Aziz v Commissioner for Fair Trading

Background

1. The applicant lodged an application for an Individual Contractor Licence in the category of 'electrical wiring work', with the respondent agency on 30 August 2016. Accompanying that application were copies of the applicant's relevant educational qualifications and a referee statement.
2. Prior to that application the applicant had submitted two earlier applications (for the same type of licence) on 3 March 2016 and 23 June 2016. Each of those applications was accompanied by a Referee's Statement.
3. The respondent identified inconsistencies between the information provided in the Referee Statements concerning the applicant's employment history and experience. After investigating these inconsistencies the respondent determined that the applicant did not meet the experience criteria as set out under the legislation and governing instrument and the application was refused.
4. On 28 September 2016 the applicant applied for an internal review of the respondent's decision to refuse to issue him with the Individual Contractor Licence. Accompanying the application for an internal review was a series of grounds. Those grounds were as follows:

• I have serviced with a refusal on 30 September 2016 stating the refusal reasons.
• The Licensing Manager wasn't satisfied with the recent application as a discrepancy in employment information provided.
• I started casual unpaid employment for the same employer since 2010. On July 2014 Mr Hormoz Karimi restricted the business entity as a result, Eden Electrical Solutions Pty License commenced on July 2014.
• I was also helping Eden Electrical Solution on a casual basis to gain experience for the period of July 2014 until 08 June 2015, on 09 June 2015 I started officially to be an employee of Eden Electrical Solutions Pty Ltd to date.
• As a result, I have provided a letter from Mr Karimi (director of Eden Electrical Solutions Pty Ltd) stating that I was working for him for the last 5 year. The statement information was correct however, it wasn't made in an explanatory way to specify the information provided in this letter.
• I can provide with an official letter or statement from the employer specifying the above points.

1. The review was determined in December 2016. In reaching their review decision the respondent determined that the applicant had not provided evidence of the required 12 months electrical wiring work experience determined by the Commissioner. Essentially this point turned on the issue that under the relevant Instrument, the work experience must occur in the context of the worker / applicant being employed or otherwise lawfully engaged. In common parlance an applicant has to establish that they were paid for their work / engagement during the claimed period.
2. The respondent determined that educational attainments of the applicant were sufficient to satisfy those aspects of the application. However, in respect of the engagement and experience aspect of the application, the respondent determined that the referee statements and evidence supplied in support only establishers a period of 6-12 weeks remunerated employment in the relevant field. The review concludes with the following statement: The reviewer has concluded that the applicant has not provided evidence of the required 12 months electrical wiring work experience determined by the Commissioner as necessary for the issue of an electrical authority.
3. As a result the respondent determined that whilst a large amount of time and examples of residential building work had been provided in support of the application, having regard to the terms of the legislation and the relevant terms in the Commissioner's instrument, the applicant did not satisfy the criteria for the granting of the licence authority. As a result the decision of the Secretary was affirmed and the review was refused.
4. On 13 January 2017 the applicant filed his application for administrative review with the Tribunal, having been served with the Internal Review decision on or after 21 December 2016. As a result the application has been filed within time.
5. The applicant filed the following material in support of his application:

• Application for Administrative review dated 11 January 2017 (Exhibit 'A-1').
• Bundle filed 28 March 2017 comprising Tax Form, Pay Slip and 3 x work references (Exhibit 'A-2').
• Superannuation payment material (2 folios) (Exhibit 'A-3').

1. The respondent filed the following material in the proceedings:

• Material filed under section 58 Administrative Decisions Review Act 1997 - dated 23 March 2017 (Exhibit 'R-1')
• Written submissions dated 20 April 2017.
• Further / supplementary written submissions dated 31 May 2017.

Legislative Background

1. Section 19 (1) of the HBA provides that the Secretary (the Commissioner for Fair Trading) may grant contractor licences for the purposes of the Act. Section 20 (1) of the HBA deals with when the Commissioner must refuse a licence, referring to an applicant satisfying the requirements of sections 33B and 33C of the HBA. The relevant section states: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or ….
2. Sections 33B and 33C of the HBA deal with the general and additional requirements for a contractor licence. The sections set out under the general requirements specific matters which go to probity of the applicant. Section 33C provides additional requirements and these go to specific work conditions and limitations. Section 33C (1) (b) provides: 33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended.
3. Section 33C (1) (b) (i) refers to the requirement to satisfy section 33D, which 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.
4. The matters referred to in section 33D, being qualifications, experience and nature of work, are specified in subordinate legislation being the Commissioner's 'Instrument' which is published in the New South Wales Government Gazette each time there is an amendment. The authority for the Instrument which applies to the current matter arises from clause 28 of the repealed Home Building Regulation 2004 which provided for matters similar to the current 33D of the HBA.
5. The respondent submitted that the relevant instrument was the Instrument enacted on 20 December 2013 and Gazetted on 10 January 2014. It is clear that the repealed Regulation was in force at the time of the instrument, and it continues to have effect (until replacement) by way of the savings provisions in the legislation. The Instrument has been provided to both the applicant and the Tribunal and there was no dispute as to the general applicability of that Instrument to the current matter.
6. The central issue in the current proceedings is whether the applicant satisfied one specific requirement of the Instrument, namely his length of experience under employment as an 'employee'. The Instrument provides in the Interpretation section that: '"Experience" means experience lawfully gained by the applicant (whether during or after completion of an Apprenticeship) as a bona fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement.'

Hearing

1. The applicant who represented himself was assisted in his communication by an interpreter at the hearing. In opening submissions he mentioned that he had a 'grievance' with Fair Trading and had many telephone conversations with Fair Trading officers who had indicated that his documents were compliant.
2. The applicant submitted that the two earlier applications had errors and he withdrew them. He had asked his accountant, who spoke English well, to telephone Fair Trading and find out what was required. A submission was made that the accountant was told that 12 months experience full time or part time (was all that was required).

Applicant's evidence at hearing

1. The applicant gave evidence through an interpreter, but often answered in English and in both respects was able to be understood by the Tribunal. The applicant was asked questions by the Tribunal in his evidence in chief, and asked to read the respondent's submissions in respect of his 'experience' in order to respond initially to the case against him and indicate what if anything he disagreed with.
2. The applicant disagreed with aspects of the submissions. He repeated his earlier submission that prior to the second application he telephoned Fair Trading to find out whether the experience needed to be gained in full time or part time work. His evidence was that he was advised that it did not matter.
3. The applicant gave evidence that he has five years' experience but that during that period he needed to stop his TAFE studies for one semester due to surgery.
4. In respect of his referee Mr H Karimi the applicant's evidence was that he 'volunteered' (his) 'work to make up my experience'. 'He did pay me but very little'. The applicant stated that TAFE gave him his professional certificate. At this point the applicant gave evidence that he inquired of the respondent about what was required concerning the definition of 'experience'. The applicant stated in evidence that he was told 'it doesn't matter'.
5. The Tribunal asked the applicant how many days a week he worked for Mr Karimi. His evidence was that he worked 5 full days. Some of the years he worked 2-3 days for a company and free-lanced 2 days a week.
6. The applicant stated that he worked as a Process Worker from 2012 to early 2014. When the applicant was asked where the nominated or claimed 5 years' experience arose he answered that it was from 2010 to 2012 and then 2014 to today. From 2010 - 2012 he worked for Mr Karimi 1 or 2 days a week as a volunteer as he needed to gain experience. When asked how he supported himself he stated that he was supported by his sister. He gave evidence that he became a permanent resident on 18 September 2010.
7. In respect of the period 2014 to present the applicant's evidence was that during this period he again worked for Mr Karimi, and he did one or two days a week, sometimes three days a week working on important and big projects.
8. The applicant advised that he had a 'serious operation' in early 2014, but was fit to go back to work by July of that year. The Tribunal asked the applicant whether he was paid for this July 2014 to 2017 work? The applicant's evidence was that 'it was not a full pay - mainly volunteer work, he (Mr Karimi) paid me a little money.'
9. When the Tribunal inquired as to why the applicant tolerated this state of affairs for so long, the applicant gave evidence that he was 'trying to get experience', and that 'Mr Karimi is a good operator and he has a good reputation'.
10. The applicant tendered Exhibit 'A-3' which comprised information in respect of superannuation payments arising from his engagement. The applicant outlined how in 2014 and 2015 he did electrical work for 'DNA Electrical' 'Daniel' supervised that work. The applicant stated that he never asked but he thinks that they 'must have an electrical licence'.
11. When asked why he had not provided any supporting evidence for this engagement the applicant's evidence was that ' the amount of work was not long enough to seek them out.'
12. In cross examination the applicant was taken to Exhibit 'A-2', showing a payment total of $4,011.75. The applicant agreed the A-2 payment records were the only records that he has.
13. The applicant was asked whether he would agree that his total full time paid work for Mr Karimi would equate to approximately 16 weeks? The applicant agreed with this proposition.
14. The Tribunal in fairness to the applicant, by way of re-examination requested that he reconfirm his periods of work. The applicant stated that the more recent (post- surgery work) for Mr Karimi was 1 July 2015 - 24 March 2016, and 1 June 2016 to 29 December 2016.

Witness 2

1. Mr Karimi gave evidence over the telephone. The witness was taken to pages 7, 8, 84, 86 and 88 of the section 58 material (Exhibit 'R 1'). These documents comprised:

• Referee Statement 25 August 2016.
• Work reference on EES letterhead dated 28 October 2016.
• Fair Trading file note of telephone conversation 24 November 2016 with Mr Karimi.
• Fair Trading file note of telephone conversation 30 November 2016 with Mr Karimi.

1. The witness gave evidence in chief that the applicant worked for them initially through 'Jobnet', whereby he was sent to then for 15 hours a week and that he also volunteered hours to gain experience. In addition the witness stated that all the available documents had been submitted.
2. In cross examination the witness confirmed that there was 15 hours per week work plus volunteer work.
3. The Tribunal asked questions of the witness to clarify the tenure of the professional relationship. The applicant had originally been mentioned by a friend. He only worked 15 hours a week and finished up just before Christmas. The witness had an understanding was that the applicant was going to work for himself. The witness gave evidence that the time that the applicant worked for him would have totalled one year, but maybe less. In the witnesses view this figure probably included the paid and unpaid days. The applicant did (in the witness's opinion) complete a broad range of electrical work and as a result possess a broad range of skills, particularly in respect of switchboards.

Respondent's evidence

1. The respondent did not call any witnesses but did provide primary documents within the section 58 documents. In respect of the applicant's engagement with Mr Karimi, the following is evident from the section 58 material referenced at paragraph 36 (above).
2. The letter of 28 October 2016 states: This is to inform you that Mr Milad Aziz was working with me (Hormoz Karimi) since 2010 as casual unpaid to learn the trade and working with Eden Electrical Solutions since 9th June 2015 as permanent employee.
3. The telephone file note of 24 November 2016 contains the following relevant material: I asked if Mr Aziz was a full time worker. Mr Karimi said that Mr Aziz is not a full time worker but works variable hours. He has worked for 5 or 6 years as a trainee. In response to my question, he said Mr Aziz is sometimes paid but very little. He mostly works as a volunteer.
4. The telephone file note of 30 November 2016 contains the following relevant material: I rang Mr Hormoz Karimi about my telephone conversation with Milad Aziz on 29/11/2016. I said that the payslip for 25/12/2016 - 29/12/2016 implies that Mr Aziz was an employee for about 6 weeks, Mr Karimin [sic] said that Mr Aziz has worked for 15 hours a week since last year. He said that he has worked for about 12 weeks for the period covered by the referee statement.
5. The Tribunal made some observations about how time was calculated in the Instrument in the recent decision of Watts v Commissioner for Fair Trading [2017] NSWCATOD 60 (published 24 April 2017). Due to time constraints at hearing the respondent was requested to file and serve submissions on this issue having regard to the evidence in these proceedings and the decision in Watts.

Respondents submissions

1. The respondent referred to the case of Atteya v Commissioner for Fair Trading [2016] NSWCATOD 113 in initial written submissions whereby an applicant sought to rely on 6 months voluntary work towards the 12 months experience requirement. Reference was made to paragraph 15 of that decision. 15.It is a requirement of the Instrument that an applicant be "remunerated with money in accordance with law for the Work which the applicant carried out". However, the Applicant has conceded the accuracy of the statement in the Third Reference that the six months' work carried out on the site referred to in that Reference was performed on a voluntary basis. Unfortunately for the Applicant, and irrespective of the practical value of that work, I find that the experience referred to in the Third Reference cannot be taken into account as relevant experience for the purpose of the application.
2. Reference was also made to Hale v Commissioner of Fair Trading [2015] NSWCATOD 1 at paragraph 18 in respect of the Instrument requiring that an applicant be financially remunerated for the work. 18.Because one essential criterion in the definition of "experience" is that the person is financially remunerated for the work, I agree with the Respondent's submission that the work at Arcadian Circuit and Elston Ave are unable to be considered in the calculation of experience.
3. The respondent submitted that these two cases support the mandatory nature of the remuneration requirement of the instrument.
4. Because there were a number of conflicting pieces of evidence about when the applicant worked, the number of days, years, and when he was and was not paid at all, fully or partially, submissions were sought having regards to Watts.
5. In supplementary submissions the respondent agreed that it was open to the Tribunal to equate the period of time (12 months or 1 year) as referred to in the Instrument as meaning greater than 180 days due to weekends, public holidays and annual leave and TAFE attendance. However the respondent submitted that any adoption of this method of calculation (when and as appropriate on the individual facts) was predicated on the pre-condition that the relevant applicant be paid for the hours / days claimed.

Consideration

1. I accept the submissions of the respondent in respect of the manner in which the meaning of the term 'experience' in the Instrument should be interpreted. Clearly having regard to principles of statutory interpretation and the decisions in Atteya and Hale, an applicant claiming to count as credit towards a licence, hours 'worked' must be paid by way of remuneration for that work.
2. Whilst I accept the respondents submissions generally, I am unsure as to how all aspects of the instrument (such as the remuneration requirement) go specifically to the protective purpose of the HBA. The requirement that a worker be paid for their work is a general concept familiar to all citizens of a civil society. Such a requirement and general notion recognises the value of an individuals' contribution and assists with the maintenance of a fair and equitable society where needs are managed and stability enhanced.
3. In the Home Building regime the notions of supervision, exposure to a broad range of work to develop expertise, and a period of time (e.g. 12 months) are all aspects which in my view go appropriately to promoting the: 'main objectives are to promote and protect the interest of owners and purchasers of dwellings …. And to set standards for competency within the industry.' As set out in the second reading speech in October 1989.
4. Presumably the requirement for payment is to ensure a level of consistency with all aspects of on the job training, either under an apprenticeship or afterwards, to eliminate exploitation, and provide what in general parlance would be considered a level of 'professionalism' in engagement of work in that skilled persons are paid. None of these observations are intended to diminish the value or relevance of volunteer work, in the residential building field or in fact any field. The import of these observations is directed towards how that 'remuneration' requirement goes to the purposes of the HBA.
5. Having made those observation I find the applicant's position somewhat unusual in that notwithstanding the good reputation of Mr Karimi, and the fact that the 'work' would enhance his own skills, the evidence of unpaid work was significant. Perhaps a period of 6 or 7 years volunteer trades work should not attract attention or comment having regard to the reasons given by the applicant. The applicant was at various times otherwise adequately supported and sought out work with Mr Karimi (and others) to gain experience.
6. Unfortunately however, in order to obtain his own licence, the Instrument required that the claimed period of experience be fully paid. It may be that with language problems and using intermediaries to liaise with the regulator, some issues and requirements were not fully understood by the applicant. In any event I am satisfied that there was no prejudice to any party in the proceedings before me.
7. I make a finding that on considering the totality of the evidence before me, that the applicant has a broad range of experience, and meets the education requirements for the licence. However I find that the relevant period of experience equates to approximately 16 weeks whereby the definition of experience, as set out in the Instrument, was met.

Conclusion

1. For the reasons set out above, the Respondent's decision that Mr Aziz does not meet the experience requirements as set out in the Instrument and thereby refusing the issue of the authority in accordance with sections 33C (1) (b) (i) and 33D (1) (b) of the HB Act is the correct and preferable decision.

Orders 1. The Respondent's decision to refuse the applicant's application for an individual contractor licence in the category of electrical work 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: 22 June 2017