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Prosecution Details

Offender Kenneth William Sully

Charges

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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 PE32409/2017 27 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
2 PE32410/2017 30 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
3 PE32412/2017 31 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
4 PE32413/2017 31 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
5 PE32414/2017 31 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
6 PE32415/2017 31 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
7 PE32411/2017 30 August 2014 16th June 2017 6.20(2)(b) 6.20(2)(c) 1.15(2)(a) $2,000.00 16th June 2017
Description of Breach(es)

Charge 1  - 3

(1)    On 27 August 2014

(2)    30 August 2014

(3)    30 August 2014

the Accused, being a high risk work assessor, issued a notice of satisfactory assessment in respect of a person’s performance of high risk work of a particular class without having assessed that person’s competency in accordance with the approved assessment instrument for work of that class: contrary to regulation 6.20(2)(b) and 1.15(2)(a) of the Occupational Safety and Health Regulations 1996

charges 4 -7

(4)    31 august 2014

(5)    31 August 2014

(6)    31 August 2014 and;

(7)    31 August 2014

the Accused, being a high risk work assessor, issued a notice of satisfactory assessment in respect of a person’s performance of high risk work of a particular class without, having regard to the results of the assessment, being satisfied that the person is competent to do work of that class: contrary to regulation 6.20(2)(b) and 1.15(2)(a) of the Regulations. 

Background Details

Kenneth Sully had his certificate of registration as a WorkSafe Assessor renewed on 7 April 2014 (Registration Number WA967). This certificate of registration entitled the accused to conduct assessments of persons wanting to obtain high risk work licences (HRWL) in a number of different classes.

A person must sit an assessment and be granted a Notice of Satisfactory Assessment in order to apply for a HRWL.

At all material times the accused was the Director of Austep Pty Ltd, a registered training organisation (RTO).

WorkSafe Inspectors conducted an audit of the assessments the accused conducted in August 2014.

Between 27 – 31 August 2014 documents obtained from Austep Pty Ltd indicated that the accused marked 19 HRWL candidates as “competent” and issued 19 Notices of Satisfactory Assessment when these candidates answered one or more critical questions incorrectly and/or failed to answer a critical question.

This should have resulted in assessments of “not yet competent” with the unsuccessful candidates to be reassessed at a later date.

The seven charges brought by WorkSafe against the accused in this prosecution are representative of the breach of his duties as a registered HRWL assessor during August 2014.

Charge 1: On 27 August 2014 Candidate 1 sat a HRWL Assessment for Class DG (licence to perform dogging) and answered critical questions 47, 73, 79 and calculation question 4 incorrectly.

The accused marked these as correct and classed him as “competent” whereas he should have marked the candidate as “Not yet competent”.  Candidate 1 was subsequently granted a licence to perform high risk work class DG.

Charge 2: On 30 August 2014 Candidate 2 sat a HRWL Assessment for Class RA (licence to perform rigging - advanced) and answered critical questions 67, 70 and calculation questions 1(e), 1(f), 2(a) and 2(b) incorrectly.

The accused marked these as correct and classed him as “competent” whereas he should have marked the candidate as “Not yet competent”.

In addition critical question 18 of the assessment sat by Candidate 2 was an overhead power line clearance question. This was attached as a separate sheet of paper and is in the same handwriting or a photocopy of the answers also provided by the candidate’s assessments that are subject of Charge 3 (candidate 3) and Charge 6 (candidate 6).  Candidate 2 was subsequently granted a licence to perform high risk work class RA.

Charge 3: On 30 August 2014 Candidate 3 sat a HRWL Assessment for Class RA (licence to perform rigging - advanced) and answered critical questions 46 and calculation questions 1(d), 1(e), 1(f), 2(a), 2(b) and 4 incorrectly.

The accused marked these as correct and classed him as “competent” whereas he should have marked the candidate as “Not yet competent”.  Candidate 3 was subsequently granted a licence to perform high risk work class RA.

Charge 4: On 31 August 2014 Candidate 4 sat a HRWL Assessment for Class C6 (operation of slewing mobile cranes up to and including 60 tonnes lifting capacity) and answered critical questions 22 and 57 incorrectly.

The accused marked these as correct and classed him as “competent” whereas he should have marked the candidate as “Not yet competent”. Candidate 4 was subsequently granted a licence to perform high risk work class C6.

Charge 5: On 31 August 2014 Candidate 3 sat a HRWL Assessment for Class C6 (operation of slewing mobile cranes up to and including 60 tonnes lifting capacity) and answered critical questions 22 and 57 incorrectly.

The accused marked these as correct and classed him as “competent” whereas he should have marked the candidate as “Not yet competent”.

Candidate 3 also failed to answer critical question 34 which should have also resulted in him being marked as “Not yet competent”.  Candidate 3 was subsequently granted a licence to perform high risk work class C6.

Charge 6: On 31 August 2014 Candidate 5 sat a HRWL Assessment for Class CO (operation of slewing mobile cranes above 100 tonnes lifting capacity) and did not answer critical question 102.

The accused did not mark this question and should have marked the candidate as “Not yet competent” yet marked him as “Competent”.  Candidate 5 was subsequently granted a licence to perform high risk work class CO.

Charge 7: On 31 August 2014 Candidate 6 sat a HRWL Assessment for Class CO (operation of slewing mobile cranes  above 100 tonnes lifting capacity) and answered critical questions 79, 109, 113 and calculation question 2(i) incorrectly.

The accused marked these as correct and classed him as “competent” whereas he should have marked the candidate as “Not yet competent”. Candidate 6 was subsequently granted a licence to perform high risk work class CO.

On 16 December 2016 WorkSafe wrote to Mr Sully, setting out its concerns as to his suitability to remain registered as an assessor in respect of high risk work in a number of categories, and particularizing in full detail allegations that he had breached his assessor’s duties under regulation 6.20(2) of the Occupational Safety and Health Regulations 1996.

An Administrative Hearing was conducted by the WorkSafe Commissioner and the result was a cancellation of Mr Sully’s registration to assess HRWL in classes DG (dogging), RA (Rigging advanced), RB (Rigging basic), C6 (mobile crane 60t) and CO (mobile crane over 100t). He still holds a registration to assess a number of other HRWL classes.

Mr Sully wrote to Worksafe and advised that he was no longer going to be operating as a HRWL Assessor as of 1 March 2017 due to serious health issues.

Mr Sully previously had his HRWL Assessor registration cancelled by WorkSafe in 2005 after a number of breaches were identified. He subsequently applied to have his Assessor Registration reinstated and was successful in re-obtaining this after a period of 2 years due to his acceptance of wrongdoing, citing major personal/family problems and experiencing a serious health diagnosis which lead to the breaches.




Outcome Summary

The Accused failed to attend the court hearing on 16 June 2017 and the Magistrate proceeded with the conviction under Section 55 and fined the Accused a total fine of $14,000 ($2000 for each of the seven charges) and ordered costs of $105.60.

Court Magistrates Court of Western Australia - Perth
Costs $105.60

Search the records of all successful prosecutions taken by WorkSafe under the Occupational Safety and Health Act 1984 and Occupational Safety and Health Regulations 1996 since 1st January 2005. Searching and indexing of this database is limited to convictions for offences against the Occupational Safety and Health Act 1984 and Occupational Safety and Health Regulations 1996 committed on or after 1 January 2005, when the statutory offence and penalty regimes were significantly amended.

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