Wood v Commissioner for Fair Trading

NCAT Occupational|2022-07-18

Introduction

The Applicant (Mr Wood) applied for a Contractor Licence in the category of General Building Work under the Home Building Act 1989 (the HB Act) in October 2021. Mr Wood also applied for a Contractor Licence in the category of Carpentry and Kitchen Bathroom and Laundry Renovation under the HB Act.
The applications were made to the Commissioner for NSW Fair Trading (Fair Trading) who regulates the HB Act and is the Respondent in these proceedings.
Mr Wood's initial application for the Contractor Licence for general building work was refused in January 2022 on the basis that he had not met the practical experience requirements for the Licence.
On 14 February 2022 Mr Wood applied for an Internal Review of the decision to refuse the Contractor Licence. In the Internal Review decision of 4 March 2022, Fair Trading varied the original decision by granting the Contractor Licence in the category of Carpentry and Kitchen Bathroom and Laundry Renovation, but upholding the decision to refuse the Contractor Licence in the category of General Building Work.
As a result of the decision to refuse the Contractor Licence in the category of General Building Work, Mr Wood applied to the Tribunal for Administrative Review of that decision on 31 March 2022.
The application was made in accordance with s 83B (1) of the HB Act which provides: 83B Administrative reviews by Tribunal (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
There is no dispute that the application has been lodged within time.

The Internal Review Decision

On Internal Review Fair Trading granted Mr Wood a contractor licence in the category of Carpentry and Kitchen Bathroom and Laundry Renovation but upheld the decision to refuse his application for a Contractor Licence in the Category of General Building work. Fair Trading determined that Mr Wood met the qualifications aspect for that licence but was deficient in the area of experience.
From an examination of the Internal Review decision it appears that Mr Wood was assessed as not meeting the experience requirements in the Commissioner for Fair Trading's Instrument in that he was assessed to lack experience in a broad range of general building work. The reviewer stated the following in their statement of reasons: In regards to a General Building licence applicants are required to demonstrate that they have experience across all stages of construction to satisfy they have the capacity to do, coordinate and supervise general building work in the construction of residential dwellings. … Mr Baker declared Mr Wood's roles and responsibilities at the Merewether and Cooks Hill sites included all aspects of building however he advised Home Building Licensing that Mr Wood was a worker who undertook trade work only and did not coordinate, schedule or supervise trades. No other information was provided by Mr Baker about the work undertaken by Mr Wood. Mr Procter declared Mr Wood's experience in the Bolwarra Heights and Stanhope sites involved carpentry, excavation, sub-floor framing, wall framing, wall frames/trusses, metal roof installation, exterior cladding, eave linings, mould out and gutter guard installation. He also advised Home Building Licensing that Mr Wood carried out trade work and did not coordinate or supervise building work.
The reviewer goes on to note that some of Mr Wood's experience with John Proctor Master Builder Pty Limited has not been 'verified' by licensed builders who supervised him, and that Mr Wood's submission for this work in effect amounts to self verification. Reference is also made to the new employer KBW Building Pty Limited who Fair Trading state deal with commercial projects only and are not licensed under the HB Act. Similarly experience claimed at a site in Hawks Nest is not counted by Fair Trading as the nominated supervisor W Jenkins was neither the principal builder on site nor the holder of a contractor licence in the category of General Building Work. In this work Mr Wood's engagement with W Jenkins as a subcontractor was contrary to the HB Act as Mr Wood at the time was not authorised to subcontract for work.
The reviewer opines that Mr Baker's referee statement does not specify the types of building work undertaken by Mr Wood, merely that the experience relates to 'all aspects of building'. The reviewer asserts that this position makes it difficult for them to evaluate they type of work undertaken and as a result they claim they cannot be confident that Mr Wood gained 'experience across a wide range of building construction work at these sites'.
The reviewer accepted that 12 months of the claimed experience by Mr Wood met the requirements of the instrument but because they were unable to be confident that the other experience was in a wide range of building construction work, or was not in residential building work, it was not credited to Mr Wood in meeting the two year experience minimum total for the application to succeed. The reviewer in affirming the original decision in respect of the Contractor Licence for general building work finds that a further 12 months experience (whilst lawfully engaged) is necessary for Mr Wood's application to succeed.

Jurisdiction

The Refusal Notice was issued under the provisions of s 33C (1) (b) (i) and s 33D (1) (b) of the HB Act. Those provisions provide: 33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that - (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Secretary considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (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, and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended. … 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.
As a result, Mr Wood made an application to the Tribunal for Administrative Review of the refusal decision consistent with s 83B of the HB Act as set out at [6] above.
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the HB Act as noted at [17] above.
As noted from the section above, an application under s 83B of the HB Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act 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 constrained to have regard only to the material that was before the agency, 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; (1979) 46 FLR 409.

What issues do these proceedings raise for determination?

On my assessment the issues are as set out by the Commissioner's representative:

Whether the Tribunal can be satisfied that Mr Wood has demonstrated experience in a 'wide range of building construction work';
Whether the Tribunal can be satisfied that the experience Mr Wood has gained is 'relevant industry experience', and
Whether the Tribunal can be satisfied that Mr Wood's level of experience directing and supervising work is sufficient to meet the requirement of s 33D(1) (b) to enable the applicant to do, or to supervise the work for which the certificate is required and is capable of doing or supervising the work for which the certificate is required. (these words come from the statute).

Applicant's written evidence

Exhibit 'A-1': Application for Review.
Exhibit 'A-2': Affidavit of K Wood affirmed 5 June 2022 annexing earlier evidence of academic and practical experience.
Exhibit 'A-3' Affidavit of S Clark affirmed 23 May 2022.
Exhibit 'A-4' Affidavit of S Dyson affirmed on 7 June 2022.
Exhibit 'A-5' Affidavit of K Wood affirmed 12 July 2022. Tax Invoices for work performed and itemised by applicant.

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act

Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing.
Mr K Wood (the applicant), and Mr S Clark gave evidence and were subject to cross-examination at hearing.

The applicant's case

Counsel for Mr Wood submitted that no issue about character arises and that the issue in dispute between the parties relates to s 33D of the HB Act. Reference was made to the passage from the Occupational Division case of Edwards v Commissioner for Fair Trading [2022] NSW OD 40 where at [20] the Tribunal observes: 20. I therefore consider that relevant experience by a person who is engaged and paid as a subcontractor, which experience is gained under the supervision of a person who is the holder of an endorsed contract or a supervisor certificate, is experience gained by a person who is "lawfully engaged" for the purpose of the standard.
The discussion and finding in Edwards occurred in the context of an applicant being a subcontractor or unqualified to carry out the work, but under the supervision of a qualified supervisor.

The respondent's case

Fair Trading submit that Mr Wood's experience was majority gained during his period of apprenticeship up to November 2019. Whilst Fair Trading has already allowed credit of 12 months the view put forth in Locking v Department of Finances and Services [2013] NSW ADT 239 was relied upon in respect of both the breath and nature of experience including supervisory experience. In Locking the Administrative Decisions Tribunal (ADT) observed at [17]: 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.

Stuart Clark's evidence

Mr Clark gave evidence on behalf of Mr Wood. He confirmed that he was a builder. He was subject to cross-examination where he was asked about being a licence holder. Mr Clark confirmed that in 2015 he obtained his NSW Residential Builders licence. He said that he had been managing a building company for about 20 years and referred to his nominated supervisor licence 169269C for Port Hunter Building. His father Andrew Clark was another Director of the Company.
Mr Clark was asked about matters in his affidavit (Exhibit 'A-3') where at paragraph [21] he referred to Mr Wood being engaged with Port Hunter Building since November 2021. Mr Clark was asked questions as to the amount of work and terms of engagement of Mr Wood with the Company since that time and whether since 4 March 2022 (the date of the Internal Review decision) Mr Wood would have been engaged as a subcontractor. Mr Clark said that since February 2022 Mr Wood had pretty much worked consistently for Port Hunter Building. Whilst he had done little bits and pieces 'here and there' he had worked for Port Hunter full time five or six days a week from February 2022 to date.
Mr Clark said that Mr Wood had worked at a Rutherford site seven Saturdays since March 2022. He said that Mr Wood 'was employed as a subcontractor'. The work he did encompassed carpentry, standing frames, pitch roofs, gyprocking, building stairs etc. He said that carpentry was the core trade in all of this work. Specifically, as to the nature of the work people on site engaged in, Mr Clark said that 'my guys do a hell of a lot more work'. 'I'm only on site for a short period of time per week even though I am regularly communicating with them'. 'They are required to complete tasks as directed and then checked'. Mr Wood and Mr Clark regularly communicated in respect of the work Mr Wood was directed to perform.
In respect of the Hamilton site where Mr Wood had worked, the job involved decks and a concrete slab. Mr Clark said that the work on this site was not yet complete. They had been on site on and off since Christmas (2021). Mr Clark said that they do two to three weeks work and then they are not there for a month before they return to continue the work. The nature of the work involved carpentry, pulling up decking, replacing bearers and joists, making ramps (for disabled access) and then extending the concrete slab. Mr Clark said that the job was mostly carpentry (approximately 70% not counting the slab), and that Mr Wood supervised the electrician ensuring that the wring etc. was in the correct locations.
In respect of the East Maitland job Mr Clark said that the job involved construction of a studio and carport as well as some structural and underpinning work for the main house. New bathrooms, kitchen, extending of room, creating feature walls and re-gyprocking the entire dwelling as well as replacing the roof were all types of work involved in this job. In addition while the job was mostly carpentry it did involve 'pulling the back of the house down and putting in new floors, eaves, waterproofing, tiling and putting on a new Colorbond roof.' Mr Clark said that they also needed to re-gutter the roof as it had been changed from tile to tin.
Mr Clark advised that Mr Wood supervised all trades on this site including bricklayers, plasterers, electricians, roofing plumbers and painters. Mr Clark was asked as to whether Mr Wood was the only supervisor on site to which he replied that he, (Mr Clark) oversaw and coordinated the overall job but Mr Wood oversees the actual works on site.
In respect of the Merewether site Mr Clark advised that different jobs overlapped with one another. He said that Mr Wood would be on site at different jobs sometimes over the same period of time due to the overlap. In April 2022 the frame was built and erected and then the timber framework roof was pitched. The job also involved underpinning of the brick house. The work was estimated as being 70% carpentry work. Mr Wood coordinated trades such as plumbers, electricians, the concreters and concrete pump, bricklayers as well as the Helicorp (screw pile) company, painters and other contractors. Mr Clark also stated that Mr Wood would be on site with the Certifiers. Mr Clark said that there would be numerous inspections of the work performed depending on the complexity of the job.
The Tribunal was told that the Rutherford job was ongoing from 1 April 2022 but was not residential building work. It was an IGA store, which involved building work in the nature of an office extension and the installation of fire doors. Mr Clark said that Mr Wood coordinates with structural engineers on various jobs such as the IGA job and the Merewether job where he would assist the Engineer with the underpinning inspections and footings.
In respect of the Islington site Mr Clark advised that construction had not really started on that job. Mr Clark gave evidence that Mr Wood had experience in waterproofing (4 March 2022 at the East Maitland site), door and window installations including glazing at all the sites other than Hamilton, which involved a pool fence (glass). There was further glazing experience obtained at the site at the Esplanade Bolton Point, last year, but only East Maitland and Merewether since March 2022. Mr Clark said that Mr Wood had done some stone masonry work as well on various sites.
Mr Clark was asked whether Mr Wood had demonstrated work and experience from 4 March 2022 under his supervision, which was compliant with the Building Code in the other areas not specified. Mr Clark said that Mr Wood did have experience in these areas. He qualified his answer by stating that Mr Wood's work is passed by the Certifiers. He said that Mr Wood has knowledge and experience for work to be done to code and Mr Clark attested that this was also true to his knowledge.
In respect of reading plans and specifications Mr Clark was asked about Mr Wood's experience. Mr Clark confirmed that Mr Wood had experience in that area and noted that 'it was all in the job he performed'. He added that learning how to interpret plans and specifications would have been taught to Mr Wood at TAFE.
Mr Clark was also asked about whether since March 2022 Mr Wood had been on site for all stages of construction. Mr Clark said that Mr Wood had. In respect of supervision concerning structural work since 4 March 2022 Mr Clark confirmed that Mr Wood had been involved and referred to the site at Thompson Street where there had been some issues with structural matters which had been identified and discussed.
In re-examination Mr Clark confirmed that Mr Wood continues to perform work for the Company. In respect of the nature of the supervision Mr Clark advised that it occurs both face to face and over the telephone.

Kyle Wood's evidence

Mr Wood advised in evidence that his occupation was a carpenter and that he was looking to become a builder. He was asked whether there was a reason that Mr Proctor ( Proctor Building ) had not provided a further reference or referee statement following his earlier report when he advised that Mr Wood only carried out trade work. Mr Wood said that the reason was that even though Mr Proctor had told him that he 'wanted to help', he had declined Mr Wood's overtures. He explained his thoughts being that Maitland is a small place and there appeared to be some reluctance to assist in creating further competitors in the local industry. Mr Wood denied that there was any other reason or basis for that state of affairs.
In cross examination Mr Wood was taken to paragraph [43] of his affidavit (Exhibit 'A-2') and agreed that the majority of the work that he was carrying out was carpentry work, but also said that it was a lot more than just carpentry, as in doing your own individual solo work with a nail bag, but the work involved needing to be aware of what other trades were doing just now, work shortly to be carried out, and work that they had just completed. He said that his work involved making sure that the job was running to plan.
The Tribunal asked a number of question of Mr Wood concerning his specific duties in his claimed experience (s 38 NCAT Act). In respect of the scope of his work Mr Wood told the Tribunal that he prided himself on doing a thorough job. He said that on site he would always help other trades.
When asked about concreting Mr Wood said 'we were the concreters, my twin brother and I'. Mr Wood advised that his twin brother possessed the same qualification as he did. His brother worked for Proctor. Mr Wood said that he worked at Proctor from January 2020 up until October or November 2021. When asked by the Tribunal if the Covid 19 pandemic and ensuing restrictions had any impact on any of that work Mr Wood advised that the actual work was unaffected by the restrictions but numbers on site and contact tracing needed to be monitored.

Mr Wood's submissions

In submissions at hearing Mr Wood's Counsel took the Tribunal to Exhibit 'R-1' the s 58 documents. At page 4 of the s 58's was evidence that Mr Wood had worked for BRW Constructions from 17 November 2016 to 20 December 2019. Mr Baker had signed a referee statement on page 7 of the s -58's confirming that Mr Wood was employed for that period. At Item 6 on page 8 of the s-58's he confirmed that the work Mr Wood did included:

experience in the areas of applying building codes and standards to construction process in accordance with the Building Code of Australia,
dealing effectively with subcontractors, consumers and other parties,
reading and interpreting plans and specifications,
planning building and construction projects and work,
organising site surveys and set out procedures to building and construction projects,
applying structural principals to residential construction,
conducting on site supervision of building and construction projects,
applying legal requirements to building and construction projects,
managing occupational health and safety in a building and construction workplace.

Reference was made to the referee's evidence at page 9 of the s 58's that Mr Wood's responsibilities in respect of the Merewether site extended to 'all aspects of building'. Likewise for the Cook's Hill site, the reference referred to responsibility for 'all aspects of building'. Counsel for Mr Wood submitted that a period a six months and 12 months experience could be counted arising from the evidence in the referee reports from Gregory Baker.
Counsel took the Tribunal to the telephone conversation file notes from the officer in the licensing area of Fair Trading. It was submitted that aspects of what had been recorded in the note on Pg. 50 was illogical and unlikely to be accurate as a result. This note concerned a conversation in the purported terms below with Mr K Proctor. The note is at pg. 50 of the s 58 documents. The information under the nature of the responsibilities is set out as: Carpenter assisted in excavation, sub-floor framing, wall frames / trusses, metal roof installations, exterior all cladding, eave linings, mould out, gutter guard installation.
The next question asks: 'What was his role on site'? The answer is recorded as 'No'. The next question (which it was submitted Fair Trading placed significant weight on in refusing the licence) asked: 'Did he carry out only trade work onsite?' The answer is recorded as 'Trade work only a tradesman'. The final question in the 'pro-forma' file note asks: 'Has he the capacity to oversee, coordinate and supervise general building work from start to finish?'. The answer is recorded as 'NO DID NOT DO THAT and was not supervise at all to do this.' [sic].
The other file note of the referee check relied upon by Fair Trading is at pg. 49 of the s 58's concerning a conversation with Mr G Baker referee. This file note is in different form to that at pg. 50 of the s 58 documents. The question 'What was his role on site?' is answered with 'Worker not a supervisor'.
The question: 'Does he carry out only trade work onsite?' The answer is recorded as 'Trade work only'. The question: 'Did he coordinate or schedule other trades?' is answered: 'No'. The final question: 'What parts of the job was he responsible for supervising?' is answered: 'NO'.
Counsel submitted that the file notes we not expansive. The test is whether Mr Wood has two years' experience in a broad range of building work. Counsel submitted that from those references the Tribunal could be satisfied that Mr Wood has 18 months experience in a broad range of building work.
Counsel also submitted that Mr Wood's affidavit received without objection speaks in more detail to the nature of the experience. It is not an exercise in self-verification but expanding on the detail of the claimed experience. Mr Wood had been subject to cross-examination on his evidence.
Mr Wood submitted that 70% to 80% of residential building work has been supervised by him. The file note of Mr Procter asserts that Mr Wood does not have supervisory experience to build a house from start to finish, hence the reference to supervisory experience getting up towards 100% of the work involved but not quite there.
Reference was made to the case of Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 where the Tribunal observed that an applicant cannot verify their own work but can assist the Tribunal in forming a view as to the nature and scope of the experience. Their evidence must be read in conjunction with other evidence supporting the referee statements such as the evidence of unqualified (as in not holding a contractor licence) witnesses who observed the work, and photographs and other material which may assist in clarifying the experience referred to often in limited terms in the Referee Statements. At [35] and [36] of Vitogiannis the Tribunal observed: 35. The Respondent sought to diminish the value of the references referred to at [31] on the basis that they had not provided a formal "Referee's Statement" as Mr Ede had, and each individual referee did not hold an endorsed contractor licence or qualified supervisor certificate in residential building work and therefore could not confirm the Applicant's experience. I agree that they cannot verify the Applicant's experience as a whole in accordance with the Instrument, but disagree that their references do not assist with the assessment of the Applicant's competency for the licence. The Instrument requires a formal Referee's Statement, which was provided by Mr Ede. Each of the additional references (as identified at [31]) individually supports various parts of the Applicant's evidence of his experience, which is useful to the Tribunal in verifying the Applicant's experience at the relevant sites as outlined in Mr Ede's Referee Statement and for the periods claimed by the Applicant. The additional references are also useful in supporting the Applicant's evidence and Mr Ede's endorsement that the Applicant is sufficiently knowledgeable and capable to supervise the wide range of trades involved in building and construction of residential dwellings. 36. The Applicant's oral and written evidence of his roles and responsibilities at each of the 6 nominated sites was supported by photographic evidence and the Referee's Statement dated 18 March 2020. They were also supported by the additional references from Mr Ede and the other tradespersons he worked with at those sites as identified above at [31]. I accept the Applicant's evidence and give it significant weight. I also accept Mr Ede's Referee's Statement and additional reference provided, and give it significant weight. In that context I consider the additional references to be corroborative of the Applicant's evidence and afford them reasonable weight.
Counsel for Mr Wood submitted that the declaration of the referees have significant weight over the somewhat ambiguous and contradictorily worded file notes.
In respect of the work sites or projects at 'Cranky Corner' and 'Dalveen Road' the affidavit of Steve Dyson (Exhibit 'A-4') corroborates the work done for Proctor Building.
Mr Wood submitted that he relies on 18 months of time in a broad range of residential building work under BRW constructions Pty Limited and 14 months under Proctor Building.
In written submissions Mr Wood submitted that the evidence of the two referees was 'pithy' which in part was due to the nature of the referee form and its physical limitations on what could be recorded on it. It was submitted that the best evidence was that of his referees, but consistent with the reasoning in Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42, that was not the only evidence that Mr Wood could rely upon. 69. The respondent submitted that Mr Shoobridge could not verify the experience he gained while working for Mr Kerr, and that the only evidence from Mr Kerr could provide the necessary evidence of practical experience. While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience.
Mr Wood submitted that the brevity of the references nor the delegate's notes of phone conversations are not matters for which he bears responsibility. Mr Wood submitted that by his own evidence and that of the other affidavit makers he had addressed any shortcomings in the evidence initially provided to Fair Trading and upon review.
Mr Wood submitted that whilst he cannot verify his own experience, he does not need to do that. He relies on two references which are not contradicted and a further affidavit from Mr Clark.
Mr Wood submitted that with BRW Constructions he was engaged by means of being an employee and worked at the Cooks Hill site from October 2017 to February 2019 with the actual amount of time engaged on the job being 12 months. Based on the evidence of Mr Baker, Mr Wood was engaged (under supervision) in 'all aspects of building'. The job involved new additions to a heritage building.
In respect of the other job at Merewether Mr Wood worked from February 2019 to August 2019, with six months counted. This job involved a first floor addition and Mr Baker supervised him engaging in 'all aspects of building'.
In respect of the file notes and the purported answers recorded as 'trade work' and a lack of 'supervisor work', in written submissions Mr Wood referred to these terms not being under the Instrument.
Written submissions of Mr Wood as set out at paragraphs 30, 31, (a) - (r) inclusive, and paragraph 32, indicates the broad range of work performed (including work that would equate to aspects of organisation and supervisory tasks). Those submissions question why on review no credit was given by Fair Trading when 18 months credit was established. The fact that there were lesser supervisor duties in the role compared to other periods, and lesser time claimed, should not discount the work done.
In respect of the work and experience gained from John Proctor, Mr Wood submitted the Cranky Corner job near Singleton involved five months work where Mr Proctor supervised him. The job involved a renovation, reconfiguration and extension. As a carpenter Mr Wood assisted in excavation, sub floor faming, wall frames / trusses, metal roof construction, exterior wall cladding and eave linings. Mr Wood submitted (and deposed in his affidavit) that he assisted the owner in estimating, scope of works, and matters requiring consultation with other trades. Quantity surveying and preparing a schedule of works for the customer were carried out by Mr Wood on this job. In addition, a safety assessment for the demolition as well as preparing site for inspection by the private certifier were Mr Wood's responsibilities and the work he performed. Mr Wood submitted that this work was described by Mr Proctor in his reference and confirmed by the affidavit evidence of Mr Dyson. Work included coordinating trades especially in respect of Covid 19 limitations on numbers, contact tracing details, operating excavators and supervising of pier drilling, erection of formwork, pouring the slab, daily inspection of scaffolding, and window installation were all tasks that Mr Wood submitted the evidence established that he had carried out on site.
Other sites such as jobs at Lorn, and Gilleston Heights in the Maitland area, and Waratah in Newcastle, involved the development of skills in general building work. Mr Wood submitted that whilst Fair Trading had credited him with 12 months' experience from his work with Proctor, he should be credited for the full 12 months.
Further submissions were made about Mr Wood's experience with Port Hunter Building, initially 500 hours from January 2017 to December 2018 regarding general residential building work under Mr Clark, and later supervisory experience 900 hours in total collectively from 2019, 2020 and 2021 as site manager. Detailed submissions were made on the supervisory and building experience gained under this employer in written submissions at paragraphs [43] -[47] and Mr Clark' affidavit (Exhibit 'A-3').
Mr Wood submitted that the experience gained under Mr Clark (Port Hunter) equated to over 1600 hours in total (equating to 9 months) in a wide range of building work, including supervisory work.
In closing Mr Woods position was that he had gained 41 months experience made up of 18 months for BRW Constructions, 14 months for JPMB (Proctor) and nine months for Port Hunter. He submitted that his licence was refused because the Fair Trading delegate had confined themselves to a narrow enquiry about the extent of his experience in supervisory work rather than informing themselves of the width of the work undertaken.
In submissions at hearing Fair Trading raised the matter that much of Mr Wood's experience was gained whilst he was still completing his apprenticeship. Reference was made to the case of Briggs v Commissioner for Fair Trading, Department of Finance Services and Innovation [2018] NSWCATOD 175 in respect of what experience as an apprentice can be counted. At [111] of Briggs the Tribunal observed: Analysis of Mr Blanch's evidence 111. Mr Blanch stated that he had supervised Mr Briggs for a period of 15 months in three days from 4 October 2006 to 20 January 2008. Mr Blanch described Mr Briggs as a trainee who performed at the level of a tradesman. He stressed Mr Briggs' maturity. In relation to the level of supervision that Mr Blanch undertook he said that Mr Briggs was under instructions as to what to do. At the same time, the Tribunal notes that Mr Blanch estimated that he was supervising at least 60 people on the job. Mr Blanch stated that the defects work that Mr Briggs undertook was hands-on under his supervision. The Instrument does not describe the level of supervision necessary. However, the Tribunal draws an inference from the objects of the Act that the aim of the supervision is to ensure that Mr Briggs was instructed in what to do; that he was observed to do it and corrected if necessary. Mr Blanch states that Mr Briggs also worked for other contractors. It is unclear who they were or whether they were asked to provide references. Mr Blanch conceded that the Star City job was all commercial. The Tribunal understands that Mr Briggs was still an apprentice while he was being supervised by Mr Blanch. Further Mr Blanch estimated that 75% of the work was carpentry work. The Tribunal is not satisfied that this constitutes a wide range of building construction work despite the fact that a witness described carpentry as one of the broadest of the trades.
Fair Trading submitted that while Mr Wood was an apprentice he was still learning.
Fair Trading submitted that the work at the IGA store as set out in the Referee statement of W Jenkins at 70-72 of Exhibit 'R-1' cannot be relied upon as it is not residential building work.
Fair Trading also made significant submissions at hearing that the evidence from the affidavit of Mr Clark was mainly related to carpentry work.
In written submission prepared before hearing Fair Trading submitted that the two referees only referred to Trade Work as the nature of work being performed by Mr Wood when contacted by the licensing officer. Fair Trading submitted that this later evidence concerning the clarifications given by the referees to the licensing officer was sufficient to discount any evidence to the contrary provided by witnesses, such as Mr S Dyson.
Whilst the work done for Mr Jenkins (not being residential work) could ordinarily carry some weight in building experience, as Mr Jenkins was not the holder of a licence in general building work, he is unable to verify Mr Woods experience and as a result that experience cannot be counted.
In reply submissions at hearing Mr Wood'/s Counsel submitted that nothing in the language of the Legislation or the Instrument states or infers that experience gained while undertaking an apprenticeship cannot be considered.
Mr Wood also submitted that the evidence in the statutory declarations in the form of referee statements should be preferred over the ambiguously expressed file notes of telephone conversations with the two referees.

Consideration

As I recently observed in the matter of Sillitoe v Commissioner for Fair Trading [2022] NSWCATAD 263 that the scope of work of a Carpenter goes well beyond working with tools and wood. Carpentry is seen as the central trade in residential construction and the main trade qualification of licensed builders is predominantly carpentry. This issue is regularly ventilated in the Tribunal when submissions about the breadth of an applicant's work are raised in seeking reviews of these licence decisions. That is not to say that carpentry experience will be enough, as it is clearly not. But work as a carpenter will go quite some way to engaging in a wide range of building work, as opposed to a bespoke trade such as tiling, painting or plastering. It will also be dependent on the individual's employment situation and the type of jobs undertaken and the supervisory relationship.
In Sillitoe at [82] I observed: 82. .. As is central in these licence application reviews the trade of carpentry (or carpenter and joiner) is often the central pathway to obtaining a supervisors certificate to work as a building under the HB Act. Whilst at times individual trades (not carpentry) such as tiling or roofing do seek to become builders, the usual course is through the carpentry pathway. Other trades go on to obtain contractor licences in the main, but not exclusively, such as plumbers, electricians, painters, tilers, gyprockers / plasterers, roofers etc.
I observed in Sillitoe that these comments and observations are intended to illustrate that carpentry involves more than merely working with wood in construction. As the evidence of many of the witnesses in that and the current case indicated, carpenters are expected to do work that does not pose a safety risk (such as electrical, plumbing and roof tiling) as the lead trade on site, including as required, labouring which requires no qualifications or supervision.
I also observed the limitations of the Commissioner's proscribed forms for referees to submit the necessary information as set out in the Instrument. Like the observations in Sillitoe, these proceedings have examined Mr Wood's level and nature of experience in far greater detail than any referee statement on a proscribed form could.
Having heard the evidence and examined it closely I do not share the Commissioner's concerns about Mr Wood not meeting the criteria for the Licence based on his experience in a wide range of building construction work. I agree with Mr Wood's submissions that the evidence demonstrates that he does possess the relevant experience, consistent with the requirements of the Instrument. I will return to the Instrument shortly.
The main arguments of the Commissioner related to the issue about supervision experience as well as the discrepancy between the referee statements and the follow up phone call file notes of the licensing officer.
I note that neither party required the referees to be called to give evidence in the proceedings and be cross examined to ascertain the nature of the information they provided both in the referee statements and the phone calls with the licensing officer. Likewise, the licensing officer was not called by either party. In my view the answers recorded in the file notes by the licensing officer are ambiguous as previously noted. The general import of the answer can be gleaned from the words expressed; however, the general veracity of the entire document is called into question by the nature of the answers as set out at [46] - [49 ] above.
This issue could have been cured by the licensing officer putting on a brief affidavit to explain what was recorded or the officer could have been called by Mr Wood. Neither occurred. Likewise, the brief reference to the phone calls being recorded as mentioned in the hearing by the parties was not pursued by them. A copy of the recording might have resolved this discrepancy but also may have raised more issues that it solved if it was at odds significantly with the file notes. The Tribunal is not suggesting however what the recording would have shown.
It seems at its highest that Fair Trading and the referees have different understanding of the term 'trade work'. If witnesses were called there might have been some questions and later submissions about the meaning of those words when referred to in a home building context. It is difficult to reconcile the term in a narrow sense when one has regard to what the referees said in their declared reports as well as the sworn evidence of other witnesses to such events.
Whilst the HB Act is consumer protective legislation that does not mean that matters will always be interpreted to the Commissioner's position - against an applicant when there is a weighing up exercise. The Tribunal can clearly make findings of fact which can be assessed on the available evidence in an ordinary manner. The HB Act is not one in my view where an alternate view of the evidence should be preferred as with beneficial legislation whereby doubt is resolved in accordance with the objects of a statute. That would apply if evidence was scant or unavailable. The Tribunal is only required to apply the words in the section and the instrument and give them their ordinary meaning and sit the available evidence against them. Having said that the legislation should clearly be viewed as consumer protection legislation.
In this regard the Referee Declarations carry greater weight than the file notes. When considered and having regard to the unchallenged witness evidence whereby they observed Mr Wood carrying out work as described in the Referee Declarations / reports, when considered collectively I place greater weight on the conclusions from the Referee Declarations and lesser weight as a result than what might otherwise be applied to the file notes.
In respect of the Instrument, which appears at pages 84 to 92 of Exhibit 'R-1', I note the interpretation section on page 2 of the Instrument. The term Experience means: "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; or 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 the law for the Work which the applicant carried out; or (e) a holder of a supervisor certificate in the category of full general building work or an endorsed contractor licence in the category of full general building work held continuously for a minimum of 2 years within 10 years from the date the application is made.
The Instrument goes on to define 'Relevant application Form', which equates to the application form used by Mr Wood including the Referee Statements requiring that they be completed in the form of a Declaration.
In Schedule 1 Table A Column 2 of the Instrument (page 4) the necessary experience is stated as: 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.
The recent Appeal Panel case of Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 refers to the applicability of the Instrument to administrative review proceedings before the Tribunal.
In my view the evidence set out above and tendered in the proceedings establishes that Mr Wood has attained two years relevant industry Experience in a wide range of building construction work. There is no requirement that supervising and coordinating and scheduling trades, and liaising with clients' suppliers and certifiers and other industry officials must constitute a majority or even a significant portion of the work that an applicant is engaged in.
Such matters, distinct from hands on working with tools and building materials and mediums, only needs to be considered in the context of constituting a wide range of building work. As such an applicant would need to establish that those matters were sufficient in level or basis of what was involved, so as to satisfy the decision maker that such an applicant will be able to sufficiently do all of the duties that the holder of such a licence might do.
In conclusion I find that the evidence is sufficient to establish that Mr Wood has experience in a wide range of residential building work. Whilst like all persons who gain experience in a shorter window of industry involvement, he would be more proficient in some areas outside his qualifications than others due to less time performing those roles, in my view the evidence is sufficient to satisfy the requirement in the instrument in order to obtain the endorsed contractor licence in general building work.
Clearly the wide range of experience required contemplates experience beyond an individual's trade qualifications. As such individual tradespersons will always be more proficient at their core trade and other trades that they have qualified in, than they will for the types of general building work for which they hold no formal qualifications. However, the purpose of the two year requirement is to enable such persons to have developed a broad range of generalist rather than specialist experience.
As a result, an applicant is only required to possess sufficient experience gained in a manner where they were supervised and directed to do the work by a qualified person to ensure the quality of the work. The Tribunal (or delegate of the Commissioner) must be satisfied that they possess sufficient experience for which the licence authorises for them to contract with consumers to do the work.
In the case of Locking referred to above at [26] citing paragraphs [17] and [18], Fair Trading specified the basis for a strict consideration of the supervision aspect of the experience. Further at [19] the ADT sets out the issue further. 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.
In my view the evidence demonstrates that Mr Wood's knowledge and experience is equal to that as discussed concerning the claimant in Locking, noting also that Mr Wood's core trade is also carpentry.
In respect of the Instrument and its applicability to these proceedings I accept that the current instrument and the provisions of s 20 (2) and 25(2) of the HB Act apply consistent with the Appeal Panel reasoning in Kalkan.
Mr Wood has the relevant qualifications to hold the licence, noting that this was never in dispute in the proceedings, and I so find.
In respect of the experience gained as an apprentice, no submission was made by Fair Trading other than the reference to Briggs at [69] above, that such experience should not be counted. I disagree with any submission relying on Briggs, to the extent that such submission is made that the case is authority for experience gained as an apprentice not being counted. That is not what the passage from Briggs says, rather it discounts that application on the basis that there is an apparent lack of a wide range of building work.
I find that Mr Wood has met the requirement of two years' experience and that the majority of that experience was obtained in the last 10 years. In addition, I find that the experience is in a wide range of building construction work. Mr Wood gave evidence, as did his witnesses, that he carried out work or supervised / coordinated trades who did the work, and that at all times he was lawfully engaged.
I also find that Mr Wood has satisfied me that he possesses the necessary experience of such a kind and for a sufficient period to enable him to do or to supervise the work for which the certificate is required, and is capable of doing or supervising the work for which the certificate is required.

Conclusion

For the reasons set out above, the Commissioner's decision will be set aside so that a contractor licence in the category of general building work may issue.

Orders 1. The decision of the Respondent dated 4 March 2022 is set aside. 2. The Respondent is to grant the Applicant an Individual Contractor Licence in the area of General Building Work within 28 days of the publication of these reasons for decision.

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

Amendments 07 October 2022 - Date of orders and decision: Month corrected. Other typing errors throughout corrected. 07 October 2022 - Typing error corrected. 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 October 2022

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (7)

Cited By (2)