Marriott v Secretary of the Department of Customer Service

Relevant legislation

1. The HBA regulates home building and specialist work within NSW. The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that "the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings".
2. The Respondent 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 (Licensing Act). Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work.
3. 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 of which the Secretary is required to be satisfied by s 33B and s 33C of the HBA.
4. Section 20(2) of the HBA provides that the Secretary, may by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
5. 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".
6. 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.
7. On 15 December 2022, the Commissioner for Fair Trading, the Secretary at that time, published a notice under s 20(2) and s 25(2) of the HBA (the Instrument), specifying the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor licence or supervisor certificate for general building work.
8. Section 20(5) of the HBA provides that a decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under s 20(2) cannot be reviewed by this Tribunal in an application for an administrative review.

Evidence

1. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1).
2. The Applicant relied on a statement filed with the Tribunal on 20 February 2024 (exhibit A1) (Applicant's statement) and a statement from Mr Richard Hyman filed with the Tribunal on 8 April 2024 (exhibit A2). The Applicant also sought to rely on a statement from Mr Eric Gumley that was filed with the Tribunal on 19 April 2024, and which was initially marked for identification. The Applicant gave oral evidence at the hearing and was cross-examined by Mr Coss. The Applicant also responded to questions from the Tribunal. On the basis that Mr Coss cross-examined the Applicant on material that was contained in the statement of Mr Gumley, the statement was admitted into evidence (exhibit A3). Neither Mr Hyman nor Mr Gumley gave oral evidence at the hearing.
3. The Applicant's statement contained both evidence and submissions and I have had appropriate regard to both in my consideration of this matter.

Submissions

1. Written submissions dated 17 March 2024 were filed on behalf of the Respondent and as referred to above, the Applicant's statement also contained submissions. The Applicant filed a response to the Respondent's written submissions on 8 April 2024. Both parties were afforded the opportunity to make oral submissions at the hearing.

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 (NSW) (the ADR Act). 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 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a 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) 235 CLR 286; [2008] HCA 31.

Issue for determination

1. The matter was heard on 23 April 2024 and no issues were raised in relation to the Tribunal's jurisdiction.
2. In the Application, the Applicant provided details of his Certificate III in Carpentry from Construction Trades College and Certificate IV in Building and Construction (Building) from the Master Builders Association NSW. The Respondent accepted that the Applicant satisfies the qualification requirements for a contractor licence in the category of general building work, and I find that he does.
3. The Respondent did not accept that the Applicant has provided evidence of at least two years relevant experience across all stages of construction and in a wide range of building construction work as is required by the Instrument.
4. The Applicant contended that the Instrument should not be applied in an inflexible manner and argued for a more nuanced application as a guiding document rather than a rigid checklist. It was the Applicant's case that having regard to the entirety of his professional journey and his diverse skills and experience, he should be granted a contractor licence in the category of general building work.
5. Accordingly, the issue to be determined in this matter is whether or not the Applicant satisfies the experience requirements under the HBA for a contractor licence in the category of general building work.

Applicability of the Instrument

1. In an email to the Respondent dated 22 October 2023 ( part exhibit R1), the Applicant submitted that the HBA underscores the necessity for applicants to possess bona fide work experience and a wide variety of building expertise. The Applicant referred to his reservations about the inflexible application of the Instrument as it "does not seem to logically and fairly determine genuine work experience, as outlined in the [HBA] and the Instrument is a policy which cannot displace the words of the statute, the focus should always be upon whether I essentially meet the statutory requirements."
2. The Applicant made similar submissions in relation to his application for internal review of the decision to refuse the Application. In his review request to the Tribunal, the Applicant referred to the inflexible application of the Instrument by the Respondent and submitted that it did not produce a just outcome that reflected the applicable legislation.
3. In his written submissions, the Applicant made reference to the decision in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 (Whitehouse). In that case, the Tribunal found the applicable instrument in that case to be a policy and accordingly, that the Tribunal was not bound by it.
4. The Applicant also referred to the decision in Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 (Wilmot) in which the Tribunal held at [98] that the relevant instrument in that matter "is a policy which cannot displace the words of the statute".
5. The Applicant submitted that the decision in Whitehouse supported his argument that the Application should be evaluated on its individual merits and breadth of experience, rather than a rigid adherence to the Instrument. He also submitted that the decision in Wilmot substantiated his argument that skills and experience acquired in sectors "analogous" to residential building work should not be dismissed and that his extensive experience, particularly in project management and coordination in complex construction projects, aligns with the competencies required for a licensed builder, demonstrating the transferability of his skills across sectors.
6. In the Respondent's written submissions, reference was made to various legislative changes to the HBA and to the decision in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 (Kalkan). It was submitted by the Respondent that the legislative changes to the HBA overcome the issues raised in previous cases, including Whitehouse, where instruments were held to be non-binding policies for the purpose of s 20 and s 25 of the HBA.
7. In his submissions in reply, the Applicant acknowledged the legislative framework and the Instrument's role as outlined by the Respondent but argued for a more nuanced application of the Instrument, viewing it as a guiding document rather than as a rigid checklist. The Applicant submitted that the Tribunal's mandate, as seen in decisions such as Kalkan, highlight the importance of giving effect to the Instrument, yet this should not exclude a thorough assessment of an applicant's diverse experience, particularly when it equips an applicant for the multifaceted responsibilities of a general building contractor. The Applicant made reference to cases, including Whitehouse and Carrigan v NSW Fair Trading [2018] NSWCATOD 60 (Carrigan), as underscoring the Instrument's "advisory" nature, supporting a balanced application that does not rigidly dictate eligibility beyond statutory requirements.
8. The relevant amendments in relation to the qualification requirements in the HBA for contractor licences came into effect on 5 July 2021, and the relevant Instrument was published in the Gazette on 15 December 2022. This occurred prior to the Applicant having lodged his Application on 26 June 2023. Having regard to the decision of the Appeal Panel in Kalkan, I am satisfied that this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument.
9. Whilst the Applicant made reference to a number of previous decisions by the Tribunal, such as Whitehouse, Wilmot and Carrigan, these cases were decided prior to the amendments to the HBA and the Instrument being published in the Gazette, and consequently provide little assistance to me in my determination of this matter.

The Instrument

1. The Instrument relevantly provides, that for an endorsed contractor licence in general building work to be issued, an applicant must demonstrate: 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.
2. The Instrument relevantly contains the following definitions: "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. "Residential building work" has the same meaning as in Schedule 1 Clause 2 of the Act. … "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 other party, where such payments are the only payments made to the applicant for the work which the applicant carried out.
3. In the Instrument, "the Act" means the HBA. Schedule 1, cl 2 of the HBA is as follows: 2 Definition of "residential building work" (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. … (3) Each of the following is excluded from the definition of residential building work - … (i) the supervision only of residential building work - (i) by a person registered as an architect under the Architects Act 2003, or (ii) by a person supervising owner-builder work for no reward or other consideration, or (iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work, … (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.

Has the Applicant satisfied the Experience criteria specified in the Instrument

Evidence

1. In the Applicant's Checklist in the Application under the heading "My Referee's Statement Form Includes my nature of employment", the Applicant has ticked the box stating that "I have read the requirements and I have obtained my experience as per the following: A paid Employee."
2. Attached to the Application was a Referee's Statement from Mr Gumley, a licenced builder dated 18 June 2023. Mr Gumley indicated that the term of employment for the Applicant was "Part time" and the arrangement was "3-4 day per week". The question relating to "Nature of Employment" in the Referee's Statement was not completed.
3. Attached to the Referee's Statement were two On Site Building Experience forms (Building Experience Forms) completed by Mr Gumley relating to three separate building sites in which he stated that he had supervised the Applicant. The Building Experience Forms covered the period from 2017 to 2018 for a period of 10 months and 19 days; from 2018 to 2019 for a period of 10 months and 14 days; and from 5 June 2021 to 30 February 2022 for a period of 8 months.
4. It was not contended during these proceedings that Mr Gumley was not qualified to provide a Referee's Statement or Building Experience Forms for the purpose of the Application, and I accept that he was.
5. In the course of considering the Application, the Respondent sought further information from the Applicant pursuant to a Notice issued on 13 October 2023. In response, the Applicant sent an email on 16 October 2023 to formally clarify the nature of his work experience and mentorship over the previous seven years under Mr Gumley. The Applicant indicated that his work with Mr Gumley was in the capacity of a skilled labourer and lead hand on various building projects and that he had been consistently under Mr Gumley's direct supervision and received invaluable mentorship.
6. The Applicant stated that this work was not conducted under the umbrella of the Applicant's company, the Nicmar Group, but rather as an individual labourer under Mr Gumley's guidance. The Applicant stated that the compensation for his work was on a set rate and hourly basis and that he operated in accordance with Mr Gumley's instructions and directions.
7. On 18 October 2023, the Applicant was requested to provide evidence of his employment with Mr Gumley and to provide statements from his superannuation fund showing contributions received for at least 24 months of the experience claimed by the Applicant under Mr Gumley.
8. In his email response on 22 October 2023, the Applicant advised that his payment for the work experience under Mr Gumley was made under lawful subcontracting arrangements. He went on to say that the HBA does not mandate the disclosure of payment arrangements, and noted that the Instrument appears to regard any work not performed as an employee or licenced contracting as illegal and invalid and that work experience and legal work arrangements can take various forms. Similar arguments were made by the Applicant in his written submissions.
9. The statement from Mr Hyman (exhibit A2) does not assist me in my determination on this issue as it was conceded by the Applicant in his evidence that Mr Hyman is not the holder of a contractor licence in general building and in any event did not supervise the Applicant in any work at the property in Surry Hills (Surry Hills project). Moreover, from the Applicant's evidence, the Surry Hills project was commercial in nature. On this basis, it is clear that the Applicant's work on the Surry Hills project does not fall within the meaning of residential building work and does not constitute Work or Experience under the Instrument.
10. The statement from Mr Gumley (exhibit A3) does not provide any further detail as to the part-time employment relationship with the Applicant referred to in his Referee's Statement. As referred to above, Mr Gumley stated in the Referee's Statement that the part time arrangements for the Applicant were three to four days per week. In the Building Experience Form, Mr Gumley also indicated that he had supervised the Applicant at a building site in Clareville (Clareville project) from 5 June 2021 to 20 February 2022, a period of 8 months. In his statement, Mr Gumley makes reference to the Clareville project and to arranging for the Applicant to be on that site for various critical phases of the project due to the Applicant's increasing commitments with his own company. Mr Gumley states that this "scheduling allowed him to contribute effectively without compromising his other responsibilities." No details as to the number of days that the Applicant was working on the Clareville project, or the total period of this work was included in Mr Gumley's statement.
11. In his oral evidence before the Tribunal, the Applicant said that he was not an employee of Mr Gumley during the periods that he was supervised by him, nor was he the holder of any relevant licences or certificates. The Applicant denied that he was contracting with Mr Gumley on behalf of his company, the Nickmar Group. The Applicant agreed with the question put to him in cross-examination by Mr Coss, that during the experience gained under Mr Gumley, the Applicant was not an employee or a licenced contractor.
12. The Applicant confirmed that he never worked for Mr Gumley on a "PAYE" basis and that he did not hold a contractors licence. The Applicant also conceded that he did not meet the requirements under the Instrument. He stated that he had calculated the hours that he worked for Mr Gumley and wrote an invoice for those hours. In response to a question from the Tribunal, the Applicant stated that he had had a personal ABN since 1999 that he had used for various jobs, including his work with Mr Gumley. In re-examination, the Applicant stated that the business to which the ABN related to was not the holder of a contractors licence.
13. In his evidence, the Applicant stated that he was aware of everything that the Instrument required and understood that he did not meet the requirements. He said however that he thought that the Instrument was "unjust".

Consideration

1. In addition to the experience referred to in the Application, the Applicant also relies on further qualifications and over 27 years of broad experience that is set out in the Supplement to the Application and also in his statement. It is apparent that despite his dyslexia and leaving school at 15 years of age, the Applicant has gone on to complete further studies and has worked across a number of areas. It is also clear that both Mr Hyman and Mr Gumley think highly of the Applicant's skills.
2. For the purpose of this Application however, it is necessary for the Respondent, and by extension this Tribunal, to be satisfied of the matters set out in s 33C(1)(b)(i) and s 33D(1)(b) of the HBA in relation to the Applicant's experience. The Instrument has been published in the Gazette and specifies the experience required to be met by an applicant for an endorsed contractor licence in general building work. Whilst the Applicant submitted that the Instrument should be viewed as a guiding document, this Tribunal is required to give effect to the experience criteria set out in the Instrument.
3. The Applicant conceded that he did not hold any relevant licences or certificates during the period that he was supervised by Mr Gumley. Having regard to the definition of "Experience" in the Instrument, the Applicant is therefore required to have gained his experience as 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, in this instance in general building work.
4. I have had regard to the limited evidence from Mr Gumley as to the employment relationship between himself and the Applicant. I have had particular regard to the Applicant's concession in his oral evidence that he did not meet the requirements of the Instrument; that he was not an employee of Mr Gumley; and that he did not hold any licence or certificate at the relevant times. I have also taken into account the absence of any detailed evidence or documentary material to establish the quantum and form of remuneration paid to the Applicant for his work with Mr Gumley.
5. In the circumstances, I am not satisfied that the experience gained by the Applicant under the supervision of Mr Gumley meets the definition of Experience in the Instrument. There is no evidence of any Experience being verified in the Application other than that provided by Mr Gumley. As a consequence, I am not able to be satisfied that the Applicant has established that he has at least two years' relevant industry Experience in a wide range of building construction work.
6. Having reached that finding, it is not necessary for the Tribunal to make further findings in this matter. However, I note that even if I had been satisfied that the Applicant's work under Mr Gumley did fall within the definition of Experience; due to the lack of detail relating to the dates worked by the Applicant, I would not have been able to be satisfied that such work amounted to at least two years' Experience. Further, having regard to the evidence before the Tribunal, and in particular the Building Experience Forms from Mr Gumley, which outline the Applicant's roles and responsibilities at the three named building sites as "All general building works carpentry mostly", I would not have been able to be satisfied that such work was in a wide range of building construction work.
7. Whilst I accept the Applicant's submission that the HBA does not mandate the disclosure of payment arrangements, the Instrument requires the Tribunal to be satisfied that the Applicant received Remuneration in accordance with law for the Work he carried out. I further note that on the very limited evidence before the Tribunal, I would not have been able to be satisfied that the Applicant received Remuneration for the Work as required by the Instrument.

Conclusion

1. Taking into account the findings made above, I am not satisfied that the Applicant meets the requirements of s 33C(1)(b)(i) and s 33D(1)(b) of the HBA. Accordingly, the HBA provides that a contractor licence must not be issued.
2. It follows that that the correct and preferable decision in this matter is to affirm the Respondent's decision and to refuse the Application at this time. The Applicant is not precluded from making a further application for a contractor licence in general building in the future.

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: 22 October 2024