Merhi v Commissioner for Fair Trading

Respondent's submissions 42The Respondent made oral submissions. 43The Respondent referred to the Instrument of July 2013. Mr Merhi had the appropriate qualifications. The work undertaken by Mr Merhi was in a wide range of building work. The Respondent noted that Mr Merhi had rendered invoices and had been paid for the work. The remaining issue was whether Mr Merhi had been employed or lawfully engaged during the period relied upon. 44The Respondent relied on the internal review findings that Mr Merhi had worked as a sub-contractor for the 36 month period. He had not been employed. 45Further the Respondent pressed that Mr Merhi had not been lawfully engaged. He had worked in breach of the section 4 requirement that contractors be licensed and the section 12 requirement that an individual undertaking residential work be licensed. 46The Respondent submitted that section 13 did not provide an exception to the prohibitions in sections 4 and 12 - of which Mr Merhi had been in breach. It may have been that Mr Merhi had not worked in breach of section 13 as well as he had been supervised.

Tribunal's finding of facts 47The tribunal sets out the following facts relating to Mr Merhi's work history. 48On 17 July 2012 Mr Merhi obtained his Certificate III in Carpentry and Certificate IV in Building and Construction. He holds the required qualifications under the Instrument. 49From March 2010 to September 2010, inclusively, Mr Merhi worked as a leading hand/Carpenter full-time subcontractor for Sid Merhi. This was a period of eight months. 50From February 2011 to May 2011, inclusively, Mr Merhi worked for Sid Merhi as a leading hand and full-time subcontractor. This was a period of four months. 51From July 2011 to June 2013, inclusively, Mr Merhi worked for Sam Kassis full-time and as a subcontractor as a carpenter and leading hand. This was a period of 24 months. 52Mr Merhi was financially remunerated for this work - in accordance with the requirement of the July 2013 Instrument. 53The tribunal finds that Mr Merhi was not an employee during this 36 months of employment. That finding is based upon the declarations made by Sid Merhi and Sam Kassis that that Mr Merhi had been subcontractor; the letter from Mr Merhi's accountant indicating that he was a subcontractor; the evidence of the invoices presented by Mr Merhi to Mr Merhi and Mr Kassis and Mr Merhi's own statements. 54During these times Mr Merhi did not hold a contractor licence. He was not licensed to undertake residential building work.

Findings of Law and Fact 55The tribunal has found that Mr Merhi was not employed by Mr Sid Merhi or Mr Kassis prior to June 2013. 56Mr Merhi must meet the requirement to have been employed or lawfully engaged to meet the definition of experience set out in the Instrument relevant to clause 28 of the Home Building Regulation. 57Lawfully engaged means to be engaged in accordance with the Act. 58The tribunal has found that Mr Merhi was not the holder of a contractor licence when he worked for Mr Sid Merhi or Mr Sam Kassis as a sub-contractor. Section 4 also makes it unlawful for anyone to engage an unlicensed contractor as a contractor. Accordingly Mr Merhi was in breach of section 4 of the Act and not lawfully engaged at this time. 59Further when Mr Merhi undertook residential building work for Mr Sid Merhi and Mr Sam Kassis as a contractor at these times - he did not hold a licence to do so. He was in breach of section 12. He could not have been considered lawfully engaged at these times. 60Mr Merhi may not have been in breach of section 13 when he worked as a sub-contractor for Mr Sid Merhi and Mr Sam Kassis under their supervision and direction. However the fact that Mr Matthew Merhi is likely not to have been in breach of section 13 does not remedy the fact that he was in breach of section 4 and section 12 when engaged by Mr Sid Merhi or Mr Sam Kassis. Nor does it remedy the fact that Mr Sid Merhi and Mr Sam Kassis may have been in breach of section 4 for engaging Mr Matthew Merhi when he did not hold a contractor licence. 61The tribunal considers the fact that Mr Merhi worked during the 36 month period as an unlicensed contractor means that he cannot have been considered to be have been lawfully engaged during that time and cannot satisfy the definition of "experience" during that time.

Decision 62Accordingly the tribunal affirms the Respondent's decision that Mr Merhi did not meet the 24 months experience requirement as he was neither an employee nor lawfully engaged during this time. 63The tribunal affirms the Respondent's decision to refuse a licence to Mr Merhi. 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: 02 December 2014