Cole v Commissioner for Fair Trading

NCAT Occupational|2024-02-09

The Application

In section 6 of his Application, the Applicant relied on experience gained from his employment as a "Building Supervisor" with "Ivan Zhang (Dinkum Exporting and Importing P/L)". Under the heading "period of employment", there is a response indicating "3/7/20" to "30/6/22" with the numbers being handwritten. The Application produced in the s 58 bundle (exhibit R1) included a one page Referee's Statement from Mr Zhang together with an undated Applicant's On Site Building Experience form (Building Experience form) relating to the Applicant that was signed by Mr Zhang.
The Referee's Statement from Mr Zhang indicated that the Applicant's term of employment was full time and, in the box below, the following handwritten response was provided, "Two years (3/7/2020 30/6/2022 (sic)". In response to "Nature of Employment", the box next to "Employee" has been ticked. In the Building Experience form completed by Mr Zhang it was stated that the Applicant had carried out work at two building sites under his supervision. The first building site was in Lily Pilly Place in Orange (Lily Pilly Place). It was stated that this work started on 15 January 2020 and finished in December 2020, being a period of ten months and 15 days. Mr Zhang indicated that the approved DA/CDC at this site was "Construction of new multi-dwelling housing or residential flat buildings" but no type was specified. The Applicant's roles and responsibilities were said to have been to "organise surveyors, structural engineers and relevant trades".
The second building site was stated to be a property in Gardiner Road, Orange (Gardiner Road). It was stated that this work started on 1 December 2020 and finished on 10 January 2022, being a period of thirteen months and 9 days. Mr Zhang indicated that the approved DA/CDC at this site was "Construction of new multi-dwelling housing or residential flat buildings" but again, no type was specified. The Applicant's roles and responsibilities were said to have been "organising structural engineers, surveyors, civil engineers and relevant trades to assist builder".

Notice and subsequent material

A Notice was subsequently issued to the Applicant by the Respondent. The Notice indicated that if the Applicant's only roles at Gardiner Road were to organise and assist the builder, then that experience was not acceptable. Further information was requested to identify the location of the Lily Pilly Place site. It was noted that the Applicant claimed experience at Lily Pilly Place from January 2020 whilst he had stated that he started working for the builder in July 2020. Evidence of his employment was requested, and it was also noted that the Applicant's roles and responsibilities at Lily Pilly Place did not demonstrate a wide range of roles. The Applicant was notified that he would need to provide the following: 1. Completed page 2 and 3 of the Referee's Statement. 2. A signed and dated letter from Mr Zhang describing the Applicant's detailed roles and responsibilities at Gardiner Road. 3. Additional 11 months experience verified by a licenced builder which should not overlap with December 2020 to January 2022 4. Copies of his bank statements showing his regular salary from Dinkum Exporting and Importing Pty Ltd (Dinkum) from 1 December 2020 to 10 January 2022. 5. Copies of superannuation statements outlining contributions made from Dinkum for the above period 6. Employment evidence for any newly claimed 11 months of experience.
By way of email dated 18 July 2023, the Applicant indicated that page two of the Declaration of the Referee was double sided, and that Service NSW had only sent the front page to the Respondent. The Applicant indicated that page three had "now been dated". Page 2 of the Referee's Statement of Mr Zhang was provided to the Respondent with the handwritten date of "06/07/22". The Applicant also indicated that (sic) "[i]n the details of Applicants section in term of employment in the referees statement form my 1 has been mistaken for a 7, I have corrected and resent this also". Page 1 of the Referee's Statement from Mr Zhang was provided by the Applicant with the handwritten number "7" being crossed out and a handwritten number "1" inserted with the initials "JC" so that the term of employment now stated (sic) "two years (3/1/2020 30/6/2022".
The Applicant also attached a signed letter from Dinkum dated 13 July 2023 setting out the Applicant's detailed roles and responsibilities (13 July letter). It was stated by the Applicant that the "form didn't allow a lot of room, so the rest was not included". The Applicant indicated that he had attached group certificates provided by his accountant as proof of employment, as he no longer had his previous bank account and could not access statements. He also advised that he was waiting for his superannuation fund to provide a statement. He also provided further details for Lily Pilly Place.
The 13 July letter confirmed that the Applicant performed the following tasks at both Gardiner Road and Lily Pilly Place: Site set-out. General Carpentry, Formwork, Steel Fixing, Placing Concrete, Finishing Concrete, Excavations, Landscaping, Bricklaying, Framing, Roofing and Fit outs, Cabinetry and Eaves and skirting. [The Applicant] was involved in all aspects of Building while working on both these developments. I would just like to clarify that [Lily Pilly Place] was a 4 dwelling development which now has the addresses as follows…Gardiner Road was a 6 unit development.
Also included in the email were two documents each consisting of one page. The first was headed "Individual Tax Return" with a reference to the Applicant. The footer read "Individual Tax Return 2021" and indicated that it was page five of twelve. The document referred to an amount of income being paid by Dinkum and an amount of tax being withheld. The main salary and wage occupation was said to be "Labourer-concreter". The second document was also headed Individual Tax Return with a reference to the Applicant. The footer read "Individual Tax Return 2022" and indicated that it was page five of eleven. The document referred to an amount of income being paid by Dinkum and an amount of tax being withheld. The main salary and wage occupation was said to be "Labourer-concreter". Neither of the two documents was signed and no further pages of those documents or the Applicant's group certificates were provided.

Notice of Refusal

It appears that the Applicant provided superannuation statements to the Respondent on 20 July 2023 and indicated that his superannuation fund had changed from Intrust to Hostplus during this time. On 26 July 2023, an officer of the Respondent sought a copy of the "HBCF", presumably the Home Building Compensation Fund, for one of the addresses for Lily Pilly Place which showed that the Certificate had been issued on 18 February 2020 for a new single dwelling construction. A copy of an overhead photo of that address obtained on 26 July 2023 showed empty plots of land as of 24 April 2020.
The Respondent's Refusal Notice dated 26 July 2023 (Refusal Notice) noted that in relation to the information provided by the Applicant's referee about Lily Pilly Place, the tasks that the Applicant was involved in were trade works only and there was no mention that the Applicant had supervised the site, coordinated the tasks and managed projects from start to end. Accordingly, the Respondent was not satisfied on the basis of the referee's form and reference letter that the Applicant had been involved in a wide range of works and coordinated and supervised building work in the construction of a residential dwelling from start to end. Reference was also made to the searches that indicated that the block at Lily Pilly Place was vacant until the end of April 2020 and noted that the Applicant had claimed building experience from January 2020 when no construction works were being undertaken.
The Refusal Notice also made reference to the Applicant's employment evidence and his failure to provide bank statements, stating that the group certificates could not be accepted as employer evidence. Whilst no copies of the Applicant's superannuation statements were before the Tribunal, the Refusal Notice referred to only one superannuation transaction having been made by the employer on 11 March 2021 (Intrust Super) and that the Hostplus statement until June 2022 indicated that the Applicant's superannuation balance was approximately $4,400.

Internal Review request

In the Applicant's letter seeking internal review on 13 August 2023, (Internal Review request) the Applicant said that he would like to "note as it was mentioned the Superannuation paid was an unrealistic amount and this is correct as the builder has not paid the Final Payment. As I don't check I would like to thank you for bringing this to my attention and I am having it rectified".
In relation to Lily Pilly Place, the Applicant stated that the Development Applications were issued in December 2019 and that he was actively involved in organising trades to start this project when he was first employed and that this is the responsibility of the Site Supervisor. He stated that during this time things came to a halt "due to covid hitting at the end of January 2020" and that he was still doing his role as Site Supervisor at this time at another project which was in its final stages. He stated that he never wrote this on his Application as it only asked for two, and the two that he provided were "start to finish projects of multiple dwellings". He stated that it he or the builder had been in contact in relation to his Application this could have been explained.
The Applicant stated that he did not understand why the Respondent had sought an additional 11 months of experience, and if this was because it was believed that Lily Pilly Place was vacant until the end of April that is only three months, "during which Covid was active". The Applicant stated that when "covid hit", it was still his responsibility to communicate with trades and interpret regulations set by the Government and instructions from Master Builders Australia so that work could continue on all sites, and he believed that this was part of the Site Supervisor's role. He went on to state that all tasks completed by himself were both as a supervisor and as a "Tradie". He also said that the box in the Application did not provide much room to list all experience and "[by] stating organising relevant trades etc, I thought that would cover the role of a Site Supervisor without actually stating it".
The Applicant noted that he had run a successful concreting and excavating company for the last 15 years and that he had worked extremely hard to further his knowledge around all aspects of the building industry. He said that he had successfully supervised and performed trades works on these sites and others and that he had "a lot of years" experience in the Building Industry and just because this has not been put on paper it was not seen as acceptable experience. He stated again that there was no communication verbally to either himself in relation to his Application and stated that if this had happened, he believed the outcome would have been different.

Additional material in the Applicant's Internal Review request

Whilst no copies of the Development Applications for Lily Pilly Place were in the material before the Tribunal, it appears that the Applicant provided Occupation Certificates to the Respondent that indicated that Development Consents had been issued on 3 December 2019 and Occupation Certificates issued on 11 December 2020.

Bank statements

The Applicant also provided 11 pages of heavily redacted bank statements from three different financial institutions. The first two pages related to a MyBusiness account in the name of "JL Cole T/F Cole Family Trust" (MyBusiness account). The following seven pages related to an account for the Applicant and another person, most likely his wife, who are listed as "Borrowers" (Borrower account). The final two pages relate to a Business Loan Account with Reliance Bank relating to the Applicant and another person, possibly the Applicant's wife (Reliance Bank account).

References

The Applicant also provided two undated references from Mr Zhang and Matt Iffland, Carpenter. The reference from Mr Zhang is addressed "To Whom it may concern" and makes no reference to the Tribunal proceedings. The reference indicates that the Applicant was employed by Mr Zhang's company as a Site Supervisor for a period of two years and was responsible for the day to day organisation of work sites and construction of dwellings including concreting, framing, roofing and fit outs. Mr Zhang stated that the Applicant has been his main concreter for a number of years and was responsible for concreting house slabs, paths and driveways and that the Applicant had demonstrated his ability to communicate with engineers and work out any problems that arose. He stated that the Applicant's knowledge is extremely high when it comes to all aspects of building and that he has completed landscaping projects, including excavations, and that he has engineered his own concrete panel retaining wall system which is often used in their projects.
The reference from Mr Iffland is also addressed to "To Whom it may concern" and makes no reference to the Tribunal proceedings. Mr Iffland states that he has worked with the Applicant for the past six years involving both carpentry and concreting and that the Applicant is "always" involved in general construction/carpentry for residential and commercial projects including framing, cabinetry, roofing, "eves" and fit outs. He states that "[o]n top of being able to fulfill all carpentry duties he somehow runs a very successful Concreting and Excavations company". It appears from the reference that Mr Iffland is a carpenter and that the reference is a personal reference and not a Referee's Statement.

Material provided by the Applicant in the administrative review application form

The Mr Zhang statement was annexed to the Applicant's administrative review application form and indicated that Mr Zhang had started Dinkum in around 2005 and that the company constructs residential dwellings in the Central West region. He stated that Dinkum obtained a general building contractor licence in 2014 listing him as director and nominated supervisor from around 5 May 2014 and that he also obtained a general building contractor licence in his own name in around April 2014.
Mr Zhang stated that on 3 January 2020, Dinkum entered into an agreement with the Applicant whereby the Applicant agreed to a full time role with Dinkum as a "Builder's Labourer". A description of this role was attached as Annexure A to the Zhang statement (job description). Annexure A was headed, "Full-time employment role with [Dinkum] Builders Labourer - Job Description and Duties". The document then stated the following: This role requires you to be involved in a range of building and construction work which includes both trade work and supervisory work on various job sites. This requires applying knowledge of building codes and regulations, being detailed oriented, using leadership and communications skills, being effective in problem solving.
The document then set out a number of particular duties and responsibilities relating to "Trade works" and a "Supervisory role". Mr Zhang stated that during the Applicant's employment, the Applicant was required to carry out the duties outlined in the job description that not only included trade work but also a supervisory role to assist the Applicant with management of building projects from the commencement up until completion and confirmed that the Applicant ceased work with Dinkum on 30 June 2022.
In his statement, Mr Zhang said that the Applicant commenced work on 7 January 2020 and worked on two large projects carried out by Dinkum from commencement to completion, namely Gardiner Road and Lily Pilly Place. The Applicant was said to have also worked on a project at Handford Place, Orange (Handford Place), being a two dwelling development consisting of "2 x 3" bedrooms. The Occupation Certificates provided with the Mr Zhang statement indicated that the Development Consents for Handford Place were issued on 30 July 2019 and the Occupation Certificates were issued on 19 June 2020.
The Applicant was said by Mr Zhang to have also worked on a project at Casey Street, Orange (Casey Street) which was initially only a minor demolition but turned into a complete demolition and new build of a single storey dwelling with attached garage. The Occupation Certificates provided with the Mr Zhang statement indicated that the Development Consent for Casey Street was issued on 31 May 2021 and the Occupation Certificate was issued on 31 October 2022.

Zhang affidavit

The Applicant adduced the Mr Zhang affidavit that essentially adopted the Mr Zhang statement. Mr Zhang indicated that he had been provided with a copy of the Applicant's affidavit of 19 December 2023 (Applicant's affidavit) and that the descriptions provided by the Applicant of the tasks he undertook with Dinkum were accurate.

Applicant's affidavit

The Applicant's affidavit produced a number of documents that were also included in the Respondent's s 58 bundle. The Applicant maintained and confirmed that he was employed with Dinkum from 15 January 2020 to 30 June 2022 and that he met the experience requirements for a contractor's licence in general building work. He stated that to the extent necessary he also confirmed that work undertaken by his concreting business, JLC Concreting (JLC) prior to 15 January 2020 ought to be taken into account if required.
The Applicant stated that during the period from 15 January 2020 to 30 June 2022, he worked for Dinkum in a full time capacity. He said he chose to work with Dinkum because he wanted to obtain a wide exposure to general building work, so as to assist him with his Application to vary his existing licence. The Applicant's affidavit made reference to working at the following sites for the following periods: 1. Handford Place - 15 January 2020 to 19 June 2020 2. Lily Pilly Place - 26 May 2020 to 11 December 2020 3. Gardiner Road - 1 December 2020 to 3 February 2022 4. Casey Street - 28 August 2021 to 30 June 2022 (end of employment)
As referred to previously, the Applicant also provided a USB containing a bundle of material composed of photographs and videos which he said attested to his work with Dinkum and JLC. I viewed the material on the USB following the hearing.

Applicant's evidence

In his evidence, the Applicant confirmed that his affidavit was true and correct and that any discord between the affidavit and his Application was because he had thought that the application process was an easy one and that he had only provided brief responses. In cross-examination by Mr Coss, the solicitor acting on behalf of the Respondent, the Applicant acknowledged that the Building Experience form completed by Mr Zhang referred to only two sets of dates, namely 15 January 2020 to 1 December 2020 and 1 December 2020 to 10 January 2022 and to only two building sites. The Applicant acknowledged the "Note" to the Building Experience form completed by Mr Zhang.
In relation to Lily Pilly Place, the Applicant also accepted that no work had taken place before April 2020 and his explanation for this was because of COVID-19. The Applicant acknowledged that he now stated that he had been working at Handford Place from January to June 2020. He said that work at Handford Place continued throughout this period and that the only site affected by COVID-19 in this timeframe was Lily Pilly Place. He said that minimal work had taken place at Lily Pilly Place as Mr Zhang did not know what effect any lockdown might have on that site. He said that Handford Place was at the end of construction and that the Applicant was put onto that site until things settled down and they got the Construction Certificate for Lily Pilly Place.
When asked if his role at Handford Place was as a Project Manager, the Applicant said "no, not at that job" and that he was assisting trades as Mr Zhang was not on site all day. He said that there were some 30 trades on the site for Dinkum and there would be different trades on different days and that Mr Zhang was the project manager. The Applicant stated that the trades did not need to be supervised but it was part of his role to tell them what to do. It was put to the Applicant that six months was a long time for the lock up stage and the Applicant stated that he was probably there about 75% of the time over the 6 month period. The Applicant indicated that Handford Place and Lily Pilly Place were "pretty much" around the corner from each other. He confirmed that nothing happened at Lily Pilly Place until April and that from January 2020 he was involved in finishing of trades works at Handford Place. He said that he would sometimes work three weeks straight at Handford Place and for some weeks for only two to three days and then go to another job.
The Applicant confirmed that he stated in his affidavit that his work at Gardiner Road overlapped with that of Casey Street. He said that he was not at Casey Street for the demolition work but thought this would have taken about a month. He confirmed his belief that Casey Street was owner builder work by Mr Zhang and that he was doing it for investment. He said that Mr Zhang had bought a large property to be sub-divided and was planning on building a new dwelling next door to the existing dwelling but found that he could not fix the existing dwelling. The Applicant confirmed that the work on Casey Street took place between 28 August 2021 and 30 June 2022 and that it took so long because it sat there for some time after the demolition waiting for a DA. He acknowledged that demolition before the land was cleared was not residential building work under the HBA.
The Applicant agreed that his work at Casey Street was very minor, and that Gardiner Road was his biggest contract as it related to six dwellings. He confirmed that he was an employee of Mr Zhang at Gardiner Road and that his role was as a Site Supervisor. In relation to payment, the Applicant said that he did not want to be paid and just wanted the experience. He said that when they made the agreement, Mr Zhang said that by law he had to be paid, and that he could be paid weekly or in a lump sum and the Applicant took a lump sum. He agreed that there was no copy of the agreement in evidence and that it was "verbal".
The Applicant gave evidence that he was working for Dinkum from 15 January 2020 as this is when the agreement started but acknowledged that there was some disagreement as to his starting date. He confirmed that he was working at Gardiner Road from 1 December 2020 to 3 February 2022 as stated in his affidavit. He said that he was supervising on that site and that he was the Project Manager. He said that Mr Zhang was there every day, and pretty much every hour, as he was a very involved builder, and it was Mr Zhang's money and his build. The Applicant outlined some of the work that he did at Gardiner Road but stated that it was his concreting company that carried out the concrete path. When it was put to him that he was working for his company during the concreting, he said that he was just supervising them. He said that Mr Zhang was "always" there. The Applicant confirmed that his company, JLC, laid the slabs and that it received a large payment from Dinkum for that.
The Applicant confirmed that he was relying on two and a half years' of experience gained through work with Mr Zhang and acknowledged that he had only included Lily Pilly Place and Gardiner Road in his Application. He confirmed that he had had difficulty in providing bank statements from the Commonwealth Bank as they took a long time to obtain. In relation to his one superannuation payment, he said that his wife looked after the paperwork and that apparently it had to be paid to an employee. He stated that he was not given a monthly statement and that the agreement was that he would be paid $900 per week. The Applicant clarified that the delay to commencing Lily Pilly Place was because of Mr Zhang's personal choice to delay the project as he did not want to order materials if they were just sitting on the site.
The Applicant confirmed that whilst he originally had claimed experience at Lily Pilly Place from 15 January 2020 to 1 December 2020, he was now claiming experience from 26 May 2020 to 11 December 2020. He confirmed that in relation to Casey Street, that there had been a period of seven months where there was no building work and that the work at Handford Place was the completion of a ready built building. He also confirmed that he had not read Mr Zhang's affidavit. In his evidence he also stated that he was not involved with JLC whilst working with Dinkum and that his wife took over with two site supervisors running outside work.
The Applicant stated that he had gone back through his text messages and communications with Mr Zhang in order to work out the various dates referred to in his affidavit. The Applicant said that he had had a discussion with Mr Zhang in 2019 where Mr Zhang had offered to employ him so that he could get experience to fulfil the requirements for building. He said that he was employed by Dinkum and there had been no paperwork, and that he provided his tax file number directly to Mr Zhang. The Applicant said that he was still getting payments from JLC whilst working for Dinkum and said that if he was struggling, he would ask to be paid. He would tell Mr Zhang that he needed a "couple of grand" and he then ended up with an amount that was owed to him. The Applicant confirmed that he received a group certificate and did not take recreation leave whilst working for Dinkum. He said that he was not sure if he had ever received his final payment from Dinkum and would have to go through his records to check.

Mr Zhang's evidence

As referred to previously, Mr Zhang gave his evidence by telephone. He confirmed that his affidavit was true and correct and that he had a copy of his affidavit and that of the Applicant in front of him, together with the s 58 documents. In cross-examination, he stated that the Applicant's company was his main concreter and that he had known the Applicant for more than a decade. Mr Zhang was asked about the employment dates in the Referee's Statement. He confirmed that the Applicant started with him on 15 January 2020, but that he did not count the first six months as this was the Applicant's "probation period". Mr Zhang said that he had agreed for the Applicant to start work but wanted to see how good he was and told him that he would be on six months' probation. Mr Zhang said that the employment relationship was verbal, and that the Applicant signed an employment declaration form that was sent to the "ATO". Mr Zhang stated that the Applicant's employment started in July 2020.
Mr Zhang said the reason that only two building sites were referred to in the Building Experience form was that they were the biggest sites. He also confirmed that Lily Pilly Place was delayed due to COVID-19. Mr Zhang was asked if the dates 26 May 2020 to 11 December 2020 were accurate, and he said the start date for Lily Pilly Place was around June 2020. It was put to Mr Zhang that if the Applicant worked at Lily Pilly Place between June and December 2020, this would amount to five months experience. Mr Zhang stated that there was more as the work finished at Christmas time. He confirmed that the Applicant was meant to start at Lily Pilly Place but was moved to Handford Road instead. It was put to him that he certified that the Applicant had worked at Lily Pilly Place for 11 months when he had only worked there from May/June to December, which was only five months work. Mr Zhang conceded that the date range relied upon by the Applicant, namely 26 May 2020 to 11 December 2020, was only five months.
Mr Zhang stated that the Applicant was not a Project Manager at Lily Pilly Place as he was there and trying to train the Applicant. Mr Zhang said that he was there every day as it was his development and not a job for customers. He said that the Applicant carried out earth works, organised the surveyor, talked to the civil and structural engineers, built houses and organised plumbing and electrical work. He also said that the Applicant did some carpentry work. Mr Zhang said that the Applicant did concreting work and that he is a concreter by trade. Mr Zhang confirmed that he was on site to supervise the Applicant. In terms of the Applicant's wages whilst at Lily Pilly Place, he said that the Applicant required lump sums and he was paid when required as he needed the money to build a house. He stated that he paid him superannuation
Mr Zhang confirmed that he only put down two sites on the Building Experience form and that it was his mistake for not seeing the fine print on the form. He also confirmed that he had supervised the Applicant at all of the sites. When asked how he verified the dates that the Applicant had worked, Mr Zhang stated that he was there all the time and that he knew the dates. When asked about any records that he kept, Mr Zhang stated that his brain was the record and that he did not record start and finish dates. The Applicant was then asked about the dates for Handford Place, namely 15 January 2020 to 19 June 2020 and whether, at that stage, the houses were complete and at lock up stage. Mr Zhang stated that he would have to check his records, but that it was not complete in January. It was put to him that the work did not take six months to complete, and he said that the weather at that time was not very helpful as there was a lot of rain. He stated that the Applicant was on site at Handford Place whenever he needed him.
When asked if the Applicant continued to run his own business, he said that it was his understanding that he did. He said that the Applicant had a lot of employees and that the Applicant's wife looked after the business as well.
In relation to Gardiner Road, Mr Zhang confirmed that the Applicant's concreting company laid the slabs. He said that when the Applicant's concrete company was laying the slab, he did not need to supervise them as the Applicant was a licenced concreter anyway. He confirmed that the Applicant's work on Gardiner Road overlapped with his work on Casey Street. Mr Zhang did not agree that demolition work is not building work but acknowledged that Casey Street was left after the demolition work in order to get a DA to build a new house. He said that he could not remember the timeline or recall the exact dates of this job. He said that he was building the property for his parents and did not contract with them. When asked if he was the owner builder for his parents, he said "yes, you can say that". He acknowledged that it took more than six months to get the DA and confirmed that the block was sub-divided with one house built and that he was currently finishing the second house.
Mr Zhang said that the Applicant was working for his own firm and had about a half dozen employees. He said that the Applicant was on site when the slab was poured at Gardiner Road. Mr Zhang confirmed that the Applicant poured the slabs for all of the houses in Gardiner Road and had friends and employees to help. He said that the Applicant would work another day to make up for his work pouring the slab. Mr Zhang did not accept the work done by the Applicant was minor trade work not did he accept that the Applicant's roles at Handford Place were not in a wide range of building work. Mr Zhang stated that the Applicant did construction work, including fixing up damaged plaster and structural work. When Mr Coss put to him that this was only occasional work, Mr Zhang stated that if a trade did not come back, the Applicant would finish off the work.
Mr Zhang confirmed that he did not have any records of the dates of the Applicant's work but stated that the Applicant was his only employee. He said that he did not ever need to call or text the Applicant as he showed up at 7 am. In relation to Lily Pilly Place, Mr Zhang said the Applicant carried out a wide range of construction work and that if work was not finished, he would finish it. When asked about when construction began at Casey Street, Mr Zhang stated that he would go back to his records and then stated that it commenced in May 2022.
Mr Zhang said that the Applicant commenced full time employment in July 2020 and that it was at this time that he filled in the employment declaration form, and it was sent to the ATO. For the period from January 2020 to July 2020, Mr Zhang stated that the Applicant was his concreter and that he did all of his concreting. He said that the Applicant would put in a bill and was not an employee. Mr Zhang's evidence was that he did not pay the Applicant a wage but added a payment on to his bills. He said that the Applicant was on site every day and that the payment in April 2020 related to his concreting bill plus time for his extra work and that he was not on weekly wages. Mr Zhang stated that he trusted the Applicant and paid him what the Applicant told him. He confirmed that the Applicant was not paid wages for the period January to June 2020 and that Mr Zhang only sent the declaration form in July 2020. Mr Zhang confirmed that he did not withhold tax in relation to the Applicant during this period. He said it was a normal contractor invoice and that the Applicant was required to pay the tax.
Mr Zhang said that from July 2020 he paid the Applicant wages and also paid his company for concreting work. He said that the invoices were paid separately to the wages for the Applicant after that date. Once wages started being paid, he said that every three months, the Applicant would take one week of paid leave. In relation to superannuation, he said that it was paid every 3 months. Mr Zhang said that he could not recall the Applicant being sick. Mr Zhang said that when concreting work was being carried out, the Applicant was effectively not working for him and made up the time later. Mr Zhang confirmed that the Applicant was only paid when he asked to be paid. He stated that he provided the Applicant with a group certificate at the end of the financial year.

The Instrument

The Instrument relevantly provides, that for an endorsed contractor licence in general building work to be issued, an applicant must demonstrate: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made.
The Instrument relevantly contains the following definitions: "Experience" means experience gained by the applicant as: (a) an employee of;… … the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where the applicant, during the relevant period, was: ● supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or qualified supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and ● received Remuneration in accordance with law for the Work which the applicant carried out. "Residential building work" has the same meaning as in Schedule 1 Clause 2 of the Act. …
In the Instrument, "the Act" means the HBA. Schedule 1, cl 2 of the HBA is as follows: 2 Definition of "residential building work" (1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in - (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of residential building work - (a) roof plumbing work done in connection with a dwelling, (b) specialist work done in connection with a dwelling, (c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation). (3) Each of the following is excluded from the definition of residential building work - (a) any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations, (b) any work (other than specialist work) involved in the manufacturing of a moveable dwelling, within the meaning of the Local Government Act 1993 (other than a moveable dwelling that is a manufactured home within the meaning of that Act), (c) any work involved in the manufacture, assembly or erection of a moveable dwelling that is a manufactured home within the meaning of the Local Government Act 1993, other than - (i) specialist work, or (ii) work involving the connecting together on the site on which the manufactured home is installed of its major sections and any associated structures forming part of the manufactured home and attaching them to footings, (d) any work (other than specialist work) involved in the site preparation for, or the assembling or erection on site of, a moveable dwelling excluded by paragraph (b), unless the work requires development consent, (e) any work referred to in paragraph (d) done in relation to land on which a council has authorised a moveable dwelling to be placed by issuing an approval under the Local Government Act 1993, whether or not a development consent is also required, (f) any work that would otherwise be residential building work but that by or under another Act a person is prohibited from doing unless the person is the holder of a contractor licence or another authority under that other Act, but subject to subclause (4), (g) internal painting work, but subject to subclause (5), (h) any work (other than specialist work) done in relation to the removal and transport of a dwelling, but subject to subclause (6), (i) the supervision only of residential building work - (i) by a person registered as an architect under the Architects Act 2003, or (ii) by a person supervising owner-builder work for no reward or other consideration, or (iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work, (j) demolition work, (k) any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide, (l) any work that involves the installation or maintenance of any fixed apparatus such as a lift, an escalator, an inclinator or a garage door by means of which persons or things are raised or lowered or moved in some direction that is restricted by fixed guides. (4) Work referred to in subclause (3)(f) is not excluded from the definition of residential building work if it is part only of the work to be done under a contract to do residential building work. (5) Internal painting work is not excluded from the definition of residential building work (under subclause (3)(g)) if it is part only of the work to be done under a contract to do residential building work. (6) Work referred to in subclause (3)(h) is not excluded from the definition of residential building work if it is part only of the work to be done under a contract to do residential building work at the new site of the dwelling (whether or not that work is done under the same contract as the contract to remove and transport the dwelling). (7) The regulations may - (a) declare any work to be included in the definition of residential building work, or (b) declare any work to be excluded from the definition of residential building work.

Relevant Application Form

The Instrument requires that "Experience" be verified in the "Relevant Application Form" and this is defined in the Instrument as follows: "Relevant Application Form" means the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002)
No issue was taken by the Respondent in relation to the form of the Application. At paragraph 6, the Application states that "All" general building applicants "MUST" include a complete employment history for the past 10 years and up to the current date, including where an individual has been previously licenced, self-employed or unemployed. In the relevant table, the only employment provided by the Applicant was for the period "3/7/20" to "30/6/2022" at Dinkum as a Building Supervisor. The Application then stated that if fully completed Referee Statements from licensed supervisors were required, they "MUST" also accompany the Application. As referred to previously the Applicant included a Referee's Statement from Mr Zhang dated 11 July 2022.
The Referee's Statement contains a note that it is for applicants applying for a General Building Work (Builder) licence (Q) or certificate to do or supervise residential building work. It states that when applying for a licence (Q) of a certificate for the category of Builder it must be accompanied by supporting statements from the applicant's building work supervisor verifying the applicant's experience in carrying out the work in accordance with relevant standards and codes. The form relevantly provides that the person making the statement must have: 1. Held a Qualified Supervisor Certificate issued by NSW Fair Trading during the period of time of the stated experience. 2. Held that Licence (Q) in the category of General Work Builder (Builder) during the period of time of the stated experience 3. Supervised and directed the applicant carrying out the work that is the subject of the Referee's Statement.
Mr Zhang gave evidence that he held such a licence during the relevant period, and I accept that he did so.
The Referee Statement also draws the attention of the Referee to the detailed definition of "Experience" as provided on the Fair Trading website. A box on the Referee's Statement indicated that "In accordance with section 12 of the [Licensing Act] this referee statement document and any supporting attachments are part of the application form submitted by the applicant making aping application for an authority under the [HBA]". In the second page of the Referee's Statement, Mr Zhang's declaration included that the attached Applicant's Building Experience form(s) covered "ALL the building sites" where he supervised the Applicant in respect of a wide range of building construction work and that he understood that the Respondent may not accept any additional site work claimed by the Applicant whilst under his supervision and not included in the accompanying Building Experience forms.
It was not in dispute that the Building Experience form completed by Mr Zhang refers only to work at Lily Pilly Place and Gardiner Road and makes no mention of Handford Place or Casey Street.
A preprinted "Note" appears before Mr Zhang's signature on the Building Experience form which states: I confirm that this and any accompanying 'Applicant's On Site Building Experience' Form(s) cover ALL the building sites where I have supervised the applicant in respect of a wide range of building construction work. I understand that Fair Trading may not accept any additional site work claimed by the applicant that was under my supervision that is not included in this or any accompanying 'Applicant's On Site Building Experience' form(s).
It was not contended that that any further Building Experience Forms were provided to the Respondent with the Application and Mr Zhang acknowledged in his evidence that he had not read the "fine print" on the form. As referred to previously, the Respondent issued a Notice on 10 July 2023 requesting further information, including "an additional 11 months experience verified by a licensed builder which should not overlap with Dec 2020 - Jan 2022". A blank Referee's Statement and Building Experience form were attached to that Notice. Whilst the Applicant subsequently provided the amended first page and a further copy of the second page of Mr Zhang's Referee's Statement, together with a dated Building Experience form, no information about other building sites was provided by the Applicant at that time. There is no evidence that any further Referee's Statements or Building Experience forms in relation to Handford Place or Casey Street, or any other building sites, have been submitted by the Applicant at any time
The Instrument defines "the Work" as experience gained as an employee of the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained. The Instrument further requires the applicant to be supervised and directed in the doing of the Work by the holder of an endorsed contractor licence authorising its holder to supervise the Work "and this is verified in the Relevant Application Form". Whilst I accept that there is evidence before the Tribunal of the Applicant having carried out work at Handford Place and Casey Street, it is not referred to in the Application Form, Referee's Statement or Building Experience form. Accordingly, I find that the Applicant's work at Handford Place and Casey Street has not been verified in the Relevant Application Form and accordingly is not "Experience" for the purpose of the Instrument.
I accept that in the Relevant Application Form, namely the Building Experience form for the Applicant, that Mr Zhang verified work carried out by the Applicant at Lily Pilly Place and Gardiner Road, albeit for different dates to those relied upon by the Applicant at the hearing.

Handford Place and Casey Street

I note that even if I had formed the view that the Tribunal could have regard to the Applicant's work at Handford Place and Casey Street even when not verified in the Relevant Application Form, I would not have been satisfied that the Applicant's work at these building sites amounted to "Experience" for the purposes of the Instrument.
The Applicant relied on experience gained by him as an employee of Dinkum and under the supervision of Mr Zhang at Handford Place between 15 January 2020 and 19 June 2020 and this is consistent with the requirement in the Instrument that experience be gained by the applicant as an employee. However, the evidence relating to the Applicant's employment by Dinkum contained a number of inconsistencies. Whilst both the Applicant and the Respondent gave oral evidence that there was no written contract of employment between Dinkum and the Applicant and that any arrangements were verbal, a copy of an undated Job Description for the Applicant was annexed to the Zhang statement and was said to be outline of the Applicants role as a "Builders Labourer".
In his statement, Mr Zhang said that on 3 January 2020 Dinkum entered into an agreement with the Applicant whereby the Applicant agreed to a full time role as set out in the Job Description and commenced work on 7 January 2020. The original start date for the Applicant in the Referee's Statement appeared to read "3/7/2020". The Applicant's evidence was that the "7" was actually a "1" and that the correct start date was 3 January 2020 rather than 3 July 2020 and, on this basis, he amended the date in the Referee's Statement. The 3 January 2020 start date would be consistent with the date of the Agreement referred to in the Zhang statement.
However, in the Applicant's affidavit, he refers to having worked for Dinkum from 15 January 2020 to 30 June 2022. In his oral evidence, the Applicant attributed any discord in respect of dates, to him having gone through and checked his communications and text messages with Mr Zhang to work out dates. In his oral evidence, Mr Zhang also said that the Applicant started at Dinkum on 15 January 2020 but stated that the Applicant was on "probation" for the first six months. He went further to state that the Applicant only commenced full time employment in July 2020 and that it was at this time that he filled in the employment declaration form, and it was sent to the ATO.
For the period from January 2020 to July 2020, Mr Zhang stated that the Applicant was his concreter and that he did all of his concreting. He said that the Applicant would put in a bill and was not an employee. Mr Zhang's evidence was that he did not pay the Applicant a wage during the period January to June 2020 and did not withhold tax on his behalf. Mr Zhang stated that he paid the concreting invoices submitted by the Applicant and trusted any amounts added on to the bill for work carried out by the Applicant. He said that these were normal contractor invoices, and that the Applicant was required to pay the tax. The evidence given by Mr Zhang is consistent with the original Referee's Statement signed by him in which he referred to the Applicant being employed full time for "two years", namely from "3/7/2020" to "30/6/2022".
Counsel for the Applicant submitted that the relationship between the Applicant and Dinkum during the period from January to June 2020 was in the nature of an employment relationship with Mr Zhang paying wages and holiday pay and with the Applicant being subject to the control and direction of Mr Zhang. It was submitted that whilst Mr Zhang may have referred to this period as "probation", it was apparent that the Applicant was an employee and that Mr Zhang directed which sites that he was to work on during these dates and supervised and controlled his work. It was submitted that even on Mr Zhang's evidence, any work done by the Applicant for his concreting company, was treated as separate work with the Applicant making up the time on a later day.
The Applicant has not adduced any group certificates or tax returns for the financial year ending 30 June 2020. He relies on the direct credit paid into his MyBusiness account on 24 April 2020 as being payment of his salary by Dinkum. However, Mr Zhang's evidence was that the payment in April 2020 related to the Applicant's concreting bill plus time for his extra work, and that he was not on weekly wages This is consistent with the description of the transaction in the MyBusiness account that includes a number and a reference to "6 Handford", that could well be a reference number for a concreting invoice issued by JLC for concreting work at Handford Place.
I accept the Applicant's evidence that he chose to work for Dinkum in order to obtain a wide exposure to general building work and was not interested in being paid. In my view, it is possible that throughout the period from January 2020 to June 2020, the Applicant may not have paid a great deal of attention to the nature of the arrangements between himself and Mr Zhang.
As set out above, the Instrument also requires that during the relevant period in which the experience was gained, that the Applicant "received Remuneration in accordance with law for the Work which the applicant carried out". "Remuneration" is defined in the Instrument to mean: …wages, salary and director's fees paid to an applicant under a contract of employment and/or under a federal or state industrial agreement to provide services under which the person is employed on a regular basis but does not include bonuses, commissions, allowances or any other ad-hoc payments, including payments from a profit sharing arrangements between the applicant and any other party, where such payments are the only payments made to the applicant for the work which the applicant carried out.
In light of the evidence before me, I am not satisfied that during the period from January 2020 to 30 June 2020 that the Applicant was a full time employee of Dinkum. Whilst at least one payment was made to the Applicant's MyBusiness account on 24 April 2020, I am not satisfied that this was a salary payment and that the Application received "Remuneration" under the Instrument according to law during this period. Accordingly, even I had found that I could have regard to the Applicant's work at Handford Place during the period 15 January 2020 to 19 June 2020, I would not have found that it met the definition of "Experience" as set out in the Instrument.
In light of my findings above that the work at Handford Place and Casey Street was not verified in the Relevant Application form as required by the Instrument, it is not necessary for me to make any further findings in relation to either site. However, I note that the Applicant appeared to concede that he was not on site at Casey Street during the demolition work and that in any event, demolition work is specifically excluded from the definition of "residential building work" in the HBA and accordingly is not "Experience" for the purposes of the Instrument. This was conceded by the Applicant in his oral evidence. I also have regard to Mr Zhang's evidence that construction began at Casey Street in May 2022 and on this basis, it would appear that even if the Tribunal was able to have regard to the Applicant's work at Casey Street, this work was limited to the period between May 2022 and 30 June 2022. It is also noted that the Applicant's evidence was that his work at Casey Street was "very minor" .
Having regard to the above matters, I give no further consideration to any of the Applicant's work at either Handford Place or Casey Street.

Experience at Lily Pilly Place and Gardiner Road

At the hearing, the Applicant relied on his experience at Lily Pilly Place for the period 26 May 2020 to 11 December 2020. Having regard to my findings that I was not satisfied that the Applicant was an employee of Dinkum between January 2020 and June 2020 or that he received Remuneration under the Instrument in accordance with law during this period, I give not further consideration to the Applicant's work at Lily Pilly Place during the period 26 May 2020 to 30 June 2020.
As a consequence, the remaining period of the Applicant's work at Lily Pilly Place is for the period July 2020 to 11 December 2020, a period of approximately 5 months and 11 days. The Applicant also relied on experience at Gardiner Road during the period 1 December 2020 to 3 February 2022. Noting that this experience overlaps with that at Lily Pilly Place for 11 days, the remaining period from 12 December 2020 to 3 February 2022 amounts to just under 14 months of additional work at Gardiner Road, resulting in a total of just over 19 months. As a result, even if all of this work was to be accepted as "Experience" for the purposes of the Instrument, it would not satisfy the requirement for at "least two year's relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made."
Having reached this conclusion, it is not necessary to make findings in relation to the Applicant's work at Lily Pilly Place or at Gardiner Road. I note however, that whilst I accept that the Applicant was employed by Dinkum during the period from around 1 July 2020 to 30 June 2022, given the many inconsistencies in the evidence relating to the payments made to the Applicant during this period, including superannuation and recreation leave, and in the absence of objective evidence such as group certificates. I would not have been satisfied that the Applicant had established that he had received "Remuneration" under the Instrument in accordance with law for the work that he relied on.
The Applicant's counsel referred to the regrettable absence of contemporary records before the Tribunal, submitting that there was ultimately a lacuna in this regard, and that reliance should be placed on the Applicant's evidence in relation to events. However, I agree with the Respondent's submission that there was so much "imprecision" in this matter and that the dates referred to by the witnesses seemed to be a "moveable feast". This imprecision related not only to the dates of the Applicant's employment and the dates worked at particular sites, but also to the roles and responsibilities undertaken by the Applicant, including at Lily Pilly Place and Gardiner Road, and even to the Applicant's job title. The Applicant was at various times referred to as a Project Manager, a Site Supervisor, a Builders Labourer and in his 2021 and 2022 Tax Returns, as a "Labourer-concreter". Mr Zhang's evidence was that the Applicant was not the Project Manager at Lily Pilly Place and that he was teaching the Applicant this role. He said they both carried out the role of Project Manager at Gardiner Road.
Whilst the Applicant's Job Description provided by Mr Zhang states that the Applicant was responsible for recording site attendance, no site attendance records were adduced in relation to any building site, including Lily Pilly Place or Gardiner Road. The Applicant relied on the USB composed of photographs and videos that he said attested to the work that he had undertaken with Dinkum and his concreting company JLC. However, no evidence was given as to the circumstances relating to the photographs and videos, and they were not date stamped. Other than the Index to the USB annexed to the Applicant's affidavit, and the wording at the top of the images, the site of the work seen in the images was not identified. The Applicant can be observed in much of the material to be wearing JLC branded clothing, and it is not clear whether the work shown related to work carried out by him prior to 2020, or after 30 June 2022.
Almost all of the photographs were said to relate to a "Reno" or "New Build" at "Haddon Place" and included work such as concreting and waterproofing. No other evidence was adduced by the Applicant in relation to Haddon Place, including the Applicant's role at these sites and whether they were carried out under the supervision of Mr Zhang or another licenced builder. Accordingly for the purposes of this matter, I would not have been able to give any weight to them in my determination as to the nature of the work being carried out by the Applicant. Similarly, whilst the Index referred to four of the videos being work carried out by the Applicant at Lily Pilly Place and four at Gardiner Road, there was no evidence given in support of this. A number of the videos appeared to relate to the Applicant's installation of roof trusses, and it was unclear what risk assessments had been undertaken or control measures put in place prior to the work being undertaken. There was no evidence as to whether Mr Zhang was present at the site and supervising the Applicant's work at the time that the videos were taken. Accordingly for the purpose of this matter, I note that I would not have been able to give any weight to the videos adduced.
I have already found that even if all of the Applicant's work at Lily Pilly Place and Gardiner Road was accepted as experience for the purposes of the Instrument, it would only amount to some 19 months and would not satisfy the requirement for at "least two year's relevant industry Experience in a wide range of building construction work". Whilst I am not required to make any further findings in relation to the Applicant's experience, I note that on the available evidence, I would not have been satisfied as to the exact periods worked by the Applicant at either Lily Pilly Place or Gardiner Road.
The Instrument also requires that the Applicant demonstrate that the Experience gained by him was "in a wide range of building construction work". In Hall v Commissioner for Fair Trading [2023] NSWCATOD 59, Senior Member Dinnen summarised at [21] a number of previous decisions relating to "a wide range of building construction work" as follows: However, as discussed at [21] to [26] of Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 there is nothing limiting the Tribunal's consideration of what exactly the criteria of "a wide range of building construction work" means in the context of an applicant's past work experience. It is not a requirement that an applicant should have constructed a house from start to finish: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45]; Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 at [90]; Tange v New South Wales Fair Trading [2013] NSWADT 201. Nor is it a requirement that an applicant has experience in all aspects of building work, provided the experience is sufficiently wide: Price v Commissioner for Fair Trading [2020] NSWCATOD 93; Locking v Department of Finance and Services [2013] NSWADT 239; Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20.
In Locking v Department of Finance and Services [2013] NSWADT 239, the Tribunal affirmed the decision of the Respondent to refuse Mr Locking's application for a contractor licence in the category of general building work as he had not satisfied a minimum of two years relevant industry experience in "a wide range of building construction work". In reference to Mr Locking's experience in carpentry and joinery work, the Tribunal said at [17]-[19]: 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.
In Price v Commissioner for Fair Trading [2020] NSWCATOD 93 the Tribunal found at [60] that Mr Price's experience related "primarily to work in renovating bathrooms with some work in kitchens" and held at [62] that "it cannot be said that Mr Price undertook a wide range of building construction work on projects over the preceding 10 years". The Tribunal stated at [70]-[71]: 70. Mr Price argued that his 37 years in the building industry provided sufficient experience for him to obtain a builders licence. He held a builders licence between 2002 to 2009 and has held other licences in the building industry. He argued that he is familiar with the building code and the standards. He contended that a carpenter is able to supervise all of the trades and is experienced in all the fundamental structural principles. He stated that he had supervised other tradespersons. Mr Buttigieg stated that this occurred when he himself left a site to pick something up. Mr Price argued that the principles attached to building or renovating a bathroom or kitchen are the same as those in relation to other aspects of building a house. However, the Tribunal notes that the Instrument focuses on demonstration of the Applicant's experience in work. That is the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. This is not the same as understanding the principles. In this respect, the Tribunal notes there are different principles that apply in the areas of plumbing, tiling, waterproofing, carpentry and painting. Each of these callings has its own applicable skills. 71. Mr Price has not demonstrated that he has the breadth of experience required for a licence in the category of general building work. There is a lack of evidence that Mr Price has, as required by the Instrument, a minimum of two years relevant industry experience in a wide range of construction work - the majority of which has been obtained in the 10 years prior to application. In the circumstances of this case, I see no reason to depart from the requirements of this aspect of the Instrument. I do not consider that application of the policy in this case on the basis of the evidence put before the Tribunal would produce an unjust decision. On the evidence before me I cannot be satisfied that Mr Price's experience is such that, although he may not strictly meet the requirements of the Instrument, he has otherwise demonstrated with evidence that he has extensive relevant experience which would qualify him to be granted a contractor licence in the category of general building work. No clear evidence was placed before the Tribunal that Mr Price had undertaken this role in the 10 years prior to the lodging of the application, or outside of this timeframe.
Again, whilst I am not required to make a finding on this issue, I note that on the available evidence before the Tribunal, I would not have been satisfied that the Applicant has demonstrated relevant industry Experience in a "wide range of building construction work".

Applicant's work at JLC

At the hearing, the Applicant further, and to the extent necessary, sought to rely on the work undertaken with his own concreting business JLC prior to January 2020. Whilst I accept that the Applicant has a concreting company and holds a concreters licence, It is clear that the Instrument requires that any experience relied upon by an applicant for an endorsed contractor licence must be verified in the Relevant Application Form and that no such verification was before the Tribunal. There is no evidence that Mr Zhang supervised and directed the Applicant in concreting work prior to January 2020 or that he is qualified to do so and no Referee's statement or Building Experience forms for this period have been adduced.
In Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175, the Tribunal stated at [118] that "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." Following the amendments to the HBA and the decision in Kalkan, the Tribunal is required to give effect to the experience criteria specified in the Instrument. Accordingly, on the available evidence, I find that I am not able to give consideration to the Applicant's work as a concreter prior to January 2020.

Conclusion

Taking into account the findings made above, I am not satisfied that the Applicant has established that he has at least two years' relevant industry Experience in a wide range of building construction work and that he meets the requirements of s 33D(1)(b) or s 33(1)(b)(i) of the HBA. Accordingly, the HBA provides that a contractor licence must not be issued.
It follows that that the correct and preferable decision in this matter is to affirm the Respondent's decision and to refuse the Application at this time. The Applicant is not precluded from making a further application for a contractor licence in general building in the future.

Order 1. The decision under review 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 May 2024

Relevant legislation

The HBA regulates home building and specialist work within NSW. The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that "the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings".
The Respondent (referred to in the HBA as the "Secretary": see Schedule 1 of the HBA) is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing Act. Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work.
Section 20(1)(a1) and s 20(1)(a2) of the HBA provide that an application for a contractor licence must be refused if the Respondent is not satisfied as to the matters of which the Secretary is required to be satisfied by s 33B and s 33C of the HBA. Section 20(2) of the HBA was amended, with effect from 5 July 2021, to read: (2) 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 contractor licence.
Section 25 the HBA provides similar provisions in relation to a supervisor or tradesperson certificate.
Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is satisfied that "the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant".
Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required.
On 15 December 2022, the Respondent published a notice under s 20(2) and s 25(2) of the HBA (the Instrument), specifying the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor licence or supervisor certificate for general building work.

Role of the Tribunal

Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

Issues for determination

Whilst the Applicant's written submissions made reference to the decision of Egan v Commissioner for Fair Trading, Department of Customer Service [2021] NSWCATAD 209 at [13] in relation to the characterisation and application of the Instrument that the Tribunal should have regard to in this matter, it was acknowledged in oral submissions at the hearing by Mr Parajasingham, counsel for the Applicant, that the decision of the Appeal Panel in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 (Kalkan) applied to this matter. Having regard to that decision, I am satisfied that this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument.
In support of his Application, the Applicant provided details of his Certificate IV in Building and Construction and his Certificate III in Carpentry. The Respondent accepted that the Applicant satisfied the relevant qualification requirements and I find this to be the case.
It was not disputed by the parties that the issue to be determined in this matter is whether or not the Applicant satisfies the experience requirements to vary his concreter's licence to an individual contractor licence in the category of general building work.

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)