Palummo v Department of Finance & Services

NCAT Occupational|2014-03-20

reasons for decision 1This is an application for review of a determination by a delegate of the Respondent to refuse an application by Matthew Palummo ('the Applicant') under the Home Building Act 1989 ('the HBA') for an individual contractor licence for the category of general building work. 2The primary reason that the Applicant's application for a contractor licence was refused was that the Respondent found that he did not possess the necessary industry experience required under relevant provisions of the HBA and the Home Building Regulation 2004 ("the Regulation"). 3In support of his application the Applicant supplied relevant information in regard to his formal qualifications and Referee Statement forms completed by Mr James Graziano and Mr John Winter. 4The Respondent concluded that the Applicant had satisfied the approved qualification requirements for a building licence but requested that he provide further information in regard to his employment history and building experience. The Applicant was required to provide an additional referee statement to further verify his experience in a wide range of residential building and construction work to satisfy the practical experience requirements for issue of a licence/certificate as a builder. 5The experience requirement for a building licence is 'at least two years relevant industry experience in a wide range of building construction work'. 6The Respondent determined to refuse the Applicant's application on the basis that he had not verified the required period of building experience. The letter included the following reasons for refusal: i) in evaluating whether an applicant has a "wide range of building construction work", Fair Trading needs to ascertain if the types of projects the applicant worked on sufficiently covered "construction work" (e.g. new single dwellings, new villas, new units, extensions, major alterations or additions); ii) in determining the relevancy of the applicant's building experience, consideration was given to the duties carried out by the applicant for each project; iii) the applicant's claimed experience at 21 Billyard Avenue, Wahronga and 35 Burrandong Crescent, Baulkham Hills was only acceptable for a period of 7 months, as verified by his referee James Graziano; iv) the applicant had not provided street addresses for residential experience gained at The Ponds, neither was it substantiated by a referee's statement from a licensed builder; and v) the applicant's claimed experience gained while undertaking commercial work and four (4) sites did not satisfy the practical experiential requirement for the issue of an endorsed contractor licence in general building work under the HBA. 7The Applicant requested an internal review of the refusal decision. In support of the request he provided further information in regard to work undertaken at 13-15 Myrtle Street, North Sydney and Lourds Retirement Village, Killara and asserted that the Respondent had incorrectly classified the work as commercial building work. The Applicant stated that those projects were residential; and requested that the experience be considered as part of the internal review. 8The Applicant provided an additional referee's statement form signed by Jason Butler on 23/10/2013 which verifies that the Applicant subcontracted to him on and off over the past 4 years. Mr Butler estimated the period of work to be 17-18 months and identified work undertaken at 3 Slade Street, Rozelle and at 90 Glossop Street, Balmain. 9The Applicant also asserted that he had other relevant experience. He stated that he had undertaken construction of two new homes (double and single storey) for The Right Build Homes but that that the company is in liquidation and that he is unable to contact Sean Vanderburg in order to obtain a referee's statement form. The Applicant claimed that during this time he was paid on wages and deemed an employee. 10The matter came before me for hearing on 20 March 2014. On that occasion I determined that the decision under review should be set aside and that in its place the decision should be made that the licence is granted. The Respondent has sought written reasons for that decision. These reasons are provided in response to that request.

The applicable qualification and experience requirements 11The HBA is concerned with the regulation of the home building industry in New South Wales. The Act also sets out the licensing requirements and the powers of the Respondent. 12Section 19(1) of the Act provides that the Respondent may grant contractor licences for the purposes of this Act. 13Section 20(3)(a) of the Act specifies that the Respondent must reject an application for a licence if the Respondent is not satisfied that any requirement would be met were the licence to be issued. 14Section 21 of the HBA provides for the authority to undertake residential building work by holders of contractor licences: 21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following: (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), (b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). (1A) A contractor licence that authorises its holder to contract to do residential building work authorises the holder to supply such building components as are necessary for any such work done by the holder. (2) The authority conferred by a contractor licence: (a) is subject to the conditions applicable to the contractor licence for the time being, and (b) may, on the application of the holder of the contractor licence, be varied by an order of the Director-General set out in a notice served on the holder of the contractor licence. 15The HBA provides for the issue of various authorities, as defined in section 33: 33 Definition In this Division, "authority" means: (a) a contractor licence (whether or not an endorsed contractor licence), or (b) a supervisor or tradesperson certificate, or (c) an owner-builder permit. 16The requirements to be satisfied by an applicant for a contractor licence are set out in section 26 of the HBA. Clause 26(1)(b)(i) of the Regulation specifies that before a contractor licence is issued, the Respondent must be 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, amongst other criteria, complies with the requirements prescribed by clause 28(1) 17Clause 28(1)(b) of the Regulation provides: 28 Additional requirements for obtaining certificates (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General 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. 18The Respondent has, pursuant to Clause 28(1) of the Regulation, set standards and other requirements that the Applicant must meet before the licence can be issued. The standards are described in an Instrument dated 12 July 2013 ("the Instrument"). The Instrument sets out the qualification and experience requirements for an endorsed contractor licence and supervisor certificate to do or supervise general building work. 19Section 20(5) of the Act provides that a decision of the Respondent relating to determining standards or other requirements under section 20(2) cannot be reviewed by this Tribunal in an application for review made under the Act or any other Act. 20The Respondent has concluded that the Applicant has satisfied the approved qualifications requirements for a building licence. The issue in dispute concerns his experience. 21The experience requirement for a building licence as 'at least two years relevant industry experience in a wide range of building construction work. The relevant 'experience' is defined in the Instrument as: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a person otherwise lawfully engaged by, 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 during the relevant period, the applicant was: (c) supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work; and (d)financially remunerated for the Work;" 22These provisions have been considered in a number of decisions of the Administrative Decisions Tribunal. See for example the discussion by Judicial Member Huntsman in Vella v Department of Finance and Services [2013] NSWADT 84.

The Evidence 23The Respondent provided its file as required by section 58 of the Administrative Decisions Review Act 1997. That material included the references that the Applicant had lodged with the Respondent in support of his application. 24The Applicant relied on the written documentation in support of his application and also gave evidence at the hearing. He relied on references by Mr Graziano, Mr Butler and Mr Winter. Oral evidence was given at the hearing by Mr Butler and Mr Winter.

Mr James Graziano 25The Applicant's evidence was that he has worked in the industry for over 20 years. The majority of that time was spent as a bricklayer. However, he stated that he now mostly does construction management work. He has worked for Mr Graziano for over 15 years, and most of the work he undertook in those 15 years was bricklaying. But Mr Graziano would recommend the Applicant as a fully licensed builder, but later he did construction management work. 26The Respondent does not dispute that the Applicant has worked in the industry for the period that he claimed but it contends that the evidence does not satisfy the requirement of relevant industry experience in a wide range of building construction work, in particular in relation to structural work. That is because most of the Applicant's experience concerned bricklaying. 27Mr Maynard, solicitor for the Respondent, stated that the Respondent was concerned that the reference provided by Mr Graziano did not make it clear how much wide ranging experience the Applicant had actually gained. He submitted that the Tribunal should also take into account that the employment was as a subcontractor, although there was some unpaid supervisory work, and that most of the work was bricklaying. Mr Maynard submitted that further clarification was needed. Nevertheless, the Respondent was prepared to concede that the Applicant had gained seven months of construction management experience with Mr Graziano. The Respondent conceded that the seven months experience was wide ranging experience.

Mr John Winter 28The Applicant submitted a referee's statement form from John Winter for work undertaken at two construction sites over various periods in 2012 and 2013. 29Mr Winter's reference indicated that the Applicant had worked with him over a period of twenty four months. He worked on two jobs - a public school and a retirement village. The Respondent contends that the school work is commercial work but conceded that the retirement village work might be regarded as residential building work and therefore could be regarded as relevant experience for the purposes of this application. 30The Applicant contends that he worked for a period of eleven and a half months at the retirement village. He stated that as site supervisor he was responsible for overall site management, trade co-ordination, client liaison meetings with authorities, public work and so forth. His work included site set out, site meetings with engineer and architect and co-ordination of all site trades. 31The Respondent contends that the work at the retirement village was in relation to a lift shaft, walkways and renovation of garages and that work does not amount to a wide range of residential building construction work. Mr Maynard submitted that evidence is required of building bathrooms and kitchens as well as the construction and supervision of foundations. 32Mr Winter appeared by phone at the hearing and answered questions from both Mr Maynard and the Applicant in relation to the extent and nature of the work that the Applicant undertook while working with him. 33Mr Winter indicated that the Applicant had worked at the retirement village for the full time equivalent of at least six months. He did not dispute the Applicant's assertion that he was full time on site for eleven and a half months on that project but stated that he 'would have to research it to get the exact figure'. He conceded that the experience could add up to more than six months. 34The Applicant was engaged on a contractor basis, undertook a supervisory role on the project and answered to the site manager. 35Mr Winter stated that the project was to extend an existing set of garages in the retirement village. It involved creation of a number of penetrations through an existing brick façade which had a concrete slab above the garages, openings had to be put in and modified to suit a number of openings for new garage doors and a structural concrete beam had to be installed to support those openings. They also created additional garages and that involved concrete driveway slabs, concrete reinforced beams to support openings, masonry blockwork, face brickwork, core filled blockwork, retaining walls and related work. Other work at the retirement village concerned the extension of an existing independent living unit to create a larger space. That project involved brickwork and structural steel in conjunction with that brickwork, creation of an AS1428 compliant bathroom, extension of the concrete slab and creation of a disabled ramp, installation of a new kitchen. Also part of that job was to create a bushfire compliant extension because part of the unit had to have a BAL 40 fire rating to comply with council conditions.

Mr Jason Butler 36Mr Butler is a licensed builder who indicate that the Applicant had worked with him 'on and off' over a period of four years. The Applicant worked with him on projects at Slade Street, Rozelle and 90 Glassop Street, Balmain. In his referee report Mr Butler estimated that the Applicant had gained the equivalent of between 17 and 18 months experience in that time. Of that period, the Respondent only conceded that the Applicant gained four and a half months experience as site foreman. 37Mr Butler appeared by phone at the hearing and answered questions from both Mr Maynard and the Applicant in relation to the extent and nature of the work that the Applicant undertook while working with him.

90 Glassop Street 38The project at 90 Glassop Street, Balmain involved a studio, garage. The Applicant was involved in setting out the brickworks and construction up to roof level. Piers were necessary for the project. Mr Butler stated that the Applicant's involvement in the constructing the piers included organising for an excavator, the set out and supervision. The Applicant also supervised the installation of a kitchenette. He was the supervisor in regard to the installation and plumbing work, generally under Mr Butler's direction.

3 Slade Street, Rozelle 39The project at Slade Street, Rozelle involved a two storey extension on the back of a house. Mr Butler estimate that the Applicant worked on and off over four years and gained 17 to 18 months experience on the project. The Applicant did not work full time on the project. He was partly involved in his licensed trade as bricklaying and partly site supervising. Occasionally he was paid to site supervise. At other times he performed the role to gain experience. 40Mr Butler estimated that the total amount of experience that the Applicant gained on the two projects, on a full time equivalent basis, would be about eleven and a half months. That experience was gained over a period of about four years. 41Mr Butler also confirmed that the Applicant gained experience in all areas of the work.

Discussion 42I accept the evidence given by Mr Butler and Mr Winter in regard to the work undertaken by the Applicant and I also accept their estimates of the period of the experience that he gained 43The evidence presented has confirmed that the Applicant has 'at least two years relevant industry experience'. The evidence also confirmed that the experience was in a wide range of building construction work. 44On the evidence before me I am satisfied that the Applicant has met the requirements for the issue of the licence that he seeks. Accordingly, the correct and preferable decision is that the licence should be granted. Therefore, l set aside the decision that has been made and in its place I make the decision that the licence is granted.

Orders 45The Tribunal's decisions: (1)The decision under review is set aside. (2)In its place the decision is made that the licence is granted.

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: 26 June 2014

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