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NSW Crest

Civil and Administrative Tribunal
New South Wales

Medium Neutral Citation:
Hodder v Fair Trading [2019] NSWCATOD 95
Hearing dates:
1 May 2019
Date of orders:
21 June 2019
Decision date:
21 June 2019
Jurisdiction:
Occupational Division
Before:
C Ludlow, Senior Member
Decision:

1. The decision under review is affirmed.

Catchwords:
PROFESSIONS AND TRADES – licensing and regulation – contractor license – required experience in residential building work
Legislation Cited:
Administrative Decisions Tribunal Act 1997 (NSW)
Home Building Act 1989 (NSW)
Cases Cited:
Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175
Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128
Thukral v Commissioner of Fair Trading [2006] NSWADT 356
Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108
Category:
Principal judgment
Parties:
Braden Hodder (Applicant)
Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent)
Representation:
B Hodder (Applicant self-represented)
 
M Elles (Respondent)
File Number(s):
2018/336738
Publication restriction:
Nil

REASONS FOR DECISION

  1. The applicant in these proceedings, Mr Hodder, sought review of the decision to refuse his application for an individual contractor's licence in the category of "General Building work". The Respondent refused the application on the basis that Mr Hodder had not demonstrated that he had the required minimum of two years’ relevant industry experience in a wide range of residential building work.

Legislation

  1. A contractor licence permits its holder to contract to do, and to supervise (but only if the licence is endorsed), residential building work and/or specialist work. See sections 4, 21, 26 and 28 of the Home Building Act 1989 (“the Act”).

  2. Section 19 provides that the Secretary may grant contractor licences. Section 20 provides:

“20 Issue of contractor licences

(1) The Secretary must refuse an application for a contractor licence if:

(a) the Secretary is not satisfied that the applicant is a fit and proper    person to hold a contractor licence, or

(a1) the Secretary is not satisfied as to the matters of which the    Secretary is required to be satisfied by sections 33B and 33C, or

   …”

  1. Section 33C provides:

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.

(2) Despite section 33B (1) (a) (xiii) and (xv), a contractor licence may be    issued if:

(a) the licence does not authorise its holder to do general building work    or swimming pool building, and

(b) the Secretary is of the opinion that there is no evident risk to the    public that the applicant will be unable to complete contracts entered    into in the future to do residential building work or specialist work, and

(c) the Secretary is of the opinion that the relevant person concerned    took all reasonable steps to avoid the bankruptcy, liquidation or    appointment of a controller or administrator, and

(d) the licence is subject to a condition that the holder must not enter    into a contract to do work if the contract price exceeds $20,000    (inclusive of GST) or (if the contract price is not known) the reasonable    cost of the labour and materials involved in the work exceeds $20,000    (inclusive of GST).

(3) Despite section 33B (1) (a) (xiv), (xvi) and (xvii), a contractor licence    may be issued if the Secretary is of the opinion that:

(a) there is no evident risk to the public that the applicant will be unable    to complete contracts entered into in the future to do residential building    work or specialist work, and

(b) the relevant person concerned took all reasonable steps to avoid    the bankruptcy, liquidation or appointment of a controller or    administrator.

(4) A contractor licence issued under subsection (3) may be issued    subject to a condition that the holder of the licence must not enter into    a contract to do work if the contract price exceeds $20,000 (inclusive of    GST) or (if the contract price is not known) the reasonable cost of the    labour and materials involved in the work exceeds $20,000 (inclusive of    GST).

(5) A condition imposed under subsection (4) may be limited so that it    does not apply to a subcontract entered into by the holder of the licence.    A subcontract is a contract that is made between parties who each hold    a contractor licence and that is for work that each party’s contractor    licence authorises the party to contract to do.

(6) An individual may be a nominated supervisor for a contractor licence    only if the individual:

(a) holds an endorsed contractor licence or a supervisor certificate that    authorises its holder to supervise some or all of the work done under    contracts for which the contractor licence applied for or held is required,    and

(b) is, or is proposed by the applicant or holder to be, an employee of,    or a member of the partnership or director of the corporation that is, the    applicant or holder, and

(c) made a consent declaration that is lodged with the Secretary and    has not been revoked.

(7) In subsection (6) (b), employee means an employee who is required,    by the terms of employment, to work for his or her employer otherwise    than on a casual or temporary basis.

(8) An individual cannot be the nominated supervisor for more than one    contractor licence unless the Secretary:

(a) is satisfied that special circumstances exist that will ensure that the    individual, either alone or in conjunction with one or more other    nominated supervisors, will supervise all work done under contracts for    which each contractor licence is required, and

(b) gives written permission.

(9) The holder of an endorsed contractor licence does not require the    Secretary’s permission to become the nominated supervisor for only    one other contractor licence.

(10) The Secretary may, by order, exempt an applicant from a    requirement in relation to nominated supervisors if the Secretary is    satisfied that there are special circumstances that warrant it.”

  1. Section 33D provides:

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.

   …”

  1. “Residential building work” is defined in cl. 2 of Sch. 1 to the Act:

“ (1) In this Act, residential building work means any work involved in, or    involved in co-ordinating or supervising any work involved in:

(a) the construction of a dwelling, or

(b) the making of alterations or additions to a dwelling, or

(c) the repairing, renovation, decoration or protective treatment of a    dwelling.

(2) Each of the following is included in the definition of residential building    work:

(a) roof plumbing work done in connection with a dwelling,

(b) specialist work done in connection with a dwelling,

(c) work concerned in installing in a dwelling any fixture or fixed    apparatus that is designed for the heating or cooling of water, food or    the atmosphere or for air ventilation or the filtration of water in a    swimming pool or spa (or in adding to, altering or repairing any such    installation).

   …

(7) The regulations may:

(a) declare any work to be included in the definition of residential    building work, or

(b) declare any work to be excluded from the definition of residential    building work.”

  1. The Secretary has set out what has been determined as the appropriate qualifications and nature and period of experience to enable an Applicant to carry out and supervise general building work, in a document titled, Instrument - Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work dated 31 March 2017 (“The Instrument').

  2. The Instrument provides that, for a contractor licence to be issued, an Applicant must demonstrate:

  1. a minimum of two years' relevant industry experience;

  2. in a wide-range of residential building work,

  3. where a majority of that experience was obtained within ten years of the date on which the application was made.

  1. In Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 the Tribunal held that the Instrument is not binding on the Tribunal. However it may have regard to it as a Government policy:

"The Tribunal is required to give effect to "Government policy", except in certain circumstances, the term "Government policy" being defined to mean a policy adopted by the Cabinet, a Minister or the Premier (Administrative Decisions Review Act, s 64(1) and (5)). There is no evidence that the Instrument has been adopted by the Cabinet, a Minister or the Premier. It purports to have been made by the respondent and I accept that that is the case. 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" (Administrative Decisions Review Act, s 64(4))." (at [39])

  1. See also Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [33] in which the Instrument was followed on the issue of required experience. In Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 the Tribunal was satisfied that:

“ the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision.” (at [110])

  1. The Instrument outlines the 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, as to which the Tribunal must be satisfied before issuing a certificate under s 33D(1).

  2. It defines “experience” as:

“…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 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

remunerated with money in accordance with law for the Work

which the applicant carried out.”

The issues

  1. The Tribunal observed in Thukral v Commissioner of Fair Trading [2006] NSWADT 356, that the Act has many functions, and focuses on consumer protection:

"The [Act] is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaged in residential building work, and makes provision as to their competence, fitness and solvency, and their discipline. By issuing contractor licenses and certificates, the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence.” (at [6])

  1. The Tribunal must determine what is the correct and preferable decision concerning the applicant’s competency to be licensed as a building contractor (s 63(1) Administrative Decisions Review Act 1997).

The evidence

  1. The applicant did not submit any evidence in the proceedings but relied on the forms previously submitted by him to the respondent and the attachments to those forms.

  2. This documentation showed that the applicant had gained experience between 2009 and 2017 in “carpentry.” This was outlined as follows:

a. 2009 to 2012: NRW Carpentry

b. 2012 to 2013: Stane Industries

c. 2014: A.F.P.A Building

d. 2015 to 2016: Eco Friendly Builders,

e. 2016 to 2017: Prime Build

f. 2016 to 2017: Know How Carpentry

  1. The applicant completed his carpentry apprenticeship on 15 May 2015.

  2. The applicant nominated Timothy Thompson as a referee for his employment as “leading hand’ and “leading hand to foreman” for the business Prime Build between 13 December 2016 and 1 May 2017 working on refurbishment and fit-out projects of retail stores.

  3. He nominated Neil Wanders of Cape Cod Australia as referee for a period totalling 32 days where he worked as “Apprentice carpenter”. He nominated Garry Klomp from Cape Cod Australia as referee for a period totalling 4 months when he worked as “Apprentice carpenter”. He did not provide a reference from a supervisor at Eco Friendly Builders or Know How Carpentry.

  4. The Instrument contains requirements for references which include that applicants must provide their experience on the relevant application forms containing the approved Referee Statement and the referee must have held a Qualified Supervisor Certificate or Individual Contractor Licence (Q) in the class of General Building Work issued by NSW Fair Trading in the period of time of the stated experience.

  5. Mr Thompson is the holder of the required licence but did not complete the form as required, and the respondent stated that it was not satisfied that he personally supervised the applicant in carrying out general building work for the period stated. An email from the applicant to the respondent in which he stated that Mr Thompson could not give out personal information of the site supervisors hence he was unable to get the form completed, suggested that others supervised him. Additionally on the basis of the forms provided by the applicant it was evident that the experience gained was predominantly related to refurbishment in commercial buildings. This was not considered to be relevant experience for the purposes of demonstrating residential building construction work experience applicable to the home building industry.

  6. Mr Wanders is not qualified to be a referee as he is not a holder of the required licence.

  7. The respondent was not satisfied that the form completed by Garry Klomp was credible because his first name was spelt differently from their records pertaining to his licence and the form did not contain relevant details such as a licence number. It also pertained to a period when the applicant was in his apprenticeship.

  8. There were no objections to Mr Hodder’s qualifications.

The applicant’s case

  1. The applicant said he had held a carpenter’s contractor licence for two years and eight months. He submitted that he had performed various kinds of building and contracting work including construction between 2009 and 2012, while he was an apprentice. He pointed to his qualifications.

  2. He submitted that he had been unable to get a reference from Eco Friendly Builders because of “money issues”. He had difficulty in getting references from his other employers because they were busy people. He said that he should be permitted to rely on his experience as an apprentice as the policy did not state that this was not possible and he had received verbal advice from the respondent over the telephone that this was the case.

  3. The applicant queried the relevance of the Briggs decision as the case concerned a company which engaged in commercial construction rather than residential construction. He claimed it was unreasonable to ask him to obtain references from persons such as Klomp and Thompson as supervisors. They delegated the supervision to others. He said he did not know that NRW were not licenced. He said the misspelling of Mr Klomp’s first name was an error.

  4. He referred to experience which he said he had while working for Cape Cod Australia. He said:

“…as an apprentice I was with the head of the building site at the forefront at all times, being supervised and directed formally…With a highly skilled residential company such as Cape Cod, I have been able to achieve and complete complex tasks such as installing a second storey dwelling on a single residential dwelling and doing so on time in a highly professional manner whilst also managing an array of trades simultaneously.”

  1. Mr Hodder claimed that he had been informed by a representative of Fair Trading that his apprenticeship could be considered as experience. One transcript of a telephone conversation between Mr Hodder and a representative of the respondent was in evidence. Mr Hodder claimed he had been trying to get another transcript of another conversation which also showed he had been misled.

Consideration

  1. Even if the applicant had been given erroneous information by an agent of the respondent, this would not alter the issue before this Tribunal, which is to determine the correct and preferable decision.

  2. I am satisfied that the Instrument’s guideline regarding the nature and period of experience should be followed in this case. I am also satisfied that the form of references required by the Instrument are consistent with the Act, although there may be circumstances where alternative evidence of the required experience and supervision could be accepted. This is not one of those circumstances, as Mr Hodder did not provide alternative evidence apart from his own submissions.

  3. If I were to disregard the incomplete nature of the references provided by Mr Hodder from Mr Klomp and Mr Thompson and accept them as evidence of his experience, the totality of the periods of experience represented by those supervisors from whom he provided a reference would not amount to the required period of two years experience in general building work. The applicant then submits that his experience as an apprentice should be capable of being included in the calculation of experience for that purpose. The applicant was an apprentice in carpentry.

  4. The respondent submits that experience as an apprentice cannot be counted towards 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 under s33D(1)(b). In this regard it relies on the decision in Briggs. In that case the Tribunal stated that it was not satisfied that experience as an apprentice in carpentry “ constitutes a wide range of building construction work despite the fact that a witness described carpentry as one of the broadest of the trades.” (at [111]). I must agree with that conclusion. It would not be consistent with the objects and purpose of the Act, as interpreted by the Tribunal, to hold otherwise.

  5. Consequently there is insufficient evidence before the Tribunal on which I can find that the applicant has the required two years’ experience in general building work.

  6. In the circumstances of this case I am not satisfied on the basis of the information before the Tribunal, that the applicant has the requisite experience at present to grant his application for a contractor licence.

Orders

  1. The decision under review is affirmed.

**********

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

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Decision last updated: 21 June 2019