The Applicant submitted that although some of his experience had been gained in the commercial world it was still relevant to acquiring skills. The "Instrument" was a guideline from which the Tribunal could depart.
Not all of Mr Briggs experience had been in the last 10 years but the majority certainly had been. It was not required that the experience be subject of a development application - but it had been.
The Tribunal should accept that the work undertaken between October 2006 and January 2008 under Mr Blanch at the Lumiere residential project was the same or similar to work required in residential building work. The Star City project had involved a wide range of structural work. It had given Mr Briggs experience working vertically in very large projects. He had worked in a supervisory capacity over contractors. He had carried out carpentry work - for instance in constructing stud walls. 75% of the work was carpentry. A lot of the work was overlapping. Carpentry involves other trades as well.
Although Mr Blanch does not hold a building licence, it was not necessary for him to do so. This did not diminish his capacity to have supervised Mr Briggs. Mr Briggs had worked with a very small group of 10. The Tribunal should note that the way in which Multiplex operates ensures that apprentices gain a very broad range of experience. They are given the opportunity to see the entire sequencing of a building from start to finish. The length of time it takes to progress from apprentice to supervisor stage depends on the individual. It was clear that Mr Briggs was more mature than others. He should be credited with approximately 14 months under Mr Blanch's supervision.
Mr Ryan had supervised Mr Briggs for 6 to 7 months from May 2009 to 17 January 2010. His contracting licence had now expired. Mr Briggs undertook some residential work under his supervision. During this time, Mr Briggs had been loaned out to another builder. The majority of his experience had been on the Star City project. Even though this was commercial, much of the work was still relevant to residential building - such as lintels, joinery, building access and temporary accommodation. Mr Ryan had said that the job presented a wide range of experience for Mr Briggs. He had worked directly with Mr Briggs. There had been a number of others under his supervision as well as Mr Briggs at the time.
Mr Gordon Anderson had supervised Mr Briggs on a residential site for 5 to 6 months. Mr Anderson was a director of Abode which had 11 employees and undertook kitchen and bathroom works. He was the supervisor under the company's licence. There had been a new garage and a renovation. Mr Briggs had been directly involved in all of the works. This included kitchen, laundry renovation, joinery, rigging work and fit out. All of this work can be done by a carpenter and it was. Mr Anderson conceded that he couldn't recall if he had a licence at the time. However, he said there was a licensed builder on the site who had undertaken some supervision of Mr Briggs. A great deal of weight should be placed on this 5 to 7 months of experience.
Mr Borg had worked with Mr Briggs on two projects - Wharves eight and nine, 105 apartments and the Darling Island project. Mr Borg had been a carpenter by trade with 20 years' experience. The Darling Island work was on defects which meant that Mr Briggs had to undertake repairs himself as well as getting contractors to rectify defects. The skills from this role were directly transferable to residential work. Mr Borg was supervising two or three apprentices and there were 200 - 300 people on site. He was confident about the dates being September 2007 to May 2009. He had said that the work was more than general labouring work; it was tradesman's work and it was predominantly carpentry. Cumulatively, Mr Briggs had undertaken 30 months of work under Mr Borg's supervision.
Mr Manning's written reference stated that he had worked with Mr Briggs from November 2007 to May 2009. He had said that there had been a wide range of works and general building experience and it was not just carpentry work.
The Applicant submitted that where there was an overlap between the work undertaken with Mr Borg and with Mr Manning, it had all been for Multiplex as the employer. There was 39 months of supervised work in a wide range of building skills.
The Tribunal should not discount or exclude the work that Mr Briggs had undertaken prior to commencing his apprenticeship with Multiplex when he had worked in steel fixing and formwork. This should also be counted as part of his relevant experience.
Mr Briggs' experience since his accident in document controlling and contract negotiations was all relevant experience. It was all part of the wide definition of experience and fits within the Building Code of Australia list. Mr Briggs had obtained a great deal of experience since his accident in 2010. He had also obtained further qualifications and certificates.
[2]
The Tribunal's Findings of fact
The Tribunal understands that Mr Briggs commenced working at Lake Macquarie concretors from January 2004 to March 2004, pouring concrete slabs for residential dwellings. From May 2004 to January 2006, Mr Briggs then worked for Central Coast Reo and Aqua seal waterproofing. Mr Briggs worked as a steel fixer for Central Coast Reo. This involved placing and fixing reinforcement steel for structural weight-bearing beams, structural weight-bearing columns, blade walls, stairs, ramps, slabs and pools going into residential houses, apartment blocks and other large commercial buildings.
Mr Briggs worked as a waterproofer for Aqua seal waterproofing. This involved fixing and cleaning substrates in wet areas and balconies in preparation of application of waterproofing membranes going into residential houses, apartment blocks and other large commercial buildings. From May to September 2006 Mr Briggs took part in a plumbing course and obtained his certificate III in roof plumbing. He then commenced working at Multiplex on 4 October 2006 as a trainee.
The Tribunal understands that Mr Briggs was an apprentice in carpentry with Brookfield Multiplex constructions Pty Ltd from 4 October 2006 to 9 August 2011. After completion of his apprenticeship, Mr Briggs moved into office-based roles within the company as a contracts administrator assistant and as a construction planner until his employment with Multiplex ceased in 2016.
[3]
Qualifications
The Tribunal is satisfied that Mr Briggs has the relevant qualifications. He obtained a Certificate IV in Building and Construction in 2016.
[4]
The issues for the Tribunal to determine
The Tribunal considered the evidence in the light of the following three issues.
whether Mr Briggs had two years full-time experience;
whether the experience was relevant; and
whether it was in a wide range of residential work.
[5]
The Intention of the Act - Consumer Protection
The Second Reading Speech to the HBA set out that the main objectives of the HBA are "to promote and protect the interests of owners and purchasers of dwellings and to set standards for competence within the industry".
The Tribunal observed in Thukral v Commissioner of Fair Trading [2006] NSWADT 356, that the Act has many functions, and focuses on consumer protection
"The [Act] is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaged in residential building work, and makes provision as to their competence, fitness and solvency, and their discipline. By issuing contractor licenses and certificates, the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her
licence "
The Tribunal approaches its findings keeping in mind that granting of a licence is a representation that Mr Briggs has the competence to undertake the work of a building contractor.
The Tribunal notes the findings in the matter of Whitehouse. The Tribunal is satisfied that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision.
[6]
Analysis of Mr Blanch's evidence
Mr Blanch stated that he had supervised Mr Briggs for a period of 15 months in three days from 4 October 2006 to 20 January 2008. Mr Blanch described Mr Briggs as a trainee who performed at the level of a tradesman. He stressed Mr Briggs' maturity. In relation to the level of supervision that Mr Blanch undertook he said that Mr Briggs was under instructions as to what to do. At the same time, the Tribunal notes that Mr Blanch estimated that he was supervising at least 60 people on the job. Mr Blanch stated that the defects work that Mr Briggs undertook was hands-on under his supervision. The Instrument does not describe the level of supervision necessary. However, the Tribunal draws an inference from the objects of the Act that the aim of the supervision is to ensure that Mr Briggs was instructed in what to do; that he was observed to do it and corrected if necessary. Mr Blanch states that Mr Briggs also worked for other contractors. It is unclear who they were or whether they were asked to provide references. Mr Blanch conceded that the Star City job was all commercial. The Tribunal understands that Mr Briggs was still an apprentice while he was being supervised by Mr Blanch. Further Mr Blanch estimated that 75% of the work was carpentry work. The Tribunal is not satisfied that this constitutes a wide range of building construction work despite the fact that a witness described carpentry as one of the broadest of the trades.
[7]
The evidence of Mr Gerry Ryan
The Tribunal is satisfied that Mr Ryan held a building contractor's licence which has now expired. The Tribunal considers that Mr Ryan is likely to understand the role of the builder and is able to assess Mr Briggs' level of competence. Mr Ryan stated that he personally supervised Mr Briggs on the Star City Casino refurbishment project between May 2009 to February 2011. The Tribunal does not take into account this period of supervision in a commercial/retail project as the purpose of Mr Briggs' licensing is specifically for residential work. Mr Ryan stated that at least half the work was carpentry. The Tribunal notes that even if this work were taken into account, Mr Ryan cannot attest to supervising Mr Briggs in a wide range of building construction work.
[8]
The evidence of Mr Louis Borg
Mr Borg stated that he had supervised Mr Briggs in residential work on Wharves 8 & 9 from 3 September 2007 to 1 May 2009. Some of this overlaps with the period of time that Mr Briggs was supervised by Mr Blanch - an overlapping period of 4 to 5 months from 3 September 2007 to 20 January 2008. The period of 20 January 2008 to 1 May 2009 during which Mr Borg states that he supervised Mr Briggs is a period of approximately 15.5 months. The Tribunal is satisfied that Mr Borg has held a qualified supervisor licence and is able assess Mr Briggs' work. The period of 15.5 months included six months on defects work at Darling Island. Again, Mr Borg stated that most of the work was carpentry work. the Tribunal cannot be satisfied that it was a wide range of building construction work.
[9]
Evidence of Mr Gordon Anderson
Mr Anderson was uncertain about the dates of his supervision but stated that he had undertaken full-time supervision of Mr Briggs on a home garage and home renovation project for three months. The Respondent queried the breadth of this work given that it involved a home garage. The Tribunal is satisfied that this falls within the definition of residential building work. Again, however Mr Anderson considered that the work was predominantly carpentry work
[10]
Evidence of Mr Bill Manning
The Tribunal was provided with a letter from Mr Manning but did not hear from him. Mr Manning stated that he supervised Mr Briggs from 4 November 2007 to 6 May 2009. At the same time, however, Mr Borg claimed to have been supervising Mr Briggs from the period 3 September 2007 to 1 May 2007. It appears that there are only four days during which Mr Borg's supervision did not cross over with Mr Manning's supervision. Mr Manning stated that Mr Briggs was undertaking the Star City Casino job between 7 September 2009 and 15 January 2010 - a period of approximately four months. As this work is predominantly commercial in nature, the Tribunal does not take it into consideration. The Tribunal further notes that Mr Manning's reference refers to carpentry work primarily.
[11]
Reference of Ms Butler
The purpose of the references is to attest to Mr Briggs' technical abilities. The Tribunal does not take into account Ms Butler's reference for the purpose of assessing Mr Briggs' competence.
[12]
Tribunal's findings on Mr Briggs' experience
The Tribunal must reach the correct and preferable decision concerning Mr Briggs' competency to be licensed as a building contractor. The Tribunal must be satisfied that Mr Briggs would be safe and competent to be licensed as a building contractor.
It is clear that it is not possible for an applicant to verify their own competence themselves. This underlines the importance of the role of a supervisor who is a competent practitioner. The Tribunal does not consider that it is necessary for a referee to be the holder of a licence currently to provide this evidence. There is also a case for considering that building practitioners who have followed an alternative path to builders licensing through the HBA should also be considered as appropriate to assess the competency of an applicant. It is clear for instance that Multiplex has its own method of ensuring that its employees are competent and that they proceed to promotion into supervisory roles. To reach the correct and preferable decision, it is necessary for the Tribunal to look at all the circumstances of the matter.
[13]
2 years' experience
The Tribunal was presented with evidence of imprecise dates and overlapping periods of supervision of Mr Briggs between Mr Blanch, Mr Borg and Mr Manning. The Tribunal is unable to reconcile these overlapping periods to be satisfied that there was two years of supervised experience.
[14]
Relevant work
Some of Mr Briggs work was in residential building both in multistorey residential work and in a home garage and renovations. Some part of Mr Briggs experience with Multiplex was in commercial work. Some of the work was in defects work. The Tribunal cannot be satisfied about the period of relevant work that Mr Briggs has undertaken.
[15]
Wide range of residential work.
The referees estimated that the greater part of Mr Briggs work was in the area of carpentry. The Tribunal is not satisfied that the experience was in a wide range of building construction work
[16]
Decision.
There are issues for the Tribunal about the accuracy of the referees' dates of supervision of Mr Briggs; overlapping supervisory periods and the proximity and intensity of the supervision of Mr Briggs. Unfortunately Mr Briggs was denied the opportunity by his accident of progressing through Multiplex's promotional system to become a supervisor.
The referees assessed Mr Briggs' work as primarily of a carpentry nature. In short, the referees considered that the work undertaken under their supervision of Mr Briggs was 50% to 70% in carpentry.
In this respect, the Tribunal cannot be satisfied by the referees' reports that Mr Briggs had been supervised in a wide range of building construction work.
In keeping with the Tribunal's decision in the matter of Locking v Department of Finance, the Tribunal does not consider that this constitutes experience in a wide range of building and construction work.
In these circumstances the Tribunal does not consider that Mr Briggs has the requisite experience demonstrated to obtain his builders licence on the basis of the information before the Tribunal at present.
[17]
Orders
1. The Tribunal dismisses Mr Briggs' application and affirms the Respondent's decision to refuse him a building contractor licence.
[18]
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: 25 October 2018
Parties
Applicant/Plaintiff:
Briggs
Respondent/Defendant:
Commissioner for Fair Trading Department of Finance, Services and Innovation
The Respondent submitted that prior to the decision in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 ("Whitehouse"), applications for review of the Commissioner's decision were determined by the Tribunal by reference to the applicable Instrument.
The Whitehouse decision found that the Instrument is not binding on the Tribunal. However, the Respondent submitted that the requirements set out in the Instrument were appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision.
Further, in the case of Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [33] the Tribunal found that it may have regard to the Instrument as a policy.
The Tribunal understands the significance of this is that section 64 of the Administrative Decisions Review Act 1997 requires the Tribunal to give effect to any relevant government policy in force at the time the decision was made - except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
Referees' licences
Only Mr Borg and Mr Ryan were licensed at the time of supervising Mr Briggs. Mr Anderson was not licensed at the time he supervised Mr Briggs, and nor was Mr Blanch. It was not clear whether Mr Manning had been licensed or not.
Mr Blanch's evidence was that in the period October 2006 to January 2008 he had been supervising up to 80 people. It was questionable therefore how much direct supervision he provided to Mr Briggs. He had also conceded that 70% of the work Mr Briggs undertook was carpentry work.
Mr Borg said he had worked with Mr Briggs from September 2007 to May 2009. There was some overlap between this period of time and the period during which Mr Blanch said he had supervised Mr Briggs. Both had said that they had supervised Mr Briggs directly - so that at least one of them must be overstating the extent of their supervision of Mr Briggs. Mr Borg had also been supervising other people as well as Mr Briggs. The reference from Mr Manning also overlapped this period of time. It was not possible for two people to have closely supervised Mr Briggs at the same time.
At the time Mr Borg supervised Mr Briggs on the construction of apartments at Sydney Wharves, Mr Briggs was still an employee carpentry apprentice and therefore restricted to carpentry duties. Accordingly, this building site would not afford Mr Briggs relevant wide-ranging residential building experience. Mr Borg had conceded that a lot of the work undertaken by Mr Briggs when he supervised him was as a general labouring carpenter. It had taken Mr Borg 10 years to make the leap into a supervisor role and this was indicative for Mr Briggs. If one accepted Mr Borg's updated reference which added a period until May 2009, it was still the case that the only change was to include more general carpentry work as set out on the second reference.
Mr Gerry Ryan held a licence. However, he was unclear when tested about the period of time during which had supervised Mr Briggs. It was most likely that the period had been from May 2009 to January 2010. He stated that the work had been half carpentry and half general duties, although the skills were transferable. He referred to the Multiplex loan out scheme where he had supervised 3 to 4 other workers at the same time as Mr Briggs. He had said that Mr Briggs had been exposed to other trades - but Mr Ryan did not adequately supervise Mr Briggs in those trades.
Mr Anderson had given evidence of having supervised Mr Briggs in constructing a garage. He admitted that he had guessed the dates that the Applicant was on site. His poor recollection regarding the Applicant's work experience dates during a period where he would have purportedly been under his close supervision indicates that this reference may not be reliable. The Respondent submitted that the construction of a garage shed is not considered to be a 'wide range' of relevant construction work, being a non-habitable structure.
Mr Anderson was himself a carpenter. He could only speak to Mr Briggs' work in carpentry roles. There was also an overlap with the reference given by Mr Ryan relating to May 2009.
The central reason for refusing the Applicant's application for a licence was that the Applicant had not satisfactorily demonstrated that he had obtained the practical experience requirement.
Taken as a whole, the Applicant's referees had indicated that he has had experience in building and construction work during the period between October 2006 and February 2011. However, the Applicant had indicated that his accident took place on 17 January 2010 and he did not return to work until March 2011. It appears his experience during that period at the very least had been overstated.
Referee 3, Gerard Ryan, provided a reference indicating supervision of the Applicant during the construction of a retail arcade at Star casino. This construction was commercial in nature and would be quite different from residential building work. Moreover, Referee 3 had indicated that he supervised the Applicant between May 2009 and February 2011, however as previously noted the Applicant suffered an accident in January 2010 and did not resume work until March 2011. It is also worth noting that part of the reference period coincides with the period that the Applicant was purportedly under the supervision of Referee 1, Gordon Anderson, (May 2009 to September 2009). Accordingly, the Respondent submitted that Referee 3 had overstated the Applicant's experience, it is not considered relevant experience as it is commercial in nature, and the reference may not be reliable due to the inconsistencies in dates.
Referee 4, Mr Stuart Blanch, provided a reference indicating supervision of the Applicant during his traineeship at Multiplex during the construction of a 56-storey residential building with lower ground retail stores. It is not known whether Referee 4 is a licensed builder, as no licence details appear on his letter of reference, and a licence search of his name produces no results. If Referee 4 is not licensed, under the instrument, he is not acceptable as a referee. It is submitted that in order to verify that the Applicant has adequate experience, the Referee should be licensed under the regime too.
Further, the reference letter indicated that the Applicant 'started learning' skills in site supervision, sub-contractor management and co-ordination of works between trades. The period of this reference is in relation to work performed between 4 October 2006 and 20 January 2008. Most of that period is more than 10 years from the date of the Applicant's application for a licence (27 June 2017). The Instrument specifies that the majority of relevant experience should be within 10 years of the date of application.
The reference details work more of the nature as a general labourer, of a junior capacity that would befit a trainee that has recently commenced employment with a large commercial builder. Accordingly, the reference does not sufficiently demonstrate the level of experience required for a builder's licence.
Whilst the Applicant's previous employer Multiplex advised that the Applicant had been employed with them for a period of ten years, and they considered he had 'relevant industry experience' it should be noted that the letter had been provided by a HR advisor, not a licensed builder who supervised or worked on any site with the Applicant.
In summary, during his employment at Multiplex, the Respondent considered that the work carried out by the Applicant was that of a trainee on a construction site, which led into an apprenticeship as a carpenter. At the completion of his apprenticeship, the Applicant then moved into an office-based position. In this role the Applicant carried out document control duties. The Respondent submitted that none of these roles would be considered the duties, the role and responsibilities of a residential builder.
The respondent submitted that it is unfortunate that the Applicant, despite his many years of service at Multiplex, cannot produce adequate references in support of his application for a builder licence. The Applicant had submitted in his material that this is due to Multiplex moving employees around, making it difficult to 'pin down the experience with one licensed supervisor'. The Applicant's former employer's HR Advisor itself stated "Multiplex rotate their building and construction workforce around various sites" and they "do not place a construction worker with a single supervisor".
In Zada v Director General Department of Finance and Services NSW Fair Trading [2014] NSWCATOD 16, Senior Member Frost noted on the issue of supervision in an employee relationship (at paragraph 36):
"Supervision and direction are often very relevant to the enquiry. Those concepts are also relevant to the "experience" question, as is evident from their use in paragraph (c) of the definition in the Instrument. That is why it may be more instructive to start the enquiry by considering the level of supervision and direction provided by the licence holder rather than to focus on either the label used or the tax arrangements in place. The greater the level of supervision and direction, the more likely it is that an employment relationship exists. And if the worker is not closely supervised and directed, then he or she is not likely to reach the requisite level of "experience" in any event, no matter what label has been applied to the relationship. The proper task is to examine "the totality of the relationship between the parties"."
Regrettably, the nature of Applicant's work arrangement whilst employed at Multiplex may have not afforded him the opportunity to have the level of supervision by a suitably qualified referee that would be acceptable for a building licence application. However, it would not be in the public interest to set a precedent where Applicants may satisfy experience requirements without demonstrating verifiable references produced by licensed persons who have closely and consistently supervised the Applicant's work.
The Respondent submitted that taken as a whole, none of the five referees had been reliable in setting out the timeframes of their supervision. There had been overlaps in the timeframes. There had been numerous sites on which Mr Briggs was working and it was also some time ago. The Tribunal needed more reliable and credible information which had not been provided. Mr Briggs had a wealth of experience, but it was not wide ranging - it was mainly carpentry work. He had commenced his carpentry apprenticeship on 4 October 2006 and completed it on 9 August 2011. Since he had resumed work after his accident in 2010, his role had been as a document controller and also undertaking contract negotiations in a large commercial firm. This was quite different to that of a residential builder.
In the matter of Locking v Department of Finance and Services [2013] NSWADT 239 the Tribunal had said that it was necessary for an Applicant to show that they were capable of supervising all trades. This needed to be independently verified. There was a lack of sufficient detail provided by the Applicant beyond what was required of a carpenter.
Most of Mr Briggs' experience could not be considered to be a wide range of building works. He was a trainee who moved into the role of an apprentice.
Mr Blanch said that 70% of Mr Briggs' work had been in carpentry. Mr Ryan had said 50% of the work had been in carpentry. On this basis, Mr Briggs' supervised work had been predominantly in carpentry. Mr Briggs may well have the relevant experience for a carpentry contractors licence, but it was insufficient for a building licence.