Singh v Commissioner for Fair Trading

Relevant legislation

1. The HBA regulates home building and specialist work within NSW. The Respondent (referred to in the HBA as the "Secretary": see Schedule 1 of the HBA) is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 and s 21 authorises the holder of a contractor licence to contract to do certain residential building work.
2. Section 20(1)(a1) of the HBA provides that an application for a contractor licence must be refused if the Respondent is not satisfied as to the matters required by s 33B and s 33C of the HBA. Section 20(2) of the HBA was amended, with effect from 5 July 2021, to read: (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
3. From the same date, cl 159 was inserted into Sch 4 (Savings and Transitional Provisions) of the HBA as follows: 159 Qualifications and experience required by licence and certificate applicants (1) For the purposes of section 20(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a contractor licence, is taken to have been validly made and to be valid on and from the date the notice was published.
4. Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is 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, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant".
5. Section 33D(1) of the HBA provides: 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant - (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary 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 Secretary 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. On 23 December 2021, the Respondent published a notice under s 20(2) of the HBA (the Instrument), specifying the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor licence or supervisor certificate for general building work. The Instrument relevantly provides, that for a licence in general building work to be issued, an applicant must demonstrate: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made.
7. The Instrument relevantly contains the following definitions: "Experience" means experience gained by the applicant as: (a) an employee of;… … 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 the applicant, during the relevant period, 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 this is verified in the Relevant Application Form; and ● received Remuneration in accordance with law for the Work which the applicant carried out. … "Relevant Application Form" means the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002)
8. Section 12 of the Licensing and Registration (Uniform Procedures) Act relevantly requires: 12 Procedure for making applications (1) An application may be made in writing or by means of electronic communication. .... (4) If made in writing, an application - (a) must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and … (5) If made by means of electronic communication, an application - (a) must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and …
9. Having regard to the decision in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112, I am satisfied that this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument.

Respondent's evidence

1. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1) together with the written submissions filed on 28 March 2023 and the oral submissions of Mr El-Roubaei, the solicitor for the Respondent
2. All of the documentary evidence was contained in the s 58 documents (exhibit R1). The Application submitted by the Applicant on 26 July 2022 included the following: 1. Referee's Statement of Mr Laurence Tannous dated 26 July 2022 2. Referee's Statement of Mr Daoud dated 1 July 2022.
3. The Referee's Statement of Mr Tannous provided that the Applicant obtained experience at a site at Whitfield Avenue, Ashbury from 8 November 2019 to 30 March 2021, while being a full time employee of Total Building Supplies, amounting to a total of four months and 22 days. A verification call was made by an officer of Fair Trading to Mr Tannous on 25 October 2022 and the experience provided by him was accepted by the Respondent.
4. The Referee's Statement of Mr Daoud provided that the Applicant obtained experience at 22 different sites between 11 January 2021 and 20 May 2022, while being a full time employee of Master Granny Flats.
5. On 3 November 2022, an email was sent by the Respondent to the Applicant containing an "Action Required" letter. The letter relevantly refers to the experience declared by Mr Daoud in the Applications and sets out the experience at 22 projects for a period of 16 months. The letter then stated: Research was carried out for these projects. The roles and responsibilities, time claimed for each site and third party checks show the dates claimed at each site are consistent with you not being present on site for each build from the beginning to the end of the build and therefore not gaining a wide range of building experience. Fair Trading has attempted to contact your referee Robert Daoud to obtain further clarification regarding your roles and responsibilities at each site, however have been unsuccessful. Experience gained at …Shellharbour Rd Lake Illawarra and …Young St Coledale have not been accepted as the experience is considered primarily singular trade work and a wide range of building work has not been satisfied.
6. The letter stated that the Applicant had provided a total of 20 months experience and that he was required to provide 24 months. Under the heading "Building Experience" the Applicant was asked to submit a signed and dated letter from Mr Daoud explaining what the Applicant's roles and responsibilities were for each site claimed and to provide an additional referee statement form from a licenced builder showing a further four months experience.
7. On 15 November 2022, the Applicant emailed documents to the Respondent. Relevant to the issue of experience were the following: 1. A letter dated 14 November 2022 signed by Mr Daoud specifying the Applicant's previous and current roles and responsibilities. 2. A further Referee's Statement from Mr Daoud dated 14 November 2022 stating that the Applicant had gained experience at a further nine sites in the period from 23 May 2022 to 19 November 2022.
8. The further experience referred to in the Referee's Statement amounted to approximately five and a half months.
9. The letter from Mr Daoud dated 14 November 2022 states that the Applicant was employed by Master Granny Flats as a full time employee and that his roles included the following: * Preparing new jobs for commencement, including relevant site establishment tasks, including and not limited to temporary fence and toilet, notification signboards, certifiers inspections, council inspections, building peg outs, sewer encasements and diversions. * Reading and interpreting plans * Directing workers onsite * Management and communication with various trades and local authorities * Purchase orders in preparation for materials required * Tool maintenance, including that of the team on each site. * Time management including timesheet logs * Checking invoices * Onsite works including demolition, excavation works for raft slabs and suspended slabs, formwork, steel fixing and concreting.
10. On 30 November 2022, the Respondent issued the Applicant with a notice, advising that his Application had been refused, as he had not demonstrated two years' relevant practical experience in a wide range of building construction work that covered all stages of construction or supervised and co-ordinated different trades on site. The Applicant was advised that he needed to gain 20 months experience across all stages of construction in residential building (Site set up, Framing, lock up and final stage) before he could reapply.
11. On 9 December 2022, the Applicant applied for an internal review of the refusal decision and provided a further letter from Mr Daoud dated 9 December 2022. The letter stated that the Applicant had a wide range of experience on site and had completed multiple set outs (all previously noted). Set outs of the sites were said to include physical set outs working to the surveyors' marks (peg outs which the Applicant also organised), site establishment including fence, toilet, peg outs, encasements, demolition etc. Mr Daoud said that the Applicant also had experience in organising the framing stage as well as framing onsite with carpenters. It was noted that organising the framing stage included a timber order and timber delivery as well as organising termite mesh with the pest controller.
12. Mr Daoud stated that in addition to this, the Applicant's references note many time periods in which he worked on site, as well as inspecting and organising works. The Applicant's experience included attending various sites during various stages, including lock up stage and that his roles and responsibilities at this stage included defect rectification, consulting with surveyors, engineers, consultants, and certifiers for the final occupation certificate and organising handover with the client. Mr Daoud stated the Applicant's experience was not limited to the above and that the Applicant had consulted with various trades throughout his employment and scheduled in various stages of work.
13. On 20 December 2022, the Applicant was advised that an internal review had been conducted and the original decision to refuse the Application was affirmed. A Statement of Reasons was provided to the Applicant. The delegate who conducted the internal review accepted the Applicant's practical experience submitted by Mr Tannous amounting to 4 months and 22 days.
14. The internal review concluded that the original decision by the Respondent, namely that the experience submitted by Mr Daoud did not demonstrate a sufficiently wide range of building work, was correct. Accordingly, the refusal decision was affirmed.

Applicant's evidence

1. In the Applicant's application for administrative review of this decision, he stated that he wanted a review on the basis that the decision made by the Respondent was not appropriate. He said that he had sought an internal review and that he had to follow the Respondent's decision. There is reference to providing more documents and that he had been told that the Respondent could not do anything and to apply through "NCAT". On 21 February 2023, Senior Member Little made directions for a timetable for the service of documents by both parties in this matter, including evidence and submissions.
2. The Applicant did not file any material with the Tribunal and did not seek to tender any material at the hearing or to give evidence before the Tribunal. The Applicant called Mr Daoud who gave short evidence and was cross examined by Mr El-Roubaei.
3. Mr Daoud gave evidence that the Applicant had previously worked as a truck driver and had left to gain building experience and knowledge. When he started working for Mr Daoud, there was no position for him and he started as a truck driver, with a position being made ready for him. Mr Daoud said in his oral evidence that the Applicant does on site preparation and planning, as well as formwork, set out, organises the plumber and co-ordinates between the concrete supplier and steel supplier. Mr Daoud said that it was hard for him to write the Referee's Statement. He said that the Applicant was organised in planning and closing off jobs as he had written in his letter. He said that the purpose of the Applicant working for him was for the Applicant to get experience in building.
4. In cross examination, Mr Daoud stated that the Applicant commenced in November 2020. He confirmed that he had signed two statements as a Referee that outlined the Applicant's experience on 31 sites. Mr Daoud agreed that he had signed the Referee's Statement to indicate that the information provided was correct and also did so in relation to the Applicant's further experience. He said that the Applicant was a truck driver and originally came for work experience, and was part truck driver and part set up. With the truck, the Applicant helped with site clearing. He said that the Applicant came to him to learn, not just for truck driving and that he was learning from day one. The Applicant came as being skilled but there was no position for him, so he helped with site set out. Mr Daoud reiterated that the Applicant had come to him for building experience and that it was hard to put everything on the paperwork.
5. The hearing was conducted by audio visual link and Mr Daoud and the Applicant were at the same location and using the same computer. There was no objection by the Respondent in relation to this. During oral submissions, Mr Daoud was permitted to provide some further evidence, again without objection. Mr Daoud said that he was not sure if he had made himself clear in his evidence and that when employed, the Applicant had had a wide range of experience, including physical framing and closing jobs off. Mr Daoud stated that he did not want the Applicant to be compromised because of something that Mr Daoud did wrong. He said that he could provide more information and that he had come to assist.
6. Mr Daoud went on to say that if the Applicant was to become a general builder, "I would trust him to do foundation work and set up work on my own house". He said that he did not want anything to happen to the Applicant because of what Mr Daoud did incorrectly and that he was happy to help.
7. In oral submissions, the Applicant conceded that he had not submitted any documents since November 2022 and thought that it would be sufficient to have Mr Daoud explain it. The Applicant did not seek to provide any further evidence.

Role of the Tribunal

1. Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28-30], [34]. In an application for review the tribunal is not restricted to consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues

1. The Respondent accepts that the Applicant has satisfied the qualification requirements for a contractor licence in the category of general building work but does not accept that the Applicant has satisfied the experience requirement.
2. In the written submissions, the Respondent submitted that the correct and preferrable decision in this matter is to affirm the decision under review to refuse the Applicant being granted a licence in the category of general building work as, at the time of the hearing, the Applicant had not demonstrated the requisite minimum 2 years' experience in a wide range of building construction work.
3. The Respondent's position was stated to be based on the following: 1. Any interpretation of the HBA - and any assessment of the Applicant's experience - must be conducted while keeping steadily in mind that the public interest favours protection of the community. 2. The dates and times provided by the Applicant do not comprise two years' full-time experience. 3. The experience claimed by the Applicant under Mr Daoud would not satisfy a decision maker that the experience was in a "wide range of building construction work".

Consideration

1. The Tribunal in Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 (Hall), said at [22]: 22. The definition of "Experience" in the Instrument (see above at [17]) is rather torturous. It seems to provide that experience gained by an applicant who doesn't otherwise hold a supervisor certificate or endorsed contractor licence is only relevant for the purpose of the Instrument in the following circumstances: 1. Where the applicant is an employee of the holder of a contractor licence: (a) Where the work is in the class of residential building work authorised by the contractor licence; and (b) The applicant was supervised and directed in that work by the holder of an endorsed contractor licence or supervisor certificate which authorises its holder to supervise that work; and (c) This is verified in the Relevant Application Form; and (d) The Applicant received "Remuneration in accordance with law" for the work.
2. It was not contended that the Applicant had at any time held a licence under the Act and accordingly, in order to comply with the Instrument's criteria must have gained his experience as an employee. It was not disputed that at the relevant times, the Applicant was a paid employee of Total Building Supplies and Master Granny Flats and I accept this to be the case. Similarly, it was not disputed that the Applicant was supervised and directed by Mr Tannous and Mr Daoud, or that both were appropriately qualified for the purposes of the Instrument, and I also accept this to be the case. The experience relied upon by the Applicant was said to be gained from, and including, 9 November 2019 and accordingly, all experience relied upon by him was obtained within 10 years of the date on which his Application was made, namely 26 July 2022.
3. As a result, the only issue to be determined in this matter is whether the Applicant has at "least two years' relevant industry Experience in a wide range of building construction work". The Respondent contends both that the experience provided by Mr Daoud is not in a "wide range of building construction work" and that his combined experience with both Mr Tannous and Mr Daoud does not amount to a period of two years.

Wide range of building construction work

1. It was submitted by the Respondent that building construction work includes numerous sub-categories of work and the Instrument designates that not only "a range, but a wide range of experience" in such work is required. The Respondent further submitted that to gain such experience, an applicant would be expected to be involved in almost all aspects of building construction work from start to finish (effectively "covering the field") - although there is no requirement that an applicant must attend a single site from the start to the finish of the build.
2. The Respondent relied on the following matters in relation to the submission that the Applicant had not demonstrated sufficient experience in a wide range of building work: 1. The Applicant's experience under Mr Daoud is fractured, with the Applicant only attending most sites for a number of days. Such fractured experience would not satisfy the decision maker that an applicant has gained meaningful experience across all stages of construction. Notwithstanding the referee attestations, intuitively it cannot be said that the level of experience gained by working on numerous sites for such short periods would provide a decision maker with the same level of certainty as a consistent work history. 2. The Applicant's experience under Mr Daoud, even if the fractured times are accepted, does not cover a wide range of building construction work, as: 1. Some sites such as Shellharbour Road, Lake Illawarra and Young Street, Coledale only provide singular trade work. 2. The remaining sites only provide experience for the beginning stages of each construction project - being the slab and framing stages. The descriptions declared by Mr Daoud in the Application provide that the Applicant was only on site for the initial portions of each build and then provided offsite administrative support while other tradespeople were engaged. 3. Mr Daoud later provides a letter accompanying the internal review which states that the Applicant was also involved in the lock up and handover stages - however, there is no information in relation to which sites this relates. Furthermore, this claim contradicts the earlier information provided by Mr Daoud in the Application. Coupled with the times claimed showing minimal gaps in employment, with the Applicant moving to numerous different sites over time, it is highly unlikely that the Applicant experienced all stages of construction.
3. In Hall, Senior Member Dinnen summarised at [21] a number of previous decisions relating to "a wide range of building construction work" as follows: However, as discussed at [21] to [26] of Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 there is nothing limiting the Tribunal's consideration of what exactly the criteria of "a wide range of building construction work" means in the context of an applicant's past work experience. It is not a requirement that an applicant should have constructed a house from start to finish: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [45]; Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 at [90]; Tange v New South Wales Fair Trading [2013] NSWADT 201. Nor is it a requirement that an applicant has experience in all aspects of building work, provided the experience is sufficiently wide: Price v Commissioner for Fair Trading [2020] NSWCATOD 93; Locking v Department of Finance and Services [2013] NSWADT 239; Sollazzo v Commissioner of Fair Trading [2015] NSWCATOD 20.
4. In Locking v Department of Finance and Services [2013] NSWADT 239, the Tribunal affirmed the decision of the Respondent to refuse Mr Locking's application for a contractor licence in the category of "general building work" as he had not satisfied a minimum of two years relevant industry experience in "a wide range of building construction work". The Tribunal stated at [17] to [19] when referring to Mr Locking's experience in carpentry and joinery work: 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.
5. In Price v Commissioner for Fair Trading [2020] NSWCATOD 93 (Price), the Tribunal found at [60] that Mr Price's experience related "primarily to work in renovating bathrooms with some work in kitchens" and held at [62] that "it cannot be said that Mr Price undertook a wide range of building construction work on projects over the preceding 10 years". At [70] to [71] the Tribunal stated: 70. Mr Price argued that his 37 years in the building industry provided sufficient experience for him to obtain a builders licence. He held a builders licence between 2002 to 2009 and has held other licences in the building industry. He argued that he is familiar with the building code and the standards. He contended that a carpenter is able to supervise all of the trades and is experienced in all the fundamental structural principles. He stated that he had supervised other tradespersons. Mr Buttigieg stated that this occurred when he himself left a site to pick something up. Mr Price argued that the principles attached to building or renovating a bathroom or kitchen are the same as those in relation to other aspects of building a house. However, the Tribunal notes that the Instrument focuses on demonstration of the Applicant's experience in work. That is the evidence needs to show that the Applicant has had experience in undertaking the kind of work expected of the contractor. This is not the same as understanding the principles. In this respect, the Tribunal notes there are different principles that apply in the areas of plumbing, tiling, waterproofing, carpentry and painting. Each of these callings has its own applicable skills. 71. Mr Price has not demonstrated that he has the breadth of experience required for a licence in the category of general building work. There is a lack of evidence that Mr Price has, as required by the Instrument, a minimum of two years relevant industry experience in a wide range of construction work - the majority of which has been obtained in the 10 years prior to application. In the circumstances of this case, I see no reason to depart from the requirements of this aspect of the Instrument. I do not consider that application of the policy in this case on the basis of the evidence put before the Tribunal would produce an unjust decision. On the evidence before me I cannot be satisfied that Mr Price's experience is such that, although he may not strictly meet the requirements of the Instrument, he has otherwise demonstrated with evidence that he has extensive relevant experience which would qualify him to be granted a contractor licence in the category of general building work. No clear evidence was placed before the Tribunal that Mr Price had undertaken this role in the 10 years prior to the lodging of the application, or outside of this timeframe.
6. In his Application, the Applicant relied on the experience that he gained whilst employed at Total Building (All Build NSW) between 8 November 2019 and 30 March 2020. He then stated that he commenced working at Master Granny Flats in November 2020 where he remained employed as at the date of the hearing and relied on the experience gained between 11 January 2021 to 20 May 2022. In the Application, he stated the type of work he undertook was Project Manager, Formwork/Carpenter and Site Supervisor. The Applicant also relied on the further experience from Mr Daoud gained between 23 May 2022 and 14 November 2022. The Applicant did not provide a statement or give evidence in the proceedings.
7. The Respondent did not dispute that the experience provided by Mr Tannous was in a wide range of building construction period over a period of 4 months and 22 days and having considered the evidence, I accept the experience provided.
8. Having regard to the 16 On Site Building Experience Forms (experience forms) completed by Mr Daoud, I accept that he is attesting to the Applicant's experience across 31 different building sites between the period 11 January 2021 and 14 November 2022, a time span of approximately 22 months. The amount of time that the Applicant worked at each building site varied, with the shortest time being five days and the longest time being one month and 13 days. On Mr Daoud's estimate, there are only two projects where the Applicant was on site for one month, namely Kirton Road, Bellambi and Rossetti Street, Wetherill Park and only one project where the Applicant was on site for more than one month, namely at Queen Victoria Street, Bexley, where it was estimated that he was on site for one month and 13 days. On the remaining 28 building sites, Mr Daoud estimated that the Applicant was on each site for varying periods of less than one month.
9. On at least five occasions between 11 January 2021 to 23 April 2021, the Applicant's work on two different sites overlapped, so that on each of those occasions, the Applicant's last day on a site was also recorded to be the first day on a different site. Whilst there are times that the Applicant worked on different sites with no break between them, such as the period 11 January 2021 and 23 April 2021, there are other periods where there are gaps between his work on building sites, including from 24 December 2021 to 13 February 2022.
10. The Respondent submitted that some building sites that the Applicant worked on, such as Shellharbour Road, Lake Illawarra and Young Street, Coledale only provided singular trade work. Mr Daoud's estimate of the total time that the Applicant was carrying out building work for each of these sites was seven days and related to driveway/landscape work. Having regard to the experience forms for these sites, I accept that the experience gained related to singular trade work only.
11. Having considered the remaining experience forms completed by Mr Daoud, I find that they only provide experience for the beginning of each construction project, including the slab and framing stages. By way of example, in relation to the first of the sites at Kirton Road, Bellambi where the Applicant is recorded as having carried out building work on the site for a period of 1 month from 11 January to 8 February 2021, Mr Daoud has recorded the Applicant's roles and responsibilities at that building site as follows (sic): Applicant Required erect slab & construct timber frame. Required to establish site & organise/Instruct workers & subcontractors. Applicant required to carry out liason with surveyor, architect, engineer, certifier, syd water and head builder and subsequent tradesman to conduct the build process. Applicant was on building from 11/2/21 to 08/2/21 but continuation of work offsite was completed to continue to manage the process. Then…(indecipherable) liason with client, fellow staff, certifier and head builder".
12. In relation to the site at Simpson Parade, Albion Park, where the Applicant is recorded as having carried out building work on the site for a period of 7 days from 6 May 2021 to 13 May 2021, Mr Daoud has recorded the Applicant's roles and responsibilities on that building site as follows (sic): Applicant required to read and interpret plans for the building process to undertaken, Shed removal and existing concrete site excavation & bulk removal of soil to accommodate new dwelling slab. Applicant require to liason with surveyor, Architect, engineer, syd water, certifier & head builder & subsequent tradespeople to conduct the build process. Applicant on site from 06/5/21 to 13/5/21 but continuation of work offsite was required to continue to manage the build process.
13. In the experience forms, Mr Daoud consistently refers to the Applicant being required to undertake clearing of sites, to prepare sites or prepare new jobs. This is confirmed in Mr Daoud's letter to the Respondent dated 14 November 2022 that has been referred to above. The letter sets out the Applicant's previous and current roles and responsibilities, with the first point being "Preparing new jobs for commencement" and the final point being "Onsite works including demolition, excavation works for raft slabs and suspended slabs, formwork, steel fixing and concreting."
14. In his letter dated 9 December 2022, Mr Daoud states that the Applicant has a wide range of experience on site, including set outs, site establishment and organising the framing stage as well as framing onsite. Mr Daoud then goes on to state for the first time that the Applicant's experience "includes attending various sites during various stages including, lock up stage. His roles and responsibilities for this stage of work include defects rectification, consulting with surveyors, engineers, consultants, and certifiers for the final occupation certificate and organising handover with the client."
15. In evidence, Mr Daoud stated that the Applicant had a wide range of experience that included closing off jobs. No further detail as to this experience or the experience referred to in his letter of 9 December 2022 was provided by Mr Daoud and no evidence was provided by either the Applicant or Mr Daoud as to the dates or sites that such experience was said to have been provided.
16. Neither of the Referee's Statements provided by Mr Daoud or the accompanying experience forms, contain any reference to the Applicant returning to any site for any further work or to the Applicant having additional on site roles and responsibilities on any building site once his initial work on a site was finished. To the contrary, a number of the experience forms completed by Mr Daoud, including in the examples set out above, specifically refer to the Applicant carrying out building work at a site between particular dates and then to any work after that date being completed "offsite".
17. Mr Daoud's evidence in relation to the further experience that he has provided relating to lock up and handover stages is clearly inconsistent with the Applicant's roles and responsibilities set out by him in the 16 pages of experience forms covering 31 different construction sites as well as to the information contained in his letter of 14 November 2022.
18. I accept that the Applicant undertook off site tasks for various construction projects after he had finished working on the site. However, the instrument focuses on demonstration of the Applicant's experience in work and the evidence needs to show that the Applicant had experience in undertaking the kind of work expected of the contractor: Price [at 70] . As the Applicant was not on site conducting works beyond the initial stages of the various projects, he cannot be said to have experience in undertaking the kind of on site work expected of the contractor in the later stages of building construction work.
19. Whilst it is apparent that the experience provided by Mr Daoud was provided over 31 construction projects rather than one continuous project, I do not accept the Respondent's submission that this type of experience is necessarily "fractured" or that unlike more consistent involvement in a construction project, that such experience would not satisfy the decision maker that an applicant has gained meaningful experience across all stages of construction. Each matter must be determined on its own facts and there may well be cases where an applicant is able to demonstrate a wide range of building construction work, especially where the construction projects cover different stages of building.
20. As I have previously found, the experience provided by Mr Daoud relates to 31 different building sites over 22 months, with the Applicant working on any one site for a month or more on only three occasions. Setting aside the building sites where the Applicant carried out single trade work, the Applicant's roles and responsibilities on all of the remaining sites relate to the commencement of the building construction process, including the preparing and clearing of sites. As a result of the Applicant's involvement in the commencement phase of each project, and the relatively short time frames spent by him on each site, I find that Mr Daoud has provided a range of experience but this experience has been in the same range of building construction work on each project over the 22 month period, rather than in a wide range of building construction work.
21. It is apparent that the Applicant has worked hard to gain the relevant building experience, including on weekends and public holidays, and that based on the evidence, he is well regarded by both Mr Tannous and Mr Daoud. Indeed, Mr Daoud said in his evidence that if the Applicant was to become a general builder, he would trust him with the foundation work and set up of his own house. It is telling however, that this trust was limited to the beginning stages of the building process, rather than the construction of the entire house, reflecting the range of experience provided by Mr Daoud.

Conclusion

1. Taking into account all of the evidence in this matter, I am not satisfied that the experience provided by Mr Daoud amounts to experience in a wide range of building construction work.
2. I find that on the evidence before me that the experience provided by Mr Daoud is limited and does not amount to relevant industry experience in a wide range of building construction work. Whilst I accept the experience under Mr Tannous amounts to relevant industry experience in a wide range of building construction work, the amount of such experience is four months and 22 days. Accordingly, I am not satisfied on the evidence in this matter, that the Applicant has at least two years' relevant industry experience in a wide range of building construction work and that he meets the requirements of s 33D(1)(b) of the HBA.
3. Accordingly, the correct and preferable decision is for the Tribunal to affirm the Respondent's decision.

Orders 1. The decision under review is affirmed.

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: 17 August 2023