Debono v Commissioner for Fair Trading

Relevant legislation

1. The Home Building Act 1989 (the Act) provides for the regulation of home building and specialist work in NSW.

Requirement to be licensed

1. Section 19(1) of the Act provides that the Director General may grant contractor licences for the purposes of this Act.
2. Section 20(3)(a) of the Act specifies that the Director General must reject an application for a licence if the Director General is not satisfied that any such requirement would be met were the contractor licence to be issued.

Offences

1. Section 4(1) of the Act makes it an offence to contract to do work without a licence. It states that: a person must not contract to do any residential building work, or any specialist work, except as on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its hold to contract to do that work.
2. Section 12 of the Act makes it an offence to do residential building work without a licence. It states that: an individual must not do any residential building work, or specialist work, except (a) as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or as the holder of an owner builder-permit authorising its holder to do that work, or (b) as the holder of an owner-builder permit authorising its holder to do that work; or (c) as an employee of the holder of such a contractor licence or permit.
3. Section 13(1) makes it an offence to do residential building work without the relevant qualifications. It states that: an individual must not do any residential building work, except: (a) as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner builder permit authorising its holder to do that work, (b) or under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work.

Requirements for granting of a licence

1. Clause 26(1)(b)(i) of the Home Building Regulation 2004 specifies that before a contractor licence is issued, the Director General must be satisfied that the applicant, amongst other criteria, complies with the requirements prescribed by clause 28(1).
2. Clause 28(1)(b) of the Home Building Regulation 2004 specifies that, before a certificate is issued, the Director General must be satisfied that the applicant 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.
3. The definition of "experience" is set out in those instruments gazetted under clause 28 of the Home Building Regulation. The relevant instrument is that dated 12 July 2013. According to this Instrument: "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 renumerated for the Work.
4. 'Lawfully engaged' means to be engaged in accordance with the Act.

Role of the Tribunal on review

1. The role of the Tribunal on review is to review the previous decision and to make the correct and preferable decision. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10.
2. The Tribunal may take into account new information not previously before the decision maker. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
3. In accordance with s63 of the Administrative Decisions Review Act 1997, the Tribunal may affirm, vary or set aside the original decision.

Background

1. In a letter received by the respondent on 9 April 2014, Mr Debono sets out his trade qualifications and experience. No objection has been made by the respondent to the information set out in the letter. Further information in relation to Mr Debono's qualifications is set out in the rest of the respondent's documents.
2. A certificate of proficiency contained on file confirms that Mr Debono completed his apprenticeship in carpentry and joinery and was awarded his Certificate III in Carpentry on 9 July 2010. On 1 February 2012, Mr Debono obtained his Certificate IV in Building and Construction (Building).
3. In his subsequent application for a contractor licence in the category of general building work, Mr Debono provided details of his experience between 8 September 2010 and 17 October 2013 and named Mr Troy Waller as his employer. In his referee statement, Mr Waller stated that Mr Debono has worked for him for 110 weeks and that his work during this time involved 'all aspects of residential building: framing, fixout, excavation, set out, concreting, plastering and flooring.'
4. In a subsequent telephone conversation with an officer of NSW Fair Trading, Mr Waller confirmed that Mr Debono had been subcontracting to him on a full-time basis and was not an employee. Mr Waller told the officer that Mr Debono did not really have experience in supervising the site. Mr Waller described Mr Debono as a 'good guy [who] works well however he still needs to gain more experience.'
5. On the basis of the evidence before him, the officer was not satisfied that Mr Debono met the requirements for the grant of a builders licence for the following reasons:

• he had been subcontracting without a licence and so was not lawfully engaged;
• he was not carrying out a wide range of building work, only alterations and additions ranging where they are not all major alteration work;
• he had not provided 24 months experience with the sites. The assessing officer found instead that he had approximately seventeen to eighteen months experience;
• he had not gained experience supervising the site.

1. In response to the decision to refuse his application for a contractor licence in the category of general building work, Mr Debono provided further details in relation to his building experience. In particular, he advised that whilst working with Clarke Building, Osti Construction, PM Construct and Form Projects, he had gained experience both in constructing new dwellings and carrying out renovations.
2. Mr Debono explained his inability to provide evidence in support of his work with these four companies: I did not disclose my experience at Clarke Building in my initial application because this company has been deregistered and is no longer operational in the building industry. As a result, I have been unable to contact Mathew Clarke to obtain a reference. Similarly, I did not disclose my experience at Osti Construction, PM Construct or Form Projects in my initial application because although I have made numerous attempts to contact these companies for references, and they have undertaken to provide them to me, I have not received them.
3. Mr Debono also submitted that whilst his referee, Mr Waller, was responsible for the oversight of all construction work undertaken under his business name, he was not always on site, in which case Mr Debono would coordinate and supervise the work on site.
4. The internal reviewer considered Mr Debono's submission in his decision dated 5 June 2014. In affirming the earlier decision, the internal reviewer found that Mr Waller's reference, which was the only one submitted in support of Mr Debono's experience, was not sufficient to show that Mr Debono had either the requisite two year experience in the industry or the breadth of experience in general building work. To rely on other experience apart from that gained whilst working for Mr Waller, the relevant referees' statements were required but not submitted. The internal reviewer also found that when working for Mr Waller, Mr Debono had not been the holder of a relevant contractor licence and so had not been 'lawfully engaged' in accordance with the Home Building Act.
5. In his application for review, Mr Debono requested that the decision be reviewed: in light of the fact that I received incorrect information from NSW Fair Trading when I made enquiries about obtaining a Carpenters Licence. Had I been given the correct information regarding my need for a Carpenters Licence at the time, I would have obtained my Carpenters Licence and as a result, my experience in the building industry would have been recognised for the purposes of obtaining my Builders Licence.
6. In support of his application for review, Mr Debono gave evidence to the Tribunal at hearing. He told the Tribunal that he had been working full-time in the building industry for seven years. During that time, he confirmed that had worked for Clarke Building, Osti Construction and PM Construct. He confirmed that he has continued to seek references in relation to this work but with no success. He told the Tribunal that, when working with Mr Waller, he was often left alone to supervise the site. Mr Debono confirmed that he was not an employee of Mr Waller but was, rather, a subcontractor to him.
7. Mr Debono told the Tribunal that upon completing his carpentry apprenticeship, he had gone to NSW Fair Trading in 2011 to apply for a carpenter's licence and a builder's licence. Whilst at NSW Fair Trading, he was told not to get the carpenter's licence but to apply, instead, only for a builder's licence. Depending on the result of this application for review, it is now Mr Debono's intention to apply for a carpenter's licence. Mr Maynard, who appeared on behalf of the respondent, invited Mr Debono to contact him in relation to his application for a carpenter's licence.
8. In light of the evidence provided by Mr Debono, Mr Maynard, who appeared for the respondent, submitted that whilst Mr Debono had 110 weeks experience on site, he did not have the breadth of experience required in that he had provided evidence only of his experience in renovations and alterations rather than new construction. Mr Maynard also submitted that because Mr Debono did not have a carpenter's licence he was not lawfully engaged in his work with Mr Waller.

Findings

1. The Tribunal is satisfied that Mr Debono has obtained his Certificate III in Carpentry and his Certificate IV in Building and Construction (Building). The Tribunal is also satisfied that he worked with Mr Troy Waller for a period of 110 weeks.
2. On the basis of the respondent's phone conversation with Mr Troy Waller on 13 March 2014 and Mr Debono's oral evidence at hearing, the Tribunal finds that Mr Debono was not an employee of Mr Waller but rather a subcontractor to him.
3. During the time he worked for Mr Waller as a subcontractor, the Tribunal finds that Mr Debono did not hold a contractor licence. This means that he was not licensed to undertake residential building work. The Tribunal accepts Mr Debono's evidence that upon the completion of his carpentry apprenticeship he had intended to apply for both a carpentry licence and a builder's licence.
4. The Tribunal also accepts Mr Debono's evidence, which he gave openly and in some detail, that he had acted on what he had understood to be the advice of an employee of NSW Fair Trading and had instead applied only for a builder's licence. This is unfortunate because in order to meet the definition of experience set out in the instrument relevant to clause 28 of the Home Building Regulation, Mr Debono must meet the requirement to have been employed or lawfully engaged, that is to be engaged in accordance with the Act.
5. The Tribunal has found that Mr Debono was not the holder of a contractor licence when he worked for Mr Troy Waller as a sub-contractor. Section 4 of the Home Building Act makes it unlawful for anyone to engage an unlicensed contractor as a contractor. Accordingly Mr Debono was in breach of section 4 of the Act and so was not lawfully engaged at this time.
6. Furthermore, when Mr Debono undertook residential building work for Mr Troy Waller as a subcontractor, he did not hold a licence to do so. He was therefore in breach of s12 of the Act and cannot be considered to have been lawfully engaged at these times.
7. Because Mr Debono worked during this period as an unlicensed contractor, he cannot be considered to have been lawfully engaged during this time and so cannot satisfy the definition of 'experience' during that time.
8. Accordingly, the Tribunal must affirm the respondent's decision that Mr Debono did not meet the 24 months experience requirement as he was neither an employee nor lawfully engaged during this time.

DECISION

1. The decision of the respondent to refuse the applicant's application for a contractor's licence in the category of general building work is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 07 April 2015 - Typo error 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: 07 April 2015