Anwari v Commissioner for Fair Trading

Legislative Framework

1. The Tribunal has jurisdiction to review the Respondent's refusal of the applicant's application for a contractor licence under s 83B(1) of the HBA, s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
2. The Respondent is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) (LRUP Act). Section 12 of the LRUP Act sets out the procedure for making an application for a contractor licence, including at s 12(4)(a) that it 'must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation'.
3. Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work section 28(1) of the HBA authorises the holder of an endorsed contractor licence to do (and to supervise) the same residential building work, or specialist work, as it authorises its holder to contract to do.
4. Section 21(1) of the HBA provides: 21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following - (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), (b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). (c) (Repealed) (emphasis added)
5. Schedule 4 of the Home Building Regulation 2014 (NSW) provides an extended description of the work authorised under various categories of a licence. A licence in the category of general building work would authorise a holder to contract and undertake any work that falls within the definition of 'residential building work'.
6. Schedule 1 of the HBA provides that: "residential building work" means any work involved in, or involved in co-ordinating or supervising any work involved in - (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling.
7. Section 20(1)(a1) of the HBA provides that an application for a contractor licence must be refused if the Secretary is not satisfied as to the matters required by section 33C of the HBA. Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is satisfied that "the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant". The licence application form completed by the Applicant was for an "Individual Contractor Licence (Q)", which is the endorsed contractor licence.
8. Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates 1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required. (emphasis added)

The Instrument

1. Pursuant to s33D(1) of the HBA, the Respondent issued the 'Instrument - Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work' on 31 March 2017 (the Instrument). The Instrument relevantly provides that the Commissioner determined that 2. pursuant to s 33D(1)(b) of the Act, the possession of experience of such a kind and for such a period, necessary for an applicant for the issue of a Licence or Certificate to be as follows: (a)(ii)… the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1.
2. The necessary experience is identified at Table A as: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made.
3. The Instrument defines "Experience" as follows: "'Experience' means experience gained by the applicant as: (a) an employee of; or (b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or (c) a holder of an endorsed contractor licence contracted to; or (d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; or the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: ● supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and ● received Remuneration in accordance with law for the Work which the applicant carried out; or (e) a holder of a supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work, held continuously for a minimum period of 2 years within 10 years from the date the application is made."
4. The term "Relevant Application Form" is defined in the Instrument to mean: the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form.
5. The relevant form required the applicant to provide a referee's statement from a person who held a qualified supervisor certificate or individual contractor licence in the category of General Work Builder issued by NSW Fair Trading during the time of the stated experience and who supervised and directed the applicant carrying out the work the subject of the referee statement.
6. The Instrument is not an "instrument" in the sense of being delegated legislation made under an Act, but is rather a policy: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [38]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [32]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31]. Further, the Instrument is a policy, but not "Government policy" as that term is defined in ss 50 and 64(1) of the Administrative Decisions Review Act 1997 (ADR Act), and is therefore not binding upon the Tribunal: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Cooper v Commissioner for Fair Trading [2017] NSWCATAD 242 at [9]; Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 at [12]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [30]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [31].
7. The Tribunal is not required by s 64(4) of the ADR Act to have regard to a policy such as the Instrument, and is permitted to do so only if the policy is not contrary to Government policy and if doing so does not produce an unjust decision: Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [39]; Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [32]; Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [32].
8. In Price v Commissioner of Fair Trading [2017] NSWCATOD 108, in considering whether to depart from the Instrument's provisions, the Tribunal stated at [68]: The Home Building Act 1989 is concerned with consumer protection. For the Tribunal to depart from the terms of the Instrument the Tribunal would need assurance that the Applicant had the skills necessary to undertake or supervise the building of a home.
9. In Ngo v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 103 the Tribunal found that in the circumstances of those proceedings, rigid adherence to the Instrument produced an unjust decision. Applying the principle espoused in Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42 at [53] that "whether experience gained on any building site is relevant industry experience is a question of fact to be determined in each case", the Tribunal accepted Mr Ngo's decades of experience on large commercial and residential construction projects in Australia and overseas as satisfying the requirements of a supervisor certificate under the HBA.
10. In Wall v Commissioner for Fair Trading [2017] NSWCATOD 76 the Tribunal noted at [33] that the Instrument "may provide some guidance to those applicants wishing to apply to the Commissioner for a licence, but cannot be considered reflective of the eligibility requirements under the Act."

Consideration

1. The question before the Tribunal is whether the Applicant provided evidence of experience of such a kind and for such a period as would enable him to do, or to supervise, the work for which the licence is required, within section 33D(1)(b) of the HBA.
2. The Applicant's qualifications and his satisfaction of the requirements in s 33D(1)(a) of the HBA were not in issue. He obtained a Bachelor of Engineering (Civil) Diploma of Engineering Practice from UTS in 2010, and a Certificate IV in Building and Construction from NSW TAFE in March 2017. He obtained a Master of Science from Kabul University in Afghanistan in 1987 which was assessed in 2005 as being comparable to an Australian Bachelor degree.
3. As at the date of the hearing, the Applicant was employed by Arcare, an aged care facility. He had worked for Arcare as a Maintenance Coordinator from 6 April 2020 and as the NSW Maintenance Coordinator from 30 April 2020. His position description identified his duties including miscellaneous maintenance and repair work including tiling, plastering, doors, furniture, cabinetry, gardens, painting, electrical, and basic plumbing, and he reported to the General Services Manager / Residential Manager. The Applicant described his work experience at Arcare as including: - Providing technical advice as required to assist smooth running of building daily activities. - Receiving daily building maintenance request forms and planning to complete the job according to the original design and specifications. - Estimating daily building works and preparing request form to supply materials. - Regular contact with different trades such as builders, plumbers, electricians, landscapers, Air Conditioning, Roofers, carpenters, water proffers, insect controllers, painters, plasterers, concreters, bricklayers, cabinet makers, carpet layers, curtain technician, telephone technician, TV technician. Safety door technician, - The other important issue is safety on the site. During the work, its necessary to put proper PPE and check all employee to put proper PPE. During the work, the site must secure through barricade, fence, and necessary signs. - I conduct toolbox meeting before starting the work and explain the type of work, type of materials, type of tools and equipment using for the job. - I check the site should be clean from unwanted materials, tools, and equipment. - I check that all rubbish material must be put into proper bins. - At the end of the job, I check the site should be clean, everything should be safe into the store. The site must be lock and all unnecessary power must check to be tun off. - I have a regular checking of building equipment areas, cleaning gutters, roofing, courtyards, and other exterior area. - Managing to perform the repairing of plumbing, flooring, ceiling, lighting, ballast replacement, hard surfaces, walls, café equipment, furniture, and shelves. - Managing of work order system including receiving work requests, assigning work orders, entering system data, and responding to requests. - Manage the work order system including receiving work requests, assigning work orders, entering system data, and responding to requests. - I perform electrical work including changing light bulbs, replacing ballasts, resetting breakers, first response on electrical issues. - I have a regular visit for all buildings and checking them all buildings structure are safe. - Make sure that every job completed according to the Australia standards.
4. The Applicant provided a Statement of Service from Arcare signed by the General Services Manager dated 4 June 2021, but did not provide a referee statement from Arcare despite the Tribunal's direction of 12 March 2021 to that effect.
5. The Applicant provided maintenance services to 1st Place Building Services Pty Ltd between November 2016 and October 2019. The Applicant described his work experience at 1st Place Building Services as: I was involved in different work with this company such as carpentry, concreting, painting, roofing. Flooring. I have learned from this company about building issues. Responsibilities: - Performing carpentry, painting, landscaping, fencing, gardening, and concreting works according to Australia Standard. - Receiving job order from the office and preparing plan for next day. - Conducting routine inspections of premises. - Procurement of materials. - Working in a team as well as individually to complete the job according to the original design and specifications. - Make sure the site is safe for all staff, visitor and everyone must have proper PPE. - Making sure that the at the end of the job the site is clean and lock.
6. The Applicant provided a reference dated 22 March 2021 from John Di Giacomo, Managing Director of 1st Place Building Services Pty Ltd. The reference stated the Applicant had worked for the company from November 2016 to October 2019 and "his duties have included painting, carpentry and general handyman and building works in our building and maintenance business". Mr Giacomo stated "I am confident he would be capable with general building works…".
7. The Applicant provided evidence of his work experience as an engineering intern at AAMO Architect from 1 July 2009 to 31 January 2010 and his student work placement at ACE Demolition Excavation Pty Ltd as an estimator in November/ December 2006. Prior to his arrival in Australia, he had worked as a Senior Provisional Technical Advisor for the United Nation Office for Project Services (UNOPS) from June 2003 to June 2005, as Monitoring and Evaluation Manager for the Coordination of Afghan Relief (CoAR) from February 2000 to June 2003, and as an engineering filed officer for the International Rescue Committee Rural Assistance Program from September 1992 to March 1998. The Applicant also provided copies of technical reports he had drafted as part of his TAFE and University studies.
8. The Applicant provided an On Site Experience form by Wali Hakim in relation to the Applicant's work as "supervisor, management" at 11/45 Rawson Street, Auburn from 1 July 2009 to 31 July 2010, and at West Ryde from 27 May 2008. No further details were provided in relation to this work experience, and there was no certificate or licence number provided for Mr Hakim. From the material before the Tribunal it appears that Mr Hakim was the architect who supervised the Applicant's internship at AAMO Architect in 2009 to 2010, but there was no explanation for the discrepancy in dates or any additional detail to support this experience being relevant for the purposes of the HBA.
9. The Applicant was given an opportunity to provide the Tribunal with oral evidence at hearing, but this did not provide any additional information in relation to his work experience.
10. The Respondent submitted that the Applicant had not demonstrated a "wide range of building work" in residential buildings and had instead only demonstrated limited experience relevant to repair and maintenance works. The Respondent submitted that this type of experience was not sufficient to meet the requirements of the HBA, as defined in the Instrument.
11. The Respondent submitted that the only person who had provided an acceptable Referee Statement for the Applicant was Wali Hakim. This submission was surprising considering the findings in the Reviewable Decision to the effect that the document referred to was not a valid or acceptable reference. The Referee Statement is three pages long and at page 2 contains a declaration by the Applicant's employer, Mr Di Giacomo of 1st Place Building Services, who holds licence number 42238C. It is signed and dated 2 February 2018. The declaration refers to an attached 'On Site Building Experience' form, which is page 3 of the Referee Statement, completed by Mr Hakim and dated 29 August 2020. For the same reasons expressed in the Reviewable Decision, because of the discrepancy in dates and signatories and the incomplete information, the Tribunal does not consider this Referee Statement as 'acceptable' evidence of the Applicant's work experience.
12. The Tribunal was concerned that the Applicant had misunderstood how evidence of his work experience was to be provided, given the manner in which the Referee Statement had been completed. The Applicant was given a further opportunity to file evidence of his experience, including Referee Statements, between the hearing dates of 12 March 2021 and 9 June 2021, which resulted in him providing the reference and Statement of Service referred to above at [24] and [26].
13. Having considered all of the evidence, the Tribunal does not consider the Applicant's work experience at AAMO Architect in 2009 to 2010 relevant for the purposes of the Act or the Instrument, on the basis that there is insufficient detail of the types of work undertaken, the duration of the work, appropriate supervision for specific works, and the experience was undertaken too long ago.
14. With respect to the Applicant's more recent work experience with 1st Place Building Services and his current employment with Arcare, there is insufficient evidence before the Tribunal to support the Applicant's description of the work undertaken by him. As discussed in Limberis and reinforced in Price v Commissioner for Fair Trading [2020] NSWCATOD 93 at [55], "an applicant alone cannot verify their own experience". Neither Mr Di Giacomo's reference nor Arcare's Statement of Service confirm the level or breadth of experience submitted by the Applicant.
15. Even if the Tribunal accepted Mr Di Giacomo as a qualified supervisor of the Applicant's work experience for the purposes of the Instrument, his statement as referred to at [26] above does not verify that the Applicant has the requisite level of experience "in a wide range of building construction work" to satisfy the requirements of the Instrument or the Act. As discussed in Locking v Department of Finance and Services [2013] NSWADT 239: "…[E]xperience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling… A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally, a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in [the Applicant's] trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate."
16. There is no evidence of the Applicant having supervised experience in structural construction work, managing trades and determining whether they have complied with relevant standards and requirements, or negotiating and delivering contracts and projects including budgeting, communications with public, trades, applications to council, dealing with private certifiers, or the like. The repair and maintenance works undertaken by the Applicant for his current employer and for 1st Place Building Services did not include any structural construction work and do not demonstrate that the Applicant was involved in all stages of construction work. I agree with the Respondent that on the evidence before the Tribunal, the work undertaken by the Applicant falls within the scope of his contractor licence and is not relevant experience for the purpose of obtaining a building licence.
17. On the basis of the material before the Tribunal, I am not satisfied that the Applicant has had experience of such a kind and for such a period as it considers would enable the applicant to do, or to supervise, the work for which the endorsed contractor licence is required, within s 33D(1)(b) of the HBA.
18. Accordingly, the correct and preferable decision is for the Tribunal to affirm the Respondent's decision.

Orders 1. The respondent's reviewable decision is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2021