Jesiolowski v Department of Customer Service: Building Commission NSW

Jurisdiction

1. According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
2. Part 4A of the HBA deals with administrative reviews by the Tribunal. Section 83A states that an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the ADR Act of the decision. Section 83B thus gives this Tribunal jurisdiction.
3. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what is "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law". The Tribunal is not restricted to consideration of the material that was before the original decision-maker but may have regard to any relevant material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 129).
4. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision, decide in substitution, or to remit the matter for reconsideration by the administrator.
5. Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Evidence

1. The Tribunal has had regard to the following material provided by the parties.
2. The documentary material from the Applicant, in addition to his submissions, comprised: 1. NCAT Application filed on 9 February 2024, attaching the Respondent's decision of 17 January 2024 affirming the original decision; 2. Certificate of attainment awarded to the Applicant in "apply work and safety regulations, codes and practices in the workplace" and "reconnect and electrical equipment connected to low voltage (LV) installation wiring" by NECA Training dated 22 June 2023; 3. Certificate of proficiency awarded to the Applicant in Engineering-Mechanical (Certificate III in Engineering - Mechanical Trade) from Commissioner for Vocational Training dated 15 April 2016; 4. Letter from the Applicant's employer, Boral dated 18 December 2023 which states: I am writing to you with regards to Antoni's refusal notice to obtain a Discon/Recon Fixed Elect Equip certificate. Antoni obtains a Trade Cert Ill in mechanical engineering & his current role with o[u]r organisation is as our Mechanical Fitter - Northern, he maintains all of our fixed asphalt production facilities across northern NSW, his duties include fault diagnostics, maintenance, repairs, major component change outs & installations. Antoni successfully completed the course for this certificate & is a very competent tradesman, he completes all of his work safely with high quality results & I have no doubt he will do the same with the Discon/Recon of fixed electrical equipment. Please reconsider this refusal notice as this certificate will be highly beneficial for Antoni & our business.
3. The Respondent relied upon his written and oral submissions.
4. The Applicant and the Respondent also relied upon the documents contained in the section 58 bundle which included: 1. The Applicant's application for administrative review dated 9 February 2024; 2. Documents related to the Applicant's original application for a qualified supervisor certificate including: 1. The application and the notice of refusal 2. Notice under s 14(1) of the Licensing and Registration (Uniform Procedures) Act 2002; 3. Employment and experience history. 1. Internal review determination dated 17 January 2024; 2. Correspondence as between the Applicant and the Respondent from August 2023 to January 2024; 3. Copy of the HB Act Schedule 1 Gazetted Instrument - Disconnection & Reconnection of Fixed Electrician Equipment.
5. All of the above evidence was admitted to the record, without objection from either side.

Issues in dispute

1. There is no dispute as between the parties that the Applicant has completed and obtained the necessary certification to be considered qualified to receive a supervisor certificate in the category of disconnection and reconnection of fixed electrical equipment (appliances and motors). Specifically the Applicant possesses the relevant endorsement as required under Column 2 of the Instrument.
2. Rather the controversy as between the parties arises, according to the Respondent, because of the information provided by the Applicant as to the work that would be performed. With respect to his application, the Applicant states: Secondly in regards to the work being undertaken, at the asphalt plants I work at we use conveyors and auger screws to move material during the production of asphalt, each conveyor and screw is powered by am electric motor and gearbox, in the Coffs plant as an example it consists of around 25 electric motors around the plant all operating during production, if one fails during production we have spares on hand to replace it, the spare being exactly the same as the current motor. Electricians aren't always available during our production times (nightshift) to come and change them over. So once i become licensed, if a motor were to fail i would shut down power to the motor, test for dead, ensure lock out protocol is followed, remove and replace the motor on a like for like basis and re-energise and test. This would keep production up and keep our repair budget in line with other plants. [Emphasis added in Respondent's written submissions]
3. In the internal review request, the Applicant states: I'm in charge of maintaining all aspects of the plant. In me getting this license it would supplement my ability to maintain the sites, no longer would i need to ring an electrical contractor and wait hours for him to come onsite to disconnect a motor. I am fully aware of the limitations of this license and will only use it accordingly, only connect and disconnect motors under 1000V on a like for like basis, that is all I will be doing. As per my application the only work I will be undertaking under this license is the disconnection and reconnection of electrical wiring and the motor itself and then reconnection of an exact same model motor (like for like) and under 1000V. [Emphasis added in Respondent's written submissions]
4. The Respondent submits that based on these representations of the Applicant: 1. the Applicant "has indicated that elements of the work intended to be carried out are in fact outside the scope of disconnection and reconnection of fixed electrical equipment work which involve electrical work and as such is considered specialist work under the HB Act."; and 2. the work to be carried out by the Applicant is incidental to the Applicant's principal function in the workplace, being mechanical work on motors and not electrical wiring work and certifying him in these circumstances would be inconsistent with the principals set down in Barber v Commissioner for Fair Trading [2024] NSWCATOD 42 at [42]
5. I do not accept the Respondent's submissions in this regard.
6. The matter of Barber v Commissioner for Fair Trading [2024] NSWCATOD 42 at [42] is authority for the proposition that the work to be carried out by the person pursuant to the licence, must be incidental to the person's principal function in the workplace. At [42], that decision states: A number of observations can be made, first the (Qualified Supervisor Certificate in the category of) Disconnect/ Reconnect Appliances Licence is provided to persons who are already qualified tradespeople. Secondly the work to be caried out by the person must be incidental to the person's principal function in the workplace.
7. The evidence supports that the Applicant satisfies this criteria in that he is a qualified tradesperson being a mechanical engineer who maintains all of the asphalt production facilities across Northern NSW for his employer and the work to be carried out pursuant to the certificate is incidental to that principal function such that he would not have to rely upon an electrical contractor to disconnect a motor.
8. Indeed, the description given by the Applicant of the work to be carried out is very close to the description of "disconnection and reconnection work" in Schedule 1 of the Instrument with the exception of the use of the word "and" instead of "at". The Instrument states, inter alia: - disconnection and reconnection of electrical wiring at the equipment itself and only to the extent necessary to permit the non-electrical work to be performed on the equipment - replacement of equipment on a "like for like" basis [Emphasis added]
9. Whereas, the internal review request of the Applicant states: As per my application the only work I will be undertaking under this license is the disconnection and reconnection of electrical wiring and the motor itself and then reconnection of an exact same model motor (like for like) and under 1000V. [Emphasis added]
10. As clarified during the course of the hearing, the Respondent relies upon this statement and the use of the word "and" as the basis for the rejection of the Applicant's application. However, at the hearing, the Respondent also accepted that if the word "and" was read as the word "at", this resolved the issue. The Applicant clarified during the hearing that the use of the work "and" was a typographical error and should read "at" which I accept. I further find that the evidence with respect to the work that will be undertaken by the Applicant is otherwise consistent with "disconnection and reconnection" work as provided in the Instrument.
11. Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is that the decision of the Respondent to refuse the Applicant a Qualified Supervisor Certificate in the specialist category of disconnection and reconnection of fixed electrical equipment (appliances and motors) should be set aside. The Applicant should be granted a Qualified Supervisor Certificate in the specialist category of disconnection and reconnection of fixed electrical equipment (appliances and motors) under the HBA.

Orders

1. The Tribunal makes the following orders: 1. The Decision under review is set aside. 2. A Qualified Supervisor Certificate in the specialist category of disconnection and reconnection of fixed electrical equipment (appliances and motors) is to be issued to the Applicant under the Home Building Act 1989 (NSW).

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: 07 June 2024