Hodder v Fair Trading

Consideration

Even if the applicant had been given erroneous information by an agent of the respondent, this would not alter the issue before this Tribunal, which is to determine the correct and preferable decision.
I am satisfied that the Instrument's guideline regarding the nature and period of experience should be followed in this case. I am also satisfied that the form of references required by the Instrument are consistent with the Act, although there may be circumstances where alternative evidence of the required experience and supervision could be accepted. This is not one of those circumstances, as Mr Hodder did not provide alternative evidence apart from his own submissions.
If I were to disregard the incomplete nature of the references provided by Mr Hodder from Mr Klomp and Mr Thompson and accept them as evidence of his experience, the totality of the periods of experience represented by those supervisors from whom he provided a reference would not amount to the required period of two years experience in general building work. The applicant then submits that his experience as an apprentice should be capable of being included in the calculation of experience for that purpose. The applicant was an apprentice in carpentry.
The respondent submits that experience as an apprentice cannot be counted towards 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 under s33D(1)(b). In this regard it relies on the decision in Briggs. In that case the Tribunal stated that it was not satisfied that experience as an apprentice in carpentry " constitutes a wide range of building construction work despite the fact that a witness described carpentry as one of the broadest of the trades." (at [111]). I must agree with that conclusion. It would not be consistent with the objects and purpose of the Act, as interpreted by the Tribunal, to hold otherwise.
Consequently there is insufficient evidence before the Tribunal on which I can find that the applicant has the required two years' experience in general building work.
In the circumstances of this case I am not satisfied on the basis of the information before the Tribunal, that the applicant has the requisite experience at present to grant his application for a contractor licence.

Legislation

A contractor licence permits its holder to contract to do, and to supervise (but only if the licence is endorsed), residential building work and/or specialist work. See sections 4, 21, 26 and 28 of the Home Building Act 1989 ("the Act").
Section 19 provides that the Secretary may grant contractor licences. Section 20 provides: "20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or …"
Section 33C provides: "33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended. (2) Despite section 33B (1) (a) (xiii) and (xv), a contractor licence may be issued if: (a) the licence does not authorise its holder to do general building work or swimming pool building, and (b) the Secretary is of the opinion that there is no evident risk to the public that the applicant will be unable to complete contracts entered into in the future to do residential building work or specialist work, and (c) the Secretary is of the opinion that the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator, and (d) the licence is subject to a condition that the holder must not enter into a contract to do work if the contract price exceeds $20,000 (inclusive of GST) or (if the contract price is not known) the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST). (3) Despite section 33B (1) (a) (xiv), (xvi) and (xvii), a contractor licence may be issued if the Secretary is of the opinion that: (a) there is no evident risk to the public that the applicant will be unable to complete contracts entered into in the future to do residential building work or specialist work, and (b) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator. (4) A contractor licence issued under subsection (3) may be issued subject to a condition that the holder of the licence must not enter into a contract to do work if the contract price exceeds $20,000 (inclusive of GST) or (if the contract price is not known) the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST). (5) A condition imposed under subsection (4) may be limited so that it does not apply to a subcontract entered into by the holder of the licence. A subcontract is a contract that is made between parties who each hold a contractor licence and that is for work that each party's contractor licence authorises the party to contract to do. (6) An individual may be a nominated supervisor for a contractor licence only if the individual: (a) holds an endorsed contractor licence or a supervisor certificate that authorises its holder to supervise some or all of the work done under contracts for which the contractor licence applied for or held is required, and (b) is, or is proposed by the applicant or holder to be, an employee of, or a member of the partnership or director of the corporation that is, the applicant or holder, and (c) made a consent declaration that is lodged with the Secretary and has not been revoked. (7) In subsection (6) (b), employee means an employee who is required, by the terms of employment, to work for his or her employer otherwise than on a casual or temporary basis. (8) An individual cannot be the nominated supervisor for more than one contractor licence unless the Secretary: (a) is satisfied that special circumstances exist that will ensure that the individual, either alone or in conjunction with one or more other nominated supervisors, will supervise all work done under contracts for which each contractor licence is required, and (b) gives written permission. (9) The holder of an endorsed contractor licence does not require the Secretary's permission to become the nominated supervisor for only one other contractor licence. (10) The Secretary may, by order, exempt an applicant from a requirement in relation to nominated supervisors if the Secretary is satisfied that there are special circumstances that warrant it."
Section 33D 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. …"
"Residential building work" is defined in cl. 2 of Sch. 1 to the Act: " (1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of residential building work: (a) roof plumbing work done in connection with a dwelling, (b) specialist work done in connection with a dwelling, (c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation). … (7) The regulations may: (a) declare any work to be included in the definition of residential building work, or (b) declare any work to be excluded from the definition of residential building work."
The Secretary has set out what has been determined as the appropriate qualifications and nature and period of experience to enable an Applicant to carry out and supervise general building work, in a document titled, Instrument - Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work dated 31 March 2017 ("The Instrument').
The Instrument provides that, for a contractor licence to be issued, an Applicant must demonstrate: 1. a minimum of two years' relevant industry experience; 2. in a wide-range of residential building work, 3. where a majority of that experience was obtained within ten years of the date on which the application was made.
In Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 the Tribunal held that the Instrument is not binding on the Tribunal. However it may have regard to it as a Government policy: "The Tribunal is required to give effect to "Government policy", except in certain circumstances, the term "Government policy" being defined to mean a policy adopted by the Cabinet, a Minister or the Premier (Administrative Decisions Review Act, s 64(1) and (5)). There is no evidence that the Instrument has been adopted by the Cabinet, a Minister or the Premier. It purports to have been made by the respondent and I accept that that is the case. The Tribunal "may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case" (Administrative Decisions Review Act, s 64(4))." (at [39])
See also Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [33] in which the Instrument was followed on the issue of required experience. In Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 the Tribunal was satisfied that: " the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision." (at [110])
The Instrument outlines the 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, as to which the Tribunal must be satisfied before issuing a certificate under s 33D(1).
It defines "experience" as: "…experience gained by the applicant as: (a) An employee of … the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work') where the applicant, during the relevant period was: Supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work, and this is verified in the Relevant Application Form; and remunerated with money in accordance with law for the Work which the applicant carried out."

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)