removed the legislative significanceof Certificate of Exemption 5099. However, thisdocument and the Interim Guide for Operating Cranesand Plant in Proximity to Overhead Power Lines thatsucceeded it remained influential in the industry.

The Crane and Plant Electrical Safety Course, asreferred to in Certificate of Exemption 5099, wasdevised and delivered by the Electricity Association ofNew South Wales (“the Association”). This was thepeak electricity body in New South Wales and wascomprised of representatives of the various electricitysupply organisations operating within the State.After the dissolution of the Association in 2001-2002,ownership of the course passed to its memberagencies, the electricity supply companies includingTransGrid. Mr Anthony, who had been accredited togive the course by the Association, continued topresent the course on behalf of TransGrid. Also, inbreach of his employment contract, he conducted thecourse with other persons in return for a private fee.

The Crane and Plant Electrical Safety TrainingCourse is now known as The Overhead Power LineElectrical Safety Training Course. Integral Energyis also involved in providing this training.The Commission heard evidence from Warren TrevorAberley who is the Training and CurriculumCo-ordinator for Integral Energy.

What the training course should involve

Mr Aberley gave evidence on the content of therelevant course, making the point that those whowere trained were labourers, crane operators, plantoperators and dogmen and were generally notqualified in electrical work.

He gave the following evidence in relation to theperiod of time necessary in which to conduct propertraining:

Q: … It sounds from what you’re saying, that there’s alot to cover in the two days?

A: There’s quite a bit to cover in two days.

Q: Would I be correct in suggesting to you that it’s a veryfull-on course, you really do take two days to do itproperly?

A: At least.

Q: At least?

A: At least.

Q: What do you say to the proposition that one could dothe course in one day?

A: No.

Q: There’s no way, is there?

A: The only way if a person was — okay, if he was aqualified electrician and had had some experience inthe electrical distribution industry.

Q: Let’s deal with a crane operator.

A: No.

Q: Or a dogman?

A: No.

Q: Is there any way known that you could see that thecourse could be —?

A: Not possible, not with the people I’ve trained over theyears and my fellow training officers have trained.A lot of these people — some go through the coursequite well, others have a lot of trouble because they’vegot language and literacy problems. And we —

Q: So two to two and a half days?

A: Two days is the course and at least half a day forrescue and resuss [resuscitation] and if the person hasto operate an elevated work platform or a cherrypicker it will take a bit longer because they have to doa rescue out of that, which is a requirement in theelectrical industry. I think if you’re not working underexemption you still have to do your rescue andresuscitation component as well.


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Chapter 4: Electrical safety training and OHSinduction for construction work

Q: That’s in addition to the two days?

A: That’s in addition to the two days, yes. It’s arequirement that you have to do that every twelvemonths as well, you know, when you do the refresher.

Mr Aberley made it clear that there was both aknowledge and a practical component of theassessment. An assessment was carried out at the endof each module. An applicant could not proceed tothe next module without passing the prior module.Mr Aberley said that the refresher course would take aminimum of three to four hours.

Matters of interest in relation to Mr Anthony’sconduct

There were three matters of substance which were thesubject of investigation in relation to Mr Anthony,namely:

1. an alleged failure to provide proper trainingto those participating in the Crane and PlantElectrical Safety Training Course or itssuccessor, the Overhead Power Line ElectricalSafety Training Course and refreshers;

2. procuring the issue of false certificates whichrepresented that certain persons hadundertaken refresher training when this hadnot occurred; and

3. the issue of false certificates of training inrelation to OHS induction for constructionwork.

The first of these issues arose in the context of thedeath of Michael John Boland on 26 February 2003 ata construction site located at Wilson Street,Heathcote. At the time Mr Boland was an employeeof Whyco Crane Services Pty Ltd of Blacktown.

Each of the three issues identified above arose in thecontext of the operations of Whyco Crane ServicesPty Ltd more generally.

The death of Michael John Boland

Circumstances of Mr Boland’s death

An Interim Report issued by the Department ofForensic Medicine on 27 February 2003 indicates thatthe direct cause of Mr Boland’s death waselectrocution.

On 26 February 2003, Ricky Alan Shaw andMr Boland were in the employ of Whyco CraneServices Pty Ltd and attended a site at Wilson Street,Heathcote, for the purpose of putting column cagesinto holes beside the railway lines. This work waspart of the works required for the replacement of anexisting roadway overpass bridge with a new structure.The construction project commenced in August 2002and was due for completion in April 2003. RailInfrastructure Corporation was the principalcontractor in control of the work site. Whyco CraneServices Pty Ltd had been engaged by Combined RailServices on behalf of Rail Infrastructure Corporationto supply a mobile crane, driver and dogman to carryout some of the work.

On 26 February 2003, Whyco Crane Services Pty Ltdprovided a Lenmack FE420C 20 tonne mobile crane,the two-man crew being Mr Shaw and Mr Boland.

It was intended that Mr Shaw would operate thecrane and Mr Boland would act as dogman. Mr Shawhad between six and seven months previousexperience as a crane operator, although he had actedas a dogman for a number of years. Mr Boland hadworked for approximately 12 to 14 months as adogman for Whyco Crane Services Pty Ltd.

On arriving at the site Mr Shaw and Mr Boland bothsigned a “sign-on sheet” and were given someinstructions from Mr Koletsios and Mr Klaser, SiteSupervisor, concerning their activities for the day.

Mr Boland and Mr Shaw initially started work onthe north side of Wilson Parade to install a steelreinforcing cage into a pre-bored hole located at tracklevel on the western side of the railway lines.This was carried out before morning tea. Aftermorning tea they returned to the crane to carry outsimilar work on the other side of the railway lines,the eastern side, operating from a cleared areaadjacent to and above the railway line. An accessramp had been constructed from this area down tothe underside of the bridge.

Chapter 4: Electrical safety training and OHS induction for construction work 55

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The access ramp was at a low elevation from wherethe crane was operating but still above the track level.A set of high voltage electrical transmission linesconsisting of two 11,000 kV lines at the lower leveland three 33,000 kV lines at the upper level werepositioned over the access ramp and parallel with therailway lines.

Having lowered the metal cage down into the holeunder the direction of Mr Boland, Mr Shaw gave thefollowing evidence as to what then occurred:

…so they’ve obviously undone the hooks and he’sgone, “Hook up”, you know, sort of a little slow atfirst, so as not to — you know, catch on the cagebecause when you’ve other people other than thedogman, doing this, so they tend to leave hooks openand — which they can catch on things and so, at thatpoint, I’m watching the — all I can see is the ropes ofthe crane. I’m watching them for any deviation in casethey have caught on the cage or, you know, or —because if they catch on the cage even if they don’tactually catch the edge it could flick and hit one of theblokes or whatever. So you watch your ropes to makesure that it doesn’t dance around or anything like that.So I’m hooking up and hooking and, you know,everything seems to be going okay and everything likethat. And I’m watching and I can now see the hookblock coming up and I can see the chains coming upand next thing Mick falls to the ground.

Mr Shaw then gave the following evidence in relationto what he observed:

Q: From sitting within the cabin of the crane you couldsee where the boom was?

A: It must have been out of me line of sight, because Ididn’t see it going up. You know I sat in the cab and Isort of just — I didn’t know what had happened andnow I’ve seen a puff of smoke come from the fronttyre, the front left hand tyre and I didn’t know whatthat was or whatever and I looked up and the jib wasup near the power lines.

Q: How close was it?

A: I don’t know. I couldn’t see whether it was touchingbut it was up there and it’s hard to say. It’s like — itcan be an optical illusion. If you were to get a fishingrod and hold it up to a power line half a kilometreaway it could look like it was touching, you know.It’s impossible to say.

First aid was administered to Mr Boland but he diedsoon after.

A number of measurements were taken by WorkCoverInspector Stephen Cooper. In my view thosemeasurements, when taken together with Mr Shaw’sevidence and the apparent cause of Mr Boland’sdeath, indicate that it was likely that the crane hadbeen operating within the prescribed distance of threemetres from overhead power lines.

If this is so, then in accordance with the Interim Guidefor Operating Cranes and Plant in Proximity to OverheadPowerlines:

1. it was necessary to have an on-site a safetyobserver who had undergone the requiredtraining and who would act independently ofthe crane operator and the dogman; and

2. the crane operator, Mr Shaw, was alsorequired to have undergone the trainingencompassed by the Overhead Power LineElectrical Safety Training Course.

There was no independent observer on-site.Further, it is clear that to the extent Mr Shaw hadundergone training it was entirely inadequate. Indeed,Mr Anthony had procured the issue of a certificate forMr Shaw which falsely represented that he had beentrained over two days when whatever training wasgiven by Mr Anthony to Mr Shaw was given on oneday only.

Mr Shaw’s electrical safety training certification

On or about 16 August 2002 Mr Shaw was providedwith Certificate No. 0002 issued by TransGrid atMr Anthony’s direction certifying that Mr Shaw hadsuccessfully completed the Crane and Plant ElectricalSafety Training Course on 15-16 August 2002. To theextent that the certificate contained a representationthat the course had been conducted over two days,the certificate was clearly false. Mr Shaw gave thefollowing evidence:

Q: Over what period of time did the course or theassessment take with Mr Anthony?

A: One day.

Q: Was that 15 August 2002?

A: I wouldn’t know that. I wouldn’t know the dates.It was a working day, yeah.


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Q: Certainly no more than that?

A: No.

Q: Do you see that certificate says 15 and 16 August2002?

A: Yeah.

Q: That’s not correct?

A: No.

Apparently such training and assessment as wasprovided by Mr Anthony was provided at WhycoCrane Services Pty Ltd. Whatever training orassessment took place on 15 August 2002, it musthave fallen far short of the standard which MrAberley had indicated was necessary for persons whowere not qualified electricians. Mr Shaw said:

We were informed with a — like a projector screenhow electricity worked and how you have like highvoltage going to lower voltage through more arteries,etc. etc. We’ve had a — we were taken outside,we were shown power lines that were out the front ofthe yard, how to identify higher voltage from lowervoltage by the amount of insulators that are there.Had a written test, had to pass the written test. I don’t recall much more.

No practical assessment took place as was requiredby the course guideline and as was canvassed byMr Aberley in his outline of how the courseshould operate.

It would appear that a number of other employees ofWhyco Crane Services Pty Ltd including thedeceased, Mr Boland, participated in Mr Anthony’s“short” course for Crane and Plant Electrical Safety.

On 14 October 2002 Adrian Leslie Prentice wascertified by Mr Anthony. Mr Prentice was adogman/rigger who attended the course withMr Boland and another employee, Marty Douglas.The course took approximately eight hours. Again, no practical assessment was carried out.

Mr Anthony and his “short course”

The course outline for the Crane and Plant ElectricalSafety Course which operated until 2001/2002 andwas utilised by TransGrid provided minimum traininghours. The document indicates in unambiguous termsthat the minimum training period (excludingassessment) was 10.5 hours. As to its successor theOverhead Power Line Electrical Safety Training Coursewhich operated from 2001, the Trainer Manualindicates that the minimum training period(excluding assessment) is 14 hours. This is consistentwith the evidence of Mr Aberley.

Nevertheless, Mr Anthony maintained that he could“communicate” the course in two to three hours andcertainly complete the course in a day. He gave thefollowing evidence:

Q: Are you saying that in your experience in running thiscourse you could teach it in two to three hours?

A: No, not at all. I’m saying that that was one of thebases. It took into more finesse. The bottom line —the bottom line of — is the clearance distance as fromlive electricity.

Q: That might be the bottom line, sir, but you wereaware were you not when you started doing theseprivate assessments that the guidelines provided thatthe course would take 14 hours excludingassessments, weren’t you?

A: Yeah. Well, yes, it’s a 14 hour requirement. I knew it was two days I would say or a period of twodays, yeah.

Q: But your position is that you considered it could bedone in a day and therefore you did it in a day?

A: Yes.

Q: Did you tell your employer TransGrid that you weredoing the courses in a day rather than two?

A: No, because I think probably — no.

Q: If what you say is correct, that is if you couldproperly do it in a day, there would have been noreason, would there, to have concealed fromTransGrid the fact that you were doing it in onerather than two days?

A: But we did training for TransGrid in a day, too.


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Q: Would you come back to my question please? If as you say there was nothing irregular in doing it inone rather than two days there would have been noreason, would there, for you to conceal that factfrom TransGrid?

A: I know as I’m standing here before you now, no.

Mr Anthony did conceal the fact that he wasconducting the course in one day rather than two.Indeed, he falsely represented to TransGrid in relationto the assessment of Mr Shaw that the course hadbeen conducted over 15 and 16 August 2002 and thatthe certificates should be issued accordingly.

Ms Rachel Stedman was the Secretary of the Healthand Safety Section of TransGrid. She was the personresponsible for arranging the issue of certificates suchas the certificate supplied to Mr Shaw by Mr Anthonyin respect of his “training”.

In an e-mail dated 15 August 2002 Mr Anthonyrequested that Ms Stedman create certificates for fournamed individuals including Mr Shaw representingthat the course would be conducted over 15 and16 August 2002. Mr Anthony had no rationalexplanation for this misrepresentation. It is open toconclude that he knew the course could not beproperly carried out in one day only. He gave thefollowing evidence:

Q: Thank you very much. Would you still please read it,“Rachel, Can you please create a certificate for theCrane and Plant Electrical Training Course for” thenyou name four individuals?

A: Yes.

Q: Date, 15 to 16 August 2002?

A: Yes.

Q: That was false, was it not?

A: Yes. We did that over one day.

Q: That’s right?

A: Yes.

Q: Why, might I ask, were you making false statementssuch as that one to TransGrid if indeed you believedthat the course could be done properly in a day?

A: I have no answer to that. I — I guess — at this stageI have run two full courses since TransGrid ownedthe course. This was one of them and the second oneI ran one day and — and this one I put a — if I ranit in a day I put 15 and 16 for no reason. I’m notdenying anything. I ran it in a day.

Q: It’s a false statement, is it not?

A: Well, I didn’t see it as such but I — you know, as Isit here before you now, I have to say yes.

Mr Anthony agreed that if it was proper for him tohave carried out the course in one day there wouldhave been no reason to falsely represent on theapplicant’s certificate that he or she had completedthe course over two days rather than one. He alsoagreed that he knew at the time of giving theinformation to Ms Stedman that it was false.

What made the situation even worse was that thee-mail (Figure 9) indicates that it was sent at 3:09pm.

Initially Mr Anthony claimed that although hecarried out the course in one day it was “an extremelylong day”. This evidence could not stand with thetiming on the e-mail. He gave the following evidence:

Q: Where did you send this e-mail from?

A: Probably from — from Walgrove, what we callWalgrove. Rachel Stedman is in Newcastle.

Q: Where did you conduct the course?

A: We conducted this particular course at WhycoCranes.

Q: Do you see the time on the e-mail, 3:09? Thatsuggests, does it not, that training was well and trulyover by then?

A: Okay. All right, yes.

Q: Isn’t it the case, Mr Anthony, that you were preparedto issue these certificates without giving the craneoperators and the like any proper training at all?

A: No, I — I — I don’t think so. I — I — I worked myway through the course as I thought proper.

Q: Would you like to withdraw the evidence you gave alittle earlier saying it was a very long day?

A: Well — well, I withdraw the evidence.

Q: It’s obviously wrong, isn’t it?

A: We started — I don’t know, we started at around7:00 and we finished around probably quarter tothree, half past two.

Q: How many hours does that give you?

A: Six, seven — six.

Q: Are you seriously suggesting that you could teach the5099 course in six hours?

A: Well, that’s what I did, sir.


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Q: Are you seriously suggesting that you could properlydo it in six hours?

A: Well, I think they were happy and — and — youknow — and — and I was certainly, you know, wecovered everything. We had —

Q: I bet they were happy, they got their tickets, but areyou seriously suggesting that you could properly teachthe course in six hours?

A: Well, I did and I can’t retract from that.

Q: It’s obvious you did, but are you seriously suggestingthat you could properly teach this course in six hours?

A: Well, yes.


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Figure 9

What findings should be made in relation toMr Boland’s death?

I am satisfied that neither Mr Shaw nor Mr Bolandhad been properly trained by Mr Anthony in relationto the Crane and Plant Electrical Safety Course. I am also satisfied that the certificate issued byMr Anthony to Mr Shaw was false andknowingly false.

However, I do not intend to make any particularfindings in relation to the cause of Mr Boland’s death.This is a matter for a current coronial inquiry. In myview the circumstances of Mr Boland’s death certainlyhighlight the dangers of conducting constructionwork in the vicinity of overhead power lines and theneed for careful management of such situations.Without expressing a concluded view on the precisecause of death, there is certainly a real possibility thatthe accident may not have occurred if an independentsafety observer had been operating on the site inaccordance with the provisions of the Interim Guidefor Operating Cranes & Plant in Proximity to OverheadPower Lines.

Findings of corrupt conduct – training ofMr Shaw and others

I am satisfied to the required standard thatMr Anthony’s conduct in causing a Certificate ofSuccessful Completion for the Crane and PlantElectrical Safety Course on 15 and 16 August 2002 tobe issued to Mr Shaw, by making false representationsto Ms Stedman, constituted or involved corruptconduct within the meaning of s.8(1)(b) of the ICACAct in that it involved conduct of a public officialthat constituted or involved the dishonest exercise ofhis official functions.

The limitation imposed by s.9(1) of the ICAC Act issatisfied in that Mr Anthony’s conduct in procuringthe issue of this false certificate to Mr Shaw couldconstitute or involve reasonable grounds fordispensing with the services or otherwise terminatinghis services within the meaning of s.9(1)(c). On anyview, Mr Anthony’s conduct involved seriousmisconduct.

I am not satisfied that Mr Anthony’s conduct inissuing the false certificate to Mr Shaw couldconstitute or involve the commission of a criminaloffence. The certificate was issued on or about15 August 2002. Section 307C of the Crimes Act 1900had not at that time been enacted. Section 21B of theConstruction Safety Act 1912 provided criminalsanctions for those who wilfully made false entries incertificates “under this Act or the regulation”,however Certificate of Exemption 5099, theConstruction Safety Regulation 1950 and theConstruction Safety Act 1912 all ceased to have legaleffect with the commencement of the OccupationalHealth and Safety Act 2000 and the OccupationalHealth and Safety Regulation 2001.

As discussed earlier in this report, to establish anoffence pursuant to s.178BB of the Crimes Act 1900 itis necessary to show that the relevant false statementwas made with an intention “to obtain for himself orherself or another person any money or valuable thingor any financial advantage of any kind whatsoever”.In these circumstances it is likely that Mr Anthony’sintention in falsely representing that the course tooktwo days instead of one was to conceal the true natureof his activity from TransGrid. This may provide anadvantage of sorts but not a “financial advantage” asrequired by the section.

Section 74A(2) statement – death of Mr Boland

I am not of the opinion, in relation to these matters,that there is sufficient evidence to warrantconsideration being given to the prosecution ofMr Anthony for any criminal offence.

It is noted that Mr Anthony has terminated hisemployment with TransGrid. Accordingly, it isunnecessary to express any opinion in relation to thetaking of action against Mr Anthony for any specifieddisciplinary offence.


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False certificates – refresher courses

Distribution of false certificates

Both the Crane and Plant Electrical Safety Courseand its successor, the Overhead Power Line ElectricalSafety Training Course, required persons who hadundertaken the course to participate in refreshertraining every 12 months.

On 31 August 2001, Mr Anthony issued falsecertificates to the Managing Director of Whyco CraneServices Pty Ltd, Terry Whyte, certifying (falsely)that a number of employees of Whyco Crane Serviceshad undertaken “refresher training”. That listincluded the following persons:

• Lyn Coveney

• Terry Whyte

• Paul Pedersen

• Andrew Harvey

• Peter Freeman

• Edward Boyan

• Paul Churchill

• Trever Gilham

• Greg Taylor.

A list of these applicants is contained in the Craneand Plant Electrical Safety Refresher CertificateRegister, established by the Electrical Associationof NSW.

The issue of a false certificate in respect of Mr Boyanwas particularly grave. Mr Boyan was the brother-in-law of the deceased, Mr Boland. In his case, he hadnever participated in the Crane and Plant ElectricalSafety refresher course or the original course.

Evidence of certificate holders

In evidence before the Commission was a CertificateNo. R3464 issued to Edward Boyan on or about31 August 2001. The Certificate (Figure 10) containsthe logo of the Electricity Association of New SouthWales and states that “Edward Boyan has undertakenrefresher training in Exemption 5099 anddemonstrated competence in the Crane and ElectricalSafety Course”. The signature “Hugh Ross” is given asthe assessor’s signature.

Figure 10

It appears that such certificates were issued by theElectricity Association of New South Wales basedupon information supplied by relevant trainers,including Mr Anthony. It is common ground that theissue of this false certificate was procured byMr Anthony.

Mr Boyan agreed that he had obtained the certificatewithout any training. Mr Pedersen gave similarevidence as follows:

Q: The records of Whyco indicate that on 31 August2002 [sic] [Whyco records refer to 31 August2001] you undertook refresher training in relation toyour 5099 certificate. Did that occur?

A: No.

Q: Were you nevertheless issued with a refreshercertificate?

A: Yes.

Q: How did that occur?

A: That got handed to me over the counter atWhyco Cranes in their office.

As to how Whyco Cranes came into possession of thisfalse certificate he gave the following evidence:

Q: Did you become aware at all how Whyco Cranes hadcome into possession of the particular document?

A: Yes.

Q: First, how as you understood it, did they come intopossession of it?

A: They told me they’d spoken to the — to Ray Anthonywho did most of Whyco’s training.

Q: Yes?

A: And that they obtained the ticket.

Q: Who told you that?

A: Terry Whyte.


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Mr Pedersen considered that there was a “highchance” that he had carried out work after 31 August2001 for which a 5099 exemption was required.This was also the position of Mr Boyan who gaveextensive evidence in relation to his work on a siteat Castlecrag.

Mr Whyte also gave evidence concerning the issue ofa false certificate to him on or about 31 August 2001.He agreed that he had obtained such a certificatewithout doing any refresher. He agreed that he,Mr Coveney, Mr Pedersen, Andrew Harvey, PeterFreeman, Mr Boyan, Paul Churchill and Greg Taylorhad all been issued certificates in circumstances whereno refresher training had taken place.

I am satisfied that Mr Whyte then arranged for thedistribution of the false certificates so that WhycoCrane Services Pty Ltd could represent, falsely, thatits employees were appropriately qualified.Mr Whyte’s evidence concerning why he distributedthe false cards was unconvincing. His evidence wasas follows:

Q: At the time you received them, as you understood it,these people had not undergone any training?


Q: What did you do with the tickets?

A: In a — probably not a smart move told them that is— the ticket you’ll be called — it won’t be used untilyou’re retrained and you won’t be asked to use thatticket until you’re retrained, but there might havebeen words along the effect that there’s somethinggoing on with the Electricity Board where these peoplemight not be accessible for a while but we’llendeavour to get you retrained. But I do recall sayingto each and every person that received a ticket thatthey wouldn’t be required to work under this ticket.

Q: Why were you prepared to issue those tickets to themin circumstances where you knew they had not beenretrained?

A: I don’t have an answer for that. As I said I don’tthink it was — I don’t think it was a very good move.

Q: Wasn’t it so that they could represent to persons on-site that they in fact have the qualifications to —?

A: No, not at all.

Mr Whyte denied that his company had everrepresented to any builders for whom it did work thatits employees had so-called 5099 qualifications whichthey did not have. This evidence too was incorrect.

In evidence before the Commission was a Safe WorkMethod and Risk Assessment Statement provided byWhyco Crane Services to the builder in respect of aproject at Luna Park. A number of persons includingMr Whyte, Mr Churchill, Mr Taylor and Mr Pedersenwere represented in the document as having theappropriate certificate for the 5099 exemption.Mr Whyte had no explanation for the documentother than it was a “standard work methodstatement”.

Counsel Assisting, in his written submissions,suggested that I make a statement in this report that Iam of the opinion that consideration should be givento the prosecution of Mr Whyte for offences of givingfalse or misleading evidence in relation to a materialparticular under s.87 of the ICAC Act. He directedme to the following evidence given in private hearingon 3 September 2003 in relation to the distributionof 5099 refresher tickets referring to training on31 August 2001:

Q: Did it come to your attention though that certain ofthe persons who were on Mr Anthony’s list receivedthat accreditation but never went and did theirrefresher training?

A: Yes, it actually did. One employee. But we noted thatstraight away.

Q: Who was that?

A: Eddy Boyan.

Q: That was the brother-in-law of Mr Boland, is thatright?


Q: Were there any others?

A: No. No. And Eddy did bring it to our attentionstraight away.

Shortly afterwards he gave evidence about where therefresher training took place.

Q: Where, as you recall it, did this refresher training takeplace in relation to the August 2001 certificates?

A: In our — in the men’s lunch room. They’ve got afair sized lunch room there and I believe it took placein there.

Q: It certainly didn’t take place at Mr Anthony’s home?

A: No. No.

Six days later, in the Commission’s public hearing on9 September 2003, Mr Pedersen gave evidence of hisreceipt of a 5099 refresher ticket referring to trainingon 31 August 2001 in circumstances where no suchtraining ever took place.


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When Mr Whyte returned to the witness box in thepublic hearing on 11 September 2003 he gaveevidence to the effect that, although 5099 “refresher”tickets relating to training on 31 August 2001 werereceived in late 2001 and handed to the personsnamed in the tickets, no refresher training took placeon 31 August 2001 or any later time.

Counsel Assisting submitted that the Commissionshould be satisfied that the initial evidence, given on3 September 2003, and outlined above, was false anddeliberately false.

Submissions were received on behalf of Mr Whyte inthis respect. These suggested, with respect to bothpassages, that the Commission could not be satisfiedthat the evidence given by Mr Whyte involved adeliberate or intentional attempt by him to give falseevidence to the Commission, as is required toestablish an offence under s.87 of the ICAC Act.

With respect to the first passage, there is no doubtthat the evidence is false. Mr Boyan was clearly notthe only person who “received that accreditation butnever went and did their refresher training”. None of the persons who received accreditationdocumentation in these circumstances did theirrefresher training.

It was submitted on behalf of Mr Whyte that thisevidence “was the result of confusion on his part atwhat was being asked of him by Counsel Assisting”.It was submitted that Mr Whyte mistakenly believedhe “had been asked whether he knew that any of theemployees who had been issued with 31 August 2001certificates had (n)ever done any Certificate ofExemption No 5099 training at all” and he answeredthis honestly, but mistakenly, having regard to thetrue nature of the question.

There are a number of features of this evidence thatsupport the submission made by Counsel Assisting:

• the question clearly made reference to“refresher training”,

• at no stage in his evidence did Mr Whyte giveany indication that in fact no refresher trainingdid take place, and

• he confirmed this initial false evidence when,following ongoing examination into that sameincident, he indicated that the refreshertraining did in fact take place “in the men’slunch room”.

Additionally, during examination by Counsel forWorkCover, in the course of the public hearing,Mr Whyte agreed that he had similarly misleadWorkCover Inspector Cooper. When he was asked byMr Cooper “Are you aware of any occasions whereemployees of Whyco Crane Services Pty Limited haveobtained certification training certificates withouthaving attended and completed the appropriatetraining course?” Mr Whyte again made referenceonly to Mr Boyan. In this respect he again claimed tohave interpreted the question as relating to whethercertification had been received in circumstanceswhere there had been no training “whatsoever”.

There seems have been a consistent course of conductwhereby Mr Whyte was misinterpreting clear andspecific questions put to him in relation to the issuingof training certification in circumstances where notraining had taken place. This was also, allegedlymistakenly, confirmed by Mr Whyte’s assertion thattraining actually took place in the “men’s lunchroom”. This misinterpretation by Mr Whyte ofquestions put to him on in relation to this matterseemed to come to an end after Mr Pedersen gaveconflicting evidence on 9 September 2003.

I do not agree with submissions made to the effectthat Mr Whyte was confused about the particularincident that was the subject of questioning. In hisevidence in both public and private hearings it wasclear that he was referring to a single incident, inwhich Mr Anthony allegedly called and outlined a listof persons who were in need of refresher training andsubsequently sent out certificates stating refreshertraining had been undertaken.

I do not agree with submissions made on behalf ofMr Whyte that his attention was focused on thecircumstances surrounding the August 2001certificates only after the commencement of thepublic hearing. The extent of his ongoing focus onthe incident relating to the 31 August 2001certificates is highlighted by evidence he gave whilebeing examined by Counsel for WorkCover:

Q: And after you issued the fraudulent 5099 tickets —?

A: Yes.

Q: — to your employees, how did you ensure that noneof them were used by those men?

A: We — as I said, and again I state I don't — it wasn'ta great move but we were reasonably controlled in the5099 and as I said we told them that they would notbe required to use those tickets —


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Q: I know you told them that, sir. What I'm asking youis, what steps as a director of the employer companyyou took to ensure that they did in fact not do that?

A: Well, I had a list of those names written down in myoffice and —

Q: Did you?

A: Yes, I did, yes, and that list of names was also Ibelieve out in the allocator's office.

Q: So those names were — had been, as it were, on thetop of your head since that time as people holding afraudulent certification —?

A: Yes.

Q: — for exemption under 5099?

A: Yes.

Then, after brief examination in relation to hisinterview with WorkCover Inspector Cooper,Mr Whyte gave the following evidence:

Q: Didn't you tell the Commissioner a few moments agothat you had on the top of your head the names of anumber of people whom you had given fraudulent5099 exemption certificates?

A: Yes, but the intent was there to have them allretrained.

In relation to Mr Whyte’s evidence, in privatehearing, that the “refresher training…in relation tothe August 2001 certificates” took place “In our — inthe men’s lunch room”, it was submitted on behalf ofMr Whyte that this further inaccurate evidence wasalso the result of confusion on Mr Whyte’s part.This evidence was given after sustained questioning inrelation to the August 2001 certificate incident. As I have mentioned above, there are clearindications that Mr Whyte was well aware andfocused with respect to this incident.

It was submitted on Mr Whyte’s behalf that CounselAssisting’s question was confusing in that it assumedas a positive fact that training in relation to the31 August 2001 certificates did take place whereasMr Whyte had never agreed with this proposition.This submission overlooks Mr Whyte’s earlierevidence:

Q: Did it come to your attention though that certain ofthe persons who were on Mr Anthony’s list receivedthat accreditation but never went and did theirrefresher training?

A: Yes, it actually did. One employee. But we noted thatstraight away.

Q: Who was that?

A: Eddy Boyan.

This has been discussed at length above. The clear inference arising from this evidence is thatall the other persons on Mr Anthony’s list whoreceived accreditation did go on and do theirrefresher training.

It might be argued that, although evidence had beengiven that inferred that refresher training had takenplace, Mr Whyte was mistaken in this evidence andtherefore confused by a subsequent question thatassumed this fact. I would reject such an argument.The construction of the question and the context inwhich it was asked were such that it was very clearthat Counsel Assisting was referring to the refreshertraining relating to the 31 August 2001 certificates, amatter that Mr Whyte was well aware of.

There is support for Mr Whyte’s contention thatwhen he made references to Mr Boyan in the privatehearing passage recorded above, he was referring tothe fact that Mr Boyan had not undergone any 5099training whatsoever. During examination by Counselfor Whyco Cranes Pty Ltd Mr Whyte gave thefollowing answers:

Q: In respect of these certificates, you say Mr Anthonyrang you and gave you a list of about 15 names?

A: Yes.

Q: When those five or six certificates arrived, what didyou do with them?

A: We called the employees in and said, you know, thatyou will be up for retraining and you'll probably becontacted in the next week or so and there will be aretraining afternoon here.

Q: Was that when Mr Boyan told you that —?

A: That he didn't have — he didn't have that ticket andthat's when the ticket was not given to him.

Q: What happened to that ticket?

A: That ticket stayed on my desk and I can't recallwhether I spoke to Ray Anthony about how a tickethad turned up with a bloke’s name on that had neverdone the training.


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Even if Mr Whyte was intending to speak aboutMr Boyan, in his 3 September 2003 evidence, interms of him not undergoing any 5099 trainingwhatsoever, this does not mean his response was notpart of an ongoing attempt to mislead theCommission in relation to the August 2001 refreshertraining. In this respect it is interesting to note MrWhyte’s evidence when the issue of this training wasfirst raised during his evidence on 3 September 2003:

Q: You obtained, did you not, a certification fromMr Anthony —I’m just having it double checked.I thought it was 31 August 2002, but I’m told it maybe 2001—?

A: Yes.

Q: — that you had conducted a refresher course?

A: Possibly.

Q: Is it a fact that Mr Anthony issued you a certificationdemonstrating that you had carried out a refresher incircumstances where you had not —?

A: No, we — we actually — I found it strange and Rayhad called me, and I can't recall the date I'm sorry,but Ray — Ray had called me with reading out a listof names and a lot of them weren't our names thatwere due for refresher courses and — and I tagged thefellows that — that names were under my employ atthe time, and there may have been five or six fellowsout of 10 or 15 names that he read out. And I said,“Yes, they are”. And he said to me that they're duefor their refresher training. And I said, “That's fine”.And I can't remember the dates that were booked inor whatever because they were on or around or afterthose — the date of cards usually. And then we got— those cards actually turned up in the mail and —and I — I think I got a call off him and he said,“Well, we're going to have to book these fellows in fortheir refresher courses”. And out of those fellows I —without going back through our record I couldn't saywho had been retrained.

Q: So is it fair to say that much in the same way as hashappened with the Green Cards, the certifications forthe refresher courses arrived at your business withoutthe refresher —?

A: Yes, that's correct.

Again, when asked a clear and direct question on thisissue “Is it a fact that Mr Anthony issued you acertification demonstrating that you had carried out arefresher in circumstances where you had not —?”,Mr Whyte gave a wrong and deceptive answer “No..”.On this occasion the truth emerged as the matter wasclarified, confirming that certification was receivedprior to training taking place.

I found Mr Whyte to be an unsatisfactory witness forthe purposes of this hearing. I am of the opinion thatconsideration should be given to the prosecution ofMr Whyte for offences under s.87 of the ICAC Act inrelation to the passages of his evidence highlighted byCounsel Assisting.

Mr Anthony’s evidence

Mr Anthony was similarly unimpressive in relation tothe evidence he gave concerning the false certificatesissued by him for the training that was alleged to havetaken place on 31 August 2001. He first claimed thathe could not “remember” or “recall” whether he hadcarried out a refresher course on 31 August 2001.When asked whether he had ever issued refreshercertificates in circumstances where those certified hadnot engaged in a refresher course he first claimed thatthere was a “potential” that he had done so.When pressed he said:

Because I’m in front of this Commission I wouldsay yes.

Later still he said:

In view of the evidence given this morning I wouldsay yes.

Ultimately when pressed to give a yes or no answer heagreed that each of the persons listed in theAssociation register as having undergone refreshertraining on 31 August 2001 did not undergo suchtraining. Mr Anthony also agreed that to obtain thefalse certification he must have made falserepresentations to the Association.

Counsel Assisting submitted that I should recommendthat consideration should be given to the prosecutionof Mr Anthony for an offence in contravention ofs.87 of the ICAC Act in relation to evidence he gavein private session on 3 September 2003.


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On this day, when questioned about the conduct ofrefresher training on 31 August 2001 he claimed thathe had carried this out at his home. This was clearlyuntrue. Later, in his evidence on 9 September 2003he claimed that, in his earlier evidence, he confusedthe question about training on 31 August 2001 withrefresher training that he said did take place on14 August 2001. Overall I found Mr Anthony to be amost unsatisfactory witness. A submission was madeon his behalf that deficiencies in his evidence weredue, in part, to him being “clearly a person unfamiliarand uncomfortable with the process of givingevidence”.

I do not accept this as a basis for his ongoingprevarication and inexactitude. Having said this, I dobelieve that there was sufficient scope for confusionbetween the alleged training on 31 August 2001 andalternative training recorded as taking place on14 August 2001 that it is not appropriate torecommend consideration of prosecution on accountof this evidence.

Of more concern is this related evidence given on3 September 2003:

Q: I want you to reconsider that evidence in light of whatI’m about to tell you. The Commission has receivedevidence and statements from a number of the personswho were issued certificates on 31 August 2001,do you understand that?

A: Yeah.

Q: And they say they didn’t attend any refresher trainingat all, that you had the certificates issued on the basisof no refresher course. What do you say to that?

A: I do — I do not even — I don’t know what to say.To my knowledge I have never done that.

Q: Is it your evidence that you have never, on anyoccasion, issued a 5099 exemption or its equivalentwithout having carried out the proper training?

A: I would have to say yes.

Q: That you’ve never done that?

A: That’s to my knowledge, yes. Yes.

Clearly, Mr Anthony’s evidence that he has never“issued a 5099 exemption or its equivalent withouthaving carried out the proper training” is false. It isnow abundantly clear that this did happen, at least inrelation to the certificates presented to Whyco CranesPty Ltd in late 2001. Is it reasonably possible thatMr Anthony, in his evidence of 3 September 2003,could have overlooked this grossly improper act?In the context of Mr Anthony’s conduct as a traineras disclosed in the course of this hearing, the overallnature of his evidence on 3 September 2003 and thenature of the specific representations, I am satisfiedthat this is a matter where consideration should begiven to the prosecution of Mr Anthony for anoffence under s.87 of the ICAC Act.

Findings of corrupt conduct – refresher coursecertificates

I am satisfied that in issuing certificates falselyasserting that refresher training took place on31 August 2001, Mr Anthony engaged in corruptconduct. His conduct constituted or involved thedishonest exercise of his official functions.The limitation imposed by s.9(1) of the ICAC Acthas been satisfied in that Mr Anthony’s conductcould constitute or involve reasonable grounds fordismissing, dispensing with the services of orotherwise terminating the services of Mr Anthony.There can be no doubt that Mr Anthony’s conductwas serious misconduct. He recognised that what hedid was wrong. His evidence was as follows:

Q: Do you agree with me that what you did on31 August 2001 was absolutely disgraceful?

A: In light of it, it was probably — it’s wrong.

Q: It’s disgraceful, I suggest.

A: I’ll say it’s wrong.

Q: Do you recognise that in doing what you did you mayhave put the lives of these people at risk?

A: At that time, sir, the only — to me they would havebeen refreshers and I don’t know how certificates wereissued by the Electricity Association.

Q: But you arranged for their issue, sir?

A: Well, they must have got a refresher.

Q: But you were the person who was accredited to do therefresher course and you were pretending they haddone it when they hadn’t?

A: Yes.


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As discussed earlier in this report, conduct such asdisclosed by these circumstances may involve offencesin contravention of s.178BB of the Crimes Act 1900if it can be shown that the statements made byMr Anthony were knowingly false or misleading in amaterial particular, which they clearly were, and if itcan be shown that they were made “with intent toobtain for himself or herself or another person any …financial advantage of any kind whatsoever”.

The likely purpose of these false statements, and thecertificates they were recorded on, was to facilitateaccess for Whyco Crane Services Pty Ltd tocommercial opportunities that may not have beenavailable in their absence. As I have previouslyindicated, the law with respect to how the words“financial advantage of any kind whatsoever” mightbe interpreted is not wholly settled so far as it appliesin circumstances such as these.

As there are other grounds available for theCommission to make a finding of corrupt conductpursuant to s.8 and s.9 of the ICAC Act, it is notnecessary for the Commission to consider theimplications of this section any further.

Section 74A(2) statement – refresher coursecertificates

In all the circumstances I am of the opinion thatconsideration should be given to prosecution ofMr Anthony for offences under s.178BB of the CrimesAct 1900 of facilitating a financial advantage by falseor misleading statement.

In all the circumstances I am of the opinion thatconsideration should also be given to the prosecutionof Mr Whyte and Mr Anthony for offences under s.87of the ICAC Act as particularised above.

Certificates of Induction Training

Construction induction training

Mr Anthony was also accredited to issue certificatesin respect of the OHS Induction Training Course forConstruction Work in NSW.

Since 1999 OHS induction training has beencompulsory for construction workers.

Prior to 1999 the Construction Industry TrainingAdvisory Board (CITAB) had issued an “OH&SGreen Card” to construction workers who hadundergone voluntary OHS induction training.In 1999 an amendment to the Construction SafetyRegulation resulted in the introduction of a system ofcompulsory OHS induction training. From this timeon WorkCover NSW issued OHS InductionCertificates, through accredited trainers, to applicantswho had undergone the training specified under thenew compulsory regime.

With the advent of the legislative amendment, onlynew entrants to the construction industry, or thosereturning to the industry after an absence of morethan two years, were required to undergo inductiontraining . However, many workers currently workingin the construction industry already had Green Cardsthat demonstrated OHS competencies under theprevious, voluntary OHS training regime and CITABcontinued to issue Green Cards, now numbered witha “C” to reflect the numbering system used byWorkCover NSW on the new OHS InductionCertificates.

There was evidence before the Commission thatMr Anthony had issued false certificates of training toa number of persons. In some cases this appears tohave been unnecessary as the persons involved hadbeen in construction work within two years prior tothe introduction of the legislation. Clause 221 of theOHS Regulation makes it clear that any worker whohad carried out construction work in the two-yearperiod prior to 1 April 1999 is taken to haveundergone the relevant induction.


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Evidence of certificate holders

A number of employees of Whyco Crane Services PtyLtd obtained false Certificates of Training.

Mr Shaw obtained a certificate from Mr Anthonywhich indicated that he had completed the course inOccupational Health and Safety Induction Trainingfor Construction Work on 14 June 2003. He agreedthat he had not participated in that induction on14 June 2003 but claimed to have completed an“induction” about two days after receiving thecertificate. That induction took approximately twohours only.

Mr Boyan also obtained a false Green Card.A photocopy of the Green Card was an exhibit beforethis Commission’s hearing. This indicates (falsely)that Mr Boyan was trained by Mr Anthony on 20 July2001 at Baulkham Hills. Mr Boyan said he was nevertrained by Mr Anthony and, indeed, was driving acrane on 20 July 2001.

Mr Prentice also obtained a false Certificate ofTraining issued by Mr Anthony. This certified thatMr Prentice satisfactorily completed the course inOccupational Health and Safety Induction Trainingfor construction work on 1 May 2003. Mr Prenticeclaimed that he had intended to do the course, itnever eventuated and the statement that he hadsatisfactorily completed the course on 1 May 2003was incorrect.

Mr Clapin also obtained a false Certificate of Trainingdated 1 May 2003.

Mr Clapin attended a Line Manager’s Course whichwas given by Mr Anthony on 28 and 29 April 2003.Mr Clapin claimed that he was led to believe byMr Anthony that as a consequence he could alsoobtain the Certificate of Training for theOccupational Health and Safety Induction Trainingfor Construction Work. He said:

I — initially I booked a course with Mr Anthony forC card and Line Management training. He said,“I have available Line Management training”. On thesecond night Mr Anthony approached me and said,“The course that you are currently doing, and with myknowledge — looking at the records that you maintainfor Whyco Cranes, you are eligible for me to give youa C certificate also at the end and completion of thisLine Management course. So this was offered onsecond night of the training.

I am satisfied that Mr Clapin knew that the certificateissued to him was false. He gave the followingevidence:

Q: Do you see that it says, “This is to certify that youhave satisfactorily completed the course inOccupational Health and Safety Induction Trainingfor Construction Work on 1 May 2003?

A: M’mm.

Q: That’s just patently false, is it not?

A: It is, it’s — the documentation is wrong, yes.

Q: You knew it was wrong at the time you obtained it,did you not?

A: I knew the date didn’t coincide with the same datethat I did the Line Manager’s course, yes.

Q: You didn’t, I suggest, do the induction training forconstruction either on 1 May 2003 or on anyother day?

A: No, I did not do what you’d say is the exactinduction course.

Q: Sir, I suggest that you did not do what you know tobe the Occupational Health and Safety InductionTraining for Construction Work?

A: As I previously said, I was — I did not approachMr Anthony for this certificate, he come to me andsaid, “You qualify for the certificate”, so I took it onhis word that that is correct.

Mr Whyte also obtained a false Certificate ofInduction Training dated 20 July 2001 fromMr Anthony. Mr Whyte agreed that he had not donea course with Mr Anthony on 20 July 2001.

Mr Anthony’s evidence

Mr Anthony agreed that on occasions he had issuedGreen Cards without carrying out any induction.On “probably” 30 occasions he had issued Certificatesof Training to persons who had not undergone anytraining.

Mr Anthony agreed that he had received the sum of$80 in relation to each Green Card issued by him.


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Findings of corrupt conduct – Certificates ofInduction Training

I am satisfied that in improperly procuring the issue ofGreen Cards or in improperly issuing Certificates ofInduction Training Mr Anthony engaged in corruptconduct within the meaning of s.8(1) of the ICACAct, in that his conduct constituted or involved thedishonest exercise of his official functions.

The limitation imposed by s.9(1) of the ICAC Acthas been satisfied in that his conduct could constituteor involve criminal offences. In the case of Mr Shaw,Mr Prentice and Mr Clapin, the false Statements ofTraining were issued in 2003. They were issued inpurported compliance with a law of New SouthWales, namely Clause 220 of the OHS Regulationwhich requires that:

A person who conducts training referred to in clause216(1)(a) or (b) must issue each person who hasundergone the training to the satisfaction of the personconducting the training a written statement [confirmingthe nature of the training].

Accordingly, s.307C of the Crimes Act 1900 isrelevant.

Further, it is submitted that Mr Anthony’s conductcould constitute or involve reasonable grounds fordismissing, dispensing with the services of orotherwise terminating his services as a public officialwithin the meaning of s.9(1)(c) of the ICAC Act.

Section 74A(2) statement – Certificates ofInduction Training

In all the circumstances I am of the opinion thatconsideration should be given to the prosecution ofMr Anthony for offences under s.307C of the CrimesAct 1900 in relation to the issue of false Certificatesof Induction Training to Mr Shaw, Mr Prentice andMr Clapin.

The issuing of false Certificates of Induction Trainingensured that the recipient and/or the company thatemployed him would have access to commercialopportunities that would not have been available intheir absence. Mr Anthony would have been aware ofthis. In the circumstances the Commission alsorecommends that consideration should be given tothe prosecution of Mr Anthony for offences againsts.178BB of the Crimes Act 1900 in relation to theissue of false Certificates of Induction Training.

It is noted that Mr Anthony’s accreditation as atrainer has been now been cancelled by WorkCoverNSW. Accordingly it is not necessary to makerecommendations under s.74A(2)(b) and (c) of theICAC Act that WorkCover NSW consider takingdisciplinary or other action against Mr Anthony witha view to terminating his services as a public official.


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Introduction

According to WorkCover NSW’s workerscompensation statistical bulletins, only the miningindustry has a higher level of employee injuries thanthe construction sector. The matters that were dealtwith in this investigation concerned three distinctareas of operation in the construction industry: theassessment and certification process for machineryoperators, the issuing of OHS induction statements,and the training and certification of crane operatorsworking in the vicinity of overhead power lines. Eachof these areas is essentially high-risk; when theprocedures and practices for minimising andcontrolling risks are compromised through corruptpractice the potential for harmful consequenceescalates. This chapter and the two that follow seekto address the corruption risks that are inherent ineach of these three areas of the investigation, and toprovide some guidance, through discussion andrecommendations, as to how those risks can bemitigated and managed.

In this chapter the corruption risks associated withthe competency assessment process are discussed,WorkCover NSW’s responses to the problems raisedduring the investigation are canvassed, andrecommendations for further action are outlined.This sequence is followed in Chapter 6, which dealswith corruption prevention in OHS inductiontraining and certification.

Chapter 7 deals with corruption prevention in thematter of training and certification for crane andplant operators seeking to undertake work in closeproximity to overhead power lines. Because theregime in which this particular training is undertakenis very loosely regulated, WorkCover had no directregulatory role. The agency’s response to this matterwas not canvassed by the Commission.

Since the exposure of this body of corrupt activity,WorkCover NSW has, to its credit, acknowledged theexistence of deficiencies in its operations and hasworked diligently to address these. WorkCover NSWprovided written information to the Commission oncurrent and planned changes to their assessment andcompliance schemes. This information forms the basisfor the sections in this and subsequent chaptersheaded “Response from WorkCover NSW”.

The Commission notes that while WorkCover NSWhas already taken steps to address many of theproblems identified it is clearly imperative thatthe agency sustains its reform agenda and achievesthe best practice standard that it appears to have setfor itself.

The corrupt conduct in context andimplications for OHS

Workplaces where heavy machinery is operated areessentially hazardous, both to operators and to otherworkers in the vicinity. The assessment andcertification processes for operators are fundamentalto ensuring that only competent people operatedangerous machinery, and that the risks associatedwith this activity are minimised and controlled.

The Commission inquired into the corrupt activitiesof six assessors – public officials – who providedassessment and certification services on behalf ofWorkCover NSW. The assessors were able to providesome of their services in a corrupt manner, and thus,because of severe inadequacies in the oversight andmonitoring regime, to compromise the assessmentand certification processes and subvert the intentionsof the OHS legislation. While the investigationfocussed on six assessors, the ruse was an easy one toperpetrate and the credible threat of detection wasslight. It is quite possible that the improper conductrecorded by this investigation was not confined tothese six assessors. Since the Commission’sinvestigation commenced, over 30 accredited assessorshave had their assessor licences withdrawn byWorkCover NSW.

From the evidence made available to the Commissionit is conservatively estimated that, in the life of thescam, many thousands of Notices of SatisfactoryAssessment were improperly issued, and thousands ofapplicants obtained Certificates of Competency whentheir competency to operate machinery was either nottested at all or was not adequately tested.

It should be noted that the fall-out from the corruptactivity is not necessarily confined to NSW. Since thecertification system in NSW is part of a nationalcertification system, all of the improperly accreditedoperators are able to use their Certificates ofCompetency – and thus transmit associated risks –interstate.


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Chapter 5: Corruption prevention –competency assessment

The construction environment

The construction industry in New South Wales hasrecently undergone a period of significant expansion,to the point that it is now a major employer in theState and driver of the economy. Most new jobs inthe year to August 2003, for example, were in theconstruction sector.4

The expansion of the sector has seen an explosion inthe number of assessments undertaken by WorkCoverNSW to certify machinery operators. Evidence beforethe Commission indicated that in 2002 over 55,000assessments were undertaken, a vast increase over thefigure of 15,000 assessments completed in 1996, thefirst year of the scheme’s operation.*

The assessment process and howassessors organise their work

The Occupational Health and Safety (Certificates ofCompetency) Regulation was introduced in 1996.Under this regulation WorkCover NSW introduced asystem of certification for operators of heavy plantand equipment that complied with the NationalOccupational Health and Safety Commission(NOHSC) Standards 1006 and 7019. In this newsystem the role of testing applicants and the issuing ofNotices of Satisfactory Assessment to operators ofmachinery was outsourced.

The assessment process requires applicants for aparticular class of machinery both to sit a knowledgetest and undergo a practical test. If the applicantsatisfies the criteria for competency, the assessor issuesa Notice of Satisfactory Assessment which providesthe basis for WorkCover NSW to issue the relevantCertificate of Competency. This report has outlinedpreviously how the improper conduct associated withthe assessment and certification of machineryoperators involved the assessors failing to undertakeeither or both of the required tests properly or, in thecase of Mr Fizelle, failing to conduct the tests at all.On occasion, Mr Fizelle simply charged a fee, withoutso much as sighting some of the applicants, and issuedNotices of Satisfactory Assessment solely on thestrength of that fee. This approach enabled Mr Fizelle,like the other assessors found to be corrupt, to greatlyincrease the number of Notices of SatisfactoryAssessment he issued, and thus increase his income.

Assessors who are accredited by WorkCover NSW settheir own fees at a rate acceptable to the market.The fees vary between $50 and $1000 per assessment,depending on a number of factors including the typeof ticket required and the remoteness of the testinglocality. In most circumstances the fees range between$50 and $150. Based on an average fee of $100 the350,000 assessments recorded as being undertaken onbehalf of WorkCover NSW between 1996 (when thescheme commenced) and May 2003 would havebrought in $35 million to the assessors. This is asignificant turnover and as such is a clear indicator ofthe high potential for corruption in this line of work.

Corruption and fraud riskmanagement

In general terms, it was the absence of a targetedapproach to corruption and fraud risk management, ina climate of high demand and tight resources, that ledto the occurrence of the corrupt conduct and its lackof detection over a long period of time. The evidenceas canvassed earlier indicates that the ruse perpetratedby the corrupt assessors was well known outsideWorkCover NSW, and that even some managers inthe industry knew of and benefited from the improperassessments. In the absence of sufficient riskawareness at the time, WorkCover NSW neithersought nor recognised the signs of vulnerability andcompromise in the assessment process until thecorrupt practice had become well-entrenched.

There are a number of factors that should haveindicated to WorkCover NSW that a comprehensivecorruption risk assessment and management plan forthe assessment and certification program wasnecessary. One such indicator is the high-valuefunction that the assessment process represents.As this investigation has indicated, there is a strongand profitable market for the provision of competencyassessments in the building and construction sector.The State’s most prolific assessor, Mr Fassone, isestimated to have made in the vicinity of $350,000from his assessment role in one year alone.**

Chapter 5: Corruption prevention – competency assessment 71

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4. M. Wade, “Housing bubble threatens jobs”, Sydney Morning Herald, 15 November 2003, p.1.

* The 1996 figure represents nine months of data. A comparable statistic for an average nine months in 2002 would be 41,250 assessments –still almost treble the 1996 figure.

** The estimate is based on an average fee of $100 for 3,511 assessments carried out in 2002. There were approximately 400 accreditedassessors working on behalf of WorkCover NSW at this time, earning variable, but not inconsiderable, incomes.

Certificates of Competency themselves are a valuablecommodity – they are issued ‘for life’ and are valid inother states. Notices of Satisfactory Assessmentprovide the ‘gateway’ to these Certificates and are avaluable commodity in themselves. Assessorseffectively control the flow of the Notices ofSatisfactory Assessment and hence the Certificates ofCompetency. Ensuring the proper performance ofthese key people cannot be left to chance, especiallywhen the demand for their services risks exceedingsupply.* The outsourced nature of the function, withits inherent weakening of centralised controls,increased the need for a rigorous corruption riskmanagement approach.

Interestingly – and in contrast to WorkCover NSW’sfailure to recognise and act to address the corruptionrisks inherent in the circumstances and demands ofthe industry – at least one assessor, Mr Fizelle, wasaware of the impact of industry demands on the wayhe went about his work. In his evidence to theCommission he suggested his corrupt behaviour was aresponse to industry contacts and pressure:

A: It's just that people ring up and they want certificationor the company will ring up and say, "I've got someblokes here that need tickets because, you know,we won a contract.”

Q: Can we assume this, that it was really a consequenceof an increased demand during that period that youissued more?

A: That's — that's correct.

All six corrupt assessors admitted that their corruptactivity had had a compounding effect and that it hadgenerated a market for improperly issued certificates.According to Mr Fassone, his business had increasedby “about 50 per cent” once he had begun to actillegally. WorkCover NSW’s failure to identify andmanage the corruption risks resulted in such extensiveabuse of training and certification procedures that theregulatory system itself was severely compromised.

Response by WorkCover NSW and next steps

WorkCover NSW’s response to the Commissionindicates that the agency has undertaken its owncorruption risk analysis and has started to address theproblems identified.

However, the work that WorkCover NSW hasundertaken since the investigation still needs to beincorporated into a systematic and comprehensivefraud and corruption risk management plan. To assistresource allocation and prioritisation, best practicesuggests that a corruption and fraud preventionplan needs to be linked to a corporate risk plan,well-communicated to all staff, and reviewedperiodically.5


That WorkCover NSW conducts a detailed fraudand corruption risk assessment of the certificationsystem and develops a prevention plan that islinked to WorkCover NSW’s corporate riskmanagement plan.

Compliance

In any regulatory environment the key to ensuringcompliance is an active auditing and monitoringprogram. The evidence from this investigation is thatWorkCover NSW relied almost exclusively on itsaudit program, discussed below, which in turn wasessentially reliant on individual assessors behavingethically. In the circumstances, the audit programclearly failed to detect nearly all of the corruptconduct outlined in this investigation. In terms ofquality control, there were no mechanisms in place tomeasure assessment outcomes and validate the claimsof competency made by the assessors through Noticesof Satisfactory Assessment.

Audit

A WorkCover NSW audit consisted of two parts: anaudit of the assessor’s records (records audit) and aphysical audit involving observation of the assessor’sconduct of assessments (performance audit).These audits were always held at pre-arranged times.A third type of audit, a compliance audit, could alsobe conducted to check that an assessor hadimplemented any recommendations for improvementscontained in a previous performance and/or recordsaudit. Information obtained from WorkCover NSWduring the course of this investigation indicates thatmost audits conducted by WorkCover NSW wererecords audits.


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* While the number of accredited assessors in New South Wales almost trebled between 1996 (when the scheme started) and 2003, theexpansion appeared to be insufficient to meet the demand created by the building boom.

5. See Independent Commission Against Corruption, Fighting Fraud: Guidelines for state and local government, November 2002, and Strategiesfor Preventing Corruption in Government Regulatory Functions, March 1999.

WorkCover NSW originally planned to undertaketwo audits (each covering both records andperformance) per accredited assessor, within a three-year period. In 2003, by which time the number ofassessors on the books had tripled since the start ofscheme in 1996, this target was revised down to onceevery three years. In practice, the number of auditsactually carried out seldom if ever met even thisreduced target. For example, the high-volume assessorMr Fassone was only ever audited once, and thatexercise consisted of a records audit only. On theopening day of the hearings at the ICAC, WorkCoverNSW agreed that, while a number of assessors hadbeen audited at least twice, this was the “exceptionrather than the rule”. WorkCover NSW citedinsufficient resources as the reason for this.

The Commission heard evidence from Mr Webbthat assessors very likely knew that WorkCover NSWwas struggling to monitor assessors’ performancesvia audit:

Q: There was then a letter [sent by WorkCover NSW inMay 1999], which you don’t recall receiving, whichindicates that you would be subject to further auditsand you’re not audited again until 2002?

A: Yes, I don’t think anybody was.

Since it appeared to be common knowledge that auditwas unlikely, the audit regime clearly had limitedefficacy in terms of detecting corrupt conduct, andminimal or no value as a deterrent. In his evidenceMr Fassone said that more frequent auditing wouldhave served as a deterrent in his case:

Q: It wouldn’t have mattered how many times youwould have been audited by WorkCover inspectors,you would have been attempting to disguise from themwhat you were doing, wouldn’t you?

A: No, sir. If I would’ve been audited earlier theywould have slapped me on the wrist and they say,“If you get caught doing this once more you’re gone.”And I’m sure I wouldn’t have done it. I’ll guaranteeyou that, sir .

However, simply increasing the level of audit activitywould not have uncovered or halted the corruptconduct detected in the investigation, since, asWorkCover NSW itself was to conclude:

the auditing tool placed undue emphasis on compliancewith administrative requirements, rather thanperformance of assessments.6

Before the Commission investigation, WorkCoverNSW had not cancelled or suspended the licence of asingle assessor based on audit outcomes, because theassessor’s performance was not scrutinised under theaudit regime. The evidence of Mr Webb, Mr Williamsand Mr Fizelle – all of whom had undergone eithertwo or three records audits over the years – makes itclear that at the same time as their records were beingaudited, these individuals were continuing toundertake improper assessments.

Mr Webb employed someone to make sure his recordswere in order:

Q: And that’s in fact why you employed a girl to do yourpaperwork, isn’t it?

A: That’s true.

Q: So that all of your paperwork would appear to becorrect even though you weren’t conducting theassessments properly?

A: You are probably correct.

The limited audit regime had further shortcomings.Audit methodology was not consistent acrossWorkCover NSW auditing staff and an audit did notnecessarily include all areas of an assessor’s activities.Mr Fassone, for example, was accredited to assessapplicants for 17 different certificate classes, but hewas audited only on 20 records of forklift assessments.Further, Mr Fizelle claimed in his evidence that hehad been able to nominate the majority of the recordsto be audited, despite the requirement thatWorkCover NSW randomly select records for audit:

Q: He went to your records and pulled four, did he?

A: Yes, yes.

Q: You provided him with 16 others?

A: Yes.


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6. WorkCover NSW statement of information, December 2003 (communication to the Commission in response to s.21 Notice of 10November 2003), p. 16.

In circumstances where an audit exposed problemsrelating to a particular assessor WorkCover NSWfailed to conduct follow-up or compliance audits.A compliance audit is needed to verify that identifiedproblems have been rectified. Each of the assessorsinvolved in the Commission’s investigation confirmedat the hearings that such audits did not occur.WorkCover NSW also admitted that these auditswere generally not undertaken:

Compliance audits were not generally carried out onassessors because it was a priority … to ensure thateach assessor was audited once in every-three yearperiod, and the resources did not stretch tocompliance audits.7

Effectively, it was left to each individual assessor tomonitor his or her own behaviour.

Resourcing the audit function and enhancingaudit capacity

WorkCover NSW acknowledged that it hadinsufficient resources to maintain an adequate auditregime, particularly as the number of assessorsincreased. WorkCover NSW only ever maintained amaximum of four inspectors for audit andinvestigation purposes, even when there were 300 to400 assessors on the books. This state of affairsrepresented a significant risk to the integrity of theassessment program.

Audit was only one of several roles assigned to theinspectors in the Certification Standards Unit (CSU).The inspectors also assisted in the accreditation of theassessors, development of the national instrumentsused in the certification process, and investigations ofcomplaints against assessors. It appears thatWorkCover NSW required too much of theirinspectors and included too many competingfunctions within their role.

Further, the inspectors’ skills and knowledge basewere not well balanced. Corruption risk managementrequires a robust internal audit and investigationcapacity, balanced with technical knowledge. In thiscase, the focus had been on an inspector’s technicalknowledge, namely knowledge of the accreditationprocess and certification procedures.

Within any regulatory environment, there is a risk ofthat the regulators will become “captive”, incapableor unwilling to perform their proper regulatory rolebecause they have adapted to a dominant workplaceculture or are constrained by familiarity with theindividuals they are meant to monitor.

Regular rotation of regulatory staff is one provenmeans to minimise these problems. WorkCover NSWdid not regularly rotate its inspectors within the unitor to other units, and the risks were magnifiedbecause the other key regulatory system, the auditprocess, assumed the integrity of those beingmonitored.

Monitoring

The six assessors investigated by the Commissionwere found to have issued extraordinarily largenumbers of Notices of Satisfactory Assessment. Thesesix assessors comprised 1.5 per cent of the accreditedassessor group, yet they undertook 12.6 per cent of allassessments conducted in New South Wales between1996 and May 2003. An extreme example of high-volume activity involved the assessors Fassone andFizelle at the Ulan Colliery, where Mr Fassoneadmitted to putting through 50 false assessments inone day. Because WorkCover NSW had not identifiedthe risks, and because it did not have systems in placeto address the risks, high-volume assessors were notidentified as a target for investigation.

Another related risk indicator is assessments beingundertaken on a range of machinery within animprobably short period. The Commission heard thatMr Fassone, for example, had issued Notices ofSatisfactory Assessment to one applicant in relationto forklift, rigging, intermediate rigging, advancedrigging, elevated work platform, and slewing mobilecrane over 100 tonnes, all in one day. Witnessesconfirmed that it would be very difficult to undertakeall these assessments in a day if proper procedureswere followed.

By its own admission, WorkCover NSW maintains adatabase relating to the assessments carried out byeach assessor; however, this data was not used as partof a detailed reporting system or for proactivemonitoring to inform or direct audits orinvestigations. WorkCover NSW informed theCommission that the database was only used byinspectors to randomly select records for audit.8


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7. WorkCover NSW statement of information, December 2003, p. 22. 8. WorkCover NSW statement of information, December 2003, p.36.

Data needs to be collected and analysed systematicallyand used strategically for detection and deterrence ofcorrupt conduct. Information received also needs tobe checked and verified. On the well-foundedassumption that this did not happen, Mr Fassone tooka number of measures to avoid possible detection.If he issued an implausibly large number of Notices ofSatisfactory Assessment in one day he would usedifferent dates on some of them, or he would lodgethem at various WorkCover NSW offices, apparentlyin the awareness that State-level analysis of datadid not occur.

Early detection of corruption is critical, especially inrelation to high-risk functions such as assessment andcertification. A means of using recorded data tomonitor compliance and detect anomalies is essentialto good corruption risk management. A system ofexception reporting would seem to be appropriate,given the high volume of assessments. For example, areport could have been generated as soon as anassessor had conducted a certain threshold number ofassessments in a day. A capacity to cross-referenceassessment information with information from othersections (e.g., workplace accident information) is alsoa central component of an effective compliancemonitoring program.

Summary

The investigation showed that WorkCover NSW hadfailed to establish a best-practice compliancemonitoring program. Areas for reform include:

• Development of indicators of fraud andcorruption

• Revision of the audit program to focus oncertification outcomes

• Random audits of assessors’ performance

• Random re-testing of applicants to verifycompetency standards

• Provision of adequate resources to conductcompliance and other monitoring at anappropriate level

• Separating audit and investigation roles andfunctions within the Certification StandardsUnit

• Professional development for inspectorsundertaking audit functions, with a focus onthe acquisition of appropriate skills

• Development of a staff management strategythat actively reviews performance andpromotes ethical values and proper processes.

Response by WorkCover NSW

WorkCover NSW has informed the Commission of anumber of current and planned changes to the auditsystem and its implementation, including:

• significant enhancement of resources,including a new unit dedicated to audit andcomplaint investigation

• development of a new audit tool

• ongoing data monitoring

• some associated legislative amendments thatsupport compliance activities, and

• skills development and monitoring ofinspectors.

Details of each of these current or planned changesare outlined below.

Enhanced resources

A new Audit Management Unit has been establishedto replace the former CSU. This unit conducts bothauditing and investigation of accredited assessors,trainers, injury management consultants and premiumdiscount advisors. Given concerns about the blurringof functions in the previous CSU, the Commissionnotes with approval that the accreditation of assessorsand technical certification advice functions have beenmoved to other branches within WorkCover NSW.

The new Audit Management Unit is described as adiscrete unit with a dedicated budget, distinctoperational responsibilities and increased staffinglevels. The unit is staffed by a senior manager, acoordinator and eleven inspectors.9

Revised audit tool

WorkCover NSW has advised the Commission that ithas taken note of some of the key corruptionindicators raised in the investigation, such as:

identical answers, handwriting and spelling mistakeson exams, an applicant getting NSAs [Notices ofSatisfactory Assessment] for multiple classes in oneday and assessors issuing large number of NSAs onone day.10


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9. WorkCover NSW statement of information, December 2003, p. 20.10. WorkCover NSW statement of information, December 2003, p. 26.

WorkCover NSW states that revisions to the auditcriteria were implemented in May 2004. The processinvolves focusing the audit on substantiveperformance indicators instead of merely recordscompliance. There will be a focus on monitoring theperformance of assessors undertaking assessments.Since 1 May 2004 all assessors have been required toprovide WorkCover NSW with advance informationon when their assessments are to take place to enablerandom performance audits of assessors.

Random auditing and re-testing of certificateholders

During the course of the Commission’s investigationWorkCover NSW re-tested 229 certificate holdersand found the exercise to be a useful complianceactivity. Consequently, WorkCover NSW hasinformed the Commission that, in order to ensurethat the authority has the power to re-test applicantsat its discretion, an amendment to the OHSRegulation has been made.

WorkCover NSW has informed the Commission thatrandom reviews of operator competence in the fieldare now being undertaken in different areas withinthe Occupational Health and Safety Division.WorkCover NSW states that, to date, inspectors fromthe manufacturing, retail, wholesale, transport andstorage teams have required over 600 forklift driversto demonstrate a number of critical competencies.

Data monitoring and data linking

WorkCover NSW has provided information on thefollowing data monitoring activities that are plannedor have already commenced:

• Since 1 May 2004 assessors have been requiredto inform WorkCover NSW of applicants whofail assessments in order to provide a means ofidentifying assessors who seldom or never findapplicants not competent;

• A report is now automatically generatedwhen an assessor undertakes more than 15assessments in a day. The Manager, AuditManagement Unit, receives the report andallocates the matter to an inspector forinvestigation. When an accredited assessor hasundertaken 200 assessments a report isautomatically generated and allocated foraudit purposes;

• WorkCover NSW intends to analyse data forpatterns associated with assessors conductingassessments for particular organisations orbusinesses.

WorkCover NSW states it is seeking to ensure that allof the activities undertaken by an individual onbehalf of WorkCover NSW are linked, as is all therelevant information, such as audits, complaints, anddata returns.

WorkCover NSW has advised the Commission that,as of October 2003, a new procedure has beendeveloped in relation to data-linking followingaccident investigations. If an inspector suspects thatthe competence of a certified operator is an issue inthis context his or her details will be forwarded to thenew Audit Management Unit. WorkCover NSWintends to amend the current data collection systemin relation to accidents to enable details of thelicensed operator involved in the accident tobe recorded.

Increasing applicants’ awareness of the systemand proper process

WorkCover NSW has indicated that since April2004, it has:

[Provided] information to applicants on the assessmentprocess, including details of the knowledge andpractical components of assessment, as well asinformation about what to do if they believe theassessment was not conducted properly.11

Applicants are now required to sign personaldeclarations to confirm the amount of time taken tocomplete each component of the assessment and thatthey have completed the knowledge componentwithout assistance. This strategy should serve as areminder to applicants that they may be committingan offence if they are complicit in an improperassessment process.


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11. WorkCover NSW statement of information, December 2003, pp 18-19.

Skills development and monitoring of inspectorsin the Audit Management Unit

WorkCover NSW has informed the Commission thatit is currently developing a formal training programfor staff of the new Audit Management Unit.The coordinator position in the new unit is focusedon audit and investigation in order to ensure theperformance of assessors conforms with guidelines.Further, inspectors’ caseloads and case outcomes areto be actively monitored. This contrasts with formerpractices in the CSU, where the coordinator role wasconcerned with assessors’ technical advice andknowledge rather than compliance monitoring.

The information provided by WorkCover NSW to theCommission indicates that significant reform isunderway. However, in light of previously identifiedresource deficiencies, WorkCover NSW has advisedthat seven of the new inspector positions in the auditmanagement team will be filled by secondees fromother areas of WorkCover NSW. WorkCover NSWneeds to be certain that the resources allocated toaudit and investigations are sufficient to ensure thecertification system complies with the regulatoryrequirements. This is particularly important giventhat the unit’s audit and investigation brief extendsbeyond accredited assessors.


That WorkCover NSW ensures that a rigorous andongoing program of random site visits and re-testingof operator competence is developed and maintainedas part of its compliance monitoring regime.


That WorkCover NSW ensures that resourcesapplied to audit and investigation are sufficient tomatch the desired outcomes of the certificationsystem and are consistent with requirements of thefraud and corruption prevention plan.


That WorkCover NSW ensures that it develops aprocedure whereby applicants for assessment verifyin writing key aspects of the training they havereceived.


That amendments to the accidents data base aremade to enable relevant training and certificationinformation to be gathered in relation to licensedoperators involved in accidents.

Complaint and investigationmanagement

Effectively dealing with allegations of corruption ormisconduct is an integral component of effectivecorruption risk management. This investigation hasconsistently demonstrated that WorkCover NSWfailed to deal effectively with complaints, especiallythose concerning corrupt conduct, partly because itdid not clearly differentiate the two functions of auditand complaint investigations. As outlined earlier, theCSU was tasked with competing responsibilities(including audit and investigating complaints) andthe inspectors had multiple, competing roles.The investigation of complaints in this setting gaveway to other priorities.

The CSU, which was originally established as a“temporary initiative for the implementation of theNational Certification Program”12 also lackedstrategic direction at this time, partly because it hadalways functioned under temporary and/or rotatingleadership. Such instability impacts heavily on theoperations and strategic focus of a busy unit andclearly did not assist in the work of balancingpriorities and ensuring all roles and responsibilitieswere properly addressed.

The CSU’s policy on complaint investigationacknowledges the limitations on resources toundertake investigations:

The Certification Standards Unit is currently thegroup responsible for handling complaints made againstOHS Certificate Assessors. Complaints handling is atime consuming activity for this small group that is alsoconducting audits, assessor applications, technicalquestions regarding certification and issues surroundingthe National OHS Certification system.13

Auditing techniques were used, inappropriately, todeal with complaints.


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12. WorkCover NSW statement of information, December 2003, p. 1.13. ibid.

A complaints-handling procedure was developed onlyin July 2002, following an external audit ofaccreditation processes, when the WorkCover NSWpolicy Investigation of complaints received against OHScertificate assessors was introduced. An example ofdeficient complaints-handling processes relates toassessments conducted by Fizelle in July 2000 inCoonabarabran, as canvassed earlier in this report.This series of assessments was the subject of acomplaint to WorkCover NSW later that year.The WorkCover NSW investigation, which consistedof interviewing Mr Fizelle and reviewing his records,concluded that the allegation could not besubstantiated, yet Mr Fizelle admitted in Commissionhearings to the conduct of improper assessments inthis instance.

It appears it was standard practice for WorkCoverNSW to only interview the assessor concerned and tocheck the relevant records. WorkCover NSW said inits response to the Commission that:

In most cases the inspectors accepted the assessor’sexplanation or version of events. This approach wasadopted by the Unit on the erroneous assumption thatassessors were not participating in any improperpractices. The Unit preferred to address the majorityof problems with assessors through education andrehabilitation rather than enforcement … Obviouslythe measures taken were inadequate.14

According to the witness statement, the complainantin the Fizelle matter was allegedly told by WorkCoverNSW that there was a lot of “work … involved ininvestigating an allegation of that sort”.

The complaint function needs to be separatelystructured, managed and resourced. A first step indeveloping a sound system for managing andaddressing complaints would involve developing aclear policy and promoting this to staff, assessors andthe general public. Other critical steps involverecording all complaints, assessing them, and thenassigning these for review and relevant action,including report-back to complainants.15


WorkCover NSW has informed the Commission thata separate complaints handling procedure wasimplemented in November 2003. WorkCover NSWacknowledges that each complaint should be“investigated on its own merits rather than [by]conducting an audit which is an unnecessarilyindirect approach”.16

WorkCover NSW also informed the Commission thattimeframes, which are monitored by management,have been established for the investigation ofcomplaints to ensure timely and appropriate action istaken. The process now concludes with a report thatrecommends action. WorkCover NSW describes thisprocess as a

new management system, where there is a more handson approach by senior management in supportinginspectors and following actions through.17

This new procedure and renewed focus on audit andinvestigation resources should assist in addressing thedeficiencies identified in WorkCover NSW’scomplaint management process. However, as theCommission states in its Do-It-Yourself CorruptionResistance Guide, the effectiveness of a complaintsmanagement system also depends on clear policyguidance being developed and the system being“promoted to clients, contractors and suppliers, oncomplaints being dealt with honestly, objectively andpromptly and on relevant complaint informationbeing captured in a way that allows it to indicate theneed for change”.18


That WorkCover NSW ensures that it develops andpromulgates clear and comprehensive policyguidelines associated with its revised complaint-handling procedure.


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14. WorkCover NSW statement of information, December 2003, p. 32.15. See Independent Commission Against Corruption, Do-It-Yourself Corruption Resistance Guide, November 2002. 16. WorkCover NSW statement of information, December 2003, p. 33.17. WorkCover NSW Statement of Information, p. 33.18. Independent Commission Against Corruption, Do-It-Yourself Corruption Resistance Guide, November 2002, p. 32. The Guide provides

relevant advice in relation to Recommendation 4.

Deterrence and promotion of ethicalstandards

The audit program at the time of the investigationassumed that assessors would act with integrity.This is a risky basis for a compliance regime, as thisinvestigation has demonstrated. Nevertheless,building ethical standards and behaviour throughworkplace policies and practices is an importantcomponent of corruption risk management,particularly when the workplace is high-risk and theplayers involved operate autonomously.

Screening and recruitment policies and procedures;ensuring assessors are familiar with codes of practiceand codes of business ethics; education andintroducing and enforcing sanctions are all means ofimproving probity in the workplace. The evidencefrom this investigation indicates that WorkCoverNSW consistently failed to apply the sanctionsavailable to the authority under the OccupationalHealth and Safety Regulation 2001, and did little topromote ethical standards established under relevantcodes of practice.


Since the Commission’s investigation, WorkCoverNSW has taken steps to sanction assessors for non-compliance.

In December 2003 the regulator cancelled orsuspended the accreditation of 31 assessors because offraudulent or incorrect assessment procedures.19

Since that time WorkCover NSW has suspended orcancelled the accreditation of a further 18 assessors.

WorkCover NSW maintains that some legislativeprovisions may have assisted the corrupt conduct tooccur. Consequently, the authority recommendedsome legislative reform, the most significantcomponent of which was the introduction of penaltynotices as an immediate financial imposition onassessors who behave improperly.

WorkCover NSW has advised that amendments tothe OHS Regulation to enable penalty notices to beissued commenced on 28 March 2004. This should bea useful deterrent to corrupt conduct, providing themeasure is consistently and actively appliedwhere relevant.

WorkCover NSW is attempting to address deterrencethrough increased sanctions and an active complianceprogram that will enforce sanctions. More work isrequired, however, to set higher standards for ethicalconduct. This can be achieved through WorkCoverNSW providing additional and periodic informationand training sessions for assessors in proper conduct.WorkCover NSW could consider using the outcomesof this investigation as an initial impetus forsuch training.

Given the level of autonomy at which accreditedassessors operate and their risk of exposure tocorruption and fraud, WorkCover NSW shouldreassess its recruitment process to include probityscreening.


That WorkCover NSW provide initial andin-service training for assessors in ethical conduct.


That WorkCover NSW develops screening options,including probity checks, for potential assessors.


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19. WorkCover NSW statement of information, December 2003, p. 35

Introduction

The accredited assessors discussed in Chapter 5were not the only agents working in high-valueenvironments who were at risk of behaving corruptly.The case of a safety officer working for TransGrid, astate-owned energy transmission operator,demonstrates how the OHS training function wassimilarly vulnerable to corrupt practice because therisks associated with that function had not beenproperly identified and managed.

In order to undertake his duties as safety officer forTransGrid, Mr Anthony had been trained andaccredited to deliver the Construction IndustryGeneral Health and Safety Induction Course(“OHS Induction Course”) and to issue OHSInduction Certificates on WorkCover NSW’s behalfto successful course participants. TransGrid had paidfor Mr Anthony’s training and accreditation.While working at TransGrid Mr Anthony alsoengaged in unauthorised secondary employment.The Commission found that Mr Anthony had issuedOHS Induction Certificates during the course of hissecondary employment, without properly deliveringthe required five-hour OHS Induction Course.Mr Anthony told the Commission that he had“probably” issued OHS Induction Certificatesimproperly in these circumstances on at leastthirty occasions.

The history and regulation of OHSinduction training

Since 1999 OHS induction training has beencompulsory for construction workers. The OHSInduction Certificate is awarded to applicants whohave successfully completed the OHS InductionTraining Course for Construction Work in NSW andthus serves as a kind of ‘pass’ for construction workersto gain entry to a building site. The history of OHSinduction training is worth mentioning brieflybecause it demonstrates how a system that createsconfusion can readily be exploited for personal gain,in this case at the expense of workplace safety.

Prior to 1999 the Construction Industry TrainingAdvisory Board (CITAB) had issued an “OH&SGreen Card” to construction workers who hadundergone voluntary OHS induction training.

The cards were numbered and a record of their issuewas kept by CITAB. In 1999 an amendment to theConstruction Safety Regulation was introduced, as aresult of consultations between WorkCover NSW andthe construction industry, to introduce for the firsttime a system of compulsory OHS induction training.From this time on WorkCover NSW issued OHSInduction Certificates, through accredited trainers, toapplicants who had undergone the training specifiedunder the new compulsory regime. Officially, theOHS Induction Certificate was all that was requiredto demonstrate the required OHS competencies.

With the advent of the legislative amendment, onlynew entrants to the construction industry, or thosereturning to the industry after an absence of morethan two years, were required to undergo the newtraining regime. This meant there was a pool ofworkers – ‘old hands’ – who did not need to completethe training or show evidence at a construction site ofOHS induction competencies. In any case, manymembers of this group already had Green Cards thatdemonstrated OHS competencies under the previous,voluntary OHS training regime. Presumably inresponse to industry demand, CITAB continued toissue Green Cards under the new, compulsory OHSinduction training regime. The Green Cards wereissued to workers holding OHS Induction Certificatesand were now numbered with a “C” to reflect thenumbering system used by WorkCover NSW on thenew OHS Induction Certificates. It can be assumedthat the popularity of the Green Card, given that ithad no formal status, was at least partly a reflection ofestablished practice as well as its user-friendly format.

At the time of the investigation it appears thatboth Green Cards and OHS Induction Certificatesserved as ‘passes’ in the industry to demonstratecompliance with OHS induction trainingrequirements. Only the OHS Induction Certificatewas – and is – valid, but in its confusion the industryaccepted both forms of certification and evidence ofOHS training. It is not clear why WorkCover NSW,as the OHS regulator, did not take steps to dispel theconfusion. Ironically, while records were kept of thenon-compulsory Green Cards issued by CITAB,WorkCover NSW kept no records of the recipientsof OHS Induction Certificates.


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Chapter 6: Corruption prevention –OHS induction training

The previous chapter has outlined the corruption risksassociated with a high-value function. As long as theindustry required evidence of OHS inductiontraining, the tangible evidence of that training,whatever form it took, became a valuable commodity.Green Cards were as valuable as OHS InductionCertificates because they were accepted by theindustry as currency. In fact, given the industry’s clearsupport of Green Cards, it could be argued that theywere more valuable, as the following suggests.

Deficiencies in the system

Unclear procedures

Demand for the Green Card was high and awarenessamongst workers that only a WorkCover NSW OHSInduction Certificate was required – and not by all –was low. Mr Anthony was able to benefit from thisconfusion and respond to the industry’s preference forGreen Cards to his advantage and to the detriment ofoccupational health and safety. On one occasion, aspreviously outlined in this report, he obtained GreenCards for the employees of a crane company withoutdelivering the training required and on the basis ofimproperly issued OHS Induction Certificates.In effect, it appears that CITAB issued Green Cardsin good faith on the basis of information provided –and certificates issued – by Mr Anthony. As ithappened, the workers involved in this instance hadno need of an OHS Induction Certificate becausethey had been working continuously in theconstruction industry since the days of voluntaryOHS training. The improper benefit gained by thecrane company through Mr Anthony was one that, asit turns out, it paid for but did not actually need.

The confusion about the status and relevance ofGreen Cards and OHS Induction Certificates appearsto have increased avenues for corruption in the OHSinduction training and certification process andreduced opportunities for effective complaints: it isdifficult to recognise breaches of a training system ifthe procedures are confusing and therefore not wellunderstood. Evidence from WorkCover NSWindicates that the level of complaints about fraud inthe OHS training system was low.

Monitoring and compliance

WorkCover NSW did not maintain records associatedwith the issuing of OHS Induction Certificates toindividuals and, not surprisingly, given that the GreenCard system was informal, there were no cross-checkswith CITAB. A lack of records made it virtuallyimpossible for WorkCover NSW to test the integrityof the process by which OHS Induction Certificateswere issued, or to monitor standards.

WorkCover NSW’s Education Unit was responsiblefor monitoring compliance with the intent of thelegislative requirement for compulsory OHS training.This seems to have been achieved principally throughthe accreditation process for trainers and by reviewingthe training course outlines. This was clearlyinsufficient, as the evidence before the Commissiondemonstrated.

As the regulatory agency, WorkCover NSW needs tobe confident that its accredited trainers act at alltimes with integrity. Trainers operate withconsiderable autonomy and particular care is neededin both the recruitment and training/accreditationstages to ensure that these officers meet and maintainhigh ethical standards.

Response from WorkCover NSW and next steps

WorkCover NSW has provided the Commission withinformation on a number of monitoring, auditing andlegislative changes already undertaken or in progress.In the circumstances it is not surprising that many ofthe proposed changes echo the reforms WorkCoverNSW has planned or adopted for the assessmentfunction described in the previous section. Some ofthe new systems and structures for audit andinvestigation of accredited assessors have beenextended to include accredited trainers.

WorkCover NSW has advised the Commission thatGreen Cards will be phased out. However, recognisingthat part of the appeal of the Green Card is its smallsize and convenient format, WorkCover hasdeveloped and made available a credit card-sizedOHS induction certificate, called a ConstructionInduction Certificate.

Chapter 6: Corruption prevention – OHS induction training 81

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Importantly, and in the interests of clarity andcertainty, WorkCover NSW is seeking to centraliseand control the issuing of OHS induction certificatesand hence certification that OHS training hasoccurred. Changes to the OHS Regulation are beingsought that make statements of training issued by atrainer valid for 30 days, within which timeWorkCover will issue a Construction InductionCertificate.

WorkCover NSW also needs to increase awarenesswithin the industry of the accredited training systemand the correct procedures. The removal ofuncertainty and confusion about policies andprocesses would assist applicants and also support thedetection and reporting of corruption.

The March 2004 amendments to the OHS Regulationhave also made the issuing of a false statement oftraining an offence. This sanction will assist withcompliance.

Within the framework of a more transparent and lesscomplicated operating environment WorkCoverNSW needs to engage in an exercise of corruptionrisk management. This approach should includerobust audit, effective sanctions, education, andstrengthening the provisions that promote integrityand ethical behaviour.


That WorkCover NSW ensures it becomes theissuing authority for the Construction InductionCertificate and that this is issued after thecompletion of verification checks.


That WorkCover NSW conducts an informationcampaign within the construction industry aboutlegislative requirements and proper proceduresassociated with the accredited training system.Information about reporting trainers who do notcomply with requirements should be included.


That WorkCover NSW conducts a comprehensivecorruption risk management plan for its accreditedtraining system. This plan should include probityscreening for accredited trainers.


That an offence of issuing a false statement oftraining be created under the Occupational Healthand Safety Regulation 2001.


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Introduction

Part of Mr Anthony’s role as safety officer forTransGrid was to undertake safety training for craneoperators. TransGrid also used Mr Anthony to trainoperators from other organisations who did not havean accredited trainer on staff. Under his employmentcontract, Mr Anthony was not entitled to engage insecondary employment of this nature withoutauthorisation. Despite this, in addition to the trainingwork he undertook for TransGrid Mr Anthony alsoprovided crane and plant electrical safety training ona private basis. Some of the training was deliveredimproperly: the course was either shortened, or it wasnot delivered at all. Mr Anthony also arranged for theoperators improperly to receive TransGrid certificates.TransGrid obligingly, but unwittingly, provided theadministrative means to do this. As was the case withCertificates of Competency for machinery operatorsand the OHS induction certificates, the TransGridcertificates were a valuable item in theconstruction industry.

Mr Anthony operated with a great deal of autonomy,without expectations of checks on the quality orlegitimacy of his work, and in an environment wherehe controlled the issue of a high-value commodity –TransGrid certificates. As we have seen elsewhere inthis report, this set of circumstances signals high riskof corruption. These risks were not managed,Mr Anthony took advantage of the opportunities forpersonal gain that were present in the environment,and, ultimately, safety in the specialised area of craneoperation in the vicinity of power lines was severelycompromised. As canvassed in this report, during thecourse of the investigation the Commission becameaware of a death in the industry that involvedpersonnel who had been improperly trained for theirwork by Mr Anthony, and where industry guidelinesfor safe operations had not been observed.

The following section looks at the ‘soft’ regulatoryenvironment that supported Mr Anthony in hisimproper conduct.

The regulatory and operatingenvironment

Prior to the introduction of the OHS Act thelegislation of the time prohibited the use of craneswithin a certain distance of overhead power lines.Work of this nature could only be undertaken underan exemption, allowed for in the legislation.WorkCover issued Exemption 5099 that enabledcranes to operate within the proscribed range,providing strict conditions were met. Proper trainingthrough participation in the Crane and PlantElectrical Safety Course was an important condition.

With the implementation of the OHS Act the earlierprovisions became redundant. The new Act did notproscribe this particular work and hence did notprovide exemptions and conditions for grantingexemptions. Effectively, it created a much moreflexible regulatory environment. WorkCover NSW nolonger had a role in monitoring the particularprovisions of the Act and Exemption 5099 becausethose provisions no longer existed. Nevertheless, itwas recognised within the industry that working closeto power lines was dangerous work that still needed tobe carried out according to agreed standards and withsome kind of guidance.

The OHS Regulation provides that an employer mustensure that:

persons at work, their plant, tools or other equipmentand any materials used in or arising from the work donot come into close proximity with overhead electricalpower lines (except if the work is done in accordancewith a written risk assessment and safe system of workand the requirements of the relevant electricitysupply authority).

The Electricity Association of NSW (the peakelectricity body in New South Wales, comprisingrepresentatives of electricity supply companies;referred to hereafter as “the Association”) stepped into produce operational guidelines that reflected theprovisions of the earlier Exemption 5099. These wererecorded in the Association’s Interim Guide forOperating Cranes and Plant in Proximity to OverheadPower Lines issued in September 2001. The differencehere was that there was no legislative backing to theguide and no direct sanctions to deal withnon-compliance.

83

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Chapter 7: Corruption prevention –safe operation of cranes in proximity topower lines

The Association had been responsible for thedevelopment and delivery of the Crane and PlantElectrical Safety Course that, under the previousregulatory regime, constituted required training forcrane operators working under Exemption 5099.The Association was also responsible for theaccreditation of course trainers. It continued toperform these functions in the new, non-prescriptiveregulatory environment, albeit without legislativebacking, until the Association’s demise in mid 2001to mid 2002.

In the new legislative environment the trainingcourse was revised and re-titled as the OverheadPower Line Electrical Safety Training Course. It wasessentially the same course that had supportedworkers previously operating under Exemption 5099.After the dissolution of the Association, the formermembers – the individual electrical supply companies,including TransGrid – took on the training role andthey also issued their own certificates. WorkCoverNSW had no direct role in monitoring this looselyregulated regime. As we have seen, the monitoringrole defaulted to the training provider – effectivelyleaving the individual trainer to monitor him- orherself. In the case of TransGrid, providing thetraining role for other organisations was more of aservice than a profit-making exercise and thisprobably contributed to the State-owned corporation’slack of appropriate compliance and performancemonitoring.

Deficiencies in the regulation oftraining and certification

Monitoring and compliance

The Commission understands that the trainingTransGrid believed it was providing for othercompanies through Mr Anthony was not consideredto be commercially valuable to TransGrid.Nevertheless, it is clear that TransGrid certificatessignifying completion of the Overhead Power LineElectrical Safety Training Course were of significantvalue to employees, employers and Mr Anthony.These certificates are recognised across the wholeelectrical and construction industry as certifyingthat the holder can safely operate cranes and plant inclose proximity to overhead power lines, a type ofwork with relatively few qualified operators andin some demand. Having employees who holdthese certificates is also useful to employers.

In the case of Whyco Cranes it meant that thecompany could obtain specialised work it would nototherwise have had access to, and charge ratesaccordingly.

Given the risks associated with the certificationprocesses in the construction industry, as alreadyoutlined, there is a requirement to ensure that auditand monitoring provisions and practices associatedwith these matters are of a high standard. TransGriddid not appreciate the value of the certificates in thewider context and did not manage the training courseand the trainer, Mr Anthony, adequately. Audit andverification of the training activity did not occur.TransGrid did not test the claims made byMr Anthony about his training activities and didnot ensure the certificates issued in the name ofTransGrid were issued correctly. TransGrid did possessdata that could have been used to make randomverification checks of course outcomes with certificateholders, and there were other cross-checks that couldhave been undertaken using available records;however, none of this took place.

Mr Anthony’s performance, both as a TransGridtrainer and as an Electricity Association registeredtrainer, was not closely or well monitored. Not onlydid he conduct training improperly but he alsoundertook training and issued certificates, both beforeand after the legislative changes of 2001, in anunauthorised private capacity. When asked why heundertook this private work against directivesMr Anthony said that he had in fact discussed thematter with a previous supervisor who had said he didnot “want to know about it”. If this did happen,Mr Anthony should not have taken this as a greenlight to ignore his obligations. Managers areeffectively complicit in the improper behaviour ifthey do not articulate and enforce the policy whencalled upon to do so, and fail to counsel those whoappear to have little regard for it. However, there wasevidence before the Commission that Ms LynetteCooper, who had supervisory responsibility forMr Anthony from April 2000, did in fact directMr Anthony that he was not to provide trainingoutside the terms of his employment with TransGridto external contractors, except where approvalwas given.

It is noted that TransGrid has discontinued itstraining role in relation to the Overhead Power LineElectrical Safety Training Course.


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The interim guidelines developed by the ElectricityAssociation of NSW and the associated OverheadPower Line Electrical Safety Training Course togetherprovide a reasonable industry standard and a means ofmeeting it. These need to be recognised andsupported by the industry. The Commission has beeninformed that the Industry Safety SteeringCommittee, convened by the Department of Energy,Utilities and Sustainability, has set up a workinggroup to develop a WorkCover Code of Practicecovering the operation of cranes and plant nearoverhead power lines.*

An industry-approved code of conduct that issupported by a rigorous monitoring and audit regimewould provide the means to achieve the standard ofsafety required by the OHS Act and OHS Regulationfor a particular area of work; in this instance, forworking in close proximity to overhead power lines.An approved code could also be used to support thepreventative enforcement provisions of the OHS Act.


That WorkCover NSW, in conjunction withelectricity authorities and the Department ofEnergy, Utilities and Sustainability, develops anIndustry Code of Practice drawing on the “interimguide” to set a minimum standard.


That WorkCover NSW, in conjunction with theDepartment of Energy, Utilities and Sustainability,develop a monitoring and auditing program toensure proper adherence to the Code.

Chapter 7: Corruption prevention – safe operation of cranes in proximity to power lines 85

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* Industry codes of practice in this environment provide benchmarks against which the performance of employers can be assessed inthe event of an accident, in terms of the employers meeting their obligations under the Occupational Health and Safety Act 2000. It is considered that codes of practice are able to provide proper guidance in safe procedures within the current, less-prescriptive OH&Senvironment, providing there is robust compliance monitoring, and lines of responsibility and accountability are clear.

As outlined in Chapter 2 of this report, corruptconduct is defined in section 7 of the ICAC Act asany conduct which falls within the description ofcorrupt conduct in either or both subsections (1) or(2) of section 8 and which is not excluded by section9 of the ICAC Act. An examination of conduct todetermine whether or not it is corrupt thus involves aconsideration of two separate sections of theICAC Act.

Three steps are involved in determining whether ornot corrupt conduct has occurred in a particularmatter. The first step is to make findings of relevantfacts. The second is to determine whether theconduct, which has been found as a matter of fact,comes within the terms of section 8(1) and/or (2) ofthe ICAC Act. The third and final step is todetermine whether the conduct also satisfies therequirements of section 9 of the ICAC Act.

In applying the provisions of section 9 of the ICACAct it is appropriate to recall the approach outlinedby Priestley JA in Greiner v Independent CommissionAgainst Corruption (1992) 28 NSWLR 125. HisHonour said that the word “could” was to beconstrued as meaning “would, if proved”. In thecourse of discussing the proper construction of section9(1)(a) of the ICAC Act, he said:

Despite s.8, conduct does not amount to corruptconduct unless, in the case of a criminal charge whichcould be tried before a jury, the facts found by theICAC as constituting corrupt conduct would, if thejury were to accept them as proved beyond reasonabledoubt, constitute the offence charged …

Such a construction is applicable to sections 9(1)(b),(c) and (d).

A finding of corrupt conduct against an individual is aserious matter. It may affect the individual personally,professionally or in employment, as well as in familyand social relationships. In addition, there is no rightof appeal against findings of fact made by theCommission nor, excluding error of law relating tojurisdiction or procedural fairness, is there any appealagainst a determination that a person has engaged incorrupt conduct. This situation highlights the need toexercise care in making findings of corrupt conduct.

In Australia there are only two standards of proof:one relating to criminal matters, the other to civilmatters. Commission investigations, includinghearings, are not criminal in their nature.Hearings are neither trials nor committals. Rather, theCommission is similar in standing to a RoyalCommission and its investigations and hearings havemost of the characteristics associated with a RoyalCommission. The standard of proof in RoyalCommissions is the civil standard, that is, on thebalance of probabilities. This requires only reasonablesatisfaction as opposed to satisfaction beyondreasonable doubt, as is required in criminal matters.The civil standard is the standard which has beenapplied consistently in the Commission. However,because of the seriousness of the findings which maybe made, it is important to bear in mind what wassaid by Dixon J in Briginshaw v Briginshaw (1938)60 CLR 336:

... reasonable satisfaction is not a state of mind thatis attained or established independently of the natureand consequence of the fact or fact to be proved.The seriousness of an allegation made, the inherentunlikelihood of an occurrence of a given description, orthe gravity of the consequences flowing from aparticular finding are considerations which must affectthe answer to the question whether the issue has beenproved to the reasonable satisfaction of the tribunal.In such matters “reasonable satisfaction” should not beproduced by inexact proofs, indefinite testimony, orindirect inferences. (at 362)


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Appendix 1: Corrupt conduct defined and therelevant standard of proof

This formulation is, as the High Court pointed out inNeat Holdings Pty Ltd v Karajan Holdings Pty Ltd(1992) 67 ALJR 170, to be understood:

... as merely reflecting a conventional perception thatmembers of our society do not ordinarily engage infraudulent or criminal conduct and a judicial approachthat a court should not lightly make a finding that, onthe balance of probabilities, a party to civil litigationhas been guilty of such conduct. (at 171)

See also Rejfek v McElroy (1965) 112 CLR 517, thereport of McGregor J into Matters in Relation toElectoral Redistribution in Queensland in 1977 andthe report by the Hon W Carter QC into AnAttempt to Bribe a Member of the House of Assembly(Tasmania) in 1991.

As indicated above, the first step towards making afinding of corrupt conduct is to make a finding of fact.Findings of fact and determinations set out in thisreport have been made applying the principlesdetailed in this Appendix.

Appendix 1: Corrupt conduct defined and the relevant standard of proof 87

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ABERLEY, Warren Trevor

AHOKAVA, William

ANTHONY, Raymond William

AZZOPARDI, Joseph Anthony

BONANNO, Charles Paul

BONANNO, Sam Mario

BOYAN, Edward Joseph

BROCKLEBANK, Robert Leslie

CLAPIN, Anthony Phillip

COOPER, Lynette Mary

COOPER, Stephen

DOUGALL, Alexander

EMMERTON, Justin Luke

FASSONE, Armando Henry Walter

FIELD, James Francis

FIZELLE, Alan Roy

GORRELL, David Gordon

HARDY, Matthew John

HEMERS, Philip James

HILL, Bryan Cecil

HOLOPAINEN, Mark

LUQUIN, Jesus

LUCAS, Garry Robert

MACRI, Carmelo

MANSFIELD, John Ronald.

MARTIN, Eammon John

MOEMAI, Oliver Whitney Ivan

MOERA, Rosaline

NEWMAN, Peter John

NGARAMETUA, Joseph

ORRO, Joseph Epham

PACE, Matthew Wayne

PAKI, George

PEDERSEN, Paul Tholief

PRENTICE, Adrian Leslie

PRIOR, Nathan Ian

PRIOR, Stephen John

ROBINSON, John Christopher

SALIBA, Thomas Gregory

SHAW, Ricky Allen

SILVER, Grant Richard

SMYTH, Lionel George

TOLEOFOA, Siaosi John

TSAI, Charles

VLAAR, Daniel Lee

WEBB, John Arthur

WHYTE, Terry Donald

WILLIAMS, Andrew Alexander

WILLIAMS, Garry Robert

ZAMMITT, Brian Lewis

ZANE, Rik Jay


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Appendix 2: List of witnesses who gaveevidence at Commission hearings

89

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Documents

Report on investigation into safety certiﬁcation and training in the ...€¦ · Section 74A(2) statement – Certiﬁcates of Induction Training 69 Chapter 5: Corruption prevention