Pintur v Commissioner for Fair Trading

Background

1. The applicant lodged an application for a qualified supervisor certificate for the category of 'general building', with the respondent agency on 26 July 2014. Accompanying that application were copies of the applicant's relevant educational qualifications and a referee statement.
2. In September 2014 the respondent asked the applicant to provide more detailed information in support of his application including a referee statement / reference covering two years' experience under the supervision of a licenced builder and some administrative matters going to certified copies of identity documents. The applicant provided the material within three weeks and on 11 December 2014 the respondent made a decision refusing the application.
3. On 28 January 2015 the applicant applied for an internal review of the respondent's decision to refuse to issue him with a qualified supervisor's certificate. Accompanying the application for an internal review were further copies of vocational and education qualifications, and a further statement from the referee.
4. The review was determined in April 2015. In reaching their review decision the respondent determined that the educational attainments of the applicant were sufficient to satisfy those aspects of the application. However, in respect of the engagement and experience aspect of the application, the respondent determined that until May 2014 the applicant did not possess the relevant qualification to subcontract for the work he was performing (as he only obtained his contractor licence for carpentry at that time). Notwithstanding his other qualifications, prior to May 2014 the respondent deemed that the applicant was not lawfully engaged during that part of the claimed experience period.
5. As a result the respondent determined that whilst a large amount of time and examples of residential building work had been provided in support of the application, having regard to the terms of the legislation and the relevant terms in the Commissioner's instrument, the applicant did not satisfy the criteria for the granting of the qualified supervisor certificate (licence). As a result the review was refused.
6. On 25 May 2015 the applicant filed his application for administrative review with the Tribunal.

The relevant legislation

1. Section 20(2) of the HBA provides that the regulations may fix or provide for the respondent to determine standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.
2. Section 20(5) of the HBA provides that a decision of the respondent relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act.
3. The HBA has been amended since the applicant's initial application. In addition the Regulation that was in force at the time of the application has been repealed. Some of the provisions of the Home Building Regulation 2004 have now been incorporated into the HBA. However these proceedings are to be considered under the provisions in force at the time of the initial application in accordance with the savings provisions arising from the amendments and clarified on appeal before the Tribunal in the case of Commissioner of Fair Trading, Office of Finance and Services v Kassem [2015] NSWCATAP 173.
4. Clause 26(1)(b)(i) of the Home Building Regulation 2004 (repealed) reads: Before a contractor licence is issued, the Director-General must be satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is equivalent of a supervisor certificate complies with the requirements prescribed by clause 28(1).
5. Clause 28(1) provides: (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.
6. The applicable standards and other requirements determined by the Director- General in relation to the qualifications, examinations and experience required for an endorsed licence or supervisor certificate to do or to supervise building work, in so far as they relate to the application upon which the decision under review is based, are set out in an Instrument effective 3 July 2013 (see: NSW Government Gazette No. 90, 12 July 2013).
7. I am satisfied that the applicant currently possesses the relevant qualifications. I note that this aspect is not contested between the parties (other than the period prior to May 2014). The issue to be determined is whether the applicant has the requisite experience as specifically defined and proscribed in the Instrument, attained during a period under supervision whilst lawfully engaged.
8. The definition of experience in the gazetted instrument is set out below: "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

The evidence

1. The respondent filed items of written material at the hearing and at the conclusion of the hearing filed written submissions and extracts of cases referred to in those submissions. Exhibit R 1 was tendered at the hearing and comprised the section 58 documents in accordance with the Administrative Decisions Review Act 1997. Those section 58 documents comprised copies of inter party correspondence in relation to the application prior to the commencement of the proceedings.
2. Exhibit R 2 comprised Company Search material concerning the applicant, and copies of the relevant Instrument. The applicant filed a small amount of material with and accompanying his application to the Tribunal. In his application the grounds for review provided by the applicant are that he has been working in the building industry since 1989, he has finished studies in civil construction, carpentry, carpentry and joinery, and now has a building diploma. He has 26 years of building experience.
3. The applicant gave oral evidence at the hearing and was cross examined by the respondent. In addition one of the nominated referees gave oral evidence at the hearing.

The applicant's evidence.

1. The applicant gave evidence that he had worked as a carpenter, and worked for a company called CD Commercial projects on a sub-contractor basis. He was paid an hourly rate which was in effect paid to his company. No provision was made for leave, including sick leave and superannuation. His evidence was that 'he needed to cover all of those things'. Any taxation was paid by the Company.
2. The applicant gave evidence was that he was qualified as a carpenter and that was in the area of civil construction carpentry. He had worked in the building industry continuously since 1989. He completed his apprenticeship with Mr Cowley (one of his current referees) and his current engagement is with Mr R. Orth (his other nominated referee).
3. The applicant was examined about the nature of his work in respect of the properties nominated in his application at St Ives and Willoughby. The evidence was that his involvement with those jobs was more management related rather than hands on. He did not perform any carpentry work but administrative work, organising trades, scoping the work and paperwork.
4. In respect of a nominated sites at Vaucluse and Balmain, the scope of the work was far more extensive. He performed work which involved taking the back off the property, demolishing an old garage, excavating for a pool and a full renovation. The specifics of the work included performing demolition work, forming up a new slab, marking out the job, putting in the steel reinforcement, constructing wall frames, and brick veneering and the construction of stairs.
5. Whilst the applicant's evidence was that the plaster-boarding, specialist electrical work and plumbing work was performed by specialist trades, all of the timber fit out and carpentry was done by the applicant and others under his supervision.
6. The respondent had prepared a chronology or table relating to the applicant's referee statements. When taken to that document the applicant's initial evidence was that 'all of the dates are not correct dates'. 'The top one is correct' (when referring to the work for the CD Construction Group) but the other ones are only approximate.
7. He was cross examined about the company structure under which he was engaged. The applicant's evidence was that opened a company because he was required to obtain his own insurances and superannuation and tax arrangements. He can claim more expenses but also pays less tax.

Evidence of Witness 1.

1. Mr R Orth gave evidence in support of the applicant's application. Mr Orth is the owner of CD Construction Group which comprises both C.D. Commercial Projects and C.D. Residential Projects. The later company (CD Residential) is the entity that holds the Home Warranty insurance as required under the HBA.
2. Mr Orth gave evidence that the applicant is employed as a leading hand running a team of carpenters, and has performed or played a site manager role full time. His responsibilities included interpreting plans, resolving issues with the project, and also carpentry. In that regard he performed a dual role with the company.
3. The evidence was that the applicant had run residential projects for the company and was responsible for managing all of the trades on the site as site foreman. Mr Orth's company employs approximately 60 people which comprise: carpenters, leading hands, and site foremen. In addition the applicant is responsible for managing all of the labourers on site as well as the tradespersons.
4. The witness was cross examined about particular jobs referred to in the referee statement supplied by him. In respect of the site at Balmain, the respondent put the proposition that the period covered in the reference commenced prior to the approval of the Development Application (D.A.).The witness confirmed that work on that job predated the D.A. approval, however he submitted that the only requirement to wait for the approval, relates to the construction.
5. In his evidence the witness submitted that a common appropriate practice was to engage in demolition and site preparation prior to D.A. approval, or to commence internal work, such as gutting or removing material from established premises when awaiting approval on a renovation project, as long as no construction in accordance with the application had commenced. When questioned about an Occupation Certificate the witness stated that he had not obtained an Occupation Certificate for the Balmain dwelling until he got around to selling the house in 2013.
6. Further evidence was given by the witness which addressed aspects of the applicant's earlier evidence. Mr Orth said that he supervised and directed the applicant on the nominated jobs. This took the form of directly supervising his work two or three times a week. The reason that he did not supervise the applicant on a daily basis, was 'because some people need to be supervised more closely' but that 'the applicant did not require that level of supervision due to his significant competency and experience'.
7. The evidence of the witness was that there is not the capacity on small budget jobs for such a level of intensive supervision, but that where required the applicant assisted in framing trusses and laying slabs and associated building and construction work.
8. In conclusion, Mr Orth stated that 'the applicant's role is that he can manage all of the trades and were necessary do all of the work'.
9. Both parties made brief closing submissions at the end of the evidence, with the respondent providing written submissions as directed at the conclusion of the hearing.
10. The applicant's substantive submission was that he completed the C and J Carpentry course so as to obtain his Certificate IV. In addition he has a family of three to support.
11. The respondent submitted that the Tribunal should have regard to the case of Locking v Department of Finance and Services [2013] NSWADT 239 in respect of the level and breadth of experience in building construction work. In addition the Tribunal should examine closely the law in respect of the meaning of lawful engagement.
12. The respondent's submissions cited a number of cases in addition to Locking. Where relevant they are referred to below.

Consideration

1. The respondent's decision focused on whether the applicant possessed the relevant two years industry experience in a wide range of residential building construction work.
2. In respect of the St Ives and Willoughby sites, the evidence indicates that the work was not 'hands on' construction work, but rather coordinating and liaising and organising with contractors, architects and trades. The evidence was that this ordinarily occurred after on site work hours.
3. The case of Locking was referred to by the respondent. When looking at the issue of what constitutes a wide range of building construction work, Locking provides the following analysis at paragraphs 16-19: 16.Mr W O'Connell, the provider of the Referee Statement, previously held a contractor licence in the category of builder. During 1995 to 2000 Mr O'Connell sub-contracted the applicant to do carpentry work for him. Mr O'Connell has stated that the applicant performed the following duties:◦(a) site set out ◦(b) (c) Page 5. bearers and joist floor construction as well as a slab (c) cut out and erect wall frames and cutting out roofs (d) assembled frames and trusses (e) garage and fencing jobs (f) extensions where new roofs have to be cut into existing roofs for a seamless join; and (g) managed some sites for him organising other trades. 17.This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. 18.A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19.A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.
4. The respondent's submissions were that the applicant's level of work and scope of duties and experience, even when looking at the total periods claimed, did not constitute a broad or wide range of residential building construction work in accordance with the meaning and purpose of that requirement in the Instrument, as set out in Locking.
5. In addition the issue of the lawful engagement of the applicant was considered in the review and hearing. The respondent's submissions were that the applicant only became lawfully engaged from around the middle of 2014 (as that is when his relevant qualifications and licences were completed and applicable). The respondent's submission was that for any prior periods for specialist work and experience claim, the applicant was an unlicensed subcontractor.
6. The thrust of the respondent's submission on this point was that neither the applicant's own time prior to mid - 2014, nor his time whilst engaged through his company, constituted lawful engagement. As he was not engaged as an employee, he was required to be 'otherwise' lawfully engaged. The respondent submitted in order to be lawfully engaged, that this meant that the applicant must not be in breach of any of the provisions of section 4 of the HBA as they apply to unlicensed contracting, section 12 of the HBA as they apply to unlicensed carrying out of residential building work, and section 13 of the HBA as they apply to unqualified residential building work.
7. The relevant sections of the HBA referred to above are set out below: 4 Unlicensed contracting (1) A person must not contract to do: (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) The holder of a contractor licence who has contracted to do any residential building work must not contract with another person for the other person to do the work (or any part of the work) for the holder unless the other person is the holder of a contractor licence to do work of that kind. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (3) The holder of a contractor licence must not contract with another person for the other person to do any work (or part of any work) for the holder for which insurance is required under this Act unless the other person is the holder of a contractor licence to do work of that kind. 12 Unlicensed work An individual must not do any residential building work, or specialist work, except: (a) as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or (b) as the holder of an owner-builder permit authorising its holder to do that work, or (c) as an employee of the holder of such a contractor licence or permit. 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.
8. The respondent also relied on the case of Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100. In that case the issue of the applicant's engagement was central to the determination. At paragraphs 40 - 42 matters reflecting the respondent's submissions on the evidence on this point are set out. 40.In relation to the work done with Biltmond Pty Ltd, I find that Mr Ozcelik was not an "employee" but a subcontractor. Mr Olcayto and Mr Ozcelik have both given evidence that Mr Ozcelik was a subcontractor, and this is consistent with the arrangements described by Mr Ozcelik whereby he was not paid superannuation by Biltmond Pty Ltd and no tax was deducted from the payments made to him. 41.I also find that Mr Ozcelik was not lawfully engaged by Biltmond Pty Ltd. During the relevant period, ss 4 and 12 of the Home Building Act 1989 prohibited Mr Ozcelik from contracting to do, and from doing, residential building work on his own behalf, without a licence authorising him to do or contract to do that work. Mr Ozcelik accepts that he was doing residential building work and did not hold a licence. His engagement with Biltmond Pty Ltd was prohibited by the Home Building Act 1989 and he was not lawfully engaged by that company. 42.For these reasons, Mr Ozcelik's work as a subcontractor for Biltmond Pty Ltd is not "experience" within the meaning of the Instrument.
9. The issue of establishing the scope and meaning of the terms 'wide range of residential building work / building construction work', involves (as set out in Locking) a consideration of what is involved in residential building.
10. In respect of the experience sought and relied upon from the Balmain and Vaucluse sites, I have regard to my own comments in the case of Grewal v Commissioner of Fair Trading [2014] NSWCATOD 101. In that case I observed that carpentry work, site supervision and compliance matters relating to safety and building standards, whilst important areas of expertise, do not constitute a "wide range of building construction work" as specified in the instrument. I remain of that view, but in doing so, I note the scope and breadth of the work undertaken at the Balmain and Vaucluse sites.
11. Whilst these jobs involved rebuilds and substantial renovations / extensions of existing structures, I disagree with the respondent's submissions at hearing that in order to establish a wide range of residential building work, an applicant should be involved in predominantly new construction from the ground up on an individual site rather that an existing site.
12. In my view on the evidence provided at the hearing, the work on the Vaucluse and Balmain sites does constitute a wide range of residential building work and I make a finding to that effect.
13. However, whilst that finding may be of some assistance to the applicant's application, there remains the issue in respect of the experience at the other sites, and the total nature of his engagement.
14. The evidence establishes that the nature of the applicant's engagement was that he was engaged as a sub-contractor and charged and received his fees through his company Multicon Enterprises Pty Ltd. As the evidence indicates that neither the applicant or the company held a contractor licence during the relevant claimed period, then a question arises over the lawful (or otherwise) nature of the engagement. The evidence therefore indicates that the applicant was not lawfully engaged during this claimed period.

Conclusion

1. As the applicant was not lawfully engaged during the claimed period, and noting that notwithstanding the claimed period, the period relied upon for the breadth of experience in the application is found to total only 22 months, the applicant has not satisfied the criteria as set out in the instrument.
2. Therefore on the basis of all of the evidence and submissions in the matter, the correct and preferable decision is to affirm the decision of the respondent.

Orders 1. The decision of the respondent is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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 February 2016