Watts v Commissioner for Fair Trading, Department of Finance, Services and Innovation - [2017] NSWCATOD 60 - NSWCATOD 2016 case summary — Zoe

NSWNSWCATOD

Watts v Commissioner for Fair Trading, Department of Finance, Services and Innovation

[2017] NSWCATOD 60

NCAT Occupational|2016-12-19

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2016-12-19

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Solicitors: NSW Fair Trading, Department of Finance, Services and Innovation (Respondent) File Number(s): 1620097

[2]

reasons for decision

Mr Watts, the Applicant, holds a qualified supervisor certificate in air-conditioning and refrigeration. This matter involves Mr Watts' application to the Tribunal to review a determination by a delegate of the Commissioner for Fair Trading, Department of Finance, Services and Innovation, (the Respondent sometimes referred to in these reasons as the Commissioner) to refuse an application by Mr Watts to vary his licence to include a qualified supervisor certificate for electrical wiring (the Licence Application).
Mr Watts was informed by the Commissioner that the Licence Application was refused (the initial decision) because certain information was "not on an approved Referee's Statement Form" and because Mr Watts had "not demonstrated a minimum 12 months' experience required".
Mr Watts requested an internal review of the initial decision. The decision of the internal reviewer (the review decision) was: …. Christian Watt has not provided evidence of the required 12 months relevant electrical wiring work experience in the form determined by the Commissioner as acceptable for the issue of an electrical authority.
The reviewer did not accept Mr Watts' proposal that other documents signed by the relevant Referee be accepted in lieu of the Referee's Statement: …. a licensed individual (the Referee) who is to verify the relevant experience "must verify the applicant's experience on a current NSW Fair Trading 'Referees Statement Electrical Work' form" (the Referee's Statement) ....

[4]

Jurisdiction of the Tribunal

The Tribunal is empowered to review the refusal of the Licence Application (s 83B(1) of the Home Building Act 1989 (the Act) and s 55 of the ADR Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to either make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.
Section 64 (4) of the ADR Act states: In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.
The Licence Application was made in July 2014 under the Act. The Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry.
All references in these reasons to legislative provisions are to provisions of the Act unless stated to the contrary.
The functions of the Commissioner under the Act when the hearing took place include at s 106(b): to set, assess and maintain standards of competence of persons doing residential building work
Section 25 (4) provides that the Tribunal, in reviewing an application for an administrative review cannot review the determining of qualifications or setting of standards by the Commissioner under other provisions of s 25. There is no dispute that the experience standards required for the licence variation are not reviewable by the Tribunal.

[12]

The Tribunal's finding in relation to 12 months' relevant experience

I observe that the Tribunal has not been informed of any relevant authority as to the meaning of "12 months" nor as to any difference between "12 months" and "one year".
None of the Act, the 2004 Regulation, the 2014 Regulation or the Interpretation Act 1987 provide any assistance on these issues.
I find that, as submitted by the Applicant, and not disputed by the Commissioner: 1. the context of the Instrument is occupational. 2. Annual holidays and public holidays are not normal working days. 3. Apprentices are required to attend TAFE on one day in each working week.
I note the Applicant's submission that the number of working days available to gain relevant experience in a period of 12 months is 188 days comprising 52 weeks of five days (260 days) minus 20 days' annual holidays minus 52 days' TAFE experience. This calculation does not have regard to public holidays, sick leave, carer's leave or any form of leave other than annual leave.
There is no dispute that there are public holidays in New South Wales on at least eight days each year, namely New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, the Queen's Birthday, Christmas Day and Boxing Day. There is no evidence before me nor is there any authority of which I am aware to the effect that an apprentice should be required to work or gain relevant work experience on any such days.
The Applicant did not submit that seven hours a day was inappropriate in gaining relevant experience and the Commissioner did not submit that travelling time to and from job sites should not be taken into account in determining relevant experience.
Having regard to the above submissions and my findings, I reject the Commissioner's submission that the reference to 12 months' relevant work experience in the Instrument requires the Applicant to have carried out relevant work for seven hours a day on five days a week for 52 weeks. That submission was not supported by statute or judicial authority, has no regard to the context in which the legislation and the Instrument apply, and does not seem to me to be a common-sense approach to the issue.
I find that the maximum number of days' relevant experience which could reasonably be attained in the course of a relevant apprenticeship, having regard to the requirements of the Instrument, is the 188 days calculated by Ms Goodchild reduced by 8 days for the specific holidays I referred to above. That leaves 180 days for Work in a 12 months' period. The Applicant submitted, and the Commissioner did not dispute, that there is no requirement that the 12 months' period must be continuous. I have not taken into account whether sick leave, carers' leave or any form of leave other than annual leave should or should not be included in the calculation of maximum relevant experience.

[13]

Requirements and use of the NSW Fair Trading 'Referee's Statement Electrical Work' form (the Referee's Statement)

One of the grounds stated in the initial decision was that certain information was "not on an approved Referee's Statement Form".
Page 142 contains the reviewing officer's recommendation and reasons. Those reasons include: The applicant has failed to provide a Referee's statement for Electrical Work form from his employer Michael Gillmeister. He has stated the reason being that he left his employment on bad terms. …. The reviewer understands that the Commissioner's Instrument is quite explicit in requiring electrical wiring experience to be verified on a current Referee's statement Electrical Work form.
The decision of the internal review was that the form of evidence from Mr Watts was not acceptable and an approved referee "must verify the applicant's experience on a current NSW Fair Trading 'Referees Statement Electrical Work' form".
I observe that during the hearing on 14 July 2016 I asked Mr Maynard whether there was any evidence to support the reviewer's understanding of the "explicit" verification requirement of the Instrument as stated at page 142. No evidence was provided at that time. Instead, the Commissioner's written submissions filed on 8 December 2016 include at [6] and [8] the following question and answer: Question - Does FT concede the Referee Form is not critical? Answer - Yes.
I find that both the initial decision and the review decision's requirement that certain information must be on an approved Referee's Statement has no legal justification and those decisions, in that respect are invalid.
The relevant requirement, as set out in the Commissioner's own Instrument, relates not to the use of the particular form, but to the provision of relevant experiential information in "areas required by the [form] current at the date of the application"
It may well be that officers of Fair Trading regard the use of the Referee's Statement as best practice and that its use assists their work. However, the Commissioner is well aware, having been informed on numerous occasions by this Tribunal and the Administrative Decisions Tribunal, that there is no legal requirement for the Referee's Statement to be used by an applicant in support of an application for an occupational license or authority under the Act. The repeated insistence on such use by the Fair Trading officers and the need for that insistence to be repeatedly addressed by the Tribunal does not assist the "just, quick and cheap resolution of the real issues" in relevant matters before the Tribunal nor does it evidence compliance by the Commissioner with his duty to co-operate with the Tribunal pursuant to the requirements of s 36 of the Civil and Administrative Tribunal Act 2013.

[16]

Model Litigant Policy for Civil Litigation

I have referred in the immediately preceding headings "Requirements and use of the NSW Fair Trading 'Referee's Statement Electrical Work' form (the Referee's Statement)", "Section 58 documents" and "Unsubstantiated submissions" to matters and procedures which appear to be within the knowledge of the Commissioner but appear not to be observed at all times by NSW Fair Trading officers. I observe that the Model Litigant Policy for Civil Litigation of the New South Wales Government includes the following: Introduction 1.1 This Policy has been endorsed by Cabinet to assist in maintaining proper standards in litigation and the provision of legal services in NSW. This Policy is a statement of principles. It is intended to reflect the existing law and is not intended to amend the law or impose additional legal or professional obligations upon legal practitioners or other individuals. 1.2 This Policy applies to civil claims and civil litigation (referred to in this Policy as litigation), involving the State or its agencies including litigation before …. tribunals …. 1.3 Ensuring compliance with this Policy is primarily the responsibility of the Chief Executive Officer of each individual agency in consultation with the agency's principal legal officer …. 1.4 Issues relating to compliance or non-compliance with this Policy are to be referred to the Chief Executive Officer of the agency concerned. The obligation 2. The State and its agencies must act as a model litigant in the conduct of litigation. Nature of the obligation 3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. 3.2 The obligation requires that the State and its agencies, act honestly and fairly in …. litigation by: a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation; …. c) acting consistently in the handling of claims and litigation; d) endeavouring to avoid litigation, wherever possible …. …. g) not relying on technical defences …. ….
I make no other observations in relation to the role of the Commissioner / NSW Fair Trading as a model litigant in accordance with the policy endorsed by Cabinet as set out above.

[18]

Mr Watts' relevant work experience and Mr Gillmeister

Mr Watts' unchallenged evidence in the June affidavit, concerning his work experience and Mr Gillmeister, includes: 7. In order to become a refrigeration mechanic, at the beginning of 2011 I commenced an apprenticeship in that trade with Michael Gillmeister of Gillmeister Electrical and Refrigeration Pty Ltd (Now called Gillmeister Pty Ltd). At the same time, I commenced a Certificate III course in Air Conditioning and Refrigeration at Ultimo TAFE. 8. Mr Gillmeister is qualified in Refrigeration, Air Conditioning and as an Electrician. His licence number is 114175C. 9. During my second year at TAFE I was advised by TAFE that it was possible for me to also obtain qualifications to become an electrician as well as a refrigeration mechanic. I was told that if I was working for an electrician, which I was, it was possible for me to obtain dual qualifications as both a refrigeration mechanic and an electrician. I was told this could be done by following what I now know to be Pathway 1. 10. In order to comply with the requirements of Pathway 1, in mid-20121 enrolled in the Certificate III course in Electrotechnology Electrician UEE30811 at Ultimo TAFE. I was then studying both for certificates at the same time. 11. I was keen to become qualified in both the refrigeration and electrical fields because I was being exposed to a significant amount of electrical wiring work in the tasks I was doing during my refrigeration apprenticeship with Mr Gillmeister. 12. I completed my TAFE course in Air Conditioning and Refrigeration at the end of 2013. 13. I completed my other TAFE course being Certificate III in Electrotechnology Electrician and was awarded my certificate on 18 December 2014. The certificate is document …. 14. I completed my Refrigeration and Air Conditioning apprenticeship with Mr Gillmeister in early 2014 and then became duly qualified in that field. My licence number is 71993S. 15. After completing my apprenticeship, I continued working for Gillmeister Electrical and Refrigeration Pty Ltd until 28 November 2014. My email of resignation is document …. 16. I was accordingly employed by Gillmeister Electrical and Refrigeration from the beginning of 2011 until 28 November 2014, a period of nearly four years. 17. From the very beginning of my employment with Gillmeister Electrical and Refrigeration Pty Ltd, and throughout my employment, I undertook a significant amount of electrical wiring work under the supervision of Mr Gillmeister. 18. I did not keep a detailed record of every electrical wiring task that I undertook but estimate that at least 30% to 40% of my time over the nearly four years was spent doing such work. 19. Document tab [7a] is a schedule which I prepared as part of my request to the Respondent for an internal review. That schedule sets out many examples of tasks which I undertook during 2011 to 2014 in the electrical wiring field. I would have had more tasks documented but for the fact that I experienced a computer failure on two occasions and lost many records. I say that there were many electrical wiring tasks that I undertook under the supervision of Mr Gillmeister between 2011 and 2014 in addition to those recorded in Document tab [7a]. I have asked Mr Gillmester to produce records for all jobs on which I worked for the whole period of my employment. 20. In order to obtain my Certificate III in Electrotechnology Electrician I was required to provide Workplace Evidence Forms setting out electrical wiring tasks carried out by me under the supervision of Mr Gillmeister. Document tab [5e] contains 22 such forms relating to work performed by me and observed by Mr Gillmester over many periods of time during 2011,2012,2013 and 2014. All such forms have been signed by Mr Gillmeister and each form details the nature of the electrical wiring tasks and the number of times observed. Although the first of such documents refers to the date of completion of the tasks being 1 April 2012 I say that much of those tasks were undertaken during 2011. 21. The 22 forms mentioned in paragraph 20 above show that Mr Gillmeister has certified that he observed me undertaking 439 individual electrical wiring tasks. Each form he has certified says as follows: "OBSERVATION To be completed by the supervisor. Initial each part of the table where you can testify that the applicant has demonstrated the specified skills to a level that is satisfactory for safe industry workplace practice, and within acceptable time spans and quality outcomes. These tasks must be demonstrated in an environment that relates to the electrical contracting industry and the installation of electrical wiring and equipment in buildings." 22. I say that during my employment with Gillmeister Electrical and Refrigeration Pty Ltd I had significantly more than 12 months electrical wiring experience. I regularly experienced electrical wiring work in each of the nearly four years I was employed by that company. 23. My initial application to the Respondent to obtain a licence as an electrician is document tab [5]. That document which is dated 16 October 2015 sets out details and circumstance of my resignation from Gillmeister Electrical and Refrigeration Pty Ltd. Documents tab numbers [5 a to e] were attached to that application. I say that the contents of that application are true and correct.

[20]

Alleged reversal of decision to vary licence to include electrical wiring

The Commissioner's "initial assessment sheet-individual" which commences at page 54 of the s 58 documents includes at item 12 on page 59 under the heading "Outcome" the words "Assessors determination - Grant". It appears that after the partial complete completion of the assessment sheet the assessor carried out further investigations, in particular in relation to Mr Watts' express inability to supply a Referee's Statement and undertook third-party checks to verify that the application could be accepted "without the referee's statement being supplied on the prescribed form" (page 68).
The s 58 documents include several email chains. One such chain which is at page 77 shows an internal email within NSW Fair Trading. It includes the following: …. Is it possible to get a record of who signed off the apprenticeship papers to State Training for the Electrical CoP? We are currently in a situation where the applicant is providing potential false and misleading information and this may affect the outcome of his application …
A phone note dated 23 December 2015 by a Fair Trading officer which appears at page 95 and which refers to a conversation between two Fair Trading officers refers to logbooks for TAFE signed off by the employer, but a lack of any formal document signing off electrical apprenticeship. The phone note includes "VTT also received paperwork at the time of the process with them that indicated that there had been some significant difficulties between the employer and the applicant" and in relation to "Action required" the phone note states: …. referee to be contacted by phone to validate: …. Whether the referee was approached and unwilling to provide reference or if in fact there were concerns as to applicants competency, Would he complete referee statement now (subject to above being verified). If the referee is unwilling to provide but there is no concerns as to competency - consideration to be given to referring applicant to OTEN potentially and accepting information on TAFE log books. To be determined conversation with referee
On page 96 is a phone note of a telephone discussion on 12 January 2016 between a Fair Trading officer, whose name appears as the Assessing Officer on the individual assessment sheet, and Mr Gillmeister. After Mr Gillmeister had confirmed that he did sign documents in relation to electrical modules completed by Mr Watts, the phone note continues: Mr Gillmeister then advised that he was sent a form from Mr Watts to complete. This form was the electrical referee statement form. Michael advise that he did not sign off on the form as he felt that Christian needed a bit more experience in the electrical field. He advised that he would sign off if Christian completed a full apprenticeship in the trade of Electrical.
I observe that the phone note contains no reference as to whether the referee had any concerns as to Mr Watts competency. Pages 99 and 100 show that the Fair Trading assessor attempted unsuccessfully to contact Mr Gillmeister by telephone on 18 January 2016. Mr Gillmeister returned his call in the morning of 19 January and there was apparently another attempt by Mr Gillmeister to contact the assessor on 22 January. There is no evidence before the Tribunal that any contact took place between the assessor and Mr Gillmeister other than 12 January. On 1 February that assessor sent an email to Mr Watts (page 102) informing him that his variation application had been assessed and refused.
Neither party requested the issue of a summons requiring Mr Gillmeister to give evidence in these proceedings. However, a summons was issued to his company which had employed Mr Watts requiring the company to produce various documents, some of which are referred to in these reasons.
I observe that Ms Goodchild submitted that the evidence showed that the Commissioner had initially agreed to grant a licence. Subsequent to a discussion with Mr Gillmeister that decision was reversed.
The evidence outlined above indicates that a partly completed initial assessment form included the words "Assessors determination - Grant". The evidence shows that the assessor had not then completed his investigation and that on completion of the investigation, including what appears to be a brief telephone discussion with Mr Gillmeister, who was not subsequently contacted despite his attempts to contact the assessor, the Licence Application was refused.
I am not satisfied that there was an initial agreement to grant the Licence Application and I reject Ms Goodchild's submission.

[23]

Provision of information required by the Referee's Statement

The Instrument requires that the Work experience utilise knowledge and understanding of relevant standards "in the residential, commercial and/or industrial areas required by the [Referee's Statement] current at the date of the application".
The form sets out six categories of supervised low-voltage electrical wiring work experience which must have been achieved by the Applicant. That work is to have been acquired for each category in any one or more of the following work situations - single dwellings, multiple dwellings, commercial and industrial.
The work categories are: 1 Installation of cable support and cable mechanical protection methods. Must include metallic conduit, non-metallic conduit, supporting cable clips/ties, cable trays / trunking and underground systems. 2 Design, installation and termination of low voltage power lighting and control circuit wiring. Must include consumer mains, sub-mains and final sub- circuits. 3 Design, installation and termination of low voltage power lighting and control circuit wiring. Must include protective earth systems including MEN wiring systems. 4 Installation of electrical apparatus and equipment Must include switchboards and circuit protection devices, heating, cooling, lighting and power apparatus, electric motors and/or transformers and controls. 5 Fault finding, maintenance and repair of LV wiring systems and electrical equipment. Must include LV power and control circuit wiring and electrical apparatus and equipment. 6 Test and verify compliance of LV electrical wiring systems and electrical equipment. Must include mandatory testing of insulation resistance, earth continuity/resistance, polarity and earth fault - loop impedance as well as load and leakage current tests.
Mr Watts' evidence at paragraphs three, six and 12-143 of the August affidavit refers to the above six types of low-voltage Work, his estimate of the number of hours per week of Work he carried out during 2011, the details of each electrical wiring job carried out by him under the supervision of Mr Gillmeister between February 2012 and 28 November 2014 for which he has supporting documentation such as invoices, job sheets and his own records as set out the June affidavit. In relation to each electrical wiring job which is referred to the affidavit provides details of date of job, venue, nature of work carried out, type of work in accordance with the Referee's Statement's six categories and refers to supporting documentation being annexed job sheets or workplace evidence forms and their location in the exhibit to the June affidavit.
The affidavits were admitted to evidence without objection. Mr Watts was not cross-examined on his evidence and I accepted his factual evidence.
I find that all of the six categories of work required by the Referee's Statement are dealt with in the jobs detailed in the August affidavit.
I found above that Mr Gillmeister had certified on 22 separate work evidence forms that Mr Watts had demonstrated specified skills to a level that is satisfactory for safe industry workplace practice and within acceptable time and quality outcomes in the required environment.
Accordingly, I find that Mr Watts has attained experience in all areas of work experience required by the Referee's Statement current at the date of his application for a variation of his licence and that his work experience has been certified by Mr Gillmeister, a referee who held a qualified supervisor certificate or contractor licence in electrical wiring work during the period of time of the stated experience and who has certified that he supervised Mr Watts carrying out the electrical wiring work.

[24]

Issues of danger and safety

The Commissioner submitted under the heading "submissions on experience": 9. …. the need for caution is higher in establishing that a person can receive an electrical licence than for other trades where there is less danger of serious injury or death if there is defective work. 10. In this matter the only relevant referee, who can provide independent qualified evidence, is not supporting the Applicant in his application. 11. These two factors are, it is submitted, critical in considering the Applicant's own evidence.
I observe that the above submission, in the context of the potentially greater risk of danger of serious injury or death in relation to operating under an electrical wiring licence compared to other trade licences, does not appear to have been addressed by the Applicant. No evidence or authority was provided by the Commissioner in support of the submission. However, it may be, that on a common-sense basis, the submission has merit in relation to a comparison with some trade licences.
I observe that the Workplace Evidence form at page 26 of the s 58 documents, bears the subheading "Apply OH&S practices in the workplace". I have already found that the form was signed and initialled by Mr Gillmeister as Mr Watts's supervisor. The form evidences that on multiple occasions Mr Gillmeister observed Mr Watts carrying out occupational tasks including the following: Identify workplace injury risks and minimise those risks Identify workplace health risks and minimise those risks Correctly select and wear appropriate PPE Correctly use ladders and personal anchoring points Check workplace equipment for correct condition and function Participate in workplace safety meetings Select correctly rated testing devices for testing of supply Safely test for supply at 230/400 volt load points Safely isolate and tag load points connected to 230 or 400 volt supplies
Mr Gillmeister has certified on page 26 that Mr Watts "has demonstrated the specified skills to a level that is satisfactory for safe industry workplace practice and within acceptable time spans and quality outcomes … In an environment that relates to the electrical contracting industry and the installation of electrical wiring and equipment in buildings".
I observe that the Workplace Evidence form at page 33 relates to the requirement to "Document occupational hazards and risks in electrical work". That form describes six separate categories of task each of which has been observed by Mr Gillmeister on multiple occasions. Mr Gillmeister has certified Mr Watts's experience using the same wording as on page 26.
Having regard to the material before me I am satisfied that, to the extent that the submission is valid, and I make no findings in that regard, Mr Gillmeister has certified in writing that Mr Watts has demonstrated the specified OH&S and safe industry workplace practice skills to a satisfactory level.
Accordingly, I find that, to use the wording of the submission, the issue of caution in establishing by independent qualified evidence, has been satisfied in favour of Mr Watts, by "independent qualified [written] evidence" from Mr Gillmeister, notwithstanding the Commissioner's submissions at [10].

Watts v Commissioner for Fair Trading, Department of Finance, Services and Innovation

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Judgment (27 paragraphs)

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