Merits review - residential building industryindividual contractor licenceendorsed contractor licencesupervisor certificate: general building workrequisite level of relevant industry experience in a wide range of building construction workinstrument made under Home Building Act 1989
Judgment (4 paragraphs)
[1]
The Applicant's case
In 2003 he gained a Certificate III in General Construction (Carpentry-Framework/Formwork/Finishing) with distinction from TAFE and was awarded the "Greg Neate Award" (Best Student Eastern Suburbs Division) from the Master Builders Association.
For over 11 years he has run his own business in the Industry as a sole trader in the Southern Highlands.
He has completed many large scale renovations and additions for owner builders with little need to ever work for a builder. All his building projects were completed on time, on budget and to relevant BCA standards.
In 2014 he fulfilled the requirements for Certificate IV in Building and Construction (Building).
His employment and experience history is that he has been self-employed from 2004 to 2015 and his work involves all aspects of building and carpentry.
Because of his excellent work record, he holds home warranty insurance in the sum of $500,000.
The 12 references he provided collectively encompass the role of a builder. The calibre of the referees satisfies the relevant referee criteria. Some of the referees are experts in the field of residential building as they include an architect, a lawyer, 2 engineers, 2 building surveyors, a building designer, a licensed builder and a director of a building company as well as owner builders.
It is very difficult to obtain references from licensed builders in the location in which he works as there are only a small number of builders and they do not wish to assist him to compete with them.
[2]
Preliminary issue - is the Application for a Contractor Licence or an Endorsed Licence
The Respondent states at [1] in RS that this matter relates to an application for review of a decision "to refuse the Applicant's application for an individual contractor licence for the category of "general building work". RS then refers at [4] to a provision of clause 26 (1) (b) (i) of the Home Building Regulation 2004 (the Regulation) providing that the Applicant is required to comply with clause 28 (1) of the Regulation "if also applying for an endorsement of the contractor licence". Mr Coss did not indicate to the Tribunal that there was any provision in the Respondent's relevant form for an application for such endorsement.
Schedule 1 of the Act, which contains definitions and other interpretive provisions, provides a clear distinction between "contractor licence" and "endorsed contractor licence". The relevant definitions are:
contractor licence means a contractor licence referred to in section 4 or 5.
endorsed contractor licence means a contractor licence endorsed under this Act to show that it is the equivalent of a supervisor certificate
supervisor certificate means a supervisor certificate issued under Division 2 of Part 3
The Respondent's standard application form used by the Applicant for his Application provides for an application for any one or more of "Individual Contractor Licence", "Qualified Supervisor Certificate" and "Tradesperson Certificate". The form makes no provision for an application for an "endorsed contractor licence" nor for the endorsement of a contractor licence. The type of licence applied for by the Applicant was "Individual Contractor Licence".
Sections 4 and 5 relevantly provide:
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.
…
(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.
…
5 Seeking work by or for unlicensed person
(1) An individual, a member of a partnership, an officer of a corporation or a corporation must not represent that the individual, partnership or corporation is prepared to do:
(a) any residential building work, or
(b) any specialist work,
if the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work.
Part 3 of the Act is named "Licences and certificates". Division 1, ss 19 to 23, relates to contractor licences and Division 2, ss 24 to 28, relates to supervision and tradesperson certificates.
Relevant excerpts from Division 1 are:
20 Issue of contractor licences
(1) The Secretary must refuse an application for a contractor licence if:
…
(a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections … 33C, or…
21 Authority conferred by contractor licences
(1) A contractor licence authorises its holder to contract to do the following:
(a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations),
(b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations).
[3]
Substantive issue - application for an endorsed contractor licence
There is no dispute as to the Applicant's relevant qualifications in relation to the examinations he has passed nor as to his licence as a carpenter nor as to the number of years in which he has been engaged in Building Work in the Industry. The dispute relates to whether or not the Applicant has complied with the experience requirements of the Act and the Instrument.
I find that, in accordance with ss 20, 33C and 33D, in order for the Applicant to succeed it is necessary that the Tribunal be satisfied on the material before it, that the Applicant has had Relevant Experience in accordance with the Instrument.
The Respondent has conceded a six-month period of Relevant Experience having regard to the reference by Mr Torr. I accept that concession.
I turn now to the other references on which the Applicant relied. As shown during the hearing they comprise the following:
1. From an engineer a reference that he has known the Applicant for 10 years in a professional capacity. He has worked with the Applicant "as the designing, inspecting and certifying structural engineer on many projects that he (the Applicant) has managed and built over this period". The engineer stated that the Applicant's clients have been thoroughly satisfied with his workmanship and professionalism and the projects were completed in a timely manner and that the Applicant has "always displayed an excellent knowledge of building and engineering practices".
2. From a representative of a company involved in residential engineering that he has professionally consulted with the Applicant between August 2013 and May 2015 in the construction of several small residential projects; the Applicant has been a site supervisor and has resolved construction problems during design and building processes and the Applicant has a professional manner in his association with owners, contractors and other professional consultants.
3. From the chief executive officer of a law firm that he has known the Applicant for approximately six years. The Applicant has completed a number of building projects and has displayed a high degree of competence in the planning and implementation of those projects and is a person who conducts himself with honesty and integrity.
4. From a retired building surveyor that he has known the applicant for a number of years and inspected many of the Applicant's jobs and found that the Applicant had a very good understanding of the Building Code and carried out his work in a professional manner and his work was of a very good standard.
5. From a second building surveyor who first met the applicant in 2012 and who has inspected certain of the Applicant's building work including footings, frames and finals of both single and two storey dwelling additions, that the Applicant is a very knowledgeable builder who takes pride in his work and has always organised the required certifications and paperwork.
6. From a building designer/draughtsperson who states that from his observation and client feedback the Applicant's workmanship was of a high quality, built to specification and finished according to schedule.
7. From an architect who provides an address at which the Applicant constructed an art studio involving fine tuning the scope of works and confirming the project budget, modifying existing paving and constructing a freestanding studio with concrete slab, timber framed walls, weatherboard cladding, metal sheet roof and wall panels to allow diffused working light.
[4]
Decision
Having regard to the above findings on the material before me the correct and preferable decision of the Tribunal is that 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: 07 April 2016
Parties
Applicant/Plaintiff:
Suares
Respondent/Defendant:
Commissioner for Fair Trading, Department of Finance, Services and Innovation
Cases Cited (1)
Legislative scheme
The Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales (the Industry). The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences, certificates and permits in relation to residential building work (Building Work), Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 at [9] and [10]. References to sections in this judgment are to sections of the Act unless stated to the contrary.
Relevant excerpts from Division 2 are:
25 Issue of certificates
(1) The Secretary must refuse an application for a supervisor or tradesperson certificate if:
…
(a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33D, or…
…
(2) The regulations may specify or provide for the Secretary 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 Secretary must refuse an application for a supervisor or tradesperson certificate:
…
(b) if the applicant has not completed, at a standard acceptable to the Secretary, any relevant examination or practical test (or both) conducted or nominated by the Secretary and required by the Secretary to be completed by the applicant.
(4) A decision of the Secretary 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 Tribunal in an application for an administrative review made under this or any other Act.
26 Issue of endorsed contractor licences
If a contractor licence is issued to an applicant who the Secretary considers is qualified to hold a supervisor certificate, the Secretary may, instead of issuing such a certificate, endorse the contractor licence to show that it is equivalent to such a certificate.
27 Authority conferred by certificates
(1) A supervisor certificate authorises its holder to do (and to supervise) the following:
(a) any residential building work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations),
(b) any specialist work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations).
28 Authority conferred by endorsed contractor licences
(1) An endorsed contractor licence authorises its holder to do (and to supervise) the same residential building work, or specialist work, as it authorises its holder to contract to do.
The Act also provides the following:
33C Additional requirements for obtaining contractor licences
(1) A contractor licence must not be issued unless the Secretary is satisfied that:
…
(b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate:
(i) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant,
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:
…
(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…
On 5 January 2015 the Acting Commissioner for Fair Trading, Office of Finance and Services, as the "Chief Executive" under the Act, made an instrument under s 33D (1) (the Instrument) to determine the possession of qualifications or the passing of examinations and consider the possession of experience necessary for the issue of a Licence or Certificate (as defined) including where the relevant application was made on or after 5 January 2015
The Instrument expressly requires that a necessary condition for the issue of an Endorsed Licence is:
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.
I refer to the above experience as "Relevant Experience".
Interpretation provisions in the Instrument relevantly provide as follows:
references to "Certificate" and "Licence" are respectively to a supervisor certificate, or endorsed contractor licence, as defined in the Act to do or supervise general building work;
"Experience" means experience gained by the applicant as:
(a) an employee of; or
(b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or
(c) a holder of an endorsed contractor licence contracted to; or
(d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to,
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
remunerated with money in accordance with law for the Work which the applicant carried out.
The Instrument expressly applies to requirements to obtain "an Endorsed Contractor Licence of Supervisor Certificate for General Building Work". The Respondent did not submit that the Applicant would not be able to obtain a Contractor Licence to enable him to carry out general building work in accordance with his Application. However, the Applicant's evidence, including his correspondence with the Respondent at pages 68 to 70 of the s 58 documents, and his oral submissions to the Tribunal are that he wishes to employ and supervise the work of several persons in a business carrying out general building work in the Industry.
The Respondent dealt with, and refused, the Application as if it was an application for a qualified supervisor certificate or an endorsed contractor licence allowing the Applicant to supervise general building work in the Industry.
In the circumstances and having regard to the material before me I find that, notwithstanding the printed wording of the Respondent's application form used by the Applicant, the Application was for an Endorsed Licence to carry out general building work in the Industry. It is the decision on review by the Respondent to refuse that application which is the subject of these proceedings.
With one exception the above references do not specify any address at which work was carried out nor other than in general terms the details of the duration or extent of the Applicant's involvement in the work. Accordingly, there is inadequate clear evidence for me to be satisfied on an objective basis as to these matters. The failure to identify the addresses at which work was carried out and relevant dates may well mean that there are multiple references in relation to work at the same building site on the same project.
I observe that clauses 13 and 14 of the Regulation prescribe 5 categories of residential building work (of which one is general building work, the subject of the Application), 22 trade categories of residential building work, and 13 specialist work categories. The Applicant's references provide minimal information as to whether the Applicant personally carried out or supervised a wide range of trade or specialist categories of residential building work. Accordingly, there is inadequate evidence for me to be satisfied as to how wide ranging the Applicant's experience is in Building Work within the Industry.
There are references from 3 owner-builders for one of whom the Applicant assisted with the fit-out of commercial premises, which do not qualify as residential building work. None of the owner-builders profess to have any professional or trade qualifications relevant to the Industry. During the hearing the Applicant conceded that he no longer relied on the references he provided from owner-builders.
The Applicant also provided a reference from a retired carpenter who stated that the Applicant "is a highly skilled carpenter". There is no dispute as to the Applicant's qualifications or experience as a carpenter. However, these proceedings do not relate to such qualifications or experience.
The Relevant Experience required by the Instrument is that the Applicant has carried out during the relevant period relevant work where he 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". The relevant period is two years within ten years of the date on which the Application was made. Other than in respect of the six-month period the subject of Mr Torr's reference, there is no evidence that, during the ten year period prior to making the Application, the Applicant was supervised and directed in relevant work by an appropriately authorised person.
It may well be that the Applicant has substantial experience and competence as a builder in respect of residential building work and that in due course the Applicant will be in a position to provide appropriate evidence to support a future application for an Endorsed Licence. However, having regard to the relevant statutory requirements referred to above, the material before me has not satisfied me that the Applicant has had experience of such a kind and for such a period as to enable me to consider that the Applicant can do and supervise, the work for which an Endorsed Licence is required.