It is not in dispute that the Applicant has satisfied the qualification requirements under section 33D(1)(a) of the HBA. The key reason for refusal of the application is that he has not demonstrated that he has attained two years acceptable relevant industry experience in a wide range of building and construction work in accordance with section 33D(1)(b) of the HBA.
The Applicant's evidence is that in the past ten years he has been involved with Edwards Constructions (NSW) Pty Ltd ("Edwards Constructions"). He is an employee of Edwards Constructions. He presented material in relation to a number of Edwards Constructions projects which include works of a residential and commercial nature. The projects included a medical centre (with residential apartments), fire station, a courthouse, a TAFE building refurbishment, a toilet block and a multi deck carpark.
He submitted that the works all have the common elements of a building project, whether they are a residence or a commercial building.
The Applicant has acknowledged that he has not provided evidence of his experience that has been verified by adequate referees. However, he has stated that references from the referees who would be suitable to corroborate his experience have not been presented because those people have left Edwards Constructions' business and started their own construction businesses. The Applicant says that those potential referees are not in a position to provide references.
The Applicant has identified several people who held positions as key members of Edwards Constructions' delivery team. These include persons who held positions as Managing Director, Construction Manager and Senior Project Manager and Project Manager 2014 to 2017. All of those potential referees have retired or have started their own business in competition with Edwards Constructions.
The Applicant has provided references from some individuals. He provided a referee statement from Mr Pertii Tarjavaara, dated 21 December 2020. This reference relates to work identified as Coastwatch Residential Apartments, Kiama. The Applicant claimed that in 2016 he was the senior project manager on the design and construction of the Coastwatch apartments.
This Applicant's evidence is that Mr Tarjavaara supervised his work generally.
However, he has not provided evidence to contradict the Respondent's material which indicates that on 29 June 2021, Mr Tarjavaara advised that he:
1. had worked for Edwards Constructions from around 1983 to the early 1990's and again from 1994 but was not sure when he ceased employment with the company;
2. had been a foreman with Edwards Constructions but was not the nominated supervisor for the business;
3. had not worked on the Coastwatch Residential Apartments project at Kiama but had been asked by the Applicant's father, with whom he has been friends since the 1980's, to 'keep an eye' on the Applicant;
4. had supervised the Applicant 'on and off' during construction of the Shoalhaven Country Fire Authority building at Shoalhaven Heads and a public toilet block in Berry, however, the supervision involved visiting the applicant onsite from time to time; and
5. has never worked on any project where it was his job to supervise the Applicant.
The Applicant provided a referee statement from Mr John Dubbelaar to establish his experience in relation to the Jindabyne Public School, Jindabyne and Banksia Villages, Broulee. The experience that the Applicant claimed was performed under Mr Dubbelaar's supervision is related to tender, contract, project and construction management. The Applicant contends that although this was commercial work, it nonetheless had close parallels with residential building work.
The Applicant's evidence is that Mr Dubbelaar was a director of Edwards Constructions, held a licence and was the nominated supervisor of the company. The Applicant is an employee of Edwards Constructions, and was supervised by Mr Dubbelaar.
In the absence of evidence from relevant nominated supervisors to corroborate his work, the Applicant sought to provide his own evidence of his experience. He identified a number of projects on which he had worked. For example, he referred to work done in 2019 for Carrington Falls Fire Station where he had worked as site supervision and site manager for the early stages on site. There is no evidence available to establish the work that he undertook on that project. He further stated:
In 2010-11 (amongst other times) I worked on site supervising works for the Banksia Village. ...
There is no evidence available to establish what work he undertook on that project.
The Applicant outlined the types of work that he performed on the various projects and he contends that the tasks and activities that he has undertaken show that he can competently perform the roles and responsibilities of a licenced builder.
[2]
The Respondent's case
The Respondent submits that the Applicant has failed to provide the necessary evidence to allow for granting of the licence.
The basis for the submission is that the Applicant has not provided evidence that he was either an employee of, or a person otherwise lawfully engaged by, someone who held a relevant licence. The Applicant has provided no evidence that he was both supervised and directed in the doing of the work by the holder of that licence.
As noted, the Applicant claimed experience under the supervision of Mr Tarjavaara at Coastwatch Residential Apartments, Kiama from January 2014 to June 2016. However, the Respondent submits that the reference provided by Mr Pertti Tarjavaara provides no assistance in establishing that experience as Mr Tarjavaara was not the nominated supervisor for the business; he had not worked on the Coastwatch Residential Apartments project; and never worked on any project where it was his job to supervise the Applicant.
The Respondent submits that there is no evidence before the Tribunal from a referee/employer/supervisor that can establish that the Applicant gained experience at the Coastwatch Residential Apartments, Kiama.
Mr Dubbelaar was a referee to establish the Applicant's experience at Jindabyne Public School, Jindabyne from 12 January 2006 to 1 June 2007 (inclusive) and Banksia Villages, Heath Street, Broulee from 1 October 2010 - 10 June 2011 (inclusive). The Respondent submits that this reference provides no assistance in establishing that the Applicant has the relevant experience required for a licence as the experience claimed under Mr Dubbelaar's supervision is related to tender, contract, project and construction management of a commercial project. These are preliminary administrative duties, done before commercial construction. The tasks do not deal with residential building work as required for a licence under the HBA.
The Respondent submits that the work is fundamentally different from the specific experience of residential building work.
In the alternative, the Respondent submits that even if experience of a commercial nature is applicable for the licence for residential building work under the HBA, no evidence has been provided by the Applicant to establish that he was involved in anything other than administrative work under Mr Dubbelaar's supervision.
As noted, the Applicant has provided evidence of the work that he has undertaken on various sites. The Respondent submits that the Applicant's evidence provides no assistance to the Tribunal in determining whether he has the relevant experience as required under the Instrument.
The Applicant's submission is that there are potential referees that would be able to assist the Tribunal but that they are unable to provide references because they are in business in competition with Edwards Constructions. The Respondent submits that the Tribunal cannot assess whether those individuals can in fact provide any assistance in this matter. The Respondent submits that while the Applicant has asserted that he has undertaken a wide range of work he has not provided evidence to support those assertions.
In the Respondent's submissions, the Applicant is seeking the licence on the basis of his own evidence that he has the necessary experience but proffers no actual and verifiable evidence of the experience. The Respondent submits that to allow an applicant to obtain a licence under the HBA solely on statements that they have experience without providing evidence to verify the experience, would effectively render the HBA and the Instrument meaningless.
The Respondent submits that the Tribunal should affirm the decision to refuse the Applicant's application for the licence.
[3]
Discussion
As I have noted above, there have been a number of decisions of this Tribunal in which the view has been expressed that whilst the Tribunal is not bound to apply the Instrument, it nonetheless provides a useful guide to assist the Tribunal in deciding whether the Applicant's experience would enable him to do, or to supervise, the work that would be authorised by the licence that he is seeking. The approach to assessment of experience adopted by the Tribunal has been that an applicant alone cannot verify their own experience.
The majority of cases have considered experience gained under the supervision of a person who appropriately certified. However, in Shoobridge, Senior Member Molony noted that while direct evidence from a supervisor is the best evidence of relevant practical experience, evidence from a supervisor is not the only evidence which can demonstrate relevant experience.
It is necessary that an applicant for a licence under the HBA must show relevant industry experience in a wide range of building construction work. The Tribunal should not grant a licence unless it is satisfied that the Applicant has the knowledge and ability that would allow him to be held out to the public as a person who can perform the work that is authorised by the licence.
In this matter I am satisfied that some of the experience on which the Applicant relies may be relevant notwithstanding that it is commercial work. However, on the material before me it appears to be limited in nature and cannot be regarded as wide ranging work.
In Egan v Commissioner for Fair Trading, Department Of Customer Service I deal with a situation where the applicant was unable to provide a reference from a supervisor. The Applicant gave evidence that he had been employed and supervised by a licenced builder but that person refused to provide a reference in support of the application because of a professional disagreement and personal animosity. However, the applicant did provide references from a number of people who were able to provide evidence about the work that the applicant had undertaken and the standard of his work.
Similarly, in McGowen v Commissioner of Fair Trading the applicant provided independent evidence about the work that he had undertaken and the standard of his work.
In my view, the circumstances of this matter are not comparable to those in Egan v Commissioner for Fair Trading, Department Of Customer Service and McGowen v Commissioner of Fair Trading.
In this matter, the Applicant has identified individuals who could potentially give evidence about the work that the Applicant had undertaken and the standard of his work. However, there is no evidence to show that any of those individuals have refused to provide evidence. It appears that the Applicant has assumed that they would refuse because they are now in competition with Edwards Constructions. Even if the Applicant is correct in that assumption, it is by no means clear that there is nobody else who could provide evidence about the work that the Applicant had undertaken and the standard of his work.
The HBA is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency. By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the HBA and is authorised to do the work specified in his or her licence.
The requirement for referees to provide evidence about the work that an applicant had undertaken and the standard of that work ensures that those who are licensed meet the fitness, competency and solvency requirements of the HBA. This is consistent with the purposes of the HBA.
If the Applicant is correct, he may well have the experience that would enable him to do, or to supervise, the work that would be authorised by the licence that he is seeking. However, to allow an applicant to obtain a licence solely on their own evidence that they have that experience would effectively render the consumer protection purposes of the HBA ineffectual.
While the Applicant has asserted that he has undertaken a wide range of work he has not provided sufficient evidence to support those assertions. On the evidence before me, I am unable to be satisfied that the Applicant is able to satisfy the requirements of section 33D(1) of the HBA. The correct and preferable decision is therefore that the Respondent's decision to refuse the Applicant's application for the licence should be affirmed.
If the Applicant is able to obtain the evidence to establish his experience he may well achieve a different outcome if he reapplies.
[4]
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: 11 April 2022
The HBA is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 at paragraphs [9] and [10].
Section 20(1) of the HBA states:
20 Issue of contractor licences
(1) The Secretary must refuse an application for a contractor licence if -
…
(a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or
...
(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.
(3) The Secretary must refuse an application for a contractor licence if -
(a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or
Section 33B of the HBA provides for general requirements to be satisfied before an authority can be issued. For example, an applicant must not be disqualified from holding the authority; has not been the subject of an unreasonable number of complaints; is not subject to an order of the Tribunal and is not the subject of financial concerns such as bankruptcy, winding up or appointment of a controller or administrator.
No issues have been raised in regard to the requirements set out in section 33B of the HBA. However, the Respondent relies on sections 33C(1)(b)(i) and 33D(1)(b) & (c) of the HBA which provide:
33C Additional requirements for obtaining contractor licences
(1) A contractor licence must not be issued unless the Secretary is satisfied that -
…
(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
...
Section 33D(1) of the HBA specifies:
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.
…
Section 64 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act") provides:
64 Application of Government policy
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.
(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.
(4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.
(5) In this section:
"Government" policy means a policy adopted by:
(a) the Cabinet, or
(b) the Premier or any other Minister,
that is to be applied in the exercise of discretionary powers by administrators.
The Tribunal stands in the shoes of the Secretary and has the same powers as the Secretary for the purposes of this review. Accordingly it is necessary that the Tribunal determines whether or not the Applicant has had experience of such a kind and for such a period as would enable him to do, or to supervise, the work.
The Tribunal has jurisdiction to review the Respondent's decision of the Applicant's application for a contractor licence under section 83B(1) of the HBA, section 9 of the ADR Act and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW)("the NCAT Act").
Section 20(2) of the HBA provides that the regulations may fix or provide for the Director-General to determine additional 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.
The Respondent relies on an Instrument dated 31 March 2017 relating to qualification requirements for an endorsed contractor licence or supervisor certificate for general building work ("the Instrument"). The Instrument provides guidance on the experience requirements for the purposes of section 33D(1)(b) of the HBA.
Whilst the Tribunal is not bound to apply the Instrument, it nonetheless provides a useful guide to assist the Tribunal in deciding whether the Applicant's experience would enable him to do, or to supervise, the work that would be authorised by the licence that he is seeking: see discussion in McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 at paragraph [17].
The Instrument provides that an applicant needs to show 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 the application is made.
5 The Instrument defines "experience" as:
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 experience was gained ("the Work"), where during the relevant period, the applicant was:
(a) 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
(b) financially remunerated for the Work.
In Hale v Commissioner of Fair Trading [2015] NSWCATOD 1 Senior Member Isenberg discussed various aspects of "experience" that would satisfy the requirements of the Instrument.
In Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 Senior Member Molony commented on the views expressed in Hale. He stated at paragraphs [19] - [20]:
19. In my opinion s 13 of the Home Building Act 1989 clearly contemplates unqualified (and therefore unlicensed) individuals doing residential building work under the supervision or direction of the holder of an endorsed contractor licence or supervisor certificate. The extract Senior Member Isenberg quoted from the Explanatory Memorandum for the Bill provides clear evidence of a legislative intention that the individuals who carry out the work must either be appropriately licenced or supervised by someone who holds an appropriate licence. While I agree that s 12 and s 4 on their face appear to prohibit all unlicensed residential building work (with the exception of employees only), such an interpretation is inconsistent with the clear words of s 13(1). In reading the Act as whole it should be construed so as to give each provision meaning. The conclusion reached in Hale in my view is compelling. I note that it has been subsequently followed by the same member in Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20'
20. I therefore consider that relevant experience by a person who is engaged and paid as a subcontractor, which experience is gained under the supervision of a person who is the holder of an endorsed contract or a supervisor certificate, is experience gained by a person who is "lawfully engaged" for the purpose of the standard.
Each of these decisions contemplate that the relevant experience is to be gained under the supervision of a person who is appropriately certified. In Shoobridge, Senior Member Molony further stated at paragraph [69]:
"While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience."
I adopted this approach in Egan v Commissioner for Fair Trading, Department Of Customer Service [2021] NSWCATAD 209. At paragraphs [16] - [21] I discussed the approach to assessment of experience adopted by the Tribunal in a number of decisions and noted that it has been held that an applicant alone cannot verify their own experience; otherwise the system would be open to abuse.