Barber v Commissioner for Fair Trading

Background

1. On 4 May 2015, Mr Barber was awarded Certificate III in Electronics and Communications. On 9 May 2016, Mr Barber successfully completed an apprenticeship in the trade of Electrotechnology - Electronics and Communications. On 23 January 2023, Mr Barber attained competency from nationally recognised qualifications/courses in UEECD0007, Apply work health and safety regulations, codes and practices in the workplace and UEERL0004 Disconnect - reconnect electrical equipment connected to low voltage (LV) installation wiring.
2. On 18 March 2023 Mr Barber applied for Disconnect/Reconnect Appliances Licence. The application form stated that persons are 'only eligible for qualified supervisor certificates or as a variation to an existing plumbing contractor licence'.
3. There is an Additional Information Form For Disconnection And Re Connection Of Fixed Electrical Equipment ("Additional Form"). It states that the: … purpose of the qualified supervisor certificate is to provide a means of allowing appropriately trained and competent workers to undertake straightforward disconnection and reconnection of electrical equipment where that electrical work is incidental to the person's principal function in the workplace. These certificates are granted to qualified tradespeople, such as plumbers, to enable them to undertake restricted electrical work in the course of their principal trade activities.
4. Under the heading 'Limit of Work Permitted' and the proviso 'Disconnection and reconnection work is limited to', there are the words: Disconnection and reconnection of electrical wiring at the equipment itself and only to the extent necessary to permit the non-electrical work to be performed.
5. There are five dot points including: 1. Replacement of equipment on a like for like basis. 2. Testing necessary for the safe isolation of the equipment to be disconnected and reconnected. 3. Testing necessary for the safe operation of the equipment, 4. Replacement of blown fuses and resetting of tripped circuit breakers.
6. Under the heading 'Disconnection and reconnection work does NOT include work.' There are numerous dot points, including: 1. That is otherwise defined by the Regulation to be the associated electrical work under the categories of air conditioning and refrigeration. 2. On new installations or the alteration of fixed wiring 3. where high fault currents are possible.
7. The Additional Form has numerous questions. Question 4 is: 'A list of the types of electrical equipment to be disconnected and reconnected in your workplace, including an explanation of the function of the equipment listed'.
8. Mr Barber wrote: 'Hardwired electric ovens for domestic cooking, hardwired electric cook tops for domestic cooking.'
9. Question 5: 'An explanation of how your trade background is directly related to your principal function in your workplace and the types of equipment you are intending to disconnect and reconnect as evidenced by your Certificates III level qualification in a trade or higher education qualification.' Mr Barber wrote: 'Electrotechnology encompasses installing, commissioning and servicing appliances comprised of electronics an electrical components EG ovens and cooktops.'
10. On 11 July 2023, a Refusal Letter was issued by the respondent. The application for the Disconnect/Reconnect Appliances Licence was refused in accordance with section 33D(1)(a) of the Act.
11. The respondent was not satisfied that the applicant had completed specified units of competency for the endorsement of one or more electrical equipment on which he was seeking to undertake work, that the Certificate III level qualification in a trade did not directly relate to the work to be performed and that the work was within the definition in Schedule 1 of the Instrument. It was determined that the associated trade qualification is electrically based and the work to be carried out goes beyond the scope allowed. The respondent concluded that the work Mr Barber sought to carry out was required to be carried out by the holder of an authority with the class of Electrical which Mr Barber did not hold.
12. There is some correspondence between the parties following the decision about precisely what is permitted and what work Mr Barber is intending to carry out. The respondent explained that work associated with fixed wiring, other than disconnecting and reconnecting electrical equipment does not include work in Schedule 1 of the Instrument. That is, work locating and rectifying faults to general electrical accessories, including circuit protective devices, is not included in the scope of work that can be performed by the holder of an authority.

The Instrument and Relevant Legislation

1. Section 25(1)(a1) of the Act states that the Secretary must refuse an application for a supervisor or tradesperson certificate if not satisfied as to the matters of which the Secretary is required to be satisfied by section 33B and 33D of the Act.
2. Section 25(2) of the Act states that the Secretary may by notice published in the Gazette, specify qualifications and experience or additional standards or other requirements, required to be held or met by an applicant for a supervisor or tradesperson certificate.
3. Section 25(4)(a) of the Act states that a decision of the Secretary relating to the specification or qualification and experience or additional standards or other requirements under s25(2) cannot be reviewed by this Tribunal in an application for an administrative review.
4. The Acting Commissioner of Fair Trading signed the Instrument on 6 October 2022 which states that: Pursuant to section s20(2) and s25(2) of the Act, the possession of the qualifications and the passing of the examinations specified in Column 1 and 2 of both Table 1 and 2 or the possession of the qualifications and the passing of the examination specified in Table 3 to be necessary to enable an applicant for a Certificate to do, or to supervise, the Disconnection and Reconnection of Fixed Electrical Equipment as specified in Schedule 1 of this Instrument.
5. Section 33D(1)(a) of the Act states that a supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant has such a qualification, 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.
6. The Instrument contains Table 1. The left column, Column 1 Qualification (or equivalent). Point 1 states: A Certificate III level qualification in a trade or higher education qualification that directly relates to the work to be performed as detailed in the Relevant Application Form; AND the work is within the scope defined in Schedule 1.
7. 'Work' and 'work to be performed as detailed in the Relevant Application Form' is defined as: work lawfully performed by the person and does not include the work of disconnecting and reconnecting fixed electrical equipment.
8. Schedule 1 'does not include work': associated with fixed wiring other than disconnecting and reconnecting electrical equipment - this exclusion includes locating and rectifying faults of circuits at a switchboard or to general electrical accessories (including switches, socket outlets, circuit protective devices); or installation of or alteration to any part of the Electrical Installation or fixed wiring system (defined as electrical wiring work).

The Evidence before the Tribunal

1. The applicant relies on: 1. Transcript of Academic record from NSW TAFE for Certificate III in Electronics and Communications. The document sets out the Unit names and results. Mr Barber has been assessed as 'competent' or 'competent by Credit Transfer' of all subjects. that he asserts demonstrate that the trade certificate is related to the work being undertaken within the scope of the Instrument. 2. Unit descriptors for UEERL0004 Disconnect - reconnect electrical equipment connected to low voltage (LV) installation wiring; 3. A letter from the applicant's employer, Miele Australia dated 15 November 2023 describing Mr Barber's work as: 1. Uninstalling and installing hardwired ovens and cooktops are a task that is required for Daniels role. This activity requires the Disconnect Reconnect license being sought to remain in compliance. 2. Daniel's role does not include any work that requires an unrestricted electrical licence. The role only includes work which is within the scope of the Disconnect Reconnect licence being sought. 1. A document dated 3 December 2023 prepared by Mr Barber; 2. A document dated 25 February 2024 prepared by Mr Barber with attachments including information from the Australian Industry Standards website, titled Electrotechnology Industry.
2. The respondent relied on: 1. s58 documents; 2. Unit descriptors for UEENEEC002B Source and purchase material/parts for installation or service jobs; 3. Unit descriptors for UEENEE105A Fix and Secure Electrotechnology Equipment; and 4. Unit descriptors for UEENEE137A Documents and apply measures to control OHS risks associated with electrotechnology work.

Respondent's Submissions

1. The respondent agreed with the applicant's submission that Certificate III is an electrical based qualification directly related to electrical work. However the respondent's position is that the qualification for the disconnect/reconnect licence needs to relate the non-electrical part of the equipment.
2. The purpose of the disconnect/reconnect licence is to permit a person to safely carry out replacement, repair or maintain work on non-electrical part of the equipment. The electrical work must be carried out by a licenced electrician, which the applicant is not.
3. The respondent submitted that the Certificate III is an electrical based qualification and as such 'normal work' undertaken may not be electrical work as per the Instrument, 'but it is still electrically based work'. Examples were given such as solving problems with ELV single path circuits, solving problems in DC circuits, repairs based electronic apparatus faults by replacement of components, all these examples were part of the Certificate III course.
4. The respondent submitted that the Certificate III qualification and the various subjects did not directly relate to his qualifications as required in Table One, Column one of the Instrument.
5. The subject description for the subject 'Source and purchase material/parts for installation or service jobs' covered sourcing and purchasing, ordering materials, parts for installation or surface jobs. It encompassed following job specification, using manufacturers catalogues, making telephone, internet or email inquiries, selecting compliance materials and completing the necessary purchasing documentation. The skills and knowledge described in this unit did not require a licence to practise in the workplace.
6. The subject description for the subject 'Fix and Secure Electrotechnology Equipment' covered fixing, securing and mounting techniques as apply in the various electrotechnology work functions. It encompassed the safe use of hand and portable power tools, safe lifting techniques, safe use of ladders and elevated platforms, and the selection and safe application of fixing devices and supporting accessories/ equipment.
7. The subject 'Documents and apply measures to control OHS risks associated with Electro technology work' covers 'identifying occupational health and safety, hazards and risks, and documenting control measures.
8. In conclusion, the respondent's submission was that the Certificate III qualification is not directly related to the work to be performed as required in Table 1 Column 1 of the Instrument.

Applicant's Submissions

1. The applicant denied that the work he sought to do involved any electrical wiring work. He agreed with the respondent that this work must be performed by the holder of an authority in the category of electrical, that is, an unrestricted electrical licence. Mr Barber denied that he would be locating and rectifying faults in the circuit protective devises. Mr Barber relied on the statement from Miele Australia, his employer.
2. The applicant submitted that the Certificate III did directly relate to his qualifications as required in Table One, Column 1 of the Instrument in that it related to the fixed electrical equipment, (the appliances) he would be working on.
3. The applicant submitted that the appliances he would be working on are 'electrotechnology work' which includes maintenance, installation and repair on all domestic electrical and electronic equipment. Mr Barber relied on Australian Industry Standards and Australian Government Training Standards.
4. The applicant submitted that the following three subjects are related to the fixed electrical equipment he would be working on: 1. UEENEE105A Fix and Secure Electrotechnology Equipment 2. UEENEEC002B Source and purchase material/parts for installation or service jobs 3. UEENEE137A Documents and applies measures to control OHS risks associated with electrotechnology work.

Consideration

1. This is an administrative review of the decision of the respondent's delegate on 31 July 2023 to refuse the application for an application for a Disconnect/Reconnect Appliances Licence. The Tribunal must make the "correct and preferable decision" having regard to the material before it; s 63 ADR Act.
2. As explained by the Appeal Panel in Commissioner of Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 at [36], by cl 159 of Sch 4 of the Act, the Instrument is deemed to be validly made from the date it was published. It is not for the Tribunal to review the terms of the Instrument; s 25(4)(a) of the Act.
3. The Additional Information Form states: The purpose of this qualified supervisor certificate is to provide a means of allowing appropriately trained and competent workers to undertake straightforward disconnection and reconnection of electrical equipment where that electrical work is incidental to the persons principal function in the workplace. These certificates are granted to qualified tradespeople, such as plumbers, to enable them to undertake restricted electrical work in the course of their principal trade activities.
4. Mr Barber submitted without any disagreement from the respondent the following text appears on the respondent's website: ..disconnecting and reconnecting work includes disconnecting and reconnecting electrical wiring at the equipment itself, and only to the extent necessary to permit the non-electrical work to be performed on the equipment. Replacing equipment on a 'like for like' basis. Doing testing to be able to safely isolate the equipment being disconnected or reconnected during testing to be able to safely isolate. The equipment being disconnected or reconnected doing testing to be able to safely use the equipment. Replacing blown fuses and resetting tripped circuit Breakers. Equipment operating at voltages up to. 1000V alternating current three phase and 1500V direct current.
5. The purpose of the Disconnect/Reconnect Appliances Licence is to permit a person in a specialised industry who does not hold an unrestricted electrical licence to safely carry out replacement, repair or maintenance work on the non-electrical part of the equipment, in this case, an appliance.
6. A number of observations can be made, first the (Qualified Supervisor Certificate in the category of) Disconnect/Reconnect Appliances Licence is provided to persons who are already qualified tradespeople. Secondly the work to be carried out by the person must be incidental to the person's principal function in the workplace.
7. There are two areas of dispute between the parties. The first is whether Mr Barber's qualifications directly relates to the work he seeks to perform.
8. Mr Barber relied on Certificate of Proficiency: Electrotechnology - Electronics and Communications which consists of UEE11 Electrotechnology Training Package and UEE39011 is a qualification which is a directly related qualification. He submitted that his trade is electrically based.
9. The respondent contended that the Certificate of Proficiency did relate to some of the work to be performed by Mr Barber in setting up wireless communications for the appliances, it did not relate to the work of replacement of blown fuses and resetting tripped circuit breakers.
10. I am satisfied that Mr Barber's qualifications are in Electrotechnology and that the electrotechnology industry includes the design, maintenance and installation and repair for all electrical and electronic equipment. I base this finding on the material from the Australian Industry Standards.
11. I am also satisfied that the appliances that Mr Barber seeks to work on are electrical appliances which is directly related to the Electrotechnology certificate. These appliances were described as 'hardwired ovens' and 'hardwired cooktops', they can also be referred to as 'fixed' ovens and 'fixed' cooktops or collectively as electrical equipment.
12. I have considered the material explaining the content of the subject Certificate of Proficiency and find that it does directly relate to the work to be performed by the applicant at Miele Australia as required by the Instrument as detailed in the relevant application form.
13. The second area of dispute is whether Mr Barber intends to perform work beyond the scope of Schedule 1 which is installing 'hard wired' appliances and locating and rectifying faults of circuits.
14. In the additional information form, Mr Barber described his principal function as domestic field technician and listed the types of electrical equipment to be disconnected and reconnected as "hardwired electrical ovens for domestic cooking and hardwired electric cook tops for domestic cooking".
15. Mr Barber asserted that the non-electrical work on the appliance would involve setting up wireless communication for smart appliances, being hard wired ovens and cooktops via an optical interface or user interface controls.
16. Mr Barber also stated that the work would involve replacing blown fuses and resetting tripped circuit breakers. The respondent contended that this work, which was electrical wiring work as fuses and circuit breakers are types of circuit protective devises and was outside the scope of Schedule 1 of the Instrument and must be performed by the holder of an authority in the category of electrical.
17. I am satisfied that Mr Barber only contends to perform work allowed for by the Disconnect/Reconnect Appliances Licence, specifically Mr Barber does not intend to carry out electrical wiring work or work that involves locating and rectifying faults of circuits at a switchboard or to general electrical accessories (including switches, socket outlets and circuit protective devises).
18. Mr Barber gave this evidence in his documents and was not required for cross examination. I accept his evidence that he understands that he is only permitted to perform work within the scope provided in Schedule 1. I also accept the letter from his employer that makes clear that he is only required to perform work within the scope provided in Schedule 1.
19. I make the following Orders: 1. The decision of the Respondent dated 31 July 2023 is set aside. 2. The Respondent is to grant the Applicant a Qualified Supervisor Certificate in specialist category of disconnection and reconnection of fixed electrical equipment (appliances) within 28 days of the publication of these reasons for decision. 3. A hearing is dispensed with pursuant to s50 of the Civil and Administrative Tribunal Act 2013. 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: 09 April 2024