11 Nov 2019

CertMark founder should not have held job 'relating to quality control' - ex-employer

8:45 pm on 11 November 2019

An Australian chemical company that dismissed the man who went on to establish one of this country's biggest building product certifiers, believes he should never have been allowed into any kind of quality control business.

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Documents show the country's leading certifier of building product quality, CertMark, has been the subject of complaints, warnings and investigations since it began.

CertMark founder John Thorpe was investigated by a federal regulator before he even joined the powerful CodeMark scheme in 2011, but authorities flatly denied to RNZ knowing anything about that inquiry, before doing a u-turn and admitting they did.

The Queensland company was the biggest issuer of CodeMarks in New Zealand, until it was suspended then withdrew in July, leaving certificate holders in the lurch.

In 2010, Mr Thorpe was working for a chemical company in Australia but was dismissed in January that year.

The ex-employer later told the CodeMark administrator, JAS-ANZ, in an email obtained by RNZ, that this was because of "allegations of serious breaches of contract" by him, and it believed his behaviour "should have disqualified him from ever holding a position relating to quality control".

Mr Thorpe went straight to an Australian chemicals regulator to accuse his ex-employer of supplying unregistered termite chemicals - termites are a major threat in Australia - according to a document signed by the Australian Pesticides and Veterinary Medicines Authority (APVMA).

The regulator investigated but found it was Mr Thorpe himself who had been supplying the unregistered chemicals and the company was in the dark.

"At the time ... management was of the belief that they were supplying a registered ... product based on the advice provided by Thorpe," the authority said.

Emails from his ex-employer to JAS-ANZ in May 2011 and 2012, said Mr Thorpe's actions had cost it "several hundreds of thousands of dollars" including in claims from unhappy customers.

When was JAS-ANZ alerted to investigation?

The documents show JAS-ANZ (Joint Accreditation System of Australia and New Zealand, based in Canberra) was alerted to the chemical investigation around May 2011.

But JAS-ANZ denied that.

"We have been in communication with JAS-ANZ, who have confirmed they don't have any knowledge about an APVMA investigation from 2010-11 involving John Thorpe," the Ministry of Business, Innovation and Employment told RNZ last week.

The ministry runs CodeMark through JAS-ANZ.

The ministry said it did not know about the inquiry either.

Yet an Official Information Act response shows the ministry's own records contain a complaint laid in 2012, which contains an offer to provide all this information.

Later last week, the agencies did a u-turn, saying in fact JAS-ANZ was alerted, in June 2011.

However, this was after CertMark had been allowed in to CodeMark, and at the time of vetting it met the criteria to be accepted, the ministry and JAS-ANZ both said.

The issues raised by the chemical inquiry "did not relate to the accreditation criteria", JAS-ANZ said in a statement.

It had "since amended its accreditation conditions to manage any future scenarios of this nature".

As far back as 2011, JAS-ANZ was promising action, emails show.

It told the former employer of Mr Thorpe - the chemical company investigated by the APVMA - that "we have no intention of letting this matter slide".

In fact, it said the employer's complaint had helped it to come up with a new "fit and proper person test".

This would be in place by mid-2011, though until then, its hands were tied and it feared legal action from CertMark, JAS-ANZ said.

It took another three years to bring in this test.

The ministry is now saying that after CertMark's accreditation and the chemical investigation, JAS-ANZ realised it must strengthen its rules around who was allowed into CodeMark.

But CertMark itself was allowed to carry on after the chemical investigation came to light; and also through 2014-18, despite failing several reviews of its certifications, going on to issue a third of all New Zealand CodeMarks.

CertMark has just been reinstated by JAS-ANZ to CodeMark Australia after a suspension - its first - that lasted three months.

This was imposed after significant flaws were found, including that the certifier had not been doing on-site audits of manufacturers as required, had not been doing the correct testing, and had not been raising non-conformances during evaluations.

John Thorpe, the chief executive, described these as "minor" procedural problems.

His ex-employer - the chemical company - emailed JAS-ANZ four more times up to 2018, asking what was being done and calling for tighter controls.

"Our first concern is for the public," the company said.

In 2018, the regulator responded: "The situation is well known to JAS-ANZ, and like NZ, is under review in Australia."

Asked by RNZ if the fit-and-proper-person test it introduced in 2014 had been or could be applied to CertMark, JAS-ANZ did not address the question, saying only that the test did not apply to certifiers that made technical errors.

Firms raised concerns about CertMark and its founder

RNZ has records of five Australian companies, and several New Zealand companies, raising serious concerns about John Thorpe or CertMark.

In 2015, after finding two dozen faults with CertMark certificates, JAS-ANZ said the company's "failures" had created "problems" for its client companies.

Documents show a timber company in Victoria, in 2010, wrote to the chemical company that had just dismissed Mr Thorpe, to say it believed he had misled them about a fire retardant product.

It itemised losses from that it said amounted to $96,000 at least.

Another complainant to JAS-ANZ, Queenslander Steve Marskell, told RNZ that when his magnesium board company challenged what CertMark was charging, it triggered prolonged problems for his CodeMark certificate that he estimated equated to more than a million dollars in lost business.

"An absolutely stressful situation ... we didn't know if we had a business from day to day," Mr Marskell said.

"In New Zealand, with several of our high-quality clients over there, they've lost business, having [CodeMark] withdrawal written up on their website."

He complained to JAS-ANZ, and to the Australian Building Codes Board, which took a long time but, he said, resulted in no substantive action.

In his opinion, the certifiers appeared "virtually untouchable".

Ministry documents show a rival certifier, Global-Mark, lodged a 13-part complaint in 2012, and JAS-ANZ upheld five of its points, including finding that:

  • CertMark was doing certifications in China it had no right to do
  • CertMark had wrongly put official stamps on some certificates
  • CertMark had wrongly claimed to be able to do plumbing certifications (CertMark later was allowed to issue Watermarks, the highest plumbing certification in Australia, and one often used in New Zealand which lacks a comparative scheme.)

JAS-ANZ described parts of CertMark's website as "misleading" and "offending".

The rival Global-Mark said it was shocked when it found out John Thorpe had drafted a CodeMark certificate with Globalmark's logo displayed, without its approval.

"We were very concerned and met with JAS-ANZ face-to-face," Global-Mark said.

The document record RNZ has is not complete but it suggests many complaints went largely unresolved.

CertMark had been subject to "standard corrective actions", JAS-ANZ said.

After sanctions on it in 2015 and 2019, it improved, the scheme administrator said.

It reinstated CertMark last month to CodeMark Australia. The company itself withdrew from New Zealand in July.

A New Zealand company that holds certificates issued by CertMark, told RNZ the CodeMark scheme had not been enforced in a way that achieved quality, leaving its clients "extremely concerned and demoralised".

The ministry said it did not hold files about certifiers or vet them, as this was JAS-ANZ's job.

It also did not "have any formal information-sharing arrangements with regulators, including Australia".

JAS-ANZ defended at length in a statement to RNZ its handling of the whole case and scheme - but basically both it and the ministry said what happened with CertMark could not happen again.

"JAS-ANZ is committed to ensuring that the high standards set out in its Conditions of Accreditation are adhered to and has a robust review system in place to ensure these standards are followed, in line with international best practice," the agency's chief executive James Galloway said.

CertMark has not responded to RNZ's requests for comment.

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