Kanaan v Commissioner for Fair Trading

Name of the respondent

1. The Tribunal raised with the parties whether the respondent's correct name is Building Commissioner NSW, Department of Customer Service. The respondent provided a written submission which stated that the respondent's correct name was "Commissioner for Fair Trading". The respondent also consented to this question being dealt with on the papers pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) ("CAT Act"). No submissions were received from the applicant.
2. I have considered the submissions provided by the respondent and I am satisfied that the correct name of the respondent is the Commissioner for Fair Trading and that this issue can be dealt with on the papers pursuant to s 50(2) of the CAT Act and will make these orders accordingly.

The evidence

1. Before the Tribunal, the applicant relied on a bundle of photographs, a marked up plan, progress claims, safety process documents and other documents. Mr Kannan also relied on a document headed 'Applicant's Response to Respondent's Submission'. The document is in the nature of a witness statement. The applicant was cross examined during the hearing. Much of the cross examination was in regard to the matters asserted in this document. The respondent relied on material filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act").
2. On 1 June 2023, Mr Kanaan made an application for the licence. Mr Kanaan listed his employment and experience history as from 9 November 2020 to 20 May 2023. The employer was named as Billbergia Project Management Pty Ltd ("Billgeria"). Attached to the application was a referee statement from Mr Smith, a builder. Mr Smith declared on 20 May 2023 that Mr Kanaan demonstrated a level of knowledge and experience in a wide range of building work which would allow him to completely perform the roles and responsibilities of a licenced contractor that included and was not limited to: 1. applying building codes and standards to the construction process in accordance with the Building Code of Australia; 2. dealing effectively with subcontractors consumers and other parties; 3. reading and interpreting plans and specifications; 4. planning building or construction projects and work; 5. organising site surveys and setting out procedures to building and construction projects; 6. applying structural principles to residential constructions; 7. conducting on site supervision of building and construction projects; 8. applying legal requirements to building and construction projects; and 9. managing occupational health and safety in a building and construction workplace.
3. Mr Smith listed the employment period as from 9 November 2020 to 20 May 2023 on a full time basis. The general building work was listed as unit complex and mixed purpose development.
4. Mr Keenan was required to satisfy certain industry experience as part of his Bachelor of Construction Project Management ("the Degree"), which he did with Billbergia. As part of the Degree, Mr Keenan developed management, technology and process skills.
5. The applicant's role and responsibilities were listed as: 1. subcontractor management and work inspection; 2. subcontractor ITP/QA assessment; 3. on site testing and inspections with consultants; 4. works programming; 5. design development and drawing; 6. review procurement; 7. cost forecasting progress claims; 8. variation assessment; 9. quantity take-offs bills of quantities; 10. defects management; 11. subcontractor supply; 12. consultant liaison; and 13. safety inspections, safety order preparation and involvement etc.
6. Also attached to the application is an academic report from University of Technology of Sydney. Mr Kaanan was awarded the Degree with Second Class Honours on 7 February 2023.
7. Mr Kannan gave unchallenged evidence that when the respondent asked him to provide further evidence from Mr Smith as to the amount of time he spent in the office on site or out of the office on site, he spent months attempting to contact Mr Smith without any success.
8. During cross examination, Mr Kannan gave evidence that the building construction project consisted of 345 apartments and a childcare centre. His employer subcontracted to companies that did specific building work such as excavation work, painting, cementing, block work, façade etc. The employer was the builder and developer, and the subcontractors did the building work. Billbergia was responsible for supervision of the work of the sub-contractors and the compliance of the work with the relevant standards and legal obligations.
9. Mr Kannan's evidence was that there were about 20 employees and he had more than one supervisor and that his main supervisor was Mr Smith. Mr Kannan did not have any trade qualifications and was employed as a cadet during university study gaining skills in project management. He was a conduit between sub-contractors and his supervisors at times but also made decisions himself as to what to allow or not to allow or what was or was not a defect.
10. Part of his role was to take and send photographs to his supervisor when he was not present. It was put to Mr Kannan that he was not responsible for identifying defects, for example with caulking. Mr Kannan disagreed.
11. It was put to Mr Kannan that he did not do any of the significant building work himself. Mr Kannan agreed with this proposition. Ms Kannan gave some examples of minor building work he performed.
12. Mr Kannan denied that he only performed residential building work two thirds of the time he was employed on the Lidcombe project.
13. Mr Kannan described his responsibility in the following trades: carpentry, masonry, roofing, plumbing, joinery and plastering. His evidence was that all those trades were performed by sub-contractors and his role was to monitor progress of the trade in a weekly project tracker, identification of incomplete work, identification of any non-compliance with Australian standards, management of the defects and ensuring that the project was ready for takeover to other trades. Mr Kannan's evidence was that he was briefed by his supervisor on which defects to look for and common mistakes and oversights. Mr Kannan was also required to attend meetings with his colleagues, subcontractors, engineers and architects and was involved in the identification and problem solving of any issues prior to them arising on site. He was also tasked with reviewing sub-contractor inspection test plans. In regard to plumbing this involved considering filed hydraulic testing results, lack of sealant around copper pipes, obstructed fire pipe collars and nonfunctioning hot water units. The Instrument and Relevant Legislation
14. Section 33C(1)(b)(i) of the Act states that the Secretary must not issue a licence unless he or she is satisfied that the applicant for an endorsed contractor licence satisfies the requirements of section 33D for the issue of the supervisors certificate. Section 33D(1) states that: (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.
15. Residential building work is defined in Sch 1, cl 2 of the Act to mean any work involved in or involved in coordinating 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.
16. The Instrument was published in the NSW Government Gazette on 23 December 2022. The Instrument states that the experience requirements in Column 2 of Table A is comprise of: At least two years' relevant industry Experience in a wide range of building construction work …
17. The Instrument relevantly defines "Experience" as: experience gained by the applicant as an employee of the holder of the 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 was supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or qualified supervisor certificate authorising it's 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

Respondent's Submissions

1. The applicant submitted that he has over two years of wide ranging building construction work experience gained at the Lidcombe project. He commenced the work prior to the site being excavated and completed the role after the attainment of the final occupational certificate. He was performing work during the entire project.
2. The respondent submitted that there was less than two years' experience, "an absence of evidence of supervision", that there was "sparse evidence from Mr Smith" and that there was not a wide range of defect management. The respondent submitted that the applicant carried a practical onus to satisfy the Tribunal that he had at least two years' experience.

Consideration This is an administrative review of the respondent's decision on 22 January 2024 to refuse the application for an application for the licence. The Tribunal must make the "correct and preferable decision" having regard to the material before it: s 63 ADR Act.

1. As explained by the Appeal Panel in Commissioner of Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 at [36], by cl 159 of Sch 4 of the Act, the Instrument is deemed to be validly made from the date it was published. It is not for the Tribunal to review the terms of the Instrument: s 25(4)(a) of the Act. Protection to consumers with respect to when they enter into an arrangement for the construction of residential and other regulated buildings is an important purpose of the Act. Section 16 of the Act requires residential building work to be done by the holder of the relevant licence, or under the supervision and subject to the direction of the holder of the licence. The purpose of this licence is to demonstrate to the public that the person is capable of having the overall responsibility for the whole build, supervising all trades on any type of dwelling: Locking v Department of Finances and Services [2013] NSWADT 239 ("Locking") at [18]. I deal with the first question first, which is whether there is at least two years of experience at the Lidcombe project. The respondent relied on a phone note of Mini Vasudevan on 8 December 2023 with Mr Smith: I asked what percentage of work he has carried out on site? Adam was about 2/3 of time spent on site with different trades supervision. He joined as a cadet. He worked inside the office as well as with drawings, print out, discussions, photographs with defects etc to check further action. He was overseeing various trades including structural, waterproofing, vendors, coordinated some trades etc. He did not coordinate specialist trades. He was full time employed by Billbergia.
2. The respondent submitted that based on this document, the Tribunal should find that Mr Keenan only spent two thirds of his employment with Billbergia on the Lidcombe project.
3. I consider that on a plain reading of the phone note, Mr Smith stated to Mini Vasudevan that Mr Keenan reported to a different supervisor for a third of the time and that he was on site full time.
4. I accept Mr Keenan's evidence that he was on site at the Lidcombe project for over two years. I am satisfied that Mr Keenan was employed on a full time basis for over two years and during that time he was on site.
5. I consider that it would be appropriate for a person involved with meeting colleagues, sub-contractors, engineers and designers to do so in an office. I accept Mr Keenan's evidence that he had some responsibility for looking at architectural and engineering drawings, designing a baseplate system, doing drawing reviews, sending and receiving email correspondence, submitting statutory, dealing with insurances programmes and information relevant to the project, as well as preparing payment schedules, completing quantity counts or bills for certain elements of the project, involvement in safety audit preparation, utilising software namely Navisworks and Revizto to identify clashes between services on site due to design oversights limited working space or coordination issues on site reviewing subcontractor inspection test plans. All of these tasks would have been properly carried out in an office.
6. The second question is whether the range of building construction work performed by Mr Keenan was wide ranging.
7. Mr Keenan's experience consisted of work on a single project for the building of 345 apartments. Mr Keenan was initially employed as a cadet to gain skills in project management. He was involved in the project from the excavation phase to the certification stage.
8. I accept Mr Keenan's evidence that he was involved in designing, implementing and managing the work with the subcontractors themselves to complete certain critical tasks on the project. In evidence are photographs, emails, submittals lists and registers demonstrating his involvement with subcontractor trades. He was involved in work inspections, assessments, testing and programming. He was also involved in procurement, cost forecasting and defect management.
9. The words "relevant experience in a wide range of building construction work" have been found to be "deliberately broad" (Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 ("Vitogiannis") at [45]) and that issues such as the scale of the works, the variety of different trades involved, the material used and the construction methods employed are some of the measures of "wide range" (Vitogiannis at [47]). There are numerous other issues such as the number of projects and the types of projects a person may had been involved in. Experience in "structural construction" has been held to be a useful component of "wide range of building construction work": Vitogiannis at [48].
10. There are many different aspects to building construction work. Some more common aspects include carpentry, masonry, roofing, plumbing, joinery, and plastering work. An applicant is not required to demonstrate that she or he has experience in all aspects of building work as long as there is experience of a wide range of building work.
11. A building contractor must understand the trades involved in building construction work, so that he or she can determine whether there has been compliance with all standards and requirements: Locking at [18]. This involves a demonstration of experience in undertaking the kind of work expected of the contractor: Price v Commissioner for Fair Trading [2020] NSWCATOD 93 at [70]. Both a practical and theoretical experience and understanding is required but this does not mean that the building contractor must be able to perform all of the building construction work himself or herself.
12. A building contractor must also be able to deal with the public and know how to properly quote work, timetable work and keep track of the work being performed: Locking at [19].
13. The experience of project management work on a single project is not a demonstration of a "wide range of building construction work" as required by the Instrument, even though project management itself can be broad ranging. Mr Keenan was required to have contact with a wide range of tradespersons, architects, certifiers and other building construction workers. He was required to have discussions and negotiations with them including the co-ordination of the trades and the identification and rectification of defects.
14. Mr Keenan submitted that he did have experience in "carpentry, masonry, roofing, plumbing, joinery and plastering" however this experience was of project managing the sub-contractors that carried out this work rather than any knowledge or experience of undertaking any of these trades.
15. The respondent submitted that the issuance of a builder contracting licence represents to the public that a licence holder is qualified, experienced, and capable of contracting, doing and supervising such residential building work.
16. I agree with most of this submission. I do not agree that the issuance of a builder contracting licence represents to the public that a licence holder is capable themselves of constructing a residential building work or that the person has a qualification in a particular trade or trades. There was no dispute between the parties that there was no pre-requisite trade requirement for the issuance of an endorsed contractor licence.
17. It may be that project managing a diverse range of building construction works may amount to "relevant industry experience in a wide range of building construction work". I do not consider that an applicant must demonstrate experience in a particular trade as a pre-requisite to being issued with an endorsed contractor licence.
18. I do not consider that Mr Keenan has demonstrated that he has a wide breadth of experience. Mr Keenan's experience is confined to being involved in a single project managing a single building site. Project management work is an important category of building construction work, particularly in the construction of large residential units such as the Lidcombe project, however it is just one type of building construction experience.
19. I am not satisfied that Mr Keenan has established that he has relevant industry experience in a wide range of building construction works. He does not meet the requirements of s 33D(1)(b) of the Act. The correct and preferable decision is to affirm the respondent's decision and to refuse the application.

Order

1. I make the following orders: 1. Pursuant to s 53 of the Civil and Administrative Act 2013 (NSW) the name of the respondent is amended to Commissioner for Fair Trading. 2. Pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) the question can be dealt with on the papers. 3. The decision under review is affirmed.

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: 23 July 2024