MARCO TEÓRICO
2.2. Bases teóricas
2.2.4 Aspectos Teóricos Conceptuales Sobre el VIH/SIDA en la Adolescencia
8.1 The principal issue
8.1.1 On 8 May 2009, the Project Control Group (PCG) agreed to a set of installer minimum competencies, which specified that installers need not receive training in insulation installation, or hold a specified competency, if they were supervised by a person who had been so trained, or held that competency. Those installers had only to have obtained an Occupational Health and Safety (OH&S) ‘white card’, on any view a most basic form of training and one which it was almost impossible not to obtain.1 It is necessary to consider
in detail the lead-up to that decision, who was involved in making it and why they did so because, as the fatalities in particular show, some installers at least were inadequately skilled and supervised to undertake the work they did.
8.1.2 I do so because this is one of the points at which the tension between a perceived need to rush implementation of the Home Insulation Program (HIP) and the careful and proper design of it was resolved in favour of the former and at the expense of the latter.
8.2 Background
8.2.1 On 16 February 2009, Mr Canavan, Victorian Coordinator-General, flagged a concern with Mr Mrdak about the accreditation and training of insulation installers.2 At the
18 February 2009 Energy Efficiency Roundtable meeting, all participants agreed that special skills were required for installing insulation; that installers ought be registered and be required to meet minimum training standards for installation.3 Mr Mrdak was advised
of that fact.4 On 20 February 2009, Neil Gow from the Master Builders’ Association (MBA)
wrote advocating the training of new entrants.5 Mr D’Arcy wrote, supporting use of a
Victorian model for training.6 On 24 February 2009, Ms Brunoro emailed Mr Keeffe saying
that there was a need to exclude untrained installers from the HIP, but that appropriately skilled people such as builders ought to be permitted to participate.7 On 20 March 2009,
a National Industry Consultation Meeting took place at which the attendees agreed that an appropriate training regime would be required. An Installer Training Working Group was proposed to be formed, with representatives from various industry associations.8 This
meeting recommended a one-day installer refresher course; a two-day trade course and a five-day new entrant course. The agenda for the meeting also proposed some electrical skills training.9 The minutes of the meeting recorded that, ‘the work involved in insulation
could result in a high level of exposure for the Government due to hazards of existing buildings, hazardous materials and occupational health and safety. The program poses a high likelihood of catastrophic consequences (death or serious injury).’10
1 Statement of Levey at [73], STA.001.003.0001, 18 March 2014. 2 AGS.002.008.3384, 1. 3 AGS.002.008.0502, 1. 4 AGS.002.008.0502, 1; AGS.002.023.0926, 5. 5 AGS.002.007.1700, 1. 6 AGS.002.010.0776, 1. 7 AGS.002.008.3246, 2.
8 Statement of Cox at [16], STA.001.007.0001, 21 March 2014. 9 AGS.002.010.0945, 2, .
8.2.2 Despite some resistance from the MBA regarding the need for training of its qualified members, the unanimous view of all industry participants was that training was required for insulation installation, particularly for new entrants.Training was described as a ‘main priority’.11
8.2.3 On 3 April 2009, an Energy Efficient Homes Package training workshop was held at which the issue of training was again discussed and the minutes record that the attendees agreed on three to five days training including one day of OH&S induction training. Training was to include classroom and on-the-job training.12 This was in fact the
way in which experienced employers in the industry had been operating.13
8.2.4 Consistently with these events, Mr Mrdak said that the need for training programs for installers was one of the things that was drawn to his attention quite early.14 He said
that it was always important that installers be trained. He thought (at the time he was Coordinator-General) that the training of the firms and all installers was a fundamental and critical part of the delivery of the Program.15 He thought there should and would be a
mandatory level of technical training for all people doing installation.16
8.2.5 Training and installer competencies, however, were not issues which the Office of Coordinator-General (OCG) considered to be the focus for its involvement.17 Mr Mrdak’s
office did some work with the Department of the Environment, Water, Heritage and the Arts (DEWHA) and the Department of Education, Employment, and Workplace Relations (DEEWR) on the requirements for training under the HIP.18 But that work seemed to have
involved having those agencies work together more closely and cooperatively rather than having an input into what the training and competencies ought to be.
8.2.6 Mr Mrdak was not aware of the decision to change the competencies that was made by the PCG in early May 2009. Nor was he aware that such a decision was to be made.19
I accept his evidence in that regard.
8.2.7 On 15 April 2009, Mr Keeffe emailed officers from the Department of the Prime Minister and Cabinet (PM&C) and said:
Training is looking healthy. We met again with DEEWR and have contracted Industry Skills Council to rapid-check the scope of the NSW course offerings to see if it can meet national standards and then a roll out through the National RTO [registered training organisation] network. They swear they can have it up and running in advance of our July start. How soon before will be advised soon.20
8.2.8 The next day (16 April), the PCG met and discussed the business model and discussed installer accreditation and minimum competency standards.21
11 AGS.002.008.3450, 1. 12 QIC.006.001.0333, 2.
13 Transcript (15 April 2014) 3096 (M Hannam); Transcript (4 April 2014) 2056 (P Stewart) 14 Transcript (27 March 2014) 1049 (M Mrdak).
15 Transcript (27 March 2014) 1049-1050 (M Mrdak). 16 Transcript (27 March 2014) 1077 (M Mrdak).
17 Statement of Mrdak at [27], STA.001.009.0001, 24 March 2014, [27]. At least so far as matters of detail about those issues was concerned: Transcript (27 March 2014) 10901091 (M Mrdak).
18 Statement of Mrdak at [88], STA.001.009.0001, 24 March 2014. His office was not involved, however, he said, in the ‘technical details of the competencies’. See Transcript (27 March 2014) 1090-1091 (M Mrdak).
19 Transcript (27 March 2014) 1050 and 1079 (M Mrdak). 20 AGS.002.008.3178, 1.
8.2.9 On 23 April, the PCG considered the issue of training, and was presented with a minute about that topic by Mr Keeffe.22 It was said that the requisite competency
and training materials would be ready by 2 June. That Minute showed that advice had been received from DEEWR, the Construction and Property Services Industry Skills Council (CPSISC) and industry, that ‘installers need a minimum level of competence to undertake work in a safe and effective manner’. It recommended that DEEWR further assist with the issue so far as it concerned persons with no prior experience who wished to enter the industry. Mr Hoffman told Mr Keeffe by email of 22 April 2009 that his concern was to:
make sure we are crystal clear re what training/experience requirements we are going to put on existing and new starters in the industry.23
8.2.10 Mr Hoffman accepted there was uncertainty about this issue at that stage and that it needed to be resolved.24
8.2.11 On 23 April, Mr Hoffman was blunt:
I thought it useful to record a few key points from this morning’s meeting after a little reflection:
8.2.11.1 We need relentless focus on the mechanics of the program leading up to July 1…
8.2.11.2 We need greater clarity of the issue of qualifications requirements and then training for those requirements. In a discussion after the meeting, DEWHA staff are still struggling to be able to write down the complete list of what will qualify an installer to be registered for the program…. This needs to be nailed ASAP; not least so that we can then ensure through DEEWR that those requirements are able to be provided en masse to new entrants to the industry.
8.2.11.3 Issues of fraud, compliance and audit are very important. But my sense is that we have a risk right now of over focus on work streams about these matters to the potential cost of focus on matters in 1 and 2 above. Fraud, compliance and audit matters are NOT on the critical path to successful launch on July 1. Items 1 and 2 are. (I realise of course that they will then rapidly become critical path issues). I trust the above is useful. PM&C/OCG staff will continue to assist in any way we can. As discussed, PM&C will assist in getting high level DEEWR engagement to bring together the employment services providers, RTOs etc.25
8.2.12 There is, in my mind, no doubt what Mr Hoffman, and through him the OCG, were trying to achieve a 1 July commencement, and if there were any removable impediments to that occurring, such impediments were to be removed.
8.2.13 Mr Cox, who had some involvement in the question of training, was vague in his recollection of the extent to which the OCG took an interest in it and what was done in that regard.26 As I have already remarked in the previous Chapter, his recollection of
events generally was very poor. This is surprising given the involvement that he must have had, given the emails he sent, the emails into which he was copied, the position he filled and the persons to whom he reported. To this must be added that he was afforded some considerable opportunity to refresh his memory, both during an interview with
22 AGS.002.007.1840, 1. 23 AGS.002.007.1842, 1.
24 Transcript (26 March 2014) 907 (M Hoffman). 25 AGS.002.008.0672, 2.
Commission staff on 11 March 2014, by reviewing documents provided to him at that time, and his having had some weeks between that interview and the time of appearing before the Commission within which to recall the relevant events and his having prepared a statement.27
8.2.14 Mr Cox, in the early framing of the OCG/PM&C business model, had left the issue of training open, and seems to have assumed that appropriate arrangements were yet to be settled upon. It is clear that decisions were later made (after Mr Cox had left the OCG) that required only supervisors and not installers to meet the relevant requirements. No criticism can therefore be levelled at Mr Cox for this aspect of the model. Responsibility for that rests with others.
8.3 Events immediately preceding the 8 May decision
8.3.1 The genesis of the idea to remove the need for all installers to receive training (if they were supervised) seems to lie in a document of 1 May 2009. That document was put before the PCG. That document was later (on 4 May) amended (by Mr Hughes).28
8.3.2 But even on 4 May, each person engaged by an organisation registered under the HIP was to ‘have the competency detailed in paragraph 1 below’ (ie OH&S training and substantive training).29 Mr Hoffman conceded that the substitution of supervision of
novices in place of training involved balancing the delay resulting from training against the need for a definite rollout by 1 July.30 He justified such an approach on the basis that
that was the way the industry had to that point functioned.31 The evidence of industry
participants, and in particular their evidence of how they trained new employees, does not support Mr Hoffman’s understanding of how the industry operated. It is not clear from the evidence whether Mr Hoffman himself made any enquiry of industry to determine what and how training was undertaken.
8.3.3 Mr Hoffman said that at some PCG meetings he attended, capability requirements and competencies of installers were discussed. He said that a risk was discussed ‘of new people coming into the insulation industry with a lower level of training and the risk of injury to workers’.32 He said in his oral evidence that there were different views expressed
about this topic.33
8.3.4 On 30 April, Mr Keeffe prepared a Minute for the consideration of the PCG. That Minute was part of a task that had been assigned to him from a previous meeting. Under a heading ‘Conditions for Inclusion Finalisation’, he wrote:
Clause 2(a) relates to an installer (and their employees and subcontractors) having an appropriate level of competency in installing insulation. Given the lack of current industry standards for insulation the Department has adopted a minimalist approach and will refer providers to the content outlined at Attachment B providing guidance on what installers should have.
27 These matters were put to him by Senior Counsel Assisting. See Transcript (25 March 2014) 800-801 (S Cox). 28 AGS.002.030.0010, 1.
29 AGS.002.030.0012, 1.
30 Transcript (25 March 2014) 871 (M Hoffman). 31 Transcript (25 March 2014) 870-871 (M Hoffman).
32 Statement of Hoffman at [57], STA.001.008.0001, 21 March 2014. 33 Transcript (26 March 2014) 905 (M Hoffman).
The Group should note that this approach could give rise to installer quality issues and complaints. The Department will seek to minimise these through compliance processes and audit, and communications and education for households. The Department has removed all references to endorsing installers, skilled installers or preferred installers. The Installer Provider Register is effectively simply a list for households to source one or more installers from. The Department has engaged with DEEWR to progress training and competency levels for the insulation industry. Should the industry requirements change then the competency guidelines will change and registered installers advised.34
8.3.5 A list was presented of agreed minimum competency requirements that various trades would have to meet in order for individuals to be registered under the HIP. Bricklayers, painters and plumbers were also taken to meet the competency requirements. The reason for this seems to be that tradespeople of this kind were thought to possess the requisite skills. For many other trades, it was to be confirmed what position was to apply. 8.3.6 On 1 May 2009, Senator Arbib and Ms Kruk met to discuss training. A PM&C document
prepared for Mr Arbib as speaking notes records that:
there needs to be significant effort to ensure new installers can be brought on quickly. Interaction with DEEWR needs to be improved.
It went on to say:
we need to ensure that the communications campaign targets installers and other key delivery partners prior to 1 July.35
8.3.7 Mr Arbib said that he thought it important that there be training for new entrant installers participating in the HIP.36 This view, however, is quite inconsistent with the decision
made by the PCG on 8 May in effect doing away with such training in favour of a bare requirement that installers be ‘supervised’. Mr Arbib said that he was not involved to a level of detail to know about such matters. The documents show that recollection to be wrong. One example is the briefing referred to above which seeks to inform Mr Arbib, among other things, that the training of installers was one possible impediment to a 1 July 2009 commencement.37 The view I have formed is supported also by other
evidence to which I have referred that Mr Arbib was pushing DEWHA hard on training.38
That could only mean pushing DEWHA to adopt less extensive training requirements, given Mr Arbib’s interest in employment participation for new entrants in particular.