Chahine v Commissioner for Fair Trading

NCAT Occupational|2015-12-10|Before: Leverage Aust P

Reasons for decision

On 26 August 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned a decision by the delegate of the Respondent to refuse the applicant's application for a variation to his individual contractor licence, to cover the category of 'general building'.
The Respondent refused to grant the application for a change of class for his individual contractor licence - to building, because in their view the applicant had not met the relevant experience requirement. That decision was made on 16 April 2015.
An internal review was lodged by the applicant and was completed by the respondent on 30 July 2015. The review confirmed the original decision to refuse the application. On 26 August 2015 the application for administrative review was lodged with the Tribunal.

Background

The applicant has held a tradesperson certificate for many years. His experienced commenced around 1986 in the area of tiling shortly after he emigrated from Lebanon to Australia.
At the time of the application the applicant held a contractor licence in the areas of Carpentry, Wall and Floor Tiler. In applying for the variation to expand his licence to 'General Building Work', the applicant was required to demonstrate that he possessed two years full time experience in carrying out the roles, duties and responsibilities required of a residential builder. To substantiate that requirement the applicant provided a referee statement. It was predominantly because of information obtained by the respondent as a result of verifying matters with the applicant's referee, that the decision to refuse the application was based.

The Issue to be decided

The primary issue before the Tribunal in this application is whether the applicant can demonstrate that they have acquired two years full time experience in carrying out the roles, duties and responsibilities required of a residential builder in a wide range of construction work.

The Legislative Provisions

Section 20(2) of the Home Building Act 1989 provides that the regulations may fix or provide for the respondent to determine standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.
Section 20(5) of the Act provides that a decision of the respondent relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act.
Clause 26(1)(b)(i) of the Home Building Regulation 2004 reads: Page 2. Before a contractor licence is issued, the Director-General must be satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is equivalent of a supervisor certificate complies with the requirements prescribed by clause 28(1).
Clause 28(1) provides: (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General 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.
The current standards and other requirements determined by the Director- General in relation to the qualifications, examinations and experience required for an endorsed licence or supervisor certificate to do or to supervise building work are set out in an Instrument effective 3 July 2013 (see: NSW Government Gazette No. 90, 12 July 2013).
In early 2015 aspects of the Home Building Regulation 2004 were incorporated into the Home Building Act 1989 and the regulation was as a result repealed. The relevant provisions upon which the respondent's decision rests are in my view contained within sections 33C and 33D of the HBA and are set out as follows: 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. 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. (2) Despite section 33B (1) (a) (xiii)-(xvii), the Secretary may issue a supervisor certificate if the Secretary is satisfied that the relevant person took all reasonable steps to avoid the relevant bankruptcy, winding up or appointment of a controller or administrator.
The Respondent submitted that the relevant 'instrument' for the purposes of the application was the instrument Gazetted 12 July 2013.
I am satisfied that Mr Chahine has the relevant qualifications. I note that this aspect is not contested between the parties. The issue to be determined is whether Mr Chahine has the requisite experience as specifically defined and proscribed in the Instrument.
The definition of experience in the gazette is set out below: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a person otherwise lawfully engaged by, 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 during the relevant period, the applicant was: (c ) 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 (d) financially remunerated for the Work
In the Schedule to the 'Instrument' under Table A Column 2 'experience' is repeatedly referred to in the following context: At least two years' relevant industry experience in a wide range of building construction work.

The Hearing

In addition to his initial application for administrative review with attached respondent material, the applicant filed an affidavit sworn on 9 December 2015. The affidavit was tendered without objection. In addition to his oral evidence at hearing the applicant's solicitor made oral submissions to the Tribunal.
The respondent filed a bundle of documents in accordance with section 58 of the Administrative Decisions Review Act 1997, being the material upon which the decision under review was based. That bundle comprised 88 pages and included a significant amount of material that had been provided by the applicant as part of his licence variation application.

Applicant's Evidence.

The applicant gave oral evidence at the hearing. In evidence in chief the applicant adopted his affidavit. He advised that he holds a licence for floor and wall tiling. The applicant clarified that he had changed his name. His evidence was that he arrived in Australia in 1986 and worked as a tiler at Castle Hill Ceramics from 1986 to 1987. During this period the applicant ran the job at Fairfield Hospital as their head tiler He also performed jobs at Darling Harbour on the Monorail Stations and from 1990 to 1999 worked for a company based at Dulwich Hill. That company Caspari Tiles specialised in apartment blocks and commercial premises included specialist work in car dealerships. After his father got sick the applicant started doing some carpentry work, and when his then boss passed away the applicant did 'bits and pieces' of work.
From this time the applicant offered himself as a sub-contractor and did work for many builders. The nature of this work was tilling and carpentry. However in his evidence the applicant stated that he was also required during this time to do and oversee other work. His evidence was that he was 'approached to do this job or that job' at the instigation of others.
At page 14 of his affidavit the applicant provided an e-mail reference from R. Rahame, the referee cited in his application. The applicant's evidence was that he does all the preparation, formwork and other matters relating to the laying of the concrete slab.
Evidence was given about a job at Chelmsford Street South Wentworthville. The applicant's evidence was that he marked all of the boundaries, string lines, marked all the levels. He ordered the steel for the job, excavations for concrete footings, and marked the boundary for the surveyor. The applicant did all of the preparation for bricklaying, measured the stack widths, organised for the filling of the slab, as well as the plumbers to set the drains and waste pipes for the lot. In addition he had organised for the pest control for the slab. Later in the examination the applicant gave evidence that in respect of this site, he also started the carpentry work.
The evidence was that this particular job was brick veneer with the fronts being two storey and the rears being one storey. When asked about R. Rahame's role on this job the applicant's evidence was that it was in fact his role, as Mr Rahame was organising another job. However the applicant's evidence was that he saw him nearly every day.
There was also a job at Wirralee Street South Wentworthville, which was a duplex and two villas. Another job at Boronia Street South Wentworthville was the applicant's own house, and his evidence was that he did that job as an owner builder in his wife's name. In addition there was a job at Hillier Street Merrylands, which was duplex completed under an owner builder licence. In respect of that job the applicant's evidence was that he was the owner builder in his own right, not that of his spouse and that he did that job from start to finish.
Evidence was also given about a number of jobs that the applicant did in the Punchbowl area with Maroun Maroun who was a builder. The company was referred to in the applicant's evidence as 'Maroun Bros'. The construction involved a number of shops with a few stories of residential flats above and the site was referred to in the evidence as being at 691-693 Punchbowl Road Punchbowl. Andrew Maroun and Maroun Maroun constituted the company with Maroun being the supervisor and he was present at all times that work was being carried out. The applicant's role was as site foremen from 11 October 2010 to 10 April 2012. The applicant was responsible for organising all of the trades (subcontractors) during this period.
At 685-687 Punchbowl Road Maroun Maroun also commenced a similar construction project. This project commenced in late 2012 and remained incomplete when the applicant left that site in July 2014. At that time the applicant commenced another job with Andrew Maroun at 134-136 Cumberland Road Greystanes. This site is owned by the applicant and the construction was carried out by Premier Building, which is associated with Andrew Maroun.
Whilst this Greystanes site was owned by the applicant, he worked under Andrew Maroun's direct supervision. The applicant's evidence was that he worked on that job from beginning to end. There was no owner builder licence in respect of that job. The applicant entered into a standard contract with the builder (Andrew Maroun) who was paid by the bank. When asked what had occurred on the Greystanes site as at July 2014 the applicant said that the work had commenced. The respondent's evidence put to the applicant was that the slab was poured at that site around September 2014 and they were advised by the referee that the end date of that project was late June 2016.
The applicant was asked in his evidence whether Maroun Maroun paid him for the two jobs at Punchbowl Road Punchbowl. The applicant's evidence was that he was not paid by Mr Maroun.
The applicant deposed that whilst he offered his services over many years as a tiler and a carpenter, he was often also required to do and oversee other work. The applicant gave evidence of his work under the owner builder auspices of his wife (prior to their marriage). The applicant attested that the building works were undertaken in accordance with the relevant standards. The applicant annexed verifying material to this effect to his affidavit.
In respect of the two Punchbowl jobs the applicant gave evidence that whilst he was supervised by the relevant Builders, he gained broad ranging experience in all aspects due to his role as site foreman on these jobs.
The applicant's affidavit deposed that: 19. From 2003 to 2007, I have been in the business of renovating luxury homes for people. I have renovated approximately 50 luxury houses. In undertaking this work, I have either done or overseen all functions that cause a building to be created. None of my properties have had an order from a court or a tribunal regarding defects.
In addition the applicant's evidence about the scope of his duties at the Punchbowl sites was set out in his affidavit. At paragraph 7 the applicant deposed that: 7. Fair Trading's claim that I did not gain a wide range of experience is also unfounded. As site foreman for the project at 691-693 Punchbowl Rd, Punchbowl (Maroun Brothers Development) from 11 October 2010 to 10 April 2012 I organized all trades. My role here included but not limited to the following, securing the site, organizing surveyors, marking out for bulk excavation and footing, organizing steel fixers and concreters, brick layers and form workers, ordering materials from hardwares and ensuring all work done was completed according to AS standards and the plans be it Architectural, Engineering, Survey and in accordance with Basix Certification. I also coordinated everything on site within the realms of my employment as site foreman and reported back to my employer who ultimately had the final say. Moreover, I conducted toolbox talks, organized traffic control and everything else stated.
In his Grounds for Application within the application for administrative review to the Tribunal the applicant stated that: I believe I have the qualifications and experience to become a licensed builder.

Referee and Respondent's evidence

The respondent submitted the following matters within their section 58 material:

Site 1 691-693 Punchbowl Road Punchbowl. No work done on the vacant land as at 30 December 2010 with some of the slab down on 14 May 2011.
Site 2 685-687 Punchbowl Road Punchbowl - excavation work still being carried out in July 2014.
Site 3 134-136 Cumberland Road Greystanes- No work being carried out as at 24 July 2014. By 11 September 2014 the slab had been commenced.

In respect of site 3, the respondent verified that the applicant was both the client and the sub-contractor of the builder Andrew Maroun. However the respondent submitted that the evidence showed discrepancies between the price under the contracts and the amount of home warranty insurance. In addition the respondent submitted that their evidence showed further discrepancies between the dates outlined in the references (both the written and verbal references / verification) obtained by the respondent.
The respondent submitted that further 'discrepancies' in how the applicant had completed registration forms in previous years, his answers as to whether he held contractor licences, the name he used or held those licences under, and the fact that these matters were not rectified or properly explained by the applicant, cast some doubt on the applicant's evidence. In the review the respondent states at Paragraph 26: 26. The reviewer finds that the behaviour and licensing history of Mr Chahine to be questionable and is unsure as to its veracity. Further investigations are warranted into the name change on licence 1706C as the reviewer finds it difficult to comprehend how or why a licensee would continue to renew his licence for many years under the incorrect name.
In respect of the referee reports the respondent submitted the following in their review. At paragraph 20: 20. There are discrepancies between the dates the referees and the applicant state the applicant was carrying out a wide range of residential construction work and the relevant council records and other third party checks. 21. There are discrepancies between the last two applications the applicant lodged. For his carpentry licence upgrade in April 2014 the applicant stated that his employer was Charbel Youssef of CY Carpentry between 2008 and 2012. For his current application to upgrade to general building in July 2014, the applicant has stated that Maroun Maroun was his employer between 2010 and 2012 and again between 2013 and 2014. 22. There is also a discrepancy between the written reference and the verbal reference provided by Maroun Maroun. The referee advised the assessor by telephone that the only structural work the applicant carried out was a bit of bricklaying and did not have the two years relevant experience, yet on the referee's statement form the referee wrote that the applicant worked full time as a foremen.
I note that neither party has produced the referee to give evidence to the Tribunal in respect of these matters. However the respondent (by way of the reviewer) concludes that these discrepancies establish a lack of requisite experience by the applicant. At paragraph 27 of the review immediately after the observations set out above, the reviewer concludes: 27. The reviewer therefore concurs with the initial assessment of the applicant, that the applicant does not have sufficient experience in supervision residential building construction work.

Applicant's Submissions

The applicant's legal representative made oral submissions at the hearing. The applicant has spent years 29 years as an experienced Tiling licence holder and in the residential building and construction industry generally. In addition he has experience as a carpentry licence holder. At the Chelmsford Street site the applicant has 2 years and 4 months experience according to his referee. The applicant states 2 years. At the first Punchbowl site 18 months experience is gained, whilst at the second Punchbowl site a further 8 months experience is accumulated.
It was submitted that even on the respondent's own assessment, the Chelmsford Street site equates to 14 months of experience. The applicant's legal representative submitted that at the very lowest the applicant had five years relevant time experience to count towards the requirement.
It was further submitted that there was nothing before the Tribunal to suggest that either Mr A Maroun or Mr M Maroun or Mr Rahame were not licenced. It was submitted that there is nothing unlawful about the arrangements of engagement as set out in the applicant and referee's material.
The applicant drew attention to the following matters which were not challenged by the respondent: There were no disputes with the home owners for the various jobs whereby the applicant is claiming the relevant period of wide ranging experience.
It was submitted in closing that the applicant was able to demonstrate his experience, he demonstrated honesty in his evidence, and that above all his evidence was credible.

Respondent's Submissions

The respondent's representative appropriately pointed out that whilst the practice of the respondent is not to accept evidence of experience and tenure directly from applicant's for licences and authorities, the relevant Instrument does not specify that position. As a result the Tribunal is not bound by that practice of the respondent.
The respondent took the Tribunal to the descriptors of the applicant's experience as contained within the section 58 materials.
The respondent referred to the material provided in the section 58 documents which sets out in words submitted on behalf of the applicant the nature of the work performed. At page 28 of the section 58 material the following evidence is provided: Page 28 Q Description of work carried out. Marking Slabs, Ordering Stock, Safety Officer on Site, Solving Problems on site. Q Please list the applicant's roles and responsibilities at the above building site. Site Forman - all working on job. Page 29 Referee File Note Q from Fair Trading: By completing the reference form you are declaring Elias has the wide range of experience required to hold a builders Licence, if as suggested by you Elias has done little to no structural work, you will need to explain what you have based the reference on. A. I based the reference on the fact Elias has erected the form work for both the multi-story building I have worked on. Page 40 Applicant's Site Building Experience (addendum to Referee S Ment) Q Pleas list the applicant's roles and responsibilities at the above building site. Head supervisor? Foreman on site. Site set out, Quotation and invoicing, transferring levels and heights, marking footings and slab piering, reading and interpreting plans, marking out set backs, organising contractors and labourers, ordering materials and working to schedule.
It was submitted in respect of the matters outlined at pages 28, 29 and 40 that this was not in the respondent's view a 'broad range of building experience'.
It was further submitted that the definition in the Instrument required that for the claimed experience, the applicant needed to be financially remunerated for the work.
Reference was made to the case of Trengrove v Commissioner for Fair Trading [2015] NSWCATOD 131. It was submitted that the broad range of work needed to be in the area of building construction, not just general supervisory, ground level preparation and organising trades and materials, though these aspects were elements of what was required.

Applicant's reply to submissions

It was submitted by the applicant that the Instrument constitutes subordinate legislation. The definition of Home Building was redefined in 2004. The purpose of section 33D of the Home Building Act was to allow the Commissioner to set industry standards and consumer protection requirements. These matters had not been troubled by the applicant's building work over many years, and there was evidence of work of a high quality with no evidence of any claims.
It was submitted that the applicant's evidence did (in totality) cover the broad range of relevant industry experience in a wide range of building construction work., even if the evidence was not elegant. To rely on a particular piece of experience over another aspect of experience, would be unfair and not properly weigh up the nature of all the experience together.

Consideration

In the case of Locking v Department of Finance and Services [2013] NSWADT 239 the Administrative Decisions Tribunal considered a case whereby the issue of relevant industry experience in a wide range of building construction work was one of the issues examined. At paragraphs 15 to 19 of that decision, Deputy President Hennessy observed: 15. Based on his experience, Mr Locking does not meet the "Experience" requirement. His experience has been gained as a sub-contract carpenter or by being self-employed. It has not been gained as an "employee". 16. Mr W O'Connell, the provider of the Referee Statement, previously held a contractor licence in the category of builder. During 1995 to 2000 Mr O'Connell sub-contracted the applicant to do carpentry work for him. Mr O'Connell has stated that the applicant performed the following duties: (a) site set out (b) (c) Page 5. bearers and joist floor construction as well as a slab (c) cut out and erect wall frames and cutting out roofs (d) assembled frames and trusses (e) garage and fencing jobs (f) extensions where new roofs have to be cut into existing roofs for a seamless join; and (g) managed some sites for him organising other trades. 17. This experience 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. 18. 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 Mr Locking'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. 19. 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.
Mr Chahine's experience covers many decades. Whilst in the initial decade plus his experience mainly is in the area of tiling, I note that those jobs were substantial and were enmeshed within large scale fit-out as part of major construction or renovation in both commercial and residential areas.
The area of carpentry was covered during the second half of his experience in addition to retaining the skills, qualifications and experience set out above. Whilst the Tribunal notes the respondent's submissions and observations about some inconsistencies, omissions and contradictions in Mr Chahine's evidence, when viewed in totality those aspects dissipate. In some areas matters are resolved by clear evidence clarifying the respondent's query or requisition.
Paragraph 5 of the applicant's affidavit provided a cogent explanation for how the applicant was able to cross over between CY Carpentry and Maroun Brothers Development and in effect work concurrently for both. The evidence of some work being performed in what might otherwise be referred to as overtime and on weekends (even as secondary employment or taking on other jobs), is in my view not unusual in the building and other trades.
In my view many of the problems of this application arise from the commonly apparent limitations of the information that referee's and others provide on the official forms. Often there is paucity of cogent information in respect of the data provided by applicants and their referees in populating the fields in these forms. In addition in some matters the forms appear to be completed in a rudimentary manner, with the writer being careful not to exceed the available space in the allotted box or area to write in a response. Further, the experienced tradespersons who personally complete these forms, whilst having been certified themselves in the past, sometimes seem hesitant and vague respondents to the questions sought by Fair Trading about their nominees. Why this situation arises is a matter of considerable discussion in these cases.
These observations are made only to illustrate that in many instances (successful or otherwise), once the matter is before the Tribunal, where evidence is provided in sworn form, often assisted by the drafting of legal practitioners, matters become much clearer.
The applicant addressed many of the deficiencies and matters that were clearly lacking in his applications to the respondent. These matters were addressed by the applicant's evidence in chief and cross-examination as well as his affidavit evidence. As observed earlier neither party sought to provide evidence from a referee or other witness to test material submitted by the applicant.
In addition, whilst the respondent takes the understandable view that applicant cannot self attest or verify their responses in the application process, I note that in the absence of evidence to rebut an applicant's proposition, there is no such lawful impediment on the Tribunal. In any event, to disregard such material in the absence of any clear basis in the proceedings would be dangerous.
Having observed the applicant's evidence, in my view it was sufficiently consistent, cogent, and clear as to clarify what the range of his skills and experience was. In that regard, I find that the applicant's evidence when considered in totality, provides a firm basis for considering his application favourably.
I have carefully considered all of the evidence and material of the parties in these proceedings, even if I have not referred to all of it specifically in these reasons. I note however that a large amount of it has been reproduced or referred to in these reasons.

Conclusion

In my view having regard to all of the evidence and material before the Tribunal, the applicant appears to meet the type of criteria as set out and required by Deputy President Hennessy in the case of Locking.
In that regard I find that the applicant has demonstrated that he possesses relevant industry experience in a wide range of building construction work. In addition I find that amongst the approximate 5 years relevant time that the applicant's legal practitioner referred to in his submissions on experience, there is at least two years of that relevant industry experience. I make this finding having regard to periods when he was engaged (for remuneration), not an owner builder, and calculating the equivalent of full time experience (even if other duties overlapped).
It follows that the correct and preferable decision is to set aside the decision of the respondent.

Orders 1. The decision of the respondent dated 16 April 2015 and 30 July 2015 is set aside. 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: 20 May 2016

At a glance

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Judgment (13 paragraphs)

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