Merhi v Commissioner for Fair Trading

NCAT Occupational|2014-07-30

The Applicant's submissions 37Mr Merhi provided an affidavit clarifying his working background. He said that since June 2013 he had changed his working status. He had worked for Sid Merhi of A Class Property Pty Ltd as an employee from June 2013 to January 2014 - a period of six months. From February 2014 to July 2014 and continuing he had worked as an employee for Mr Sam Kassis of Kassis Classic Homes. By the date of hearing he had more than 12 months in these 2 employed positions alone. 38Mr Merhi submitted that he had obtained his building and carpentry qualifications in July 2012 but hadn't taken them to the Department of Fair Trading to register them. This meant that he should be considered qualified from July 2012. 39The Applicant submitted that even though he had provided materials in which he had indicated he was a subcontractor prior to June 2013, it was actually irrelevant how he had described himself. He should still have been considered to be an employee as he

attended work for set hours 6 days per week
was supervised by Mr Sid Merhi and Mr Kassis and told what to do and how to do it; and
was paid a regular amount. 40Mr Merhi referred to the provisions of section 13. 13 Unqualified residential building work (1) An individual must not do any residential building work, except: (a) as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner-builder permit, authorising its holder to do that work, or (b) under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) If the same facts establish an offence under this section and an offence under another provision of this Act or under any other Act or law, an individual is not liable to be convicted of both offences. 41Mr Merhi said that his work under the supervision and direction of Mr Sid Merhi and Mr Kassis for the 36 months prior to June 2013, fell within the exception provided in section 13(1) (b). That is, that he had done the work "under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work." Mr Sid Merhi and Mr Sam Kassis both had endorsed contractor licences. Mr Merhi submitted that section 13(1) (b) should stand alone from provisions of section 4 and 12 of the Act. It provided an exception in which Mr Merhi could be considered to have been lawfully engaged in performing residential work. Accordingly he could be considered to have a wide range of building experience lawfully engaged for a period of two years. He was entitled to have a builders contracting licence.

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

Role of the Tribunal on Review 32Mr Merhi's' Application for Review was lodged in the ADT on 17 October 2013. On 1st January 2014, the ADT merged into the NCAT. Clause 7 (3) (b) of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (CATA) provides for unheard proceedings (commenced prior to 1 January 2014 - but not heard) to be considered according to the requirements of the previous legislation - the ADTA. 33Section 83B of the Home Building Act provides that an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for an administrative review of the decision under section 63 of the Administrative Decisions Review Act 1997. The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator. 34The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start, including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, 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] AATA 179; (1979) 46 FLR 409.

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