Fong v Secretary, Department of Customer Service

NCAT Occupational|2024-12-16

Overview

Mr Adam Fong (the Applicant) made an application under the Home Building Act 1989 (NSW) (HB Act) for an individual contractor licence (the Licence Application). Contractor licences are granted by the Secretary as defined by the HB Act. The application was refused. The refusal was subsequently affirmed after an internal review.
The Applicant has now made an application seeking an administrative review by the Tribunal of the decision to refuse the Licence Application (this Review Application).
The named Respondent for this Review Application is the Secretary of the Department of Customer Service. However, when the Licence Application was made, the Secretary was defined by the HB Act to mean the Commissioner for Fair Trading. This changed on 20 August 2022 because of the commencement of amendments made to the HB Act by Sch 3.6 to the Better Regulation Legislation Amendment (Miscellaneous) Act 2024 (NSW).
The effect of the amendments was to insert new definitions of "Secretary" and "Department" in the HB Act so that the Secretary is now defined to be the Secretary of the department in which the HB Act is administered. The HB Act is currently administered in the Department of Customer Service. Accordingly, the correct name for the Secretary for the purposes of the HB Act is currently the Secretary of the Department of Customer Service: cf Teyfouri v Secretary of the Department of Customer Service [2024] NSWCATAD 348 at [7]-[12].
Given this background, a reference in these reasons to the Respondent or Secretary in connection with action taken before 20 August 2024 should be read as a reference to the Commissioner for Fair Trading.
The central question in this Review Application is whether the Applicant has the required experience in the building industry to be granted an individual contractor licence under the HB Act. The Applicant claims he obtained the required experience while working as the employee of another person who held an appropriate contractor licence during the relevant period.

Legislative scheme regulating residential building work

The HB Act regulates residential building work in New South Wales. The Act has been described as essentially a consumer protection Act: Thukral v Commissioner for Fair Trading [2006] NSWADT 356 at [6]. It is for this reason that the Act creates a licensing scheme for residential building work aimed at ensuring that licensees are fit and proper persons and have appropriate qualifications and experience to do the work for which they are licensed. A contractor licence is one of the kinds of licences that can be granted under the Act.
Section 4(1) of the HB Act prohibits a person from contracting to do residential building work except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.
Section 19 of the HB Act enables the Secretary to grant contractor licences in accordance with the provisions of Pt 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW).
Section 20(2) of the HB Act enables the Secretary, by notice published in the NSW Government Gazette (the Gazette), to specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence. Section 20(3)(a) of the HB Act provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that any such requirement would be met were the licence to be issued. The Tribunal has no jurisdiction to review a decision of the Secretary relating to the specification of requirements by a notice under s 20(2): HB ACT, s 20(5).
The current notice under s 20(2) of the HB Act, which refers to itself as an instrument, is dated 20 November 2024: New South Wales Government Gazette, No 469, 29 November 2024 [NSWGG-2024-469-3] (the 2024 Instrument). For applications for a contractor licence received before 20 November 2024, the 2024 Instrument provides that the qualifications and experience required to be held or met are those specified in the instrument dealing with same matters immediately in force at the time the relevant application was made.
The Applicant made his application for a contractor licence while the notice dated 15 December 2022 (which also refers to itself as an instrument) was in force: New South Wales Government Gazette, No 596, 23 December 2022 [n2022-2574] (the 2022 Instrument). Consequently, the qualification and experience requirements specified in the 2022 Instrument continue to apply to the Licence Application.
The Applicant relies on the following experience requirement stated in the 2022 Instrument (the relevant experience requirement): "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."
There is no dispute that the Applicant holds the qualifications specified in the 2022 Instrument for the contractor licence he seeks.
I note that the relevant experience requirement also appears in the 2024 Instrument in the same terms. The definitions that support it are in substantially the same terms as in the 2022 Instrument.

Background to this Review Application

The Licence Application was made on 4 January 2024. The application sought an individual contractor licence under the HB Act in the category of general building.
A delegate of the Respondent refused the Licence Application on 8 May 2024 (the original decision). The refusal notice for the original decision given to the Applicant indicates that, based on the information provided, the delegate was not satisfied that the Applicant had attained two years of acceptable relevant industry experience in a wide range of building residential construction work. The refusal notice does not refer to the 2022 Instrument or any other comparable instrument. Rather, it sets out a definition of "Experience" that appears different to the definition in the 2022 Instrument. It also quotes a definition of "experience as an employee" which is not in the Instrument. The refusal notice states that the refusal was in accordance with section 33C(1)(b)(i) and section 33D(1)(b) of the HB Act.
On 4 June 2024, the Applicant sought an internal review of the original decision. The Applicant was notified of the decision on the internal review on 18 June 2024 (the internally reviewed decision).
The statement of reasons for the internally reviewed decision indicates that the internal reviewer refused the Licence Application because the Applicant did not demonstrate that he has had experience of such a kind and for such a period as the Secretary considers would enable him to do, or to supervise, the work for which the endorsed contractor licence is required in accordance with sections 33C(1)(b)(i) and 33D(1)(b) of the HB Act. The statement relies on the relevant experience requirement. In doing so, the statement points out that the original decision set out definitions of "Experience" and "experience as an employee" the source of which is unclear.
The internal reviewer varied the original decision concerning the statutory basis for the refusal. The statement of reasons identifies s 20(1)(a2) of the HB Act, rather than ss 33C(1)(b)(i) and 33D(1)(b), as the source of power. The reasons state that ss 33C(1)(b)(i) and 33D(1)(b) set out matters of which the Secretary must be satisfied rather than confer the power to refuse.
This Review Application was lodged with the Tribunal in July 2024. The application form stated the following ground: "I have been refused a contractor licence on the grounds that I did not have sufficient relevant industry experience. I believe that I have gained sufficient relevant industry experience in a wide range of Building Construction works that would satisfy the requirements. I have referee statements from my previous employer and also another builder who was able to supervise my onsite works to satisfy the minimum 2 years of experience. The Home Building Licensing Assessor has wrongly considered my previous experience inadequate which is why I now seek a further consideration by NCAT to consider my appeal."

Jurisdiction of Tribunal

The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or any other legislation: NCAT Act, s 28(1). Its jurisdiction includes administrative review jurisdiction: NCAT Act, s 28(2). The Tribunal has administrative review jurisdiction if enabling legislation enables a person to make an application to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision of an administrator: ADR Act, s 9: NCAT Act, s 30(1).
Section 83B of the HB Act enables applications for an administrative review under the ADR Act to be made to the Tribunal about certain decisions of the Respondent under the Act. For present purposes, s 83B(1) provides that an applicant for the issue of an authority who is aggrieved by a decision of the Respondent relating to the application may apply to the Tribunal for an administrative review under the ADR Act of the decision. An authority is defined to include a contractor licence: HB Act, s 83A (definition of "authority"). The Respondent's decision to refuse the Applicant's Licence Application is clearly a decision relating to his application.
Subject to certain exceptions that are not presently relevant, s 55(3) of the ADR Act requires an application for an internal review of an administratively reviewable decision to be duly made, and for the internal review to be finalised, before an application for an administrative review of the decision can be made to the Tribunal. Where an internal review affirms, varies or set asides and substitutes the decision of an administrator, s 53(8) of the ADR Act provides that the decision of the internal reviewer is: 1. taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer); and 2. taken to have been made on the date on which the applicant for the internal review is given a notice of internal review decision.
Consequently, it is the decision of the internal reviewer (rather than the decision of the original administrator) that is reviewed by the Tribunal on an administrative review.
As the original decision was internally reviewed and affirmed by the internally reviewed decision subject to the variation noted above, I am satisfied the Tribunal has administrative review jurisdiction over the decision to refuse the Licence Application.

Role of Tribunal on administrative review

The role of the Tribunal in an administrative review is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal must apply the law in force at the time of the review rather than the law in force at the time of the decision under review: Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 (Kalkan) at [43]-[52]; Snape v Commissioner of Police [2022] NSWCATAP 63 at [29].
When conducting an administrative review, the Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the decision-maker who made the decision: ADR Act, s 63(2). In doing so, the Tribunal effectively stands in the shoes of the decision-maker: Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [98]; NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 at [86].
Section 63(3) of the ADR Act provides that the Tribunal may determine an administrative review application by: 1. affirming the decision of the administrator under review; or 2. varying the decision; or 3. setting the decision aside and making a decision in substitution; or 4. setting the decision aside and remitting it to the administrator for reconsideration in accordance with any directions or recommendations of the Tribunal.
The Tribunal is not bound by the rules of evidence when it conducts an administrative review: NCAT Act, s 38(2). Nevertheless, as the Appeal Panel observed in Meacham v Commissioner of Police [2020] NSWCATAP 107: "54 Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on 'logically probative material', and not on 'mere suspicion or speculation', as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ('Pochi') at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ('Sullivan') at [5]−[8], [15]−[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. …… 81 Section 140 of the Evidence Act [1995 (NSW)], which sets out the standard of proof in civil cases to which that Act applies, is for Tribunal guidance only, and ordinarily a party seeking administrative review of government action is not required to establish its case on the balance of probabilities: Bronze Wing Ammunition v SafeWork NSW (No 2) [2016] NSWSC 988 at [76]-[77]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. 82 Rather, in an administrative review case, the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest. 83 Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on 'logically probative material': Pochi at 62, 68; Sullivan at [5]−[8], [15]−[17]."
The Tribunal must consider the matter afresh, with neither party bearing an onus of proof except for a practical onus on the party who asserts a fact to prove its existence: Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47].

Preliminary issue: proper statutory basis for applying relevant experience requirement

Before turning to the merits of this Review Application, it is first important to say something about the statutory basis for applying the relevant experience requirement. This is because the original decision and the internally reviewed decision used different statutory bases for applying the requirement to the Applicant. As noted above, the original decision used ss 33C(1)(b)(i) and 33D(1)(b) of the HB Act while the internally reviewable decision used s 20(1)(a1) read with ss 33C(1)(b)(i) and 33D(1)(b).
In the written submissions of the Respondent dated 6 December 2024 (Respondent's Written Submissions) at [59], the Respondent now appears to rely on s 20(3) of the HB Act for the statutory basis. I agree that this is the correct statutory basis for applying the relevant experience requirement.
The relevant experience requirement is imposed by the 2022 Instrument. The Instrument is expressed to be made "pursuant to section 20(2) of the [HB] Act" in its application to contractor licences. Section 20(2) enables the Secretary, by notice in the Gazette, to "specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence". Section 20(3)(a) requires the Secretary to refuse an application for a contractor licence if the Secretary is not satisfied that "any such requirement" would be met were the contractor licence to be issued. The reference to "any such requirement" in s 20(3)(a) is clearly a reference to something that an applicant is required to meet by a notice made under s 20(2) (which is located immediately before s 20(3)): Kalkan at [33].
Section 20(3)(a) imposes a duty on the Secretary (and, consequently, on the Tribunal on an administrative review) to refuse an application for a contractor licence if the Secretary (or the Tribunal) is not satisfied that a requirement specified in a notice under s 20(2) will be met were the licence to be granted. The Respondent suggests that s 20(3) confers a discretion: Respondent's Written Submissions at [59]. I disagree. There is no discretion conferred on the Secretary (or the Tribunal) to rely on different experience in substitution for a requirement specified in a notice under s 22(2) if the Secretary (or the Tribunal) is not satisfied that the specified requirement is met. Section 20(3) is expressed in mandatory terms as indicated by the words "must refuse".
Section 20(1)(a2), when read with ss 33C(1)(b)(i) and 33D(1)(b), operate differently.
Section 20(1)(a2) requires the Secretary to refuse an application if the Secretary, after considering evidence supplied by the applicant, is not satisfied as to the matters of which the Secretary is required to be satisfied by section 33C. Section 33C(1)(b)(i) prevents a contractor licence from being issued unless the Secretary is satisfied that, if the applicant is also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, that the applicant satisfies the requirements of s 33D for the issue of a supervisor certificate to the applicant. Section 33D(1)(b) requires the Secretary to be satisfied the applicant 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 tradesperson certificate is required.
Section 33D(1)(b), unlike s 20(3)(a), confers a discretion on the Secretary to decide whether the experience on which the applicant relies is sufficient. In this regard, it is worth noting that s 20(2) in its current form was inserted in the HB Act in 2021 by an amendment: Building Legislation Amendment Act 2021 (NSW), Sch 3[1]. The amendment replaced a provision that enabled the regulations to specify standards and requirements to be met by applicants, while s 20(3) was left unamended. Before 2021, the precursors to the 2022 Instrument were expressed to be made for the purposes of s 33D(1). Decisions of the Tribunal treated these precursor instruments as expressions of policy rather than as binding delegated legislation: see, for eg, Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 at [27]−[39]. The amendment in 2021 sought to overcome the effect of these decisions: Kalkan at [22]−[27].
Given this context, an experience requirement for applications for contractor licences imposed by a notice made under s 20(2) should be dealt with in accordance with s 20(3) rather than s 20(1)(a2) read with ss 33C(1)(b)(i) and 33D(1)(b). It follows that an application must be refused if the Secretary (or the Tribunal on an administrative review) is not satisfied that the applicant will meet the requirement were the licence to be issued: Kalkan at [33]-[34].
Accordingly, I will deal with this Review Application using this statutory basis.

Material before the Tribunal

I have had regard to the following material provided by the Applicant: 1. the Administrative Review Application lodged by the Applicant dated 15 July 2024. 2. The bundle of documents provided to the Respondent's legal representative on 16 October 2024 and also lodged with the Tribunal (Applicant Document Bundle 1). 3. The bundle of documents handed up by the Applicant at the hearing on 16 December 2024 and marked for identification as "A1" (Applicant Document Bundle 2).
Mr Mounarath, who appeared for the Respondent at the hearing, did not object to the Applicant handing up Applicant Document Bundle 2. The Bundle includes several character references about the Applicant, along with a Referee's Statement completed by Mr Tony Sarkis who claims to have employed the Applicant for the relevant period (the Second Sarkis Referee Statement). The Second Sarkis Referee Statement, which uses the form provided by NSW Fair Trading NSW Fair Trading for Referee Statements about General Building Work (Builder), lists 44 sites on which Mr Sarkis states the Applicant worked for him as an employee. There appears to be no dispute that Mr Sarkis was the holder of an appropriate contractor licence at the relevant times: Respondent's Written Submissions at [16].
Mr Mounarath, who had not previously seen Applicant Document Bundle 2, indicated at the hearing that he was prepared to accept that the documents in the Bundle were authentic. However, Mr Mounarath submitted that I should not rely on the Second Sarkis Referee Statement as evidence that the work detailed in the Statement was supervised and directed by Mr Sarkis. In addition, he submitted that I should not rely on the Statement as evidence of the Appellant's employment by Mr Sarkis because the precise nature of the working relationship between them is not set out in the Statement.
Although I allowed the Applicant to hand up Applicant Document Bundle 2 because the Respondent did not object, I accept the Respondent's submission that it would be inappropriate for me to rely on the Bundle as evidence in support of the findings to which the Respondent objects. This is because the Respondent was not afforded an opportunity to follow up on the content of the Statement with the persons mentioned in it or to cross-examine Mr Sarkis about it.
I have also had regard to the following material provided by the Respondent: 1. The bundle of documents lodged by the Respondent with the Tribunal for the purposes of s 58 of the ADR Act and marked as received by the AOED on 10 December 2024 (Section 58 Bundle). At the hearing, Mr Mounarath indicated that I should have regard to this version of the Bundle instead of an earlier version lodged with the Tribunal because it was more up to date. The Applicant did not object to me doing so. The Section 58 Bundle (at pp 27−29) includes an earlier Referee's Statement by Mr Sarkis dated 21 December 2023, also using the form provided by NSW Fair Trading for Referee Statements about General Building Work (Builder). This Statement will be referred to in these reasons as the "First Sarkis Referee Statement" to avoid confusion with the Second Referee Statement handed up at the hearing. 1. The Respondent's Written Submissions, which also include a copy of the documents in Applicant Document Bundle 1.
I note that the Respondent has not submitted that the Applicant has been dishonest or misleading in any of the material that he has provided, including material that forms part of the Section 58 Bundle. There has also been no suggestion by the Respondent of dishonestly in the statements by Mr Sarkis and other persons concerning the Applicant. Rather, the focus of the Respondent's submissions is that the evidence contained in this material is insufficient to support the Applicant's case. Accordingly, I will deal with the material on this basis.

Applicant's case

The Applicant, who is self-represented, did not lodge written submissions addressed to the Tribunal. In Majoor v Macquarie University [2022] NSWCATAP 213 at [36], the Appeal Panel said: "The Tribunal must ensure that a lack of legal skill or objectivity does not prevent a self-represented party from claiming rights (including claims, defences or legal errors) that are supported by the evidence. In Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 (1 February 2002) the Administrative Decisions Tribunal commented that we "should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us." A significant qualification to that principle is that the evidence supporting the claim must be before the decision maker. It would be wrong for a decision maker to suggest a claim, or to find in favour of a self-represented applicant, where there was insufficient evidence to support the claim."
With this in mind, the absence of written submissions addressed to the Tribunal setting out the Applicant's case is not fatal. Applicant Document Bundle 1 includes a letter addressed to NSW Fair Trading dated 15 October 2024. It is a written summary by the Applicant of his case even though it is not in the form of written submissions addressed to the Tribunal. For convenience, I will refer to this letter as the "Applicant's Written Submissions". Based on this letter and the Applicant's oral submissions at the hearing, it seems to me that the Applicant's case can be summarised as follows: 1. The Applicant claims he was employed by Mr Sarkis on a full-time casual basis from approximately June 2016 to January 2019, working 5-6 days per week. 2. Text messages between the Applicant and Mr Sarkis provided by the Applicant are said to provide evidence of the Applicant's employment and that Mr Sarkis would direct the Applicant as to where to work and what to do. The Applicant says he was not subcontracted to carry out specific jobs but was instead told which sites to go to each day and would carry out work as directed. 3. The Applicant claims his experience in the building and construction industry while employed by Mr Sarkis was diverse. He claims his work involved hands on work with tools and also overseeing and assisting other trades to carry out their works. He says examples of his work experience included basic carpentry and plumbing, formwork, concreting, roofing, tiling, gyprock and bricklaying. He says the work ranged from larger multi-storey buildings and houses through to smaller jobs including bathroom and kitchen renovations and structural additions and remediations.
The Applicant initially provided examples of 4 sites on which he claims to have worked for Mr Sarkis during the relevant period (the original 4 sites). Two of these are detailed in the First Sarkis Referee Statement. He also relies on the Referee's Statement provided by Mr Michele Petracca who he claims supervised work that the Applicant did on 2 other sites for Mr Sarkis (the Petracca Referee Statement). This Statement is set out at pp 23−25 of the Section 58 Bundle.
A list of an additional 24 sites headed "Additional Onsite Experience" was provided as part of Applicant Document Bundle 1 (the additional 24 sites). It was provided again in Applicant Document Bundle 2 as an attachment to the Second Sarkis Referee Statement. The Second Sarkis Referee Statement purports to verify that the Applicant worked on the additional 24 sites as an employee of Mr Sarkis.

Respondent's case

The Respondent submits that the issues for the Tribunal to consider are as follows (Respondent's Written Submissions at [14]): 1. Whether the Applicant's arrangement with Mr Sarkis and the work conducted under that arrangement falls within the meaning of an "employee" under the 2022 Instrument. 2. Whether the Applicant has at least two years' relevant industry Experience in a wide range of building construction work and, in particular, whether the Applicant was supervised and directed in the doing of that work. 3. What is the correct and preferable decision having regard to all of the material now before the Tribunal.
The Respondent submits that the Applicant has not provided sufficient evidence to verify that he was paid by Mr Sarkis as an employee for the relevant industry experience claimed by the Applicant: Respondent's Written Submissions at [28]. The Respondent submits the evidence would support the Tribunal inferring that the Applicant was a subcontractor rather than an employee: Respondent's Written Submissions at 28.
The Respondent submits that the Applicant has not provided sufficient evidence to verify two years' relevant industry experience in a wide range of building construction work: Respondent's Written Submissions at [29]−[57]. In addition, the Respondent submits the material provided by the Applicant does not establish that on the balance of probabilities he was supervised and directed by a holder of a contractor licence in the category of general building while doing this work: Respondent's Written Submissions at [58]. The Respondent also submits that the Applicant's work on the additional 24 sites was not verified by a Referee Statement from Mr Sarkis: Respondent's Written Submissions at [34]. I note this submission was included in the Respondent's Written Submissions before the Second Sarkis Referee Statement was handed up at the hearing.

Issues raised by this Review Application

The central question in this Review Application is whether the Applicant meets the relevant experience requirement. As mentioned above, the requirement mandates at least two years' relevant industry experience in a wide range of building construction work where the majority of the experience was obtained within 10 years of the date on which the application is made.
The relevant experience requirement cannot be understood without referring to several definitions used in the 2022 Instrument.
The term "Experience" is defined to mean the following: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a holder of a qualified supervisor certificate and as a nominated supervisor for the contractor licence held by; or (c) a holder of an endorsed contractor licence contracted to; or (d) a holder of a qualified supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to; or 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; or (e) a holder of a qualified supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work, held continuously for a minimum period of 2 years within 10 years from the date the application is made;
The term "Remuneration" used in the definition of "Experience" is in turn defined to mean the following: "Remuneration" means 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 arrangement between the applicant and any another party, where such payments are the only payments made to the applicant for the work which the applicant carried out.
The term "Relevant Application Form", also used in the definition of "Experience", is defined to mean the following: "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);
The Applicant seeks to rely on what he says is his previous employment with Mr Sarkis as the basis for meeting the relevant experience requirement.
Accordingly, for the Applicant to be granted a contractor licence in the category of general building based on the relevant experience requirement, the following must be shown: 1. The Applicant gained the experience on which he relies doing work as an employee of Mr Sarkis. 2. Mr Sarkis at the relevant times held a contractor licence in the category of general building. 3. The Applicant was supervised and directed in doing 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. 4. The Applicant received remuneration in accordance with law for the work. 5. The experience was for a period of at least 2 years in a wide range of building construction work. 6. The majority of the experience was obtained within 10 years of the date on which the Applicant made his application.
I do not understand the Respondent to be contending that the experience on which the Applicant relies was obtained more than 10 years before the Applicant's application. Also, as noted above, there appears to be no dispute that Mr Sarkis held an appropriate contractor licence at the relevant times.
With this in mind, I consider that the Review Application raises the following 2 issues for determination: 1. Issue 1 - Was the Applicant an employee of Mr Sarkis during the period of the work he relies on to show how he gained his experience? This is a threshold issue because the Applicant contends that the experience on which he relies was gained while he was doing work as an employee of Mr Sarkis. If he was not an employee, then the relevant experience requirement will not have been met. 1. Issue 2 - If the Applicant was an employee, did the work experience he relies on meet the 3 conditions necessary to satisfy the relevant experience requirement? The 3 conditions necessary for the Applicant to satisfy the requirement are: 1. The Applicant's experience must be in a wide range of building construction work over a period of at least 2 years. 2. The Applicant's work must have been supervised and directed by the holder of an appropriate licence or certificate and this is verified in a Relevant Application Form. 3. The Applicant must have received remuneration in accordance with law for the work.
I turn now to consider these 2 issues.

Issue 1 - Was the Applicant an employee of Mr Sarkis during the period of the work he relies on to show how he gained his experience?

Introduction

This issue first invites attention to when an applicant is an employee for the purposes of the 2022 Instrument.

When is an applicant an employee for the purposes of the 2022 Instrument?

The 2022 Instrument (along with its predecessor instruments) do not define what is meant by "employee", "employment" or "employed" for the purposes of the definitions of "Experience" and "Remuneration". Also, these terms are not defined by the HB Act. However, the definition of "Remuneration" in the Instrument suggests that, at the very least, a person must be employed on a "regular basis" rather than on an ad hoc basis. The inclusion of director's fees in the definition of "Remuneration" also suggests that the concept of employment used in the 2022 Instrument is wider than the traditional concept of employment, which typically involves the payment of wages or a salary.
Previous decisions of the Tribunal have interpreted the term "employee" broadly. In Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 (Hall 1), the Tribunal observed: "30 Taking a purposive approach to the interpretation of the Instrument, the requirement that an individual who does not otherwise hold a licence be an "employee" of a licence holder, in order for their experience to count towards the experience requirements in the Instrument, is to ensure that the work they are doing is adequately supervised and directed by the licence holder. It is not a requirement that the individual must be an employee in every legal sense of the word." 31 The Tribunal's approach is further bolstered by the definition of 'remuneration' in the Instrument … 32 The Instrument's definition of 'remuneration' is not limited to wages, which are generally understood as payments made on an hourly rate, or salary, which is generally understood as a fixed payment per year (or other period). It includes 'director's fees paid to an applicant on a regular basis', which are not paid to employees, but rather paid to the directors of companies. Considering what types of the payments the definition includes and excludes, there appears to be a clear delineation between payments made on a regular basis for work completed by an individual working for a company - salary, wages and regular director's fees; and payments which are occasional and often discretionary, connected to the income and profit of a company bonuses, commissions, allowances or ad-hoc payments. Contextually this makes sense having regard to the purpose of the Instrument in the legislative scheme, which is to ensure that an individual has had sufficient experience to do the work for which they are being licensed. 33 The definition of 'remuneration' in the Instrument thereby further demonstrates that an "employee" under the Instrument must be considered by its broader ordinary meaning, being 'a person working for another person or a business firm for pay', rather than its narrower legal meaning. There was no dispute that the Applicant was working for Technique and Mr Deerness for pay. According to this broad understanding of "employee", the Applicant's work would therefore be considered valid "experience" within the meaning of the Instrument."
Similarly, in Zada v Director-General, Department of Finance & Services, NSW Fair Trading [2014] NSWCATOD 16 (Zada), the Tribunal said in relation to a previous version of the 2022 Instrument: "36 In the absence of a statutory definition of 'employee' in the HB Act, the word must take its ordinary meaning - 'a person working for another person or a business firm for pay' (Macquarie Online Dictionary). A simplistic distinction between an employee and an independent contractor (or subcontractor) is that the former works for another while the latter works for himself. In earlier times the main indicator of an employment (master/servant) relationship was the control exercised by one person over another, but nowadays it is 'the totality of the relationship between the parties which must be considered': Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29, cited with approval in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41. Supervision and direction are often very relevant to the enquiry. Those concepts are also relevant to the experience' question, as is evident from their use in paragraph (c) of the definition in the Instrument. 37 That is why it may be more instructive to start the enquiry by considering the level of supervision and direction provided by the licence holder rather than to focus on either the label used or the tax arrangements in place. The greater the level of supervision and direction, the more likely it is that an employment relationship exists. And if the worker is not closely supervised and directed, then he or she is not likely to reach the requisite level of "experience" in any event, no matter what label has been applied to the relationship. The proper task is to examine 'the totality of the relationship between the parties'"
The Tribunal in Hall 1 at [35] decided to consider whether the applicant was employee (rather than a subcontractor) having regard to the strict legal meaning of employment in case it was wrong about its broad interpretation of "employee". As the arrangement before was not evidenced by a contract or written agreement (as is the case in these proceedings), the Tribunal still found that totality of the relationship between the parties indicated the applicant was an employee rather than a independent contractor having regard to the traditional multi-factor approach used by the High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 (Hollis): Hall 1 at [34]-[70].
In Commissioner for Fair Trading v Hall [2023] NSWCATAP 320 (Hall 2) at [63], the Appeal Panel on an appeal from the decision in Hall 1 held that the Tribunal in Hall 1 did not fall into appealable error because its decision "was in conformity with the approach recorded in the Hollis judgment and the findings of fact made by the Tribunal were open on the evidence". This suggests that the Appeal Panel considered that the multi-factor approach used in Hollis should be applied and not simply the broad test suggested in Hall 1 and Zada concerning whether a person was working for another person or a business firm for pay.
The following factors were considered relevant in Hollis: 1. Provision of skilled labour This factor concerns whether the worker is providing skilled labour. A worker who provides unskilled labour may indicate that the worker is not an employee if the unskilled work is evidence that the worker is unable to make an independent career or generate goodwill: Hollis at [48]; Hall 1 at [53]. 1. Control over manner of doing work This factor concerns how much control the alleged employer has over the manner in which the worker does work. Control by an alleged employer over such matters as the hours worked, rostering or whether work can be refused may indicate that a worker is an employee rather than contractor: Hollis at [49]. 1. Representing worker as part of business This factor concerns whether a worker was represented to the the public and clients of the business as an emanation of the alleged employer. For example, requiring a worker to wear a uniform with the alleged employer's logo may indicate that the worker is an employee: Hollis at [50]; Hall 1 at [54]. 1. Deterrence This factor concerns whether fixing an alleged employer with responsibility for a worker's wrongful conduct would have a deterrent effect on future harm: Hollis at [53]. This factor must be understood having regard to the law of various liability. An employer can be vicariously liable for an employee's conduct but will not be vicariously liable for the conduct of an independent contractor: Bird v DP (a pseudonym) [2024] HCA 41 at [63]. It should be noted that Hollis was concerned with whether a corporation was vicariously liable for the conduct of its couriers. It is unclear what significance (if any) should be given to deterrence in cases, such as the present case, where the question of vicarious liability is not in issue. 1. Superintendence of worker's finances This factor concerns whether the alleged employer managed or directed the worker's finances. The following may indicate a worker is an employee (Hollis at [54]-[55]): 1. The alleged employer requires the worker to dispute pay statements within a specified timeframe. 2. The alleged employer provides insurance for the worker. 3. The worker has no bargaining power concerning the rate of remuneration for work done. 4. The alleged employer places limits on when the worker can take annual leave and directs how and when applications for leave are to be made. To these matters, I would add that a worker is more likely to be an employee rather than a subcontractor if the alleged employer withholds income tax for the worker or contributes to the worker's superannuation. However, the fact that an applicant personally pays income tax or makes the applicant's own superannuation contributions does not necessarily prevent the applicant from being an employee if there are other factors pointing to an employment relationship: Hall 1 at [56]-[66]. 1. Provision and ownership of tools or equipment This factor concerns whether the alleged employer or the worker owned or supplied tools or equipment used by the worker to do work. If an alleged employer provides a worker with the tools or equipment to do their work, this points to an employment relationship. However, if a worker provides and maintains equipment used for work, this does not necessarily indicate that the worker is not an employee if the capital outlay is relatively small and the equipment is not inherently capable of use only for that work (for example, a bicycle used for courier work can also be used for personal transportation): Hollis at [56]; Hall 1 at [67]. 1. Control over work allocation This factor concerns whether the alleged employee exercised actual control that was not collateral or incidental over the work done by the worker. It is a factor that is a corollary to the factor mentioned in (2) above: Hollis at [57]. A worker is more likely to be an employee if the worker is given little or no latitude by the alleged employer concerning the allocation of work or how to do the work: Hollis at [57]. By contrast, a power to delegate work given by the alleged employer to a worker may indicate that the worker is an independent contractor rather than an employee: Hall 1 at [47].
It is important not to apply this multi-factor approach to the 2022 Instrument as if the Tribunal were determining employment in its strict legal sense. As the Appeal Panel noted in Hall 2 at [66]: "In our view, the interpretation given by the Tribunal [in Hall 1] to the requirements of the Instrument, in particular as to the meaning of employee in the circumstances, was an interpretation consistent with the consumer protection purposes of the HB Act . Further it could lead to an inconsistency if a narrower interpretation of 'employee' were adopted in the interpretation of the Instrument. Such an interpretation could carry forward to narrowing the interpretation of the application of ss 132 and 136 of the HB Act reducing the scope for protection of consumers. This was a matter raised in the Respondent's submissions and we agree with it." (I note that s 132 of the HB Act concerns when the state of mind of an employee will be attributed to a corporation, while s 136 concerns offences by employees).
There is another aspect of the definition of "Experience" in the 2022 Instrument that suggests a broad approach should be taken to deciding whether a person is an employee. The definition requires an applicant during the relevant period to have "received Remuneration in accordance with law for the Work which the applicant carried out". The Instrument does not require the remuneration to be paid directly by the employer to the applicant. The remuneration can be paid indirectly, for example, by paying a company owned by the applicant who then pays it to the applicant: Hall 2 at [64]-[65]. As I noted above, a strict view of what is meant by an employee would likely require the employer to pay wages or a salary to the employee directly.
In my view, whether a person is an employee for the purposes of the 2022 Instrument depends on whether the evidence indicates that the person was paid to work principally for the alleged employer rather than independently for themselves: cf Zada at [36]. This distinction is similar to the distinction drawn for the purposes of general employment law between independent contractors and employees. It is for this reason that the factors identified in Hollis are also relevant in deciding whether a person is an employee for the purposes of the 2022 Instrument. However, these factors should not be applied inflexibly and without regard to the different context in which employment is used for the purposes of the HB Act.

Consideration

The statement of reasons for the internally reviewed decision states the following concerning the factors relied on by the Applicant to show he was employed (Section 58 Bundle at p 6): "In the internal review submission, Mr Fong provides excerpts from the Revenue NSW and the Fair Work Ombudsman websites regarding factors used by these agencies to determine employee/contractor status. Mr Fong contends he was an employee of Mr Sarkis based on these factors because he was always directed on work to carry out with no control over the job nor method, he had a verbal agreement with Mr Sarkis for full-time employment for at least two years for 5-6 days per week, he worked solely for Mr Sarkis without carrying out work for other businesses, Mr Sarkis supplied all tools and materials, he did not have financial responsibility or risk, and he could not delegate nor subcontract work and only did as instructed. As each agency operates under its own specific legislation and regulatory framework with distinct criteria and objectives, the factors considered by other government agencies to determine a person's status as an employee or contractor are not relevant when determining whether Mr Fong satisfies the experience criteria prescribed by the Instrument for an authority under the [HB Act]."
The internal review submission referred to by the statement of reasons is contained in an email on 4 July 2024: Section 58 Bundle at pp 112−117. The submission states (at p 113): "• Throughout my employment with Mr Sarkis I was always instructed on the work to carry out and did not have the ability to select what to do or the way that it was to be completed. Each day I was told which site to attend and the work that was required. • When I initially started working for Mr Sarkis we had a verbal agreement that he would employ me on a full time basis between 5-6 days per week so long as I agreed to work for him for a minimum of 2 years. • Throughout my employment I was working solely for Mr Sarkis and did not carry out any work for any other businesses. • Mr Sarkis would supply all of the tools and materials required and I did not have any financial responsibility or risk. • Whilst working for Mr Sarkis I was not able to delegate or subcontract any of the work, and only did as instructed."
The factors relied on by the Applicant (and in the excerpts attributed to Revenue NSW and the Fair Work Ombudsman) appear to be based on the decision in Hollis. With respect, the internal reviewer was wrong to suggest these factors were irrelevant. Significantly, the internal reviewer does not suggest that the Applicant was being dishonest or misleading about the presence of these factors in his relationship with Mr Sarkis. The only suggestion is that they are irrelevant.
Whether the Applicant was an employee of Mr Sarkis requires a closer consideration of the following factors mentioned in Hollis: 1. Provision of skilled labour There can be little doubt that building work may involve skilled labour with the level of skill required dependent on the kind of work being done. However, there is a need for a person starting out in the building industry to be trained to develop those skills. In such a situation, the work done by the person for a builder who trains the person is less likely to be work done as an independent contractor. Mr Sarkis wrote a reference letter for the Applicant dated 23 April 2024 (the Sarkis Reference Letter): Section 58 Bundle at pp 80−81. In the letter, Mr Sarkis states that the Applicant began working for him in June 2016 when the Applicant "was seeking to make a start in the building and construction industry". Mr Sarkis refers to the Applicant having gained "vast experience" in various aspects of the building and construction industry while working for Mr Sarkis. In doing work, Mr Sarkis states the Applicant "carried out various works as directed by the site foreman/builder in charge on the sites". Finally, Mr Sarkis states the Applicant has been working at his own business since January 2019 after "ceasing employment with me". The Sarkis Reference Letter supports an inference that the Applicant was doing work for Mr Sarkis for the purpose of learning the skills required for building work and not independently. This inference is also supported, at least in relation to 2 building sites, by a reference letter from Mr Petracca also dated 23 April 2024 (the Petracca Reference Letter): Section 58 Bundle at p 91. Mr Petracca states that, in his capacity as the site foreman/builder in charge, he supervised the Applicant who was doing the work as an employee for Mr Sarkis. Mr Petracca states Mr Sarkis (rather than the Applicant) was subcontracted to do the work at the sites. 1. Control over manner of doing work and work allocation It is useful to consider the second and seventh factors mentioned in Hollis together because, as the High Court noted, they are corollaries. The Sarkis Reference Letter states that Mr Sarkis would "send Adam to various jobs": Section 58 Bundle at p 80. It also states that the Applicant "working for me ranging from 5-6 days per week" beginning in June 2016 until the end of January 2019. The Applicant confirmed this arrangement in a Statutory Declaration dated 23 April 2024 (the Applicant's Statutory Declaration): Section 58 Bundle at pp 74−75. The Declaration states (at p 74): "I first began working for Mr Tony Sarkis in the building and construction industry around June 2016. I worked for Mr Sarkis full time averaging between 5-6 days per week until around January 2019 when I started my own business in the same industry. After this period I also went back to work for Mr Sarkis on multiple occasions to work at various sites when I was required." The Applicant also stated in the passage from his internal review submission set out above that Mr Sarkis always instructed on the work to carry out and that the Applicant did not have the ability to select what to do or the way in which it was to be done. He also states that he was told each day which site to attend and the work required. The Applicant says he was not able to delegate or subcontract. As indicated above, the statement of reasons for the internal review considered this to be irrelevant to the issue of whether the Applicant was an employee. The Respondent has not challenged the Applicant's statements in his internal review submission concerning the degree of control Mr Sarkis had over the Applicant's workload. There is also evidence in the Applicant's text messages with Mr Sarkis indicating that the Applicant would seek, and Mr Sarkis would provide, direction about the Applicant's work: Applicant Document Bundle 1, SyncTech backup files of conversations with Tony Sarkis at pp 1−51. The material provided to the Tribunal shows that the Applicant was working for Mr Sarkis on a full-time casual basis during the period concerned and that Mr Sarkis directed the Applicant as to where and when he was to work. This points to an employment relationship. 1. Representing worker as part of business There appears to be no direct evidence concerning whether the Applicant wore a uniform that represented that he worked for Mr Sarkis. However, the Petracca Reference Letter indicates that Mr Petracca thought the Applicant was an employee of Mr Sarkis when the Applicant worked on the sites to which the Letter relates. This suggest the Applicant was represented as being part of the business of Mr Sarkis and points towards an employment relationship. 1. Deterrence As I indicated above, it is unclear what weight (if any) should be given to the factor of deterrence where vicarious liability is not in issue in the proceedings. In Hall 2 at , the Appeal Panel considered that the Tribunal in Hall 1 at [43] dealt with deterrence. With respect, in the specified passage from Hall 1 the Tribunal was considering the degree of control and supervision the alleged employer had over the applicant (as indicated by the heading under which it appears). There was no suggestion that finding the applicant to be an employee would have had a deterrent effect. I do not consider the factor of deterrence assists in deciding whether the the Applicant was an employee of Mr Sarkis. 1. Superintendence of worker's finances The Applicant addressed the arrangements for his pay and superannuation in a Statutory Declaration dated 23 April 2024 (the Applicant's Statutory Declaration): Section 58 Bundle at pp 74−75. The Declaration states: "I was employed by Mr Sarkis through my own ABN and was responsible for my own superannuation". This is confirmed in the Sarkis Reference Letter: Section 58 Bundle at p 80. The details for the ABN used to pay the Applicant indicate that the Applicant's name was the entity name, with a different business name specified for the ABN: Section 58 Documents at p 86. The bank statements on which the Applicant relies to show payments made by Mr Sarkis are consistent with the use of the ABN in this way: Section 58 Bundle at pp 60−73. As I suggested above, an alleged employer making superannuation contributions for a worker may point towards the worker being an employee. However, this does not mean that a failure to make such contributions shows the converse. Also, being paid through a business with a registered ABN rather than personally does not necessarily mean that the Applicant was not being paid for his work as an employee: cf Hall 2 at [64]-[65]. Ultimately, I do not consider that the use of the Applicant's ABN for payment and the Applicant making his own superannuation contributions necessarily shows he was an independent contractor rather than an employee. As the Tribunal noted in Hall 1 at [65]: "The indicia set out in Hollis regarding remuneration are clearly more easily applicable to low paid, unskilled or unsophisticated workers. They also assume that the company or employer is complying with their taxation and employment law obligations. The ability for an employee to set their own remuneration and manner of payment is not unusual in the context of an employment relationship between a company and a more sophisticated worker, especially where there is a previous professional or personal relationship with the individuals involved in those negotiations. Casual employees are generally not provided with sick or annual leave. It is also not unusual for a highly paid employee to take out their own personal insurances, irrespective of their employer's insurances. This is especially so in an industry where there is a predominance of casual employment, or where work is project based and there may be gaps in employment as a result." It should also be noted that the Applicant in his internal review submission stated he was paid above the award rate, which he said was also the reason for his varying work hours and amounts paid to him for his work: Section 58 Bundle at p 112. Text messages with Mr Sarkis on 13 and 14 November 2018 suggest the Applicant was negotiating an increased hourly rate when he asked to be paid using his ABN: Applicant Document Bundle 1, SyncTech backup files of conversations with Tony Sarkis at pp 30−31. There is no direct evidence as to whether the Applicant was successful in his negotiations. Assuming he was, I do not consider that a worker being able to negotiate better pay necessarily points towards there not being an employment relationship. An employer may agree to a pay increase because they value an employee's work rather than because of a threat to leave. There is no suggestion in the text messages that the Applicant was threatening to leave if he was not better paid. In my view, these arrangements concerning the remuneration amounts and payment methods do not point definitively either towards or against an employment relationship; they are neutral. 1. Provision and ownership of tools or equipment The Applicant stated in the passage from his internal review submission set out above that Mr Sarkis would supply all the tools and material required: Section 58 Bundle at p 113. As mentioned above, the internal reviewer did not dispute this. Rather, the internal reviewer considered it to be an irrelevant factor. The Applicant's statement has not been disputed in this Review Application. In these circumstances, I consider it appropriate to accept what the Applicant says about the provision of tools. It is a factor that points towards an employment relationship.
I also note that both Mr Sarkis and the Applicant appear to have considered their relationship to be an employment relationship rather than a subcontracting relationship. Indeed, the First Sarkis Referee Statement indicates that Mr Sarkis provided it on the basis that the Applicant was his employee: Section 58 Bundle at p 27 (the box for "Employee" under "Nature of employment" is ticked rather the box for "Sub-Contractor").
It is true that how parties to a working relationship label their relationship is not determinative of whether it is an employment or other working relationship; the totality of the relationship must be considered: Hall 1 at [41]. Nevertheless, the view of the relationship shared by both Mr Sarkis and the Applicant seems to me to be a relevant (although not determinative) factor, along with the other factors mentioned above, when considering the totality of their relationship.
The factors I have mentioned indicate that the Applicant was paid to work principally for Mr Sarkis rather than independently for himself. Accordingly, I am on balance satisfied there is sufficient material before the Tribunal to support a finding that the Applicant was an employee of Mr Sarkis for the purposes of the 2022 Instrument during the period beginning in June 2016 until the end of January 2019.

Issue 2 - If the Applicant was an employee, did the work experience he relies on meet the 3 conditions necessary to satisfy the relevant experience requirement?

Condition 1 - The Applicant's experience must be in a wide range of building construction work over a period of at least 2 years.

In Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45], the Tribunal said: "The Instrument requires the Applicant to have undertaken a 'wide range of building construction work'. The Respondent's submissions are to the effect that a 'wide range' should include new buildings and structural works, or at the very least, extensions or renovations to current dwellings which are significant enough to warrant development approvals and/or home warranty insurance, and demonstrably change the aerial view of a dwelling. I disagree. The requirements in the Instrument are deliberately broad, and I agree with the Applicant's submission that the Instrument does not specify what weighting and value to be ascribed to "structural experience" as opposed to refurbishment or renovation work for residential dwellings, or how that would be calculated. I also agree with the Applicant's submission that the process and methodology of construction may be more complex for an existing building, renovation or refurbishment than in simply erecting a new building."
The Applicant also points to Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 (Wilmot) concerning what constitutes a wide range of building construction work: Applicant's Written Submissions. In Wilmot at [89], the Tribunal held: "I find that Mr Wilmot has experience in a wide range of building construction work. He has experience in bricklaying, carpentry, waterproofing, concreting, plastering, painting, rendering, roofing, formwork, demolition, tiling, steel fixing, window installation and scaffolding. He has also had a significant amount of experience supervising tradespersons across a wide range of trades. Some of his experience is doing or supervising structural work. I am satisfied that he has had at least two years' experience in a wide range of building construction work."
The Applicant submits that he did this range of work while employed by Mr Sarkis.
The Tribunal in Wilmot at [100] also considered that building construction work on commercial sites (as opposed to residential building work within the meaning of the HB Act) could be relevant in deciding whether an applicant had a wide range of experience in building construction work. I agree. The relevant experience requirement is "wide range of building construction work" rather than "wide range of residential building work".
The original decision and internally reviewed decision were limited to considering work done by the Applicant at the original 4 sites. Two sites were verified by the First Sarkis Referee Statement. The other 2 sites were verified by the Petracca Referee Statement.
Even assuming that the other 2 conditions mentioned below were satisfied in relation to the original 4 sites, I do not consider that they would on their own be enough to show that the Applicant had obtained sufficient experience over at least a 2-year period in a "wide range" of building construction work. More than 4 sites would be required.
That said, the work of the Applicant on the additional 24 sites could, if appropriately investigated and assessed, have the potential to verify experience in a wide range of building construction work. The explanations for the work alleged to have been done by the Applicant on these sites appears to me to cover a wide range of building construction work of the kind found to be sufficient in Wilmot.
However, the difficulty for the Tribunal is that the Second Sarkis Referee Statement has not yet been investigated and assessed by the Respondent, and the Respondent has been unable to make submissions to the Tribunal about it, because the Statement was handed up at the hearing. As I indicated above, it would be inappropriate for the Tribunal to make findings relying on the Statement without first affording the Respondent with an opportunity to investigate and assess its contents.

Condition 2 - The Applicant's work must have been supervised and directed by the holder of an appropriate licence or certificate and this is verified in the Relevant Application Form.

This condition is satisfied if: 1. the Appellant's work was supervised and directed by the holder of either an endorsed contractor licence or qualified supervisor certificate authorising its holder to supervise the work; and 2. this is verified in the Relevant Application Form.
The requirement for supervision and direction merely requires the holder of "an" (rather than "the") endorsed contractor licence to supervise and direct the work. It does not require the employer for whom the applicant worked to gain the experience to supervise and direct the applicant. This interpretation is also supported by the fact that supervision and direction by the holder of a qualified supervisor certificate is expressly mentioned as an alternative.
Accordingly, an absence of evidence to show Mr Sarkis personally supervised and directed the Applicant in all his work does not necessarily preclude a finding that the work was appropriately supervised and directed.
The condition also requires "this" to be verified by a Relevant Application Form. Given the context in which it is used, "this" appears to refer to the supervision and direction rather than to just the work itself.
As noted above, the 2022 Instrument defines "Relevant Application Form" to mean the relevant application form for the licence or certificate being applied for that is published on the NSW Fair Trading website. There seems to be no dispute that the Form applicable for the Licence Application is the Form for a Referee Statement for General Building Work (Builder). Both the First and Second Sarkis Referee Statement appear to use this Form, as does the Petracca Referee Statement.
The Respondent submits that the First Sarkis Referee Statement and the Petracca Referee Statement do not demonstrate that either Mr Sarkis or Mr Petracca supervised and directed the Applicant's work.
At the hearing, the Applicant submitted that the Form is misleading because it does not ask for information about how an applicant was supervised and directed at a site. There is merit in the Applicant's criticism.
The Form simply asks for information to be listed about the applicant's role and responsibilities at the site. The direction for providing the site address asks the statement provider for the address of the building site "where you supervised the applicant". There is a separate box requiring the provider to indicate the name and licence number of the builder controlling the site. Finally, the direction for the signature block 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".
The Form clearly suggests that the statement provider is indicating they supervised the applicant's work on the site simply by filling out the details for a site and signing the Form.
That being the case, there is a strong argument that a statement provider should be taken to be verifying that the provider supervised and directed the applicant's work on the site being verified.
In my view, both the First Sarkis Referee Statement and the Petracca Referee Statement therefore provide prima facie evidence that the Applicant's work was supervised and directed on the original 4 sites. In relation to the Petracca Referee Statement, Mr Petracca provided the Statement in his capacity as a supervisor. Mr Petracca completed the section requiring him to specify that he is the holder of "Qualified Supervisor Certificate/Licence Number". The Respondent has not submitted that Mr Petracca does not hold the appropriate certificate or licence.
However, for the reasons given above, it would be inappropriate for the Tribunal make findings based on the Second Sarkis Referee Statement about whether Mr Sarkis supervised and directed the Applicant's work on the additional 24 sites.

Condition 3 - The Applicant must have received remuneration in accordance with law for the work.

The Applicant relies on redacted bank statements indicating payments from Mr Sarkis as evidence that he was paid for his work: Section 58 Bundle at pp 60−73. He also relies on text messages with Mr Sarkis concerning payments: Applicant Document Bundle 1, SyncTech backup files of conversations with Tony Sarkis at pp 1−51. The Respondent appears to concede that the payments revealed by the bank statements were corroborated by the text messages produced by the Applicant: Respondent's Written Submissions at [23].
The Respondent nevertheless submits the bank statements and text messages are insufficient to verify that the Applicant received remuneration in accordance with law for the work done to gain the experience on which he relies: Respondent's Written Submissions at [28]. The Respondent submits that the redactions to the bank statements, and the unredacted debits and credits, have not been explained by the Applicant: Respondent's Written Submissions at [24]
It is true that the bank statements are limited in nature. They relate to 10 payments made between 18 November 2018 until 19 August 2019. However, the Applicant's Statutory Declaration attributes the lack of bank statements to the Applicant closing a previous bank account into which payments were made with the result that he no longer has access to relevant statements for that account: Section 58 Bundle at p 74. It is not suggested by the Respondent that this is untrue.
The requirement for the receipt of remuneration in accordance with law must be understood having regard to the definition of "Remuneration" in the 2022 Instrument. The definition indicates that the wages, salary or director's fees must be 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. The central focus of the definition is the receipt of regular payments for services under a contract of employment or industrial instrument. For this purpose, the definition does not require a written contract of employment. The Applicant claims his contract with Mr Sarkis was verbal. Whether the contract should have been in writing is an issue I do not need to determine.
Where work is done as an employee, I do not consider it is necessary for evidence to be provided about what the applicant was paid for work done on each and every site on which the applicant relies. It will be sufficient if there is evidence to show that the applicant generally received regular payments from their employer for work done as an employee. Indeed, an arrangement that did not involve such regular payments would be unlikely to be an employment arrangement covered by the 2022 Instrument.
In deciding whether payments are regular, account must be taken of the nature of the building industry. As the Tribunal observed in Hall 1 at [65], employment in the building industry involves predominately casual employment and there may be gaps in employment where work is project based.
In my view, the bank statements and text messages provided by the Applicant are sufficient to show that generally the Applicant was being paid on a regular, albeit casual, basis for his work for Mr Sarkis. The absence of more bank statements can be explained by the Applicant closing an account in which payments had previously been made. The evidence is still sufficient, in the absence of contrary evidence, to support an inference that the Applicant was paid for the work on the sites on which he relies.
Also, as mentioned above, the making of payments by means of the Applicant's ABN rather than by payment into a purely personal bank account does not mean that the Applicant did not receive payment. Hall 2 held that remuneration does not need to be paid directly to the applicant and can be paid through an applicant's business. This is consistent with what was said in Zada at [37] about not unduly focusing on the tax arrangements in place concerning payments.
I therefore consider that, on balance, there is sufficient evidence to support a finding that the Applicant was paid remuneration by Mr Sarkis in accordance with law for the work that the Applicant did as an employee of Mr Sarkis on the sites on which he relies.

Conclusion

In summary, my principal findings are as follows: 1. The proper statutory basis for applying the relevant experience requirement to the Licence Application is s 20(3) of the HB Act rather than s 20(1)(a2) read with ss 33C(1)(b)(i) and 33D(1)(b). 2. The Applicant was an employee of Mr Sarkis for the purposes of the 2022 Instrument for the period beginning in June 2016 until the end of January 2019. 3. The First Sarkis Referee Statement and the Petracca Referee Statement concerning the Applicant's work on the original 4 sites are insufficient on their own to show the Applicant has experience in a wide range of building construction work during a period of at least 2 years. However, the Statements provide prima facie evidence that the Applicant was supervised and directed in his work on those sites in the absence of evidence to the contrary. 4. The Second Sarkis Referee Statement could, if appropriately investigated and assessed, have the potential to verify experience in a wide range of building construction work. However, it is inappropriate for the Tribunal to make such a finding because the Respondent has not had an opportunity to undertake such an investigation and assessment. 5. There is sufficient evidence to show that the Applicant received remuneration in accordance with law for work he did on sites as an employee of Mr Sarkis.
Given these findings, I do not think that it is appropriate for the Tribunal to affirm the Respondent's decision to refuse the Licence Application.
Section 63(3)(d) of the ADR Act enables the Tribunal, in determining an administrative review of a decision of an administrator, to set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
I have decided for the following reasons that the correct and preferable decision is for the Tribunal to set aside the Respondent's decision to refuse the Licence Application and remit the matter for reconsideration by the Respondent.
First, the Second Sarkis Referee Statement may verify that the Applicant has experience in a wide range of building construction work. The Respondent is better placed than the Tribunal to investigate and assess the Statement.
Second, it became clear to me at the hearing that the Applicant and Respondent have been attempting to resolve their dispute in good faith. This is laudable and its continuation should be encouraged. In this regard, I commend both Mr Mounarath and the Applicant for the cooperative way in which they conducted themselves both before and during the hearing. Providing the parties with a further opportunity to resolve their dispute, rather than requiring them to begin a new application process, will facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1).
As s 63(3)(d) of the ADR Act permits the Tribunal to give directions and make recommendations, I consider that the remittal should be subject to the following directions and recommendations for the purpose of expediting the resolution of the matter: 1. In reconsidering the matter, the Tribunal directs the Respondent to investigate and assess the Second Sarkis Referee Statement. 2. The Tribunal also directs the Respondent to apply the relevant experience requirement in accordance with the findings made in these reasons concerning the Applicant's employment with Mr Sarkis, the payment of remuneration for his work as an employee and whether he was supervised and directed in his work. 3. The Tribunal recommends that the Respondent allow the Applicant to provide further evidence from Mr Sarkis and Mr Petracca to assist in investigating and accessing the Second Sarkis Referee Statement. 4. The Tribunal also recommends that the Respondent reconsider the Licence Application as soon as is reasonably practicable.

Orders

Accordingly, the Tribunal makes the following orders: 1. The decision to refuse the application made by the Applicant on 4 January 2024 for an individual contractor licence under the Home Building Act 1989 (NSW) in the category of general building is set aside. 2. The matter is remitted to the Respondent for reconsideration in accordance with the directions and recommendations set out in these reasons.

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: 14 January 2025

Better Regulation Legislation Amendment (Miscellaneous) Act 2024(NSW)

Building Legislation Amendment Act 2021(NSW)

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Judgment (21 paragraphs)

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Legislation Cited (6)

Cases Cited (24)