Thakur v Secretary, Department of Customer Service [2024] NSWCATOD 150 | Case summary

NCAT Occupational|2024-09-05

The Applicant's history

Mr Thakur's unchallenged evidence was that he entered into a contract for employment with the licenced building company he performed work for in 2019. He was then told some time later by his accountant it would be better for him to be paid via a company arrangement. Mr Thakur then spoke to his boss who agreed Mr Thakur could be paid his salary by the Company issuing an invoice to the licenced building company Mr Thakur performed work for.
Mr Thakur was given leave including annual leave and sick leave, pay rises and a uniform by his employer but had to pay his own superannuation. Mr Thakur provided financial records to show the money paid to the Company for his salary was then paid to him and that money was his sole income.
There was no written contract between the Company and the licenced building company Mr Thakur performed work for. There was only an arrangement that Mr Thakur would be paid his salary via the Company.

Was the Applicant an employee under the Instrument?

Unlicenced subcontracting

At the hearing the Respondent also made a submission that because the company Mr Thakur worked for paid Mr Thakur via the Company, there was a potential breach of s 4 of the HB Act because s 4(2) prohibits licenced companies from contracting for residential building work with unlicenced people and companies. I cannot accept this submission because on the material before the Tribunal I am not satisfied there was any contracting for home building work between the licenced building company Mr Thakur performed work for and the Company.

Conclusion

Therefore, in all the circumstances and on the material before the Tribunal, I am satisfied the correct and preferable decision is that Mr Thakur should be granted a general building contractor licence and the Company should also be granted a licence because Mr Thakur can be the nominated supervisor under a licence held by the Company.
It follows the decisions of the Respondent should be set aside and instead Mr Thakur should be granted a general building contractor licence and the Company should also be granted a general building contractor licence.

Order 1. In proceeding 2024/00250255: 1. The decision under review is set aside. 2. The Applicant is to be granted a contractor licence under the Home Building Act 1989. 1. In proceeding 2024/00250786: 1. The decision under review is set aside. 2. The Applicant is to be granted a contractor licence under the Home Building Act 1989.

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 September 2024

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act).
The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Respondent but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

Issue for determination

There is no dispute that Mr Thakur holds the requisite qualifications and has performed the prescribed relevant work to be granted a licence. There is also no dispute that if Mr Thakur is granted a licence the Company should also be granted a licence because Mr Thakur will be able to be the nominated supervisor under the Company's licence.
The Respondent's submissions cited no authorities, however at the hearing the Tribunal raised the decision of Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 upheld in Commissioner for Fair Trading v Hall [2023] NSWCATAP 320. The Respondent submitted that decision was most analogous to the facts in this review, except that it considered a different definition of remuneration in the Instrument.
The Respondent agreed Mr Thakur satisfied the definition of employee for all intents and purposes within the general meaning of the term 'employee' under the Instrument in terms of the nature of the relationship between the company Mr Thakur performed work for and Mr Thakur, but for the payment arrangements between that company and Mr Thakur which occurred via the Company.
Therefore the only issue for determination in this review is whether the payment arrangements between the licenced building company Mr Thakur performed work for, Mr Thakur and the Company have the effect of making Mr Thakur something other than an employee within the meaning of the Instrument.

Thakur v Secretary, Department of Customer Service

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