Graham v Commissioner for Fair Trading

Relevant legislation

1. The Home Building Act 1989 (HBA) regulates home building and specialist work within NSW. The Respondent (referred to in the HBA as the "Secretary": see Schedule 1 of the HBA) is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 and s 21 authorises the holder of a contractor licence to contract to do any specialist work that is described in the contractor licence when it is issued.
2. Section 20(1)(a1) and s 20(1)(a2) of the HBA provide that an application for a contractor licence must be refused if the Respondent is not satisfied as to the matters required by s 33B and s 33C of the HBA.
3. Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is satisfied that "the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant".
4. Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required.
5. Section 33F(1A) of the HBA sets out the additional requirements for obtaining endorsed contractor licences relating to medical gasfitting work: (1A) A supervisor certificate must not be issued, and a contractor licence must not be endorsed to show that it is the equivalent to a supervisor certificate, that authorises its holder to do (and to supervise) medical gasfitting work unless the Secretary is satisfied that the applicant - (a) has successfully completed one of the following VET qualifications - (i) Certificate IV in Plumbing, (ii) Certificate IV in Gas Fitting, and (b) has successfully completed the following units of competency in the Construction, Plumbing and Services Training Package - (i) Install medical gas pipeline systems, (ii) Carry out WHS requirements, and (c) has not less than 2 years of experience in medical gasfitting work. (2) A reference in this section to a VET qualification or a unit of competency includes a reference to a qualification or unit that replaces that qualification or unit. (3) In this section - VET qualification has the same meaning as in the National Vocational Education and Training Regulator Act 2011 of the Commonwealth.
6. The term "VET qualification" is defined in s 3 of the National Vocational Education and Training Regulator Act 2011 (Cth) to mean "a testamur, relating to a VET course, given to a person confirming that the person has achieved learning outcomes and competencies that satisfy the requirements of a qualification." "Testamur" is not defined in that Act, but is defined in the Macquarie Dictionary (online edition) as "a certificate showing that the person named has been admitted to a particular degree or diploma by the academic institution which issues the certificate".

Administrative review application form

1. The Applicant filed an administrative review application form with the Tribunal on 23 January 2023. The Applicant indicated that the reason that the application was lodged outside the time allowed was that the "paperwork wasn't lodged correctly and was lost". Attached to the form was a copy of the first page of another review form. The copy of the form did not contain a registry seal but appeared to have the correct file number written on it.
2. No issue was taken with the application for review appearing to be filed out of time, and in the circumstances of this matter, I am satisfied that it is appropriate to extend the time for the Applicant to seek review of the Respondent's internal review decision to 23 January 2023, the date of filing.

Tribunal proceedings

1. The matter was originally listed for hearing before me on 10 May 2023. On 9 May 2023, the Applicant sent an email to Mr Nicoletti, the solicitor for the Respondent indicating that he would not be "making" the hearing. The email was copied to the Registry, The Applicant did not appear when the matter was listed before the Tribunal on 10 May and the Tribunal telephoned the Applicant. After some discussion, the Applicant advised that given his current circumstances he sought an adjournment of the proceedings. Mr Nicoletti consented to the requested adjournment and advised that he would write to the Applicant to provide him with a list of potential providers to assist him in seeking pro bono legal advice. On this basis the hearing was adjourned to 7 June 2023 and orders were made that included directions to allow the Applicant the opportunity to file evidence prior to that date.
2. The matter was heard before me on 7 June 2023 and both parties appeared. The Applicant had not filed any evidence and did not seek to give oral evidence on that day. Following submissions by the parties, the Applicant was allowed a further adjournment of the matter to 17 July 2023 in order for him to seek to obtain further evidence in relation to his qualifications, particularly in relation to his studies at TAFE NSW (TAFE). A timetable was set to allow for the filing and service of any further evidence . An order was made that in the event that the Applicant intended not to provide any further evidence in the matter he was to notify the Registry and the Respondent, and the hearing on 17 July 2023 would be vacated and the proceedings determined on the evidence and submissions previously provided.
3. The Applicant did not advise the Registry by the requisite date that he did not intend to provide further evidence, and did not file any further evidence either prior to, or at the further hearing on 17 July 2023. There was no appearance by the Applicant at the hearing on 17 July 2023, and the Tribunal contacted the Applicant by mobile phone. The Respondent did not oppose the Applicant participating in this manner. Brief oral submissions were made by the parties that reiterated previous submissions, and the decision in the matter was reserved.

The evidence

1. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1) together with written submissions dated 8 May 2023. The submissions were not able to be located on the file and a copy was handed up by Mr Nicoletti. The Applicant had previously been provided with the submissions.
2. The Applicant did not file any additional evidence in the proceedings or written submissions. However, in his application for administrative review, the Applicant provided grounds for his application and attached copies of the following documents: 1. Notice from the Respondent dated 17 February 2022; 2. Respondent's internal review decision and statement of reasons dated 26 October 2022; 3. Refusal notice from the Respondent dated 29 September 2022; 4. A letter from the Canberra Institute of Technology dated 26 September 2022; 5. A Record of Results issued to the Applicant by the Canberra Institute of Technology; 6. A referee statement relating to plumbing, draining and gasfitting work from Mr Anthony Bezzina dated 15 February 2022; 7. A referee statement from Mr Anthony Bezzina on a letterhead of Tony B. Plumbing and Building dated 15 February 2022; 8. An email trail between the Applicant and the Respondent on 26 September 2022; 9. A transcript of the Applicant's academic record as of 29 September 2022 from TAFE; 10. Emails between the Applicant and the Respondent dated 7 October 2023, including a series of images of documents; 11. A copy of the Applicant's expired licence; and 12. A copy of the Applicant's current licence.
3. With the exception of the copy of the Applicant's expired licence, all material attached to the review application was included in the s 58 documents.

Role of the Tribunal

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

Issue in Dispute

1. It was conceded by the Respondent that the Applicant's experience in this matter was not in issue and accordingly, the sole issue in the proceedings is whether the Applicant has the requisite qualifications for the issue of a medical gasfitting licence.
2. It was accepted by the Respondent that the Applicant had been the holder of the expired licence, and between 11 August 2010 and 10 August 2016, he had been licensed in the categories of water plumber, gasfitter and LP gasfitter. It was not contended that the Applicant did not have the requisite qualifications during the time that he held that licence and I accept that he was appropriately qualified during that period.
3. After the expiry date of 10 August 2016, the Applicant did not seek to renew the expired licence. On 15 November 2022, the Applicant submitted a new application for an endorsed contractor licence in the categories of plumber, gasfitting and LP gasfitting. The Notice under s 14(1) of the Licensing and Registration (Uniform Procedures) Act sent to the Applicant on 3 February 2022 noted that the Applicant had held his expired licence "more than five years" before lodging the new application for a licence, and was therefore required to meet the current qualification and experience qualifications. At that time, the Applicant was advised that he currently met the eligibility criteria for gasfitter and LP gasfitter only and that if he wanted to apply for a plumber or water plumber licence, he had to provide the required qualifications.
4. In the email of 28 March 2022, the Applicant was provided with details of the qualifications that all applicants were required to provide in order to meet the current plumbing requirements. The Applicant was advised that he could accept the offer of gasfitter and LP gasfitter only. He accepted this offer and subsequently, his current licence in those categories was issued to him.
5. The Applicant later sought to vary his current licence by submitting the Application to include medical gasfitting. The Home Building Licensing Initial Assessment Sheet - Individual (part exhibit R1) dated 26 September 2022 noted that the Applicant had provided a statement of attainment but was required to supply a fully completed "Cert IV in Plumbing or Cert III in Gas fitting". On 26 September 2022, a further Notice under s 14(1) of the Licensing and Registration (Uniform Procedures) Act was issued to the Applicant seeking the following in relation to his qualifications: … a copy of your final transcript or certificate for either a FULLY completed Certificate III in Gasfitting or a FULLY completed Certificate IV in Plumbing. A transcript only showing a few subjects from those courses is insufficient or if the transcript states further results are required. An existing licence for Gasfitting also does not meet the requirement as a fully completed Certificate was not required to obtain a licence in those classes.
6. Following receipt of the Notice, the Applicant emailed the Respondent on 26 September 2022 to indicate that the Respondent had his current plumbing licence in their records. The response was as follows: Please be aware that a plumbing licence is insufficient to obtain a Medical Gasfitter licence and the only records shown previously are partially completed Canberra TAFE transcript. As per my letter, please ensure you supply a certificate for a fully completed course as per the medical gasfitting requirements listed on the Fair Trading website.
7. A further email from the Respondent on that same date noted "if you have a fully completed Certificate IV in Plumbing or Certificate III in Gasfitting from TAFE or another RTO you will meet the qualifications requirements to be issued a licence for medical gasfitting." The Applicant responded that "I have and I do" and that he had provided it to Service NSW, and to the Respondent, six months previously. Shortly afterwards, the Applicant indicated that he would be receiving an email from the Canberra Institute of Technology and would forward it to the Respondent. By return email, the Respondent then thanked the Applicant and referred to the Record of Results from the Canberra Institute of Technology that was on the file and indicated that it was insufficient as it did not show course completion of the Certificate IV in Plumbing which needed to be stated on the certificate itself. The Applicant responded "how is that insufficient. It says I have passed all the courses."

Applicant's qualifications

1. In support of the Application, the Applicant provided a Statement of Attainment dated 1 June 2022 that was issued by the Services Trade College. The document stated that he had a competent result in the "Comp Name" of "Carry out WHS requirements" and "Install and test medical gas pipeline requirements." Section 33F(1A)(b) of the HBA requires an applicant to have completed these units of competency in the Construction, Plumbing and Services Training Package. However, the successful completion of these units is in addition to the VET qualifications set out in s 33F(1A)(a) of the HBA.
2. As referred to previously, the only issue in dispute is whether the Applicant has the qualifications required by s 33F(1A)(a) of the HBA. As set out above, this provision requires the Applicant to have successfully completed one of the following VET qualifications: 1. Certificate IV in Plumbing, 2. Certificate IV in Gas fitting.
3. The Applicant relied on his expired licence that included the categories of water plumber, gasfitter and LP gasfitter and his current licence in the categories of gasfitter and LP gasfitter. The Applicant also relied on the following evidence: 1. The Record of Results issued to the Applicant from the Canberra Institute of Technology; 2. The letter from the Canberra Institute of Technology dated 26 September 2022; and 3. The Transcript of Academic Record as of 29 September 2022 from TAFE NSW in relation to the Applicant.

Documents from the Canberra Institute of Technology

1. The Record of Results issued to the Applicant from the Canberra Institute of Technology sets out the Competencies/National Modules achieved by the Applicant through direct enrolment; competencies achieved through other study at the Canberra Institute of Technology; as well as "Other" study at that institution. Results were provided for each subject and the completed programs set out in the document. The dates referred to in the Record of Result cover the years 2008 to 2011.
2. The letter from the Canberra Institute of Technology dated 26 September 2022 essentially confirms that the Applicant received training in the following: 1. Gasfitting Plumbing (Licensing), for which the graduation date was 6 July 2009. A list of subjects and codes are set out. 2. Hot Water Temperature Control Devices, for which the graduation date was 24 May 2011. The subject completed and code was set out. 3. Water Plumbing (Licensing), for which the graduation date was 29 July 2009. A list of subjects and codes are set out.

Further evidence relating to the documents from the Canberra Institute of Technology

1. Following the Respondent's receipt of the letter dated 26 September 2022 from the Canberra Institute of Technology referred to above, the Respondent emailed the Canberra Institute of Technology directly on 27 September 2022 seeking confirmation of whether the Applicant had fully completed the Certificate IV In Plumbing. A copy of this email is in the s 58 documents.
2. The Home Building Licensing Reassessment Sheet - Individual dated 29 September 2022 indicates that the response received from the Canberra Institute of Technology to that email was as follows (sic): [The Applicant] has not competed Certificate IV in Plumbing and Services (BCP40106). [The Applicant] has only completed the Statements of Attainment listed on the attached letter and Record of Results.
3. This email correspondence was referred to in the Refusal Notice from the Respondent dated 29 September 2022.

Applicant's Transcript of Academic Record from TAFE

1. The Applicant's Transcript of Academic Record from TAFE certifies that, as of 29 September 2022, "having completed a course in accordance with Commission requirements" the Applicant is eligible to receive "1409 Certificate in Plumbing - Trade" in the Pass grade. It then sets out a series of units together with the codes, which were completed by the Applicant between 1991 and 1993.

Further evidence in relation to qualifications

1. The s 58 documents include an undated message from the Applicant to the Respondent, which appears to have been sent after the Notice of Refusal was issued on 29 September 2022. The Applicant states that he has a "cert 4 in gas fitting as per your website I do qualify for a med gas licence" and "I hold a plumbing licence with natural gas and lpg and they are the closest components to med gas".
2. The Respondent sent an email to the Applicant on 30 September 2022, with the delegate who sent the email, indicating that he was unable to alter the refusal determination and providing details of the review process to the Applicant. The email included the following: In regard to your previous qualification you got a copy of from TAFE yesterday, if it was part of an assessment, it would still be my determination to refuse. The qualification 1409 certificate in Plumbing is not a certificate III in Gasfitting. The only acceptable qualifications for a contractor/QSC in Medical Gasfitting are a fully completed Certificate IV in Plumbing or a Certificate III in Gasfitting. Elements of, or superseded segments that form part of the required qualifications are not accepted. 1409 is a previous superseded qualification used as part of the previous requirement to obtain a plumber's licence. Elements of this course were used by TAFE to form part of the current Certificate III in Plumbing.
3. The Applicant lodged an application for internal review on 7 October 2022. In his request the Applicant stated as follows (sic): …I'm not sure why I'm at this process as the fair trading website states it only takes a cert 3 in gasfitting to qualify for the med gas licences and I hold a full plumbing licence for gas fitting meaning that I have completed cert 3 and now have the next level which is a contractor licence. I have 15 plus years in med gas installation and have worked for all the major med gas companies, Hoslab and BOC included. I have been a plumber for 30 plus years and lost parts of my licence for not renewing it for 5 years. I have never stopped plumbing and didn't need to use my licence as I was working for someone else under their licence. I hope this matter can get sorted asap as I need my med gas licence to hold my current job.
4. As referred to previously, the Applicant's administrative review application form filed on 23 January 2023 attached a copy of the first page of another application form. That other application form stated that the grounds for the review is that the Respondent's decision to refuse the Application is unfair (sic) "as I have a higher qualification then they ask for in gasfitting and have held a full plumbing before as I have and part of my plumbing lic was taken off me". In the form filed with the Tribunal, the Applicant stated that he was seeking a review on the following grounds: It is unfair my plumbing licence was taken off me for now renewing it for 5 years and 3 months. But I eventually got part back and now that is stopping me from getting my medical gas licence.

Submissions

1. The Respondent relied on the written submissions filed in the matter. In essence, Mr Nicoletti reiterated throughout the proceedings that an applicant for a contractor licence relating to medical gasfitting is required by s 33F of the HBA to satisfy the decision maker that the applicant has successfully completed a Certificate IV in Plumbing or a Certificate IV in Gas Fitting. It was submitted that the material relied upon by the Applicant did not establish that he had successfully completed either of these qualifications.
2. On a number of occasions, including in his application for review to this Tribunal, the Applicant referred to the unfairness of the situation. He also made reference to the unfairness of having his plumbing licence taken from him and to having got "part" of it back. At various times, including in his submissions before the Tribunal, the Applicant referred to not being in a good place, and that the various decisions by the Respondent in relation to the Applicant's licences had cost him his medical gas job and also threatened his future employment.
3. The Applicant, in effect, submitted that he had held a licence in plumbing and as a result he must have the required qualifications for the medical gasfitting licence. Similarly, he submitted that he had held, and currently held, a licence in gasfitting and LP gasfitting and that as a consequence, he must have the required qualifications for the medical gasfitting licence. In his email to Mr Nicoletti dated 9 May 2023 and copied to the Registry, the Applicant indicated that he was being punished for not paying the Respondent a fee for licence renewal for the five years. He stated as follows (sic): So all this has nothing to do with my competency as a plumber or having passed the courses. It's purely about revenue for you guys and forcing people to pay for their licence so you make money. From this situation I am in I will end up finding it hard to get a plumbing job and probably end up homeless with my two children.

Consideration

1. The Applicant did not seek review of any previous decisions by the Respondent and this review relates solely to the decision by the Respondent to refuse the Application made by the Applicant to vary his current licence to include the specialist category of medical gasfitting. Having regard to the evidence before the Tribunal, it is apparent that the Applicant does not currently hold a licence in plumbing or water plumbing and his current contractor licence is in the categories of gasfitting and LP gasfitting.
2. Whilst it does not form part of my determination in this matter, it is apparent that the HBA has undergone significant changes over time and that the requirements for the various categories of contractor licenses issued under the HBA, including the requirements relating to qualifications and experience, have been varied from time to time. I accept that the requirements that were in place when the Applicant first obtained his licence in 2010, are different to those in place when he applied for his contractor licence, and also at the time that he submitted his Application to vary his current licence.
3. In Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112, the Appeal Panel held at [43] that the Tribunal in that case was required to apply the version of the HBA in force as of the date of the making of its decision. Accordingly, I am required to apply the version of the HBA that is currently in force, and this includes the provisions set out in s 33F of the HBA Act as set out above.
4. The only issue in dispute in this matter is whether the Secretary can be satisfied that the Applicant has successfully completed the relevant qualifications to obtain an endorsed contractor licence in the specialist category of medical gasfitting work. In administrative review proceedings, the Tribunal effectively steps into the shoes of the Respondent and the Tribunal must be so satisfied.
5. A number of the Respondent's documents in the s 58 documents (exhibit R1), including the Notice dated 26 September 2022, refer to the relevant qualification requirements as including a Certificate III in Gas Fitting. However, s 33F(1A) of the HBA refers to the VET qualifications as being a Certificate IV in Plumbing and a Certificate IV in Gas Fitting. Whilst the Respondent's correspondence may have referred to a Certificate III in Gas Fitting, this appears to have been in error and in any event, does not accurately reflect the current requirement in s 33F(1A)(a)(ii) of the HBA that refer to a Certificate IV in Gas Fitting.
6. In relation to the letter dated 26 September 2022 and the Record of Results from the Canberra Institute of Technology, I accept that in the period from 2009 to 2011, the Applicant completed the various competencies and modules outlined in those documents and achieved the qualifications set out. The documents from the Canberra Institute of Technology make no reference to the VET qualifications of Certificate IV in Plumbing or Certificate IV in Gas Fitting and there is no evidence before the Tribunal that the programs completed by the Applicant at the Canberra Institute of Technology align with the VET qualifications set out in s 33F(1A)(a). Rather, the further evidence obtained by the Respondent from the Canberra Institute of Technology, and referred to above, is that the Applicant has not completed a Certificate IV in Plumbing and Services at the Canberra Institute of Technology. The Applicant adduced no evidence to refute this.
7. Accordingly, on the evidence before the Tribunal, I am not satisfied that the courses completed by the Applicant at the Canberra Institute of Technology establish that he has successfully completed the VET qualifications of a Certificate IV in Plumbing or a Certificate IV in Gas Fitting.
8. In relation to the Applicant's Transcript of Academic Record from TAFE, I am satisfied that the Applicant is eligible to receive "1409 Certificate in Plumbing -Trade" and that he completed the various units in relation to that Certificate from 1991 to 1993. The document makes no reference to a Certificate IV in Plumbing or a Certificate IV in Gas Fitting.
9. I have previously referred to an email from the Respondent to the Applicant on 30 September 2022, in which it was noted that the qualification "1409" is a previous superseded qualification used as part of the previous requirement to obtain a licence in plumbing and that elements of this course was used by TAFE to form part of the current certificate III in Plumbing.
10. At the conclusion of the hearing on 7 June 2023, the matter was adjourned on the application of the Applicant, to allow him the opportunity to make enquiries with the relevant training organisations that he had attended, and in particular TAFE, to ascertain whether he could provide evidence that he had completed a Certificate IV in Plumbing or Gas Fitting. A further timetable was set to allow the Applicant to file any further evidence in relation to his qualifications.
11. As referred to previously, the Applicant did not file any further evidence, When contacted by mobile phone, he indicated that he had sought to obtain further evidence from TAFE but as it was school holidays, he kept missing them. In any event, no further evidence was adduced by the Applicant in relation to his qualifications and no further request for an adjournment was made.
12. Accordingly, on the evidence before the Tribunal, namely the Applicant's Transcript of Academic Record as of 20 September 2022, there is no evidence that the "1409 Certificate in Plumbing - Trade" aligns with the VET qualifications set out in s 33F(1A)(a). I am not satisfied that the "1409 Certificate in Plumbing -Trade" completed by the Applicant establishes that he has successfully completed VET qualifications in either a Certificate IV in Plumbing or a Certificate IV in Gas Fitting.
13. The Applicant did not adduce any other evidence to establish that he has successfully completed VET qualifications in either a Certificate IV in Plumbing or a Certificate IV in Gas Fitting. Further, there was no evidence adduced by the Applicant to establish that section 33F(2) of the HBA Act applied in this matter.
14. I have already accepted that the Applicant has previously held a contractor licence that included the category of water plumbing, and that he has a current licence in the categories of gasfitter and LP gasfitter. It is apparent that the qualifications referred to in s 33F(1A) do not include the holding of a licence in these categories, whether past or present, and accordingly these licences are not relevant to my determination in relation to the Applicant's qualifications relating to medical gasfitting work. Having made findings in relation to the matters set out in s 33F(1A)(a) of the HBA Act, there is no requirement for me to give consideration to subsection (b).
15. In light of the finding that I am not satisfied that the Applicant has successfully completed VET qualifications in one of a Certificate IV in Plumbing or a Certificate IV in Gas Fitting, s 33F(1A) of the HBA provides that a contractor licence must not be endorsed that authorises its holder to do (and supervise) medical gasfitting work. Accordingly, the Application must be refused.
16. I have had regard to the Applicant's submission about the hardship caused to him in relation to his licence applications. As I have referred to previously, this review relates only to the Applicant's Application to vary his current licence to include the specialist category of medical gasfitting. In light of the finding that I have made, the Tribunal cannot consider any subjective factors (Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [10]).

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: 09 February 2024