Ullrich v Commissioner for Fair Trading

NCAT Occupational|2013-12-09

The Applicant's Case at hearing 39The Applicant's case in summary was that he had 35 years' experience working in the building industry; all of the references provided attested to the quality of his work; and he had never been subject to a complaint about his work. 40The Applicant's case in relation to his experience was that the architect, Mr Stanley was a valid referee under the regulatory provisions at the time of lodgement of his application; The time spent working with the architect, Mr Stanley was from 15 January 2007 to December 2012 and met the 2 year experience requirement; The relationship with Mr Stanley was not merely one of referral point for clients; Mr Stanley supervised the projects he worked on; on a very conservative base this experience under the supervision of Mr Stanley amounted to 6 months; His resume showed the requisite wide range of building construction work; The experience working with licensed builders Mr Frisoli and Mr Naidofski equated to 19 - 19.2 months. On this basis he had the necessary 2 years' experience.

Evidence of Mr Stanley 41Mr Stanley provided a Reference dated 13th August 2012 on his own letterhead and a Referee's Statement on a Fair Trading form dated 21 March 2013. There is a file note completed by Colin Hadden of a telephone conversation on 26 August 2013 with Mr Stanley. 42Mr Stanley's written reference of 13th August 2012 does not refer to supervising the applicant - but rather to having known the applicant and listing the applicant's qualities in having undertaken 10 projects for Mr Stanley's clients. He recommends the Applicant for Builders Certification. 43 Mr Stanley's D of FT pro forma Referee Statement of 21 March 2013 indicated that Mr Ullrich had been a full time sub-contractor "employed and/or supervised by me carrying out a wide range of building work in the.... period 15 January 2007 to 21 December 2012." 44 The pro forma aspects of the statement certify that the Applicant has demonstrated a level of knowledge and experience in a wide range of building work which would allow him to competently perform the roles and responsibility of a licensed builder - then listing some 9 aspects of building work. 45The form attests that Mr Stanley has "supervised the applicant" on "class 1a Additions/Alterations to existing buildings." In free hand Mr Stanley has listed the applicant's roles and responsibilities on the projects as: General project management and construction to handover: Including liaison with clients, architect, structural engineer, and councils. Effective and efficient ordering of materials and site management. Supervision and co-ordination of trades including concreter, carpenter, plumber, tiler, electrician and kitchen installer. 46In his file note of a telephone conversation with Mr Stanley on 26 August 2013, Mr Hadden concludes that there was neither employment nor sub-contracting relationship between Mr Stanley and the Applicant and that the relationship was one of being a referral point. 47In his oral evidence Mr Stanley made the following points: In the projects he had worked on with the Applicant his own role had been to be an agent for clients - obtaining the approval for plans; obtaining the construction certificate; administering the contract ; attending on site and ensuring the intent of the design was carried out. The Applicant would raise issues with the project at site meetings; His role was not to supervise the Applicant - his role was contract administration; Often there was no licensed builder on site; Most of the people to whom he had referred the Applicant were owner/builders; He could answer some of the questions posed on the Referee statement form because he had been on site with the Applicant - although he was not there every minute of the day

Consideration 48The parties agreed that the Applicant satisfies the qualifications requirement and the sole issue was in relation to whether the Applicant could demonstrate the necessary 2 years' experience. The Tribunal agrees with this. 49The Tribunal finds that although CTI accepted the Applicant's experience as providing the prerequisite 10 years' building experience prior to being accepted into its course his is not the standard that the Respondent or the Tribunal is bound to apply in considering this application. 50The Tribunal understands that the provisions specifying who may provide a reference for the purposes of establishing 2 years of supervised experience in a wide range of building construction work changed in May 2013 to exclude an architect. The Tribunal considers however that the Application should be considered taking into account the provisions on foot at the time of the Applicant's original application to the Respondent. In this respect an architect is a suitable person to attest to the matters set out in the paragraph below. 51The qualifications and experience requirements on foot at the time of lodgment of the application in March 2013 are set out below. 52"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 is gained; or (b) a person otherwise lawfully engaged by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the class of residential building work in which the experience is gained and who has supervised and directed the applicant in the doing of the work, and in respect of which the applicant is financially remunerated for their work during the relevant period; Schedule 1 of the Instrument requires that the "experience" must be at least 2 years' relevant industry experience in a wide range of building construction work. 53The essential elements of this definition of experience include the requirement that the holder of the contractor licence or supervisor certificate "has supervised and directed the applicant in the doing of the work." Neither the Home Building Act nor Regulation defines the meaning of supervision or direction in this context. To interpret the meaning of these terms it is helpful to look at the overall intention of the legislation. 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. 54The Tribunal interprets the purpose of the requirement of 2 years' experience under supervision and direction prior to the issuing of a licence to be to ensure that consumers can be satisfied that an individual contractor has been appropriately educated in the standards recognised by the building profession by another qualified building professional. 55In this instance Mr Naidofski has attested to having employed the Applicant part-time for the period 1st January 2003 to February 2005. However he has not been available to assist the Tribunal to calculate the full-time equivalent of this. 56Mr Stanley struck the Tribunal as being an honest and forthright witness. In his evidence he said that he did not supervise the Applicant. Nor did he employ or lawfully engage the Applicant. 57Mr Frisoli is now deceased. The Applicant did not provide an alternative source to verify the period of time for which he worked for Mr Frisoli.

Qualifications and Experience 58I am satisfied that Mr Ullrich has the relevant qualifications. He obtained a Certificate IV in Building and Construction and a Diploma from CTI. 59The Tribunal finds that Mr Stanley did not employ nor engage the Applicant as a subcontractor. Mr Stanley stated that he did not supervise the Applicant in the carrying out of his work. Accordingly the Applicant's work with Mr Stanley does not qualify to be considered as experience as set out by the relevant instrument. 60Mr Naidofski has not been available to assist the Tribunal to calculate the full-time equivalent of the Applicant's part-time employment with him between January 2003 and February 2005.

Conclusion 61Based on all the evidence, I am not satisfied that Mr Ullrich has been able to demonstrate a minimum of two years supervised relevant industry experience in a wide range of building construction work. Accordingly, the correct and preferable decision is to affirm the Department's decision. 62The same outcome follows as noted in relation to the application made by Takahe Enterprises Pty Ltd, the Applicant's corporate employer. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2014

The ADT's approach to this matter 12The ADT's approach to dealing with this kind of review was set out by the Tribunal in the matter of Tange v NSW Fair Trading [2013] NSWADT 201 at paragraphs 47-51 - set out below. 13Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 14A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 15The Tribunal is able to take account of evidence that was not before the decision maker but is bound by the standards set in the Instrument. Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 16In this matter the only issues for consideration are whether the Applicant has shown that he has gained two years relevant industry experience and if so whether that experience is in a wide range of building construction work.

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