Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McLeod v Commissioner for Fair Trading [2022] NSWCATOD 179 Hearing dates: 25 August 2022 and 6 October 2022 Date of orders: 7 November 2022 Decision date: 07 November 2022 Jurisdiction: Occupational Division Before: L Andelman, Senior Member Decision: The decision under review is affirmed Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 Licensing and Registration (Uniform Procedures) Act 2002 Cases Cited: McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 Wall v Commissioner for Fair Trading [2017] NSWCATOD 76 Texts Cited: Nil Category: Principal judgment Parties: Brendan McLeod (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-represented) Department of Customer Service (Respondent) File Number(s): 2022/00084563 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This is an application by Mr Brendan McLeod (applicant) for review of a decision by a delegate of the Commissioner for Fair Trading (respondent) to refuse the grant of an Individual Contractor Licence for General Building Work licence (general building work licence) pursuant to s 33C(1)(b)(i) of the Home Building Act 1989 (the Act) because the applicant has not met the experience requirements in accordance with 33D(1)(b) of the Act. 2. For the reasons that follow, the Tribunal affirms the respondent's decision to refuse the application for a general building work licence as the Tribunal is not satisfied based on evidence before it that the applicant has demonstrated that he has the required experience. Background Application for a licence 1. On 17 August 2021 the Applicant applied for an Individual Contractor Licence for General Building Work. On the application form, Mr McLeod provided employment and experience history. From 2013 to 2021 the name of the employer or contractor is listed as 'McLeod Kelly Developers (MKD)' and the type of work is listed as PM, which I take to mean project management. Mr McLeod declared that there had been complaints lodged as a result of his activities related to carrying out of residential building work in the ACT as well as disciplinary action, disqualification, licence cancellation and orders of a Tribunal in 2011. 2. Mr McLeod also disclosed that he has been a director a company that has experienced insolvency issues. The Checklist attached to the Application in regard to qualifications, Mr McLeod ticked that: 'I'm not submitting copies of an approved qualification as I previously held an endorsed contractor licence. Or qualified supervisor certificate that was subject to restrictions and conditions in general building work originally obtained under the Mutual Recognition Act 1992 and within 5 years of the former licence is expiry (sic).' 3. As to experience, he ticked the box: "I'm not submitting copies of referees statement forms as I previously held a licence with no restrictions or conditions that has expired. More than five years ago. But it was current within 10 years of this application..' 4. In Form 2 attached to the application, Mr McLeod wrote: I was subject to consumer complaints regarding two properties in 2011. Which led to the cancellation of my licence and winding up of my building company. I did not agree with all of the allegations in the events described. However I consider that my company grew too quickly and my inexperience in business were factors in the events. I have since undertaken formal training and obtain qualifications. In business management and have spent several years in the construction business. I'm willing and able to provide further information on the complaints and actions should this be needed. 1. He also wrote: I held a Class C building licence from 2008 until 2011 in the ACT. I also held a company licence under core developments AUST Pty Limited. Both licences were cancelled for a period of at least five years by consent during the AC-80 disciplinary process arising from the events above…. During the disciplinary process in ACAT I agreed to without admission consent order whereby my builders licence would be cancelled until September 2016 when I could reapply subject to the consent. Orders being fulfilled. I have complied with the orders. I undertook and completed an advanced diploma of building and Construction Management, which is a better qualification than the certificate four in building an administration. Courses that were ordered. I also obtain significant further. Industry experience over the nearly ten years since the orders were made." And "I'm uncertain as to the fall out. If any claims were made post consenting to my cancellation, there was no option to avoid my company being wound up due to the ACAT procedure while the regulator has placed stop work notices on all construction sites. Notwithstanding, I had several other jobs running with no complaints or issues. The final creditors report noted the company was not insolvent at the time the company was placed into administration and only became insolvent due to the direct fallout of the consent orders to cancel the licence. I'm confident that now, with increased qualifications and training and experience in the construction industry, I will be able to manage my affairs and avoid any repeats of these issues. I have been the director of a successful company for the last eight years with no incidents. I'm also receiving legal advice in relation to my licence application and relevant legislation from a specialist construction law firm to ensure that I meet all obligations and requirements of a contractor licensee in NSW. 1. Mr McLeod also disclosed that he had changed his name in 2012. His previous name was Brendan Paul Eames. 2. Attached to the application, is an undated letter from Mr Diamond, a letter from his accountant and a real estate agent and a letter from Mr Heyward dated 18 February 2008. The letter from Mr Heyward states that Mr McLeod has been working for him as a carpenter for the last four years. Request for additional information 1. On 25 November 2021, Mr McLeod was advised by the respondent that he needed to provide additional information, including: References from licence (sic) builders verifying your a (sic) minimum of 24 months full time site based experience in carrying out a wide range of residential building construction work. (Please note each section of the form needs to be completed. Incomplete form is not acceptable.) 1. Attached to the letter dated 10 December 2021, the respondent provided information on 'Building (general building work)'. Under the heading practical experience requirements, it is stated that: … when getting your experience you must be supervised and directed in your work by someone who holds an endorsed contractor licence or qualified supervisor certificate in the residential building work in which you gained your experience. They must confirm your experience in the referees statement form and you must be paid with money in line with the law for work you did. 1. Under the heading, assessing experience, it is written. When calculating if you have equivalent of two years site based full-time work experience we will be checking that you have done work on sites under the supervision of a fully licenced builder, you have worked on the majority of the sites within 10 years of lodging your application. If you worked on two or more sites at the same time, we will count them as one period of time only when we are calculating your equivalent full-time work experience. Your referees must have held a qualified supervisor certificate or in individual contractor licence (Q) in the category of general building work issued by Fair Trading during the time you gained your experience. 1. On 28 November 2021, Mr McLeod responded through his solicitors that since 2015 Mr McLeod worked as a building developer, 'overseeing all construction' and that there will be difficulty in obtaining references from licenced builders because 'Mr McLeod has not been working for other licenced builders … those licenced builders have been working for Mr McLeod's development company.' 2. On 6 December 2021, Mr Kaiser on behalf of the respondent responded and stated: To meet the experienced requirements for building licence, applicants are required to verify a minimum of 24 months full time site based experience in carrying out a wide range of residential building construction work, of which majority of experience should be within 10 years from the date of the application. 1. On 7 December 2021, Mr McLeod's solicitor responded to Mr Kaiser: With reference to the issue of referees, there is no requirement for individual applicants who have been licenced within 10 years of the date of the application to provide referee statement forms. This is reflected in section 4 of the relevant 'Applicant's Checklist'. If the requirement to provide the referee statement form was insisted upon in every case, it would be impossible for an applicant in NSW jurisdiction with significant experience in an alternative jurisdiction to obtain a building licence because they would not be in a position to have a NSW builder to give verification of experience. With respect, whether the building work carried out was in NSW or another state or territory is irrelevant to the question of whether or not sufficient building experience has been obtained. Nevertheless, please find attached a list of ACT and QLD projects and tasks performed by Mr McLeod on each project. 1. Also attached to the list of projects, was an unsigned letter from Mr Kelly dated 7 November 2021. It states that Mr McLeod worked for him on a wide range of tasks from 2012 to 2014 for a period of 14 months full time and that he was currently working on a property at Field Street Watson which was due for completion in mid 2022. 2. An unsigned letter from Mr Heyward dated 7 December 2021 states that Mr McLeod worked for him as a sub-contractor carpenter. Three projects were listed: 1. Baringa street Giralang – 7 months 2. David street Turner – 12 months 3. Wells garden Griffith – 14 months 1. On 17 December 2021, Mr McLeod's solicitor, Ms Jagger wrote to the respondent submitting that there was no requirement to submit referee statement forms under the Act, there was no requirement for the building contractor to be registered in NSW, the Instrument is simply a Guide and that the two referees relied on are licenced as building contractors in ACT. The reference to the Instrument is a reference to the instrument titled – Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work in the NSW Government Gazette No 52 of 28 April 2017 (the Instrument). 2. Ms Jagger of Bradbury Legal referred to the decisions in Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43 (Wilmot) and Wall v Commissioner for Fair Trading [2017] NSWCATOD 76 (Wall) and submitted that the Instrument is only a guide. Refusal 1. On 11 January 2022, the applicant was advised in a Refusal Notice that the application for a contractor licence under the Act for the category of general building work was refused as he had not demonstrated relevant industry experience in a wide range of building work. 2. The respondent stated that the reference from Pierre Dragh was not in the proper form and that he did not verify the applicant's experience within the last ten years from the date of the application. The references from Mr Diamond, Mr Heyward and Mr Preston were not on approved form and were not 'appropriately licensed under the Act to write a reference for a building licence applicant.' 3. Mr McLeod applied for an internal review application. Attached to the application are written submissions from his legal representatives, Bradbury Legal. The submissions, inter alia, assert that the respondent has misapplied the provisions in the Instrument as to the requirement for Mr McLeod to provide it with specified referee forms, that there is no requirement for the referees to be licensed under the Act. It was also submitted that experience can be demonstrated as an employee or a subcontractor and that the respondent could have and should have contacted Mr McLeod's referees if there were insufficient details in regard to the experience. Internal Review Decision 1. On 24 February 2022, the applicant was advised that the internal review investigation affirmed the decision to refuse his application for a contractor licence in the category of general building work. The respondent concluded that the applicant did not meet the acceptable 2 years relevant building experience pursuant to ss 33C(1)(b)(i) and 33D(1)(b) of the Act. 2. The respondent referred to the operation of the Instrument and the reference within it to the requirement for referee statements setting out the requirement for requisite experience. The relevant legislation and Instrument 1. In determining an application concerning an administratively reviewable decision, s 63 of the Administrative Decisions Review Act 1997 (ADR Act) requires the Tribunal to make the correct and preferable decision having regard to the material provided (including any relevant factual material and any applicable written or unwritten law) by the parties. 2. The Tribunal may then affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision, the Tribunal can make a substituted decision or remit the matter for reconsideration by the administrator who made the original decision. 3. Section 20 of the Act sets out circumstances in which the Secretary must refuse an application for a contractor licence: (1) The Secretary must refuse an application for a contractor licence if-- … (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 … (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence. 1. Section 33C(1)(b)(i) of the Act states: (1) A contractor licence must not be issued unless the Secretary is satisfied that-- … (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 1. Section 33D(1)(b) of the Act is in the following terms: (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant-- … (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 1. Section 20(2) of the Act permits the respondent to determine the appropriate level of experience and other requirements to be held by applicant in a notice to be published in a Gazette such as the Instrument. Section 20(2) of the Act was amended by the Building Legislation Amendment Act 2021 (NSW) from 5 July 2021. 2. As explained by the Appeal Panel in Commissioner of Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 at [36], the requirements set out in the Instrument are the requirements for the purpose of s20(2) of the Act and the Tribunal is required to refuse a contractor licence on the basis that the applicant fails to satisfy the requirements set out in the Instrument. 3. The Instrument defines experience as: "Experience" means experience gained by the applicant as: (a) an employee of; or … the holder of a contractor licence authorising the holder to do the class of residential 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 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 period of two years within 10 years from the date the application is made. 1. The Instrument defines the terms 'Relevant Application Form' which includes reference to referee forms and 'Remuneration'. 2. Schedule 1 to the Instrument states that an applicant needs to show '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 the application is made.' 3. Residential building work is defined in Schedule 1 to the Act in clause 2: (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. 1. The Act is part of a statutory scheme that regulates aspects of the home building industry in New South Wales by providing consumer protection by regulating cancellation and suspension of contractor licences and supervisors trades persons' certificates in the industry. McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 [6]. Applicant's evidence 1. The applicant gave evidence in these proceedings and was cross examined. He relies on documents he provided in support of his Application contained in the bundle of documents tended by the Respondent (Exhibit R1), as well as evidence he tended in the proceedings: 1. Affidavit of Brendan McLeod dated 19 July 2022 (affidavit); 2. Invoices from MKD to Mr Katlewski of MODE Creative Homes that do not specify the year of issue; 3. Invoice from DPO to Mode Creative Homes printed on 31 August 2022; 4. Documents from Mr Katlewski including an email with an engineering plan from Mr Katlewski to Mr McLeod on 5 October 2022, a letter setting out details of Mr McLeod's roles and responsibilities dated 8 September 2022 and a referee statement dated 12 October 2022; and 5. Documents from Mr Heyward including a letter setting out details of Mr McLeod's roles and responsibilities dated 13 September 2022 and a referee statement dated 12 October 2022. 1. Mr McLeod sought to rely on thousands of pages attached to his affidavit. These pages were not paginated and the Tribunal could not identify documents referred to in the affidavit as Exhibits. The respondent objected to the Exhibits to the affidavit being admitted on the basis of relevance. The Tribunal did not admit the Exhibits to the affidavit into evidence but gave Mr McLeod an opportunity to take the Tribunal to any particular document in the Exhibits to demonstrate its relevance. Mr McLeod did not take the opportunity to take the Tribunal to any such document. Mr McLeod's affidavit 1. Mr McLeod identifies his profession as a Development Manager. He resides in New South Wales. 2. Mr McLeod commenced work in the building industry as a labourer in 1994, by 2001 he was working as a self-employed carpenter. He became a self-employed builder in 2008. He worked as a licenced builder in the ACT building homes until November 2011. At this time he lost his building licence and stopped working as a builder. Mr McLeod states that when he held a licence in the ACT he had built over 20 homes between 2008 to 2012 but has retained none of that evidence. 3. From late 2012 he commenced to work as a carpenter, firstly in Queensland and also in the ACT. He worked with Mr Bill Diamond of Diamond Building services in both Queensland and ACT on multiple projects. Mr. Diamond held a Queensland builders licence. 4. From 2014 to the end of 2020, Mr McLeod was involved in property development. In 2014 he identified opportunities to purchase residential properties in Brisbane for development as low medium rise unit developments. He joined with Mr Adam Kelly, with whom he had previously worked, to be a property developer. Mr Kelly is a licenced builder in the ACT. 5. In late 2014, Mr McLeod and Mr. Kelly incorporated a company, Ruby Road Developments Pty Limited, which purchased a house in Brisbane. Mr McLeod was responsible for the day-to-day project management of the development, reporting back to Mr. Kelly in Canberra. Mr McLeod would also commute to ACT to assist Mr. Kelly with a wide range of building assistance on his projects. Over the next 12 months Ruby Road Developments obtained finance, obtained a development application and building approval, engaged a builder to construct the development, and then sold the completed units. In about February 2015, Mr McLeod and Mr. Kelly started another company, Burnley St developments. They purchased three houses in Newmarket. Later, the houses were sold in June 2015. 6. Mr McGee, Mr McAdam and Mr. Kelly incorporated MKD to provide project management services for the Ruby Road and Burnley Street developments and future developments. Initially, 50% of their shares of MKD were held by company associated with Mr. Kelly and 50% of the shares held by company associated with Mr McLeod. Mr. Kelly was a sole director of MKD and the other companies because of the problems Mr McLeod had associated with losing his ACT builders licence. 7. Since the incorporation of MKD in 2015 until he took over as sole director in 2020, he was employed as a project manager and was under the supervision of Mr. Kelly, who held a builders licence in the ACT. 8. Mr McLeod's duties in providing project management services included; dealing with council builders and other consultants. Mr McLeod has also been involved in other property development deals in ACT and QLD which involved him being responsible for; development approval and building approval; meeting with Council architects and arborists and civil engineers. 9. For one of the projects at Brookfield Road Brisbane (childcare centre), Mr McLeod managed a team of construction and other consultants, arranged for the demolition of existing building, arranged builders and negotiated building contracts. He negotiated fixed price and lump sum contracts with the builder, arranged execution of contracts and arranged necessary local council development applications in regard to building work. 10. At paragraph 32 of the affidavit, Mr McLeod states that he has experience in performing a broad range of building work. The reference seems to be work he performed for Mr Diamond as well as other work he performed in ACT. The work is said to included: painting, roofing, renovations, demolition, preparing mesh for footings and slabs, erecting frames, floor systems and roof trusses, and installing cladding, installing ventilation socking to external parameters of wall frames, using bricks and cement and erection of scaffolding installation of external soft linings. 11. Mr McLeod states in paragraph 33 to 35 of the affidavit that from December 2021 until the present he is 'employed as a building subcontractor offering full time labour services for Mr Katlewski of MODE in Canberra'. Documents from Mr Heyward 1. Material from Mr Richard Heyward identifies two projects specifically as construction of new single dwelling-house or dual occupancy at Bruce Pitmar street Forde ACT from 1 November 2010 to 23 November 2012 and Wells Gardens Griffith QLD from 10 June 2015 to 6 March 2016. Mr McLeod and Mr Heyward 'labour swapped' in construing these projects as they were homes for each other. Documents from Mr Katlewski 1. Material from Mr Katlewski identifies five projects specifically as home extension/renovation at Dalrymple street Red Hill ACT from November 2021 to July 2022 and Dyer Place Wanniassa from January 2022 to July 2022. Three other projects from December 2021 to September 2022 are also referred to. Mr Katlewski described the work performed by Mr McLeod to be: 1. Dealing efficiently with subcontractors, consumers and other parties; 2. Reading and interpreting plans, 3. Planning building projects and work; 4. Conducting on site supervision of construction and building tradespeople; 5. Apply structural principles liaises with clients; 6. Organises set out procedures to building and construction projects, 7. managing Occupational Safety procedures; and 8. Applying building codes and standards to the construction process in line with the required standards. 1. Mr Katlewski states that when he commenced to work with Mr McLeod he asked him to be an employee but he preferred to work through his company, MKD because he has a 'complex matter ongoing'. Mr McLeod invoices Mode Creative Homes on a weekly/fortnightly basis through MKD. Mode Creative Homes is a company operated by Mr Katlewski. Respondent's evidence 1. The respondent relies on documents filed and served pursuant to s58 of the ADR Act on 23 May 2022 (Exhibit R1) and additional documents attached to the respondent's submissions filed on 28 September 2022. These documents consist of File Notes of conversations with Mr Heyward and Mr Katlewski as well as licence details of Mr Heyward and Mr Katlewski and MODE Creative Homes Pty Ltd. Applicant's submissions 1. The Applicant submitted that the Tribunal should consider the documents he provided to the respondent at the time of the Application (included in the s58 documents marked as Exhibit R1), the documents he provided to the respondent as contained in Exhibits R1 (referee statements and attached documents dated 12 September 2022), A2 (additional documents and submissions dated 5 October 2022). The Applicant also relies on his affidavit dated 19 July 2022, Exhibit A1. 2. The Applicant submits that he worked as a carpenter from 2002 to 2008, from 2009 to 2012 he worked as a builder and from 2013 to the present he has been a project manager with MKD. 3. Mr McLeod submitted that by virtue of Mr Heyward holding an ACT contractor licence, through 'mutual recognition' it was sufficient for him to be supervised by him prior to him attaining a qualified supervisor licence in NSW on 17 April 2012. 4. The Applicant restated his reliance on the decisions in Wilmot and Wall. 5. In Wilmot at [3], The Tribunal set aside the respondent's decision and granted Mr Wilmot a contractor licence on the basis of a factual finding that he did have at least two years' experience in a wide range of building construction work and that he satisfied the criteria in the respondent's policy, such as being an employee. The Tribunal also found that that departure from the policy was appropriate if it produced an unjust decision. 6. In Wall, Mr Wall was an employee and it was not contested that he had the requisite experience. The issue for the Tribunal was that Mr Wall did not have anybody to provide him with referee statement from his employer, Department of Public Works [22]. On the basis that Mr Wall clearly had at least two years' experience in a wide range of building construction work as an employee, the Tribunal granted Mr Wall an individual contractor licence for the category of general building. 7. The Applicant submits that the Tribunal should consider the Instrument as a guideline and not follow it in regard to the meaning of 'experience'. Specifically, the Applicant submits that his experience as a sub-contractor should count as experience. He also submits that the Instrument is a guideline and that 'timeline technicalities within the Instrument should be overlooked in this instance.' Respondent's submissions 1. The respondent relied on written submissions and oral submissions made by Ms Robosa. 2. The respondent submits that the applicant's claim is deficient in three different ways. First, there is insufficient evidence of the requisite experience in a wide range of building construction work as the referees are 'ineligible under the instrument' to verify the applicant's experience as they do not hold an endorsed contractor licence or supervisor certificate issued in NSW under the Act. Reference is made to Messrs Dragh, Heyward (pre 17 April 2012), Kelly and Diamond. 3. Secondly, Mr Heyward was issued with a Qualified Supervisor Certificate in NSW on 17 April 2012, however the respondent states that his referee statement and reference dated 1 September 2022 and 13 September 2022 should not be given any 'credit' because Mr Heyward did not employ the applicant, did not pay the applicant remuneration for the work performed. Mr Heyward and the applicant are friends and swapped labour to build each other's houses. 4. Thirdly as to the referee statement and additional statements from Mr Katlewski dated 13 May 2022, 6 September 2022 and 8 September 2022, the respondent submits that the evidence demonstrates that there is a period of 9 months experience, which is short of the 24 months required. That the work performed was in limited scope, that there is no evidence of supervision and that the applicant was not an employee of Mr Katlewski or his company. 5. The commercial relationship between the applicant and Mr Katlewski is transacted in the following manner. MKD which is the company which the applicant controls, invoiced More Creative Homes Pty Ltd which is the company Mr Katlewski controlled. The invoice was for sub-contracting work that was for an amount including GST. 6. It was not in dispute between the parties that the applicant was not paid an hourly rate as an employee, was not paid superannuation or had any employee like entitlements such as leave. 7. The respondent submits that the Tribunal must follow the Instrument and relies on Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112. In Kalkan the Appeal Panel found that the Tribunal was required to apply the version of the Act in force at the date of the Tribunal decision. 8. The respondent submits that the applicant has not demonstrated that he has 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. Consideration 1. Despite Mr McLeod's assertions in application to the respondent, it was not disputed during the proceedings that neither MKD or Mr McLeod have ever held any trade or building licence in NSW. Mr McLeod did hold a building licence in ACT from 2008 and that licence was cancelled in 2011. There was no evidence of MKD or Mr McLeod ever holding any trade or building licence in the ACT or Queensland. It was also not in dispute that all of the work performed by Mr McLeod was carried out in the ACT and Queensland. 2. There is no evidence of any specific building work performed by Mr McLeod when he was he held a building licence in ACT from 2008 to 2011 and it cannot be considered for the purposes of this application as 'experience'. Mr McLeod worked as a carpenter from 2012 in QLD and ACT. He performed about nine months of work for Diamond Building Services in 2013. Mr Diamond held a Queensland building licence. 3. I do not consider that the letters from various persons including Messrs Dragh Diamond and Kelly can be relied upon to satisfy the Tribunal what specific work was performed, when the work was performed, whether the work was performed by Mr McLeod as an employee and whether the work was adequately supervised. I reject Mr McLeod's submission that there was some responsibility on the respondent to contact these persons to collect additional information. 4. Section 20(a1) of the Act states that the Secretary must refuse the application for a contractor license if they are not satisfied as to the applicant's experience. It is up to the applicant to satisfy the respondent and the Tribunal that they have the requisite experience within the meaning of the Act. 5. I reject that the work Mr McLeod performed as a project manager for MKD set out in paragraphs 12 to 31 of the affidavit was relevant site based experience in a wide range of building construction work under the supervision of a fully licenced builder. 6. This leaves the referee statements from Messrs Heyward and Katlewski. It is not in dispute that Mr McLeod was not paid any remuneration for the work he performed for Mr Heyward or that he was employed by Mr Heyward or Mr Heyward's company Ace Building Pty Ltd. The arrangement between Mr Heyward and Mr McLeod was that they helped to build each other's houses. 7. On pages 122 and 128 of Exhibit R1 there is an unsigned letter from Mr Heyward and some details about building work. The details on page 122 suggest that the work was relevant site based experience in a wide range of building construction work under the supervision of a fully licenced builder, however there is no mention of this work in Mr Heyward's referee statement or letter from 12 and 13 September 2022. 8. Mr Katlewski provided a list of sites where Mr McLeod worked for nine months from November 2021 to September 2022. The respondent submits that the experience is not broad ranging. Even if the Tribunal was to find that the experience is wide ranging it is well short of the 24 months experience required. 9. Sections 20(2) and 33(1)(b) of the Act and the terms of the Instrument requires Mr McLeod to demonstrate that he has a minimum of 24 months full time site based experience in carrying out a wide range of residential building construction work, of which majority of experience should be within 10 years from the date of the application as an employee or as a holder of a supervisor certificate (which he is not) or as a holder of an endorsed contractor licence (which he does not possess). 10. The evidence and material before the Tribunal plainly demonstrates that Mr McLeod chose not to be employee of Mode Creative Homes. Mr McLeod decided that MKD would invoice Mode Creative Homes for the work he performed. 11. While there may well be circumstances in which the parties label their relationship as 'contractors' but the true relationship between the parties is one of employment, this is not such a case. First, there is no evidence that Mr McLeod's work was controlled by Mode Creative Homes or how such control could be exercised; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404 Kiefel CJ, Keane and Edelman JJ at [78]-[79], Gageler and Gleeson JJ [113]-[122] Secondly, the payments including the payment of GST, invoicing and non-payment of workplace entitlements are consistent with the characterisation of the relationship being between corporations, that is between MKD and Mode Creative Homes. 12. Mr McLeod's submission that the Tribunal should pay no heed to the Instrument is rejected. The Instrument sets out the requirements set out in s20(2) of the Act in regard to the required experience and qualifications. After the first day of hearing, Mr McLeod was given an opportunity to file further evidence and submissions, specifically he was permitted to file referee statements consistent with the terms of the Instrument. Mr McLeod did so in regard to work he performed for Mr Katlewski's company, Mode Creative Homes, however the referee report from Mr Heyward did not include all of the work he submitted he performed and there was no referee statement from Mr Kelly who purportedly supervised his work from 2014 to 2020. No explanation was provided for these omissions. 13. I find that there is insufficient evidence before the Tribunal that Mr McLeod has met the requirement of two years' experience in a wide range of building construction work and that the majority of that experience was obtained in the last 10 years. In addition, I find that the experience Mr McLeod did gain was not as an employee but as a sub-contractor. 14. For the reasons set out above, the respondent's decision is affirmed. Order 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 Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022