Mr James Shoobridge has applied to the Tribunal for review of a decision made by a delegate of the Commissioner made on internal review on 22 May 2014, to refuse him a contractor licence under the Home Building Act 1989 (the HBA) in the category general building work. The internal reviewer was not satisfied that Mr Shoobridge could demonstrate 'at least two years relevant industry experience in a wide range of building construction work' as required for him to be issued with a full contractor licence.
It needs to be understood that Mr Shoobridge already holds a contractor licence in the carpentry category.
Mr Shoobridge's application came before me on 15 January 2015 and 1 April 2015 when I heard evidence and submissions from both parties. Mr Shoobridge was represented by his father Mr Gary Shoobridge, to whom I granted leave to appear as agent in accordance with rule 32 of the Civil and Administrative Tribunal Rules 2014. The Commissioner was represented by Mr Maynard, a legal officer.
At the conclusion of the hearing I reserved my decision
Relevant law
The Home Building Act 1989 is essentially a consumer protection act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness, solvency, and discipline. It regulates contracts for residential building work, both as to their content and who may enter them. It implies non-excludable warranties as to the quality of residential building work and services undertaken in NSW, and provides a mechanism for the resolution of disputes relating to residential building work. It establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. By issuing contractor licences and certificates the Director General represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: s.21(1)(a).
Section 24(1) provides that the Director General may grant certificates, including supervisor certificates, for the purposes of the Act. Section 25 deals with the issue of certificates. Relevantly, it provides:
"(1) The Director-General must reject an application for a supervisor or tradesperson certificate if:
(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold such a certificate, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations from holding such a certificate.
(1A)…
(2) The regulations may specify or provide for the Director-General to determine additional qualifications that must be held or other requirements that must be met before any supervisor or tradesperson certificate is issued or before such a certificate of a particular kind is issued.
(3) The Director-General must reject an application for a supervisor or tradesperson certificate:
(a) if the Director-General is not satisfied that any such requirement would be met were the certificate to be issued, or
(b) if the applicant has not completed, at a standard acceptable to the Director-General, any relevant examination or practical test (or both) conducted or nominated by the Director-General and required by the Director-General to be completed by the applicant.
(4) A decision of the Director-General relating to:
(a) the determining of qualifications or other requirements under subsection (2), or
(b) the setting of standards or selecting of examinations or tests under subsection (3),
cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act."
Clause 28 of the Home Building Regulation 2004 then 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."
Section 20(5) provides:
"(5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act."
The present standards in the category general building work (and those applicable to Mr Shoobridge's application for a contractor licence) were approved by the Director General on 3 July 2013. They set out the qualifications required of an applicant for a contractor licence, both in terms of qualifications and examinations, and practical experience.
In Mr Shoobridge's case there is no dispute and I accept that Mr Shoobridge has completed the examinations and qualifications necessary to satisfy that part of the requirements set out in the standard. In dispute is whether he can satisfy the practical experience requirements of the standard. This provides:
"Applicants must show at least 2 years relevant industry experience in a wide range of building construction work.
'Experience' means experience gained by the applicant as an employee of, or 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:
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
financially remunerated for the Work."
The standards were proclaimed in the Official Notices of 12 July 2013 as an instrument issued by the Director General under clause 28(1) of the Home Building Regulation 2004.
In Locking v Department of Finance and Services [2013] NSWADT 239 at paragraphs 18-19, Deputy President Hennessy summarised the multiple roles of a builder and the requirement for experience in a wide range of building work as follows:
"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."
An examination of the decided case since the creation of the standards reveal ongoing tensions concerning whether a sub-contractor, who is not an employee of a licence holder, can be "otherwise lawfully engaged" by a licence holder as required by the standards, given the provisions of sections 4, 12 and 13 of the Act. Section 4 relevantly provides that -
"(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."
Section 12 relevantly provides that -
"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.
Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case."
This is to be contrasted with the provisions of s 13 which provides -
"(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."
There is an apparent conflict between the provisions of s 13(1)(b) and s 4 and s 12, which is at the heart of the differences in the decided case as to the meaning of "otherwise lawfully engaged." While s 13(1)(b) indicates that an unlicensed individual may do residential building work under the supervision of the holder of an endorsed contractor licence or supervisor certificate, s 12(c) provides that an employee of a licence holder may do residential building work. The two are not necessarily the same.
Because the realities of the residential construction industry are that very few residential builders employ tradespersons or labourers, but rather sub-contract with them, this distinction is important. It has to potential to greatly restrict and alter traditional means of progression towards obtaining a builders licence. Providing that sub-contractors cannot do residential building work for which they are not licensed under supervision, will make it virtually impossible for a carpenter such as Mr Shoobridge to gain or be credited with general building experience by undertaking work, under supervision, beyond that of the trade for which he is licenced. Relying on experience gained on the job in residential construction so as to eventually become a licenced builder could become a thing of the past.
Interestingly, in Zada v Director General Department of Finance and Services NSW Fair Trading [2014] NSWCATOD 16, Senior Member Frost wrote that -
"… there is still room for debate about the reach of the expression "otherwise lawfully engaged", given provisions in the HB Act such as s 12 which prohibit certain categories of work except as an "employee". The respondent suggested, by way of example, that the expression may allow a licensed carpenter (not being an employee) to carry out, under supervision, some incremental activities as a way of progressing towards a builder's licence. That suggestion seemed to be driven more by pragmatism than by a close analysis of the words of the Instrument and the broader regulatory regime. And of course there is an inconsistency between that suggestion and the respondent's primary position, which is that a person who is not an employee will necessarily be in breach of s 12, and is therefore not "otherwise lawfully engaged".
The example suggested to Senior Member Frost by the respondent in Zada mirrors Mr Shoobridge's circumstances. The strict view suggested in the last sentence of the quote has been followed in a number of cases: see Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100, and Merhi v Commissioner for Fair Trading [2014] NSWCATOD 143.
A different approach was taken by Senior Member N. Isenberg in Hale v Commissioner of Fair Trading [2015] NSWCATOD 1. There she found that the applicant had been engaged as a subcontractor, and not as an employee. The issue was whether he was "otherwise lawfully engaged"? She wrote -
27 There is no definition of "a person otherwise lawfully engaged" in the Instrument.
28 The Respondent contended that, as an independent contractor, the applicant had carried out residential building works without the appropriate licence or certificate under the HB Act. As a consequence, the Respondent submitted, he was in breach of ss. 4 and 12 of the HB Act and accordingly, he had not been "lawfully engaged", and is therefore unable to claim any credit, for any work at the four relevant Payne sites or for the work undertaken for Mr Sentance.
29 Section 4(1) of the HB Act makes it an offence to contract to do work without a licence. It states, relevantly, that a person must not contract to do any residential building work, except as on behalf of an individual, ... or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. If that were the extent of the provision I may have come to the view that, having regard to the emphasis in the legislation on consumer protection, that there was no prohibition against a licence holder who contracts with the homeowner engaging a sub-contractor to carry out the work; section 4 provides only that an unlicensed person may not contract to undertake the work, that is, an unlicensed person may not contract with the homeowner directly. The HB Act contains a detailed insurance regime, such that the member of the public who engages a licence holder to undertake residential building work can be confident that the licence holder will be properly insured against faulty workmanship - either his own, or by those undertaking the work on his behalf. In those circumstances it would seem to me, if the licence holder chooses to engage a subcontractor the property owner would not be disadvantaged, unlike if the owner were to contract with someone who was unlicensed.
30 However s.4(2) prohibits the licence holder from subcontracting other than to a person who is themselves the holder of a contractor licence to do work of that kind. The effect is that the licence holder can subcontract to various specialist trades, providing those persons are themselves licence holders in respect of their trade.
31 Section 12 of the HB Act also makes it an offence to perform residential building work without a licence. …
33 I was referred by the Respondent to the Tribunal's recent decision in Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100, where SM Lucy, found Mr Ozcelik not to have been lawfully engaged by the licensee because ss. 4 and 12 of the HB Act prohibited him 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. His engagement by the licensee was prohibited by the HB Act and he was not lawfully engaged by that company. Consequently his work as a subcontractor for the licensee was not "experience" within the meaning of the Instrument.
34 There was some robust discussion at the hearing about how a person who is not an employee could ever be "otherwise lawfully engaged", given the prohibitions in ss. 4 and 12. Neither at the hearing nor in the written submissions did the Respondent provide an adequate answer to this conundrum. In Zada the Respondent appears to have submitted that the expression "otherwise lawfully engaged", may, for example, allow a licensed carpenter (not being an employee) to carry out, under supervision, some incremental activities as a way of progressing towards a builder's licence. That suggestion, the Tribunal there considered, seemed to be driven more by pragmatism than by a close analysis of the words of the Instrument and the broader regulatory regime. The Tribunal noted that this was, of course, inconsistent with the respondent's position that a person who is not an employee will necessarily be in breach of s.12, and is therefore not "otherwise lawfully engaged". I agree with this analysis.
35 Section 13(1) of the Act makes it an offence to do residential building work without the relevant qualifications. It states that:
(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. (Tribunal emphasis)
37 Curiously, s.13(1)(a) seems to have the effect of repeating the prohibition of s.12, but s.13(1)(b) suggests that, a person may in fact, if supervised by the relevant licence holder, do residential building work. This would apply whether or not the person was an employee. The applicant contended that his work fell within the exception provided in s.13(1)(b) of the HB Act, that is, that he had done the work under the supervision, and subject to the direction, of Messrs Payne and Sentence, both of whom had endorsed contractor licences.
…
42 In my view, to give effect to the legislative intent, s.13(1)(b) should stand alone from the provisions of ss. 4 and 12 of the HB Act. It provides an exception in which the applicant could be considered to have been lawfully engaged in performing residential work. Support for this view is found in the Explanatory Memorandum to the Building Service Corporation's Bill 1989 (as the HB Act was then known) which introduced these provisions, which records:
The Bill provides for the issue of contractor licences which will authorise individuals, partnerships or corporations who hold them to contract to do residential building work …..
Although a holder of a licence may contract to do residential building work …, individuals who actually do the work will (subject to certain exceptions such as those relating to owner-builders) need to hold an appropriate endorsed licence or supervisor or registration certificate or to be supervised by a holder of such an instrument. (Tribunal emphasis)
43 This suggests to me that it was intended that, notwithstanding the prohibitions in s.4 and particularly s.12, that if an unlicensed non-employee were supervised by an endorsed licence holder or supervisor that person could work on residential properties.
44 I therefore find that Mr Hale came within s.13(1)(b) when he worked as a subcontractor for Messrs Payne and Sentance under their supervision.
45 The Respondent invited my attention, in its general submissions to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, where the High Court stated at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46].
46 I was also referred to Ullrich v Commissioner for Fair Trading [2014] NSWCATOD 11, where SM Scahill, in the context of considering the meaning of "supervised" in the HB Act, stated at [53]:
The Home Building Act 1989 is essentially a consumer protection act, which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline.
47 There is nothing in these cases which is contrary to the view I have expressed. The scheme's focus is on consumer protection; and consumers are protected if a person's work is supervised in accordance with s.13.
48 Accordingly I find that Mr Hale may meet the 24 months experience requirement when the periods he was supervised by Messrs Payne and Sentence are taken into account.
In my opinion s 13 of the Home Building Act 1989 clearly contemplates unqualified (and therefore unlicensed) individuals doing residential building work under the supervision or direction of the holder of an endorsed contractor licence or supervisor certificate. The extract Senior Member Isenberg quoted from the Explanatory Memorandum for the Bill provides clear evidence of a legislative intention that the individuals who carry out the work must either be appropriately licenced or supervised by someone who holds an appropriate licence. While I agree that s 12 and s 4 on their face appear to prohibit all unlicensed residential building work (with the exception of employees only), such an interpretation is inconsistent with the clear words of s 13(1). In reading the Act as whole it should be construed so as to give each provision meaning. The conclusion reached in Hale in my view is compelling. I note that it has been subsequently followed by the same member in Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20'
I therefore consider that relevant experience by a person who is engaged and paid as a subcontractor, which experience is gained under the supervision of a person who is the holder of an endorsed contract or a supervisor certificate, is experience gained by a person who is "lawfully engaged" for the purpose of the standard.
With that understanding of the relevant law I turn to consider the experience claimed by Mr Shoobridge.
[2]
The evidence before the Tribunal
The following material was in evidence before me:
1. s.58 documents filed by the Commissioner.
2. Mr Shoobridge's application for administrative review together with attachments.
3. A folder containing the evidence relied on by Mr Shoobridge before the Tribunal.
4. Mr Shoobridge's statutory declaration filed 19 March 2105.
During the hearing I heard evidence from:
1. Mr Shoobridge.
2. Mr Val Knight.
3. Mr Bradley Trethowan.
4. Mr Tony McMahon.
5. Mr Jason Copeland.
6. Mr John Brookes.
[3]
The experience relied on by Mr Shoobridge
Mr Shoobridge relied on experience gained over a number of years while working with a number of licenced builders on a variety of jobs, not all of which involved residential building work, under a variety of arrangements concerning how he was paid. He agreed that he had never been employed as an employee, in the sense of being paid a weekly wage and accruing entitlements over time for things such as holidays and sick leave.
It is convenient to analyse the evidence with respect to Mr Shoobridge's practical experience he claims should be credited to him, by reference to the work he undertook with each licenced builder.
[4]
Experience gained while working with Val Knight
Mr Knight is a licenced builder who completed a referee statement in which he certified that he had supervised Mr Shoobridge in undertaking building work ("not single trade work") at two building sites. The first was at Porpoise Crescent, Bligh Park and involved a "second story additional - internal renovation & carport." Mr Shoobridge's roles and responsibilities had been, "client liaison - trade organisation, carpentry subcontractor - pricing, fix out, external finishes. He had undertaken that work from 16 March 2012 to 18 May 2012 and from 30 May 2012 to 26 July 2012.
The second was at Settlers Crescent, Bligh Park which involved a "complete reroof for steel- single floor addition on slab brick veneer -render - new kitchen." Mr Shoobridge's roles and responsibilities had been, "Site set out, concrete slab pour - roof rectification, and trusses and beams, veranda post beams, fix out and external fix out." He had undertaken that work from 10 May 2012 to 18 July 2012 and from 30 July 2012 to 27 August 2012.
Mr Knight wrote that both these job the builder in control of the site had been Val Knight Building Contractors Pty Ltd. Both jobs had been issued with a DA. Mr Shoobridge claimed five months practical experience relating to this work.
Mr Shoobridge gave evidence as to the nature of his arrangement when working with Mr Knight on these sites. He described it as a "hand-shake partnership." When pressed on this he said that the arrangement involved:
Mr Knight (by which I understood his company) contracting with the home owners to perform the works.
Mr Knight obtaining the requisite home owner's warranty insurance.
Mr Knight being paid at an hourly rate for all work undertaken by each of him.
Mr Shoobridge being paid as a subcontractor for any all work undertaken by him.
Mr Shoobridge and Mr Knight splitting any profits on the job between them.
Mr Shoobridge gave evidence that Mr Knight supervised the variety of work he did on a daily basis.
Mr Knight said the he is a builder who usually works on site. With the Porpoise Crescent job, Mr Shoobridge had introduced the client and played a significant role in the initial work and had significant client contact. Mr Knight said, "James got the leads and liaised with the client." He had been engaged on the site doing both carpentry work and the supervision of other trades. A significant part of the work on this site was carpentry. This was not the case with the Settlers Crescent job, which was building at the same time. When Mr Shoobridge was not working on the Porpoise Crescent site, he was working in a supervisory capacity at Settlers Crescent. In both cases Mr Shoobridge was nearby at all times and supervised Mr Shoobridge's work. Mr Knight had been, "Happy with his work."
In my opinion the arrangement between Mr Shoobridge and Mr Knight, while involving an element of profit sharing, was a sub-contract arrangement. While Mr Shoobridge referred to it as a hand shake partnership, it is clear that Val Knight Building Contractors Pty Ltd contracted to undertake the residential building work in both cases, and that the arrangement with Mr Shoobridge was a sub-contract arrangement.
The experience Mr Shoobridge gained during these constructions is relevant building experience gained under the supervision of a licence holder for which he was financially remunerated. While I accept that Mr Shoobridge also performed carpentry work for which he was licenced on a sub-contract basis, in the light of Mr Knight's evidence I do not think one can divide Mr Shoobridge's time on these sites between carpentry and other work, because Mr Shoobridge was undertaking a wider role at all times.
I accept that Mr Shoobridge gained 5 months relevant industry experience while working with Mr Knight.
[5]
Experience gained while working with Bradley Trethowan
Mr Trethowan is a licenced builder who completed a referee's statement in which he certified that Mr Shoobridge had worked for him on a site in Kurrajong East in which the work undertaken had been "project management, site set out, building and construction." Mr Shoobridge's roles and responsibilities had been "leading hand, project management." The work had taken 1 month from 20 February 2013 to 20 March 2013.
Mr Shoobridge told me that the construction involves the construction of a two story loft garage (incorporating a kitchen and bathroom) and an extension from the side of an existing house. He had been paid as a sub-contractor on an hourly rate basis for all of this work. A DA was obtained with respect to this work.
Mr Trethowan spoke with the Tribunal by phone. The phone connection was poor, making communication near impossible. Mr Trethowan did verify that Mr Shoobridge acted on the job as a supervisor. Otherwise the problems with the phone line prevented him giving further evidence to the Tribunal.
I accept that Mr Shoobridge was engaged by Mr Trethowan on a sub -contract basis. In my view Mr Trethowan's referee statement is sufficient to persuade me that Mr Shoobridge gained 1 months relevant industry experience while working with him.
[6]
Experience gained while working with Anthony McMahon
Mr McMahon is a licenced builder who describes himself as the project manager for the RMA Group.
In his evidence Mr McMahon explained that the RMA primarily builds for commercial clients, although much of the construction work they do is domestic. In their construction they focus on maintaining a safe work environment and the maintenance of quality systems. As a result site supervisors are required as a matter of course to manage a lot more papers work than may be the case with some residential builders, and to carefully manage and document hazard assessment and site induction processes.
Mr McMahon completed two referee's statement, one letter and a statutory declaration, which all provide information about the practical experience Mr Shoobridge has gained under his supervision. That experience has been gained over a number sites where Mr Shoobridge was working in a supervisory capacity. In all cases Mr Shoobridge was a paid at an hourly rate as a subcontractor.
Mr McMahon said that he had supervised Mr Shoobridge's work on all sites on a daily basis. This usually occurred by phone, but on some occasions their discussions took place on site. He said Mr Shoobridge was, "more than competent."
Mr Shoobridge's first work for RMA was undertaken in the refurbishment of the PECC & Emergency Department at Manly Hospital in the period 1 March 2010 to 1 August 2010. Mr Shoobridge's role and responsibility had been, "the refurbishment of the existing emergency department including reception, security, waiting and triage areas, and also the creation of a new psychiatric emergency department within the existing building."
Mr McMahon explained that there were two separate sites at the hospital, involving different requirements. He had two supervisors on site, each responsible for one of the jobs. Mr Shoobridge was one of those supervisors. Mr Shoobridge was responsible for oversight of all facets of the construction including sequencing of trades, and oversight of their work.
The second batch of work related to work done on the Broken Hill Police Station and four Police residences in the period 10 April 2013 to 4 August 2013. In his statutory declaration Mr McMahon verified Mr Shoobridge's description of his role in his own statutory declaration which he said -
The properties are Police Residences at Broken Hill. These residences are occupied by a families full time and are classed as their residence. The repairs were completed at the request NSW Police properties and required renovations and repairs to existing dwelling. The work ran between 27/06/2013 to 22/08/2013. The work I carried out was site supervisor, management of other trades, oversee all repairs and replacements. I supervised the removal of asbestos from the residences ensuring all safety and compliance codes were met, repairs to structural integrity of dwelling, all linings, cladding, windows, renewal of bathrooms and kitchens duties as I would describe as a working foreman this includes being on the tools as well as supervising others and project.
The scope of works for the repairs to the Police Station and residences shows a wide variety of repairs both cosmetic and structural, including asbestos removal, and renovations of bathroom and kitchens.
In his letter accompanying the referees statement for these first two episodes of work Mr McMahon wrote -
I write this referee's statement to confirm my knowledge of the skills and competency of James Shoobridge.
In my position as Project Manager for RMA Group, James has worked on several projects in a supervisor capacity. Prior to evolving into supervision James worked as a carpenter and leading hand and I have witnessed James' progression through the building industry.
In a supervisor position James was required to implement the following tasks.
liaise with client for site issues
*Oversee setting up of site amenities and builders compound including implementation of safety evacuation procedures.
*Assessment of plans and scope of work
*Assessment of specification and gauging completed works against the specification
*Assess and order materials
*Organize and Sequence trade works in keeping with construction program
*Adjust and update construction program
*Implement site safety system including, carry out site inductions, assess trade SWMS', carry out site safety inspections, ensure all trade tools are tagged, maintain the site in clean order.
*Implement environmental management plan.
Prior to supervision work James carried out carpentry work on many projects and assisted other supervisors on projects under my control.
I have a good understanding of James's skills as a carpenter and his understanding of the workings and requirements of the other trades due to his interaction with them on my projects.
Mr McMahon stated that Mr Shoobridge was responsible for the supervision of each of the Broken Hill jobs he was on, which also required that he utilise his carpentry skills. Mr Shoobridge in turn was supervised by either Mr McMahon himself, by phone, or by one of the more senior supervisors at Broken Hill.
Thirdly, Mr Shoobridge worked under Mr McMahon's supervision for a period of three months in 2010 undertaking restoration on a government owned house in Rockdale. Mr McMahon verified the following description of that work given by Mr Shoobridge in his statutory declaration -
The property … is a two bedroom heritage listed cottage. This cottage is occupied by a family full time and is classed as their residence. The repairs were completed at the request NSW dept of Planning and Environment and required extensive renovations and repairs to existing dwelling. The work ran between 03/02/2014 to 03/05/2014. The work I carried out was site supervisor, management of other trades, oversee all repairs and replacements ensuring heritage certification was met, work included repairs to piers new drains, replacement of all electrical and hydraulics, repairs to structural integrity of dwelling, all linings, cladding, windows, painting and upgrades of bathroom and kitchen areas, duties as I would describe as a working foreman this includes being on the tools as well as supervising others and project.
Mr McMahon commented that on this site Mr Shoobridge undertook a fair bit of carpentry work due to the nature of the restoration. although his primary task was supervision. Perhaps 20% of the work Mr Shoobridge undertook at Rockdale was carpentry. Mr McMahon made the point that even when he was "on the tools" Mr Shoobridge was nevertheless responsible for the supervision of the site.
Fourthly, Mr Shoobridge worked under Mr McMahon's supervision for a period of 5 months on a new dwelling at Tennyson Point. Mr McMahon verified the following description of Mr Shoobridge's responsibilities -
The property LDA 2013/0297 … Tennyson Point, new dwelling. The work ran between 05/05/2014 to 03/10/2014. The work I carried out was site supervisor, management of other trades, site set out, supervision of excavation, rough of plumbing/drainage, termite control, slab installation form work-steal-pour, brick work and reinforced block wall, duties as I would describe as a working foreman this includes being on the tools as well as supervising others and project.
When asked by me to explain how Mr McMahon supervised him in undertaking all these works Mr Shoobridge said that Mr McMahon would tell him what he wanted done, and leave it to him to organise it as the person in charge of the site. They would meet regularly to discuss and monitor progress. Mr McMahon confirmed this.
The respondent submitted that experienced gained by Mr Shoobridge in working on constructions that were not residential in nature, such as Manly Hospital and the Police Station, is not relevant industry experience for the purpose of the standard. I reject this submission. As Mr Shoobridge and Mr McMahon pointed out the work undertaken and supervised by Mr Shoobridge, while not relating to a residence, provided experience and required the application of skills, expertise, and knowledge that are equally relevant to both commercial and residential construction.
The respondent also submitted that work done by Mr Shoobridge on a site which did not require the issue of DA, such as the renovations and repairs of the Broken Hill Police houses, should not be regarded as relevant industry experience. As I understood it, the thesis behind this submission was that work that did not require a DA did not provide the type of experience necessary for a licensed contractor. The respondent did not lead any evidence to support this. Mr McMahon, on the other hand, considered that the experience Mr Shoobridge gained when working on the Police houses was relevant, and was testimony to Mr Shoobridge's competence. In my view whether experience gained on any building site is relevant industry experience is a question of fact to be determined in each case. The standards do not require that there be a DA in place for work done on a site to be relevant industry experience.
I accept that when working for the RMA Group Mr Shoobridge did so as a sub-contractor and was financially remunerated for his work. Mr McMahon holds Mr Shoobridge in high regard, and was confident of Mr Shoobridge skills and knowledge. I am satisfied each of the jobs Mr Shoobridge undertook for the RMA Group took place under Mr McMahon's supervision and provided Mr Shoobridge with relevant industry experience. The relevant industry experience gained by Mr Shoobridge is:
1. 5 months relevant industry experience while working on the Manly hospital sites;
2. 4 months relevant industry experience while working on Police houses at Broken Hill;
3. 3 months relevant industry experience while working on the restoration of the Rockdale house; and
4. 5 months relevant industry experience while working on the new residential construction at Tennyson Point.
[7]
Experience gained while working with Jason Copeland
Mr Copeland is a licenced builder with the TradeTech Building Group Pty Ltd. In a referee's statement he said that from 6 October 2014 Mr Shoobridge has been working for him on a house restoration in Bligh Park. He said that he had employed Mr Shoobridge to "run and complete this job" and verified this description of his role -
The property CDC 140372 … Bligh Park. A second story addition with internal renovation. The work commenced 06/10/2014 to date. The work I carried out on this project included client liaison, organise plans and drawings, quote for project, plan and organise contract, meet and liaise with private certifier, schedule all activities utilising gant (sic) chart, arranging and sourcing of materials, arranging organising and scheduling of all trades, site setout including OH&S compliance, arrange scaffolding, undertake required demolition and modification to existing dwelling, all carpentry works including frames, trusses, eaves, instillation of windows, duties as I would describe as a working foreman this includes being on the tools as well as supervising others and project.
The work on this Bligh Park property was undertaken on the basis that in addition to being paid his hourly fees as a subcontractor, any profits from the job would be split between Mr Shoobridge and Mr Copeland. The job was completed in February 2015.
Mr Shoobridge also relied on what he described as insurance work he had done for Mr Copeland over 3 months, and for which he was paid as a subcontractor on an hourly basis. This work involved repairs and restorations to three properties at Bligh Park, Katoomba and Hornsby following damage. Mr Copeland verified the following description of that work -
The dates were between 12/09/2010 to 13/11/2010 and then between 28/08/2012 to 25/10/2012
A) The property at Katoomba had no DA but insurance claim by the owner to demolish and rebuild brick work which had been severely damaged by a motor vehicle. The fence by definition is part of the curtilage of the residential property and would be defined as residential property. Work I did was supervision of project. Demolish and remove existing wall, dig and prepare new footings, source material to match existing house and structure, arrange and supervise brick layer.
B) The property at Bligh Park had no DA but insurance claim by the owner to demolish and rebuild home which had been severely damaged by fire. The only remaining structure of the original residence was the slab and the brick walls. Work I did was to demolish and clean existing dwelling. Site supervision arrange and manage other trades ensuring OH&S requirements met. Rebuild frames and trusses to suit existing walls. Rebuild dwelling to comply with all standards and regulations.
C) The property at Hornsby had no DA but insurance claim by the owner to demolish and rebuild part of the house which had been severely damaged by a falling tree. This property was a two story dwelling. Work I did was to demolish and remove debris organise scaffolding and material to rebuild home. Arrange other trades supervise construction, install new rafters, eaves gutters and eaves to suit. Rebuild dwelling to comply with all standards and regulations.
In a letter of reference dated 15 August 2014 Mr Copeland provided details of two jobs -
… James has helped me complete a number of builds resulting from insurance claims examples include:
Rebuild of house burnt down at Bligh Park
I supervised James' work however James carried out the organising and completing of all tasks required. The job required a great deal of planning and skill to put the house back together just the way it was before it burnt down. James had to organised frames and trusses, new windows, new kitchen and bathrooms. James also had to organise and schedule other trades so the job kept moving forward as we were on a strict time line.
Some of the other trades James had to organise were roof tilers, electrician, plumber, gyprocker, tiler, painter and kitchen joiner. I watched over the job very carefully and James showed he had a whole range of experience. Both the owner and insurance company were extremely happy with the work that was completed and the manner in which James completed it.
Transform a house into wheelchair capable at Kellyville
James also completed a renovation where the client had had a car accident which resulted in him being confined to a wheel chair. The result of this required James to identify, organise and plan to transform the house. This included access and egress points, widening of doorways, construction of ramps and remodelling of bathroom. All had to be completed using the Australian standard code for disabled people so the client could still do day to day things if no one was around.
James had to form and pour concrete ramps 1:14 to Australian standards for disable access. James also had to transform the bathroom in the house to meet Australian standards for disabled bathrooms where he had to source and order grab rails, shower seat, disabled toilet and other items to Australian Standards. James had to organise other trades such as gyprocker, tiler, plumber, electrician and painter.
These are just some of the jobs James has completed for me. I have supervised and inspected his work and can say that he is just not a carpenter, but performs the role of builder to the highest of standards.
In his evidence Mr Copeland said that Mr Shoobridge liaised with the clients and ran all the trades on the Bligh Park job. With respect to all of the sites Mr Copeland supervised him by visiting the sites and with regular telephone contact. In all to the jobs Mr Shoobridge was "on the tools" approximately half the time.
I am satisfied that Mr Copeland engaged Mr Shoobridge on a sub-contract basis and that Mr Shoobridge was financially remunerated (which included an element of profit sharing) for all the work he did for Mr Copeland. I accept that Mr Copeland regularly supervised Mr Shoobridge in undertaking all work. Mr Shoobridge gained 3 months relevant industry experience while working on the Bligh Park second story addition, and a further 3 months relevant industry experience while working on the insurance jobs.
[8]
Experience gained while working with John Brookes
Mr Brookes is a licenced builder who employed Mr Shoobridge as a subcontractor on an hourly basis on a new build at Castlereagh by an owner builder. Mr Brookes verified the following description of the works provided by Mr Shoobridge -
… the licenced contractor was employed as the project manager by the owner builder to complete a substantial residential home. The licenced contractor has in turn employed me for financial remuneration to undertake a variety of building work which he supervised I am of the opinion that this work should be accepted by Fair Trading as the works carried out meet the requirements as set out in the Home Building Regulation 2004 and the Home Building Act 1989. Fair Trading have an appropriate means of tracking the work and that the work carried out have been certified to have met the standards as required. This work totals 4 months of experience.
…
The property [at] Castlereagh, new dwelling. The work ran between 04/05/2009 to 07/09/2009 The work I carried out was working foreman, organisation and management of other trades, installation of timber flooring system all carpentry work, liaise with owners re modifications ensure other trades complied with standards required.
In his evidence Mr Brookes said that he supervised Mr Shoobridge by means of regular discussions on site concerning the job and issues arising. He commented that Mr Shoobridge was capable of reading and understanding plans, and had the insight and understanding necessary to grasp what is required, and to supervise the completion of necessary works by other trades. On this job Mr Brookes estimated Mr Shoobridge had spent half his time "on the tools" and half undertaking supervisory work.
I accept that Mr Shoobridge was engaged as a sub-contractor by the owner builder and was financially remunerated for all the work he did. I accept that Mr Brookes supervised all the work Mr Shoobridge did at the Castlereagh site. The respondent submitted that this experience was not relevant experience because the work was done on a residential construction being built by an owner builder. If Mr Shoobridge had been contracted to the owner builder, rather than Mr Brookes, I would have accepted this submission. The evidence before me however is that Mr Brookes, in his capacity as project manager, engaged Mr Shoobridge. In those circumstances I am satisfied that Mr Shoobridge gained 4 months relevant industry experience while working on that site.
[9]
Experience gained while working with William Kerr
Mr Shoobridge claims a total of seven months experience gained while working with William Kerr, a licenced builder, of Fakin Pty Ltd trading as Ozkit Homes. According to Mr Shoobridge Mr Kerr has declined to comment with respect to his practical experience.
Despite this Mr Shoobridge seeks to rely on that experience, based on his own evidence and references from a number of sub-contractors who worked the job.
Mr Shoobridge provided the following description of this job -
For a period of 7 months I was lawfully engaged by William Harry KERR of FAKINI PTY LTD t/a OZKIT HOMES contractor licence number 76362C Qualified supervisor licence 40196S to undertake residential building works on a premises at North Richmond. I was financially remunerated for this work.
The property DA 0189/09 [at], North Richmond, new dwelling. The Work ran between 16/09/2009 to 04/01/2010 and then between 02/11/2011 to 15/02/2012. The work I carried out was working foreman, organisation and management of other trades, installation of metal flooring system all carpentry work, day to day running and management of site, arrange and supervise landscaping. Trades I organised and utilised on this job included Rod WEST of Rod West Electrical, Craig Davis of CD Plumbing and Jeff Bosward of JCB MAINTENANCE INDUSTRIES PTY LTD.
In his oral evidence Mr Shoobridge said that this work involved the construction of an Ozkit kit home at Richmond as a display home. Mr Kerr is from Tea Gardens. Mr Shoobridge said that he supervised the build and undertook all the carpentry work on the site, which was probably 50% of his work on the job. Mr Kerr would visit the site.
Letters from Jeff Bosward and Rod West verify that Mr Shoobridge approached them to provide land scaping and electrical work at the site and acted as site supervisor. There is an unsigned letter from CMO Plumbing Pty Ltd to the same effect, that I cannot give any weight to in the absence of a signature.
The respondent submitted that Mr Shoobridge could not verify the experience he gained while working for Mr Kerr, and that the only evidence from Mr Kerr could provide the necessary evidence of practical experience. While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience.
In Mr Shoobridge's case while I accept that Mr Shoobridge worked for Fakin Pty Ltd trading as Ozkit Homes, I am not satisfied on the available evidence that Mr Kerr provided Mr Shoobridge with the supervision and direction necessary for this work to be regarded as relevant industry experience.
[10]
Experience gained while working with Darryl Beathe
Mr Shoobridge did his apprenticeship with Mr Beathe. Mr Shoobridge said that when he had completed that job he and Mr Beathe did a number of jobs together, where they each were paid wages on an hourly rate basis, but split the profits. He conceded that there was no verification of this from Mr Beahte.
In the absence of verification I am not satisfied that Mr Shoobridge should be credited with any relevant industry experience associated with this work.
[11]
Conclusion
In the light of the above findings with respect to the relevant practical experience demonstrated by Mr Shoobridge I am satisfied that he has more that 2 years relevant practical experience in a wide range of building construction work as required by the standard.
As a result the Tribunal sets aside the decision made by the Commissioner and instead determines to grant Mr Shoobridge's application for a contractor licence.
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
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Decision last updated: 29 April 2015