Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hassanain v Commissioner for Fair Trading [2024] NSWCATAD 220 Hearing dates: 14 December 2023 Date of orders: 05 August 2024 Decision date: 05 August 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: K Mobbs, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW — Home building — application for individual contractor licence — application of Instrument — experience requirements — employee Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 Licensing and Registration (Uniform Procedures) Act 2002 (NSW) Cases Cited: Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 McDonald v Director-General of Social Security (1984) 1 FCR 354 McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Re Advanced Australia Workplace Solutions Pty Ltd, Print S0253 (AIRCFB, Giudice J, McIntyre VP, Redmond C, 25 October 1999) Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Texts Cited: None Cited Category: Principal judgment Parties: Akram Hassanain (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (self-represented) Department of Customer Service (Respondent) File Number(s): 2023/00266653 Publication restriction: Nil REASONS FOR DECISION Background 1. On 17 January 2023, Mr Akram Hassanain (the Applicant), submitted an application to the Commissioner for Fair Trading (the Respondent), together with attachments, for an individual contractor licence in the category of general building work (the Application) under the Home Building Act 1989 (NSW) (the HBA). 2. On 17 July 2023, a delegate of the Respondent refused the Application in accordance with s 33C(1)(b)(i) and s 33D(1)(b) of the HBA on the basis that the Applicant had not provided acceptable proof of employment and accordingly, did not meet the experience criteria for the category of building. It was accepted however, that the Applicant had satisfied the approved qualification requirements. 3. On 3 August 2023, the Applicant sought internal review of that decision and provided further information. On 17 August 2023, a delegate of the Respondent determined to affirm the decision to refuse the Application. 4. On 21 August 2023, the Applicant applied to this Tribunal for administrative review of that decision. 5. No issue was taken by the parties in relation to the jurisdiction of the Tribunal in this matter. The proceedings 1. The matter was initially set down for hearing on 30 October 2023. When the matter came on for hearing, the Respondent sought an adjournment on the basis that the Applicant had filed a large amount of evidence on 26 October 2023 and the Respondent required additional time to verify and review the material, to seek further instructions and to potentially issue further summonses. Having regard to the nature and timing of the material filed by the Applicant, and having heard from both parties on the matter, the proceedings were adjourned and listed for hearing on 14 December 2023, with a timetable set for the service of further material by the parties and the issue of any summonses by the Respondent. 2. The matter was heard before me on 14 December 2023. Whilst the hearing had initially been set down for only half a day, it was extended into the afternoon with the consent of both parties. Oral submissions were not able to be completed on that day, and the parties agreed to provide written submissions by 25 January 2024. The Applicant was provided with the opportunity to provide any submissions in reply by 1 February 2024. Relevant legislation 1. The HBA regulates home building and specialist work within NSW. The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that "the overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings". 2. The Respondent (referred to in the HBA as the "Secretary": see Schedule 1 of the HBA) is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) . Section 21 of the HBA authorises the holder of a contractor licence to contract to do certain residential building work. 3. Section 20(1)(a1) and s 20(1)(a2) of the HBA provide that an application for a contractor licence must be refused if the Respondent is not satisfied as to the matters of which the Secretary is required to be satisfied by s 33B and s 33C of the HBA. Section 20(2) of the HBA was amended, with effect from 5 July 2021, to read: (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 25 the HBA provides similar provisions in relation to a supervisor or tradesperson certificate. 2. Section 33C(1)(b)(i) of the HBA requires that a contractor licence must not be issued unless the Secretary is satisfied that "the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant". 3. Section 33D(1) of the HBA 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. On 15 December 2022, the Respondent published a notice under s 20(2) and s 25(2) of the HBA (the Instrument), specifying the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor licence or supervisor certificate for general building work. The Instrument 1. The Instrument relevantly provides, that for an endorsed contractor licence in general building work to be issued, an applicant must demonstrate: 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. 1. The Instrument relevantly contains the following definitions: "Experience" means experience gained by the applicant as: (a) an employee of;… … the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience 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 qualified 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. "Relevant Application Form" means the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002) … "Residential building work" has the same meaning as in Schedule 1 Clause 2 of the Act. Respondent's evidence 1. The Respondent did not call any oral evidence and relied on the following material: 1. Section 58 documents (exhibit R1); 2. Record of the public register of licence number 319299C issued to KI Building Services Pty Ltd (exhibit R2); 3. ASIC historical company extract of Whipsaw Papers Pty Ltd, formerly known as MLC Contractors Pty Ltd (MLC Contractors) (exhibit R3); 4. Record of the public register of licence number 297583C issued to MLC Contractors (exhibit R4). 5. ASIC Form 484, Change to Company Details of MLC Contractors (exhibit R5). 6. Record of the public register of licence number 309336C issued to MLC Contractors Group Pty Ltd (MLC Contractors Group) (exhibit R6); 7. Documents produced by Mr Ahmad El Masri in response to a summons (exhibit R7); 8. Documents produced by Mr Daniel Frisken in relation to Whipsaw Papers Pty Ltd (deregistered) previously known as MLC Group in response to a summons (exhibit R8); 9. Documents produced by Mr Daniel Frisken in relation to MLC Contractors Group in response to a summons (exhibit R9). 1. The documentary material adduced by the Respondent relating to the structure of MLC Contractors, MLC Contractors Group, MLC Structures Pty Ltd (MLC Structures) and KI Building Services Pty Ltd (KI Building Services) was not contested by the Applicant and can be relevantly summarised as follows: MLC Contractors * MLC Contractors was registered on 15 February 2010 * Mr Mahmoud Chandab held the position of Director from 15 February 2010 until 26 June 2017. * Mr Isaac Akkouche held the position of Director from 22 July 2010 until 27 April 2014, and again from 1 August 2015 until 8 August 2016. * Mr Akkouche and Mr Chandab held shares in MLC Contractors. * MLC Contractors held contractor licence in General Concreting from 17 June 2016 to 16 June 2017 with Mr Akkouche as the Nominated Supervisor for that licence. * MLC Contractors was placed under external administration and a liquidator was appointed on 7 August 2017. Following changes to the organisation details, including changes to its registered name, the company was deregistered on 21 August 2022. MLC Contractors Group * MLC Contractors Group was registered on 30 August 2016. * Mr Chandab held the position of Director and Secretary from 30 August 2016. * Mr Chandab held shares in MLC Contractors Group. * Mr Akkouche held shares in MLC Contractors Group from 5 January 2018 to 1 July 2019. * MLC Contractors Group held a contractor licence in General Concreting from 12 April 2017 to 12 April 2018, with Mr Akkouche as the Nominated Supervisor for that licence from 20 April 2017 to 26 June 2017. The licence was cancelled on 12 April 2018, due to no Nominated Supervisor. * MLC Contractors Group was placed under external administration and a liquidator appointed on 22 December 2022. MLC Structures * MLC Structures was registered on 31 March 2022. * Mr Chandab is the Secretary and Sole Director and shareholder of MLC Structures. KI Building Services * KI Building Services was registered on 11 March 2013. * Mr Akkouche has held the position of Director since 31 July 2018, and the role of Secretary from 27 October 2020. * Mr Akkouche is a shareholder of KI Building Services. * KI Building Services holds a current licence in general building work that was issued on 15 January 2018, with Mr Akkouche as the Nominated Supervisor for that licence. Applicant's evidence 1. The Applicant relied on the following material: 1. Statement of the Applicant dated 25 October 2023 (exhibit A1); 2. Statement of Muhammad Is'haq Akkouche, formerly Isaac Akkouche, dated 24 October 2023 (exhibit A2); 3. Statement of Mr Chandab dated 24 October 2023 (exhibit A3); 4. Letter from Mr El Masri, Principal Accountant and Tax Agent, signed by Mr Akkouche and Mr Chandab (exhibit A4); and 5. 19 pages of phone screenshots (exhibit A5). 1. The Applicant also sought to rely on a series of emails between the Applicant and Mr Akkouche. Ms Robosa objected to the tender of this material on the basis of relevance. Having heard from the parties, these documents (MFI A) were not accepted into evidence and the Applicant was advised that the relevance of the documents might become clearer after the oral evidence was completed and the issue of relevance might be revisited. The Applicant also sought to rely on a series of documents, including statements, attached to the Applicant's Submissions dated 12 December 2023. A similar process was followed with these documents (MFI B), and they were not admitted into evidence. 2. The Applicant relied upon his statement at the hearing and was cross-examined by Ms Robosa. Ms Robosa requested that Mr El Masri, Mr Chandab and Mr Akkouche be available for cross examination. The Applicant arranged for Mr Chandab and Mr Akkouche to appear by way of audio visual link (AVL), however due to difficulties in joining, both witnesses gave their evidence by way of mobile telephone, with Mr Akkouche doing so from Lebanon. Mr El Masri was not available for cross examination during the hearing. The Applicant was given an opportunity to seek an adjournment to allow for Mr El Masri to be available but advised that he was not certain that Mr El Masri would participate, even if given a further opportunity to do so, and that the Applicant wanted the matter to be finalised. Submissions 1. The Respondent relied on written submissions dated 18 October 2023, an outline of supplemental submissions dated 8 December 2023 and closing submissions dated 25 January 2024. The Applicant relied on written submissions dated 25 October 2023 and 12 December 2023, a document headed "The Hearing: Case Presentation by way of a written statement of [the Applicant]" dated 25 January 2024 (Applicant's 25 January 2024 submissions) and closing submissions dated 1 February 2024. 2. The Applicant's 25 January 2024 submissions make reference to the following (sic): Upon completion of the cross examination [the Applicant] was yet to present their case and arguments. At this point in time, the senior member of the tribunal had determined that there was not going to be enough time for the applicant to present their case and arguments. Hence, the senior member of the tribunal had provided [the Applicant] with the option of presenting their case and arguments as a written submission. [The Applicant] had agreed, and is providing this document as their written case, and arguments to be heard by the tribunal, in continuation of the hearing. 1. As previously referred to, the parties were given a number of opportunities to provide material, including evidence and submissions, prior to the matter being heard on 14 December 2023, and evidence was tendered by both the Applicant and the Respondent at the hearing. As the Applicant was not legally represented in the proceedings, the admission of the s 58 documents, and other evidentiary material relied upon by the Respondent was considered by me prior to the Applicant's evidence, to ensure that the Applicant was aware of all of the material being relied upon by the Respondent. The guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 38 of the NCAT Act provides that the Tribunal may determine its own procedure in relation to any matter for which the Act or the procedural rules do not otherwise make provision. 2. It is evident that the Applicant was provided with the opportunity to present his case at the hearing, and that he did so, by tendering documentary material, giving oral evidence before the Tribunal and calling witnesses to give evidence. As set out above, the Applicant was given the opportunity to seek an adjournment in order to have Mr El Masri attend for the purposes of cross examination and for the Applicant to make oral submissions. As an alternative, the parties were offered the opportunity of having a timetable set for the making of written submissions without coming back for any further hearing. The Applicant was advised that even if he was not going to seek to call Mr El Masri, it was possible for the matter to be given a further hearing date to allow the Applicant to make oral submissions. It was clarified that submissions would not include the putting on any further evidence. The Applicant advised that he wanted to make written submissions in the matter. 3. Having heard from the Respondent, a timetable was set for the parties to provide written submissions, with a further opportunity for the Applicant to make any submissions in reply. The Applicant was advised that he could request a further hearing at that time or subsequently. No such request was received, and written submissions were subsequently provided by the Applicant and the Respondent. No request was made by the Applicant to file any further evidence in the matter, and no orders were made to allow him to do so. In the circumstances, I am satisfied that the Applicant was provided with an opportunity to present his case, including evidence, at the hearing and that he declined the opportunity to seek an adjournment or to have the opportunity to make oral submissions in the proceedings. 4. Accordingly, I do not accept any additional evidence that is contained in the Applicant's 25 January 2024 submissions. I do however have regard to all of the written submissions provided by the Applicant, including the 25 January 2024 submissions and his closing submissions dated 1 February 2024. Role of the Tribunal 1. Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31. Issues for determination 1. At the hearing, the Respondent conceded that the Applicant satisfies the qualification requirements for a contractor licence in the category of general building work, and having regard to the Application, I find that he does. 2. In his Application, the Applicant relied on experience gained by him during the period 1 August 2018 to 16 January 2023. At the commencement of the hearing, Ms Robosa, the solicitor who appeared on behalf of the Respondent, confirmed that no issue was taken by the Respondent in relation to the nature, breadth or extent of the experience claimed by the Applicant in his Application. However, Ms Robosa indicated that the Respondent did not accept that this experience was gained by the Applicant as an employee of the holder of a contractor licence in general building work as required by the Instrument. 3. The Applicant confirmed that, in addition to the experience referred to in his Application, he also sought to rely on all of the building work that he had carried out under the supervision of his referee, Mr Akkouche, from 2014 until 2023. The Applicant acknowledged however, that his Application only referred to two building projects. Ms Robosa indicated that no referee statements had been provided by the Applicant for the additional experience that he now sought to rely on. 4. The Applicant did not dispute that the Instrument, including the definition of "Experience" contained in the Instrument, applied to his Application. Having regard to the decision in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112, I am satisfied that this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument. 5. Accordingly, the issues to be determined in this matter are as follows: 1. Whether the Applicant is able to rely on the additional experience from 2014 to 2018 that was not included in his Application; and 2. Whether the Applicant has satisfied the experience criteria specified in the Instrument, namely whether the experience relied upon by the Applicant was gained by him as an employee of the holder of a contractor licence in general building work. Additional experience relied upon by the Applicant Initial experience relied upon in the Application 1. In section of the Application relating to "Employment and Experience History", the Applicant stated that his period of employment was 1 July 2014 to the "present", namely 16 January 2023. He gave the name of his employer as Isaac Akkouche. Attached to the Application was a Referee's Statement from Mr Akkouche dated 17 January 2023, in which he declared that the Applicant was supervised by him in carrying out a wide range of building work for the time periods set out in the attached 'Applicant's On Site Building Experience' form (Building Experience form). Mr Akkouche also declared that the Building Experience form covered "ALL" of the building sites where he had supervised the Applicant in respect of a wide range of building construction work. The Applicant also signed the Applicant's Declaration in the Referee's Statement to the effect that he had reviewed the Building Experience form and was satisfied that this accurately reflected "ALL" of his experience and employment history under the supervision of Mr Akkouche. 2. The Building Experience form completed by Mr Akkouche indicated that he had supervised the Applicant carrying out building work on two building sites. The first building site was in West Gosford (West Gosford Site), and he stated that he had supervised the Applicant carrying out building work at this site from 1 August 2018 until 2 June 2020, a period of 22 months and 1 day. The second building site was in North Gosford (North Gosford Site) and Mr Akkouche stated that he had supervised the Applicant carrying out building work at this site from 3 June 2020 until 16 January 2023, a period of 31 months and 13 days. Name of the Applicant's Referee 1. When assessing the Application, a delegate of the Respondent noted in the "Home Building Licensing Initial Assessment Sheet – Individual" (Initial Assessment Sheet) that no licence had been found in the name of the Applicant's referee, Isaac Akkouche, but that a licence had been found for Muhammad Is'haq Akkouche. It was noted by the delegate that the referee had legally changed his name on 13 March 2023, after the Application had been submitted, and on this basis, the Referee Statement could be accepted for assessment. No issues were raised in the hearing about this issue, and I accept that Isaac Akkouche and Muhammad Is'haq Akkouche are the same person and for the purpose of these Reasons, is henceforth referred to as Mr Akkouche. Additional experience relied upon by the Applicant 1. In his letter dated 3 August 2023 seeking internal review of the decision to refuse his Application, the Applicant provided an outline of the additional experience which he stated he had obtained on a full time basis under the direction and supervision of Mr Akkouche during the following periods: 1. 1 July 2014 to 10 November 2015; 2. 17 December 2014 to 17 May 2016; 3. 14 August 2015 to 27 May 2016; 4. 17 May 2016 to 1 June 2019; 5. 14 December 2016 to 2 June 2020 (West Gosford Site); and 6. 17 March 2017 to 5 November 2018. Material in support of additional experience 1. In his statement dated 25 October 2023, the Applicant outlined the various building sites that he had worked on with Mr Akkouche between 1 July 2014 and 5 November 2018, and the type of work that he had carried out. In relation to the West Gosford Site, he indicated that he commenced working on the project on 1 August 2018. The Applicant also made reference to the North Gosford site and the work that he did there. 2. Mr Akkouche said in his statement dated 24 October 2023, that he has been involved in the construction of numerous building projects since 2003, including residential, commercial and industrial projects throughout NSW and ACT. He stated that he purchased the West Gosford Site in 2017 and construction commenced on 1 June 2018. Mr Akkouche stated that all relevant times the Applicant was under his supervision for works at a number of listed sites. Mr Akkouche set out a brief outline of the sites where this work took place, the works that took place and made some reference to the Applicant's additional experience at these sites. No dates were provided for this additional experience. Applicant's oral evidence 1. In his oral evidence, the Applicant said that between 2014 and 2018, he was employed by MLC Contractors. The Applicant agreed that MLC Contractors did not hold a licence in general building work during this period and also indicated that following MLC Contractors being placed into liquidation in August 2017, he understood that he was then employed by MLC Contractors Group up until the commencement of the work on the West Gosford Site, and that from 1 August 2018, he was employed by Mr Akkouche. He agreed that the documents relied upon by the Respondent indicated that MLC Contractors Group held a licence in the class of general concreting only. 2. In his oral evidence, Mr Akkouche stated that the Applicant had been with him for nearly ten years and had been under his direct supervision. He stated that the Applicant had been with him "on multiple jobs in and outside design with multiple consultants, including engineers, hydraulic engineers, fire engineers, electric surveyors. The list does not end…". Consideration of additional experience relied upon by the Applicant 1. The Applicant seeks to rely on additional experience gained by him at various sites and during various periods between 1 July 2014 and 1 June 2019 that were not included in his Application. The dates of this experience are contained in the material provided by the Applicant in his internal review request and in his statement dated 25 October 2023. The Referee's Statement and Building Experience form completed by Mr Akkouche which were submitted as part of the Application refer only to the Applicant's building work at the West Gosford Site and the North Gosford Site for the period 1 August 2018 to 16 January 2023. No further referee's statements or Building Experience forms were adduced by the Applicant relating to the additional experience that he sought to rely upon. 2. At the commencement of the hearing, Ms Robosa made reference to the Applicant's reliance on the additional experience and noted that these projects have not been the subject of a referee statement. Ms Robosa noted that the statement of Mr Akkouche makes reference to these projects, but no further details were provided which would enable the Tribunal to make an assessment in relation to them. Ms Robosa also made reference to the issue of whether the Applicant was an employee of the holder of a contractor licence in the category of general building work during this period. 3. The Instrument requires that "Experience" be verified in the "Relevant Application Form" and this is defined in the Instrument as follows: Relevant Application Form means the relevant application form for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002). 1. In Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175, the Tribunal stated at [118] that "It is clear that it is not possible for an applicant to verify their own competence themselves. This underlines the importance of the role of a supervisor who is a competent practitioner." The dates claimed for the additional experience by the Applicant are set out in the Applicant's internal review request and in his statement. Whilst Mr Akkouche does make reference in his statement to additional work in which he supervised the Applicant, he does not include any reference to the time frames for such work nor does he provide specific details of the Applicant's roles and responsibilities on these additional sites. No further referee report or Building Experience forms from Mr Akkouche have been provided by the Applicant. 2. It is clear from the Referee's Declaration in the Referee's Statement attached to the Application that Mr Akkouche confirmed that the Building Experience form completed by him covered "ALL" the building sites where he has supervised the Applicant in a wide range of building construction work and that the Respondent may not accept any additional site work claimed by the Applicant under his supervision that is not included in the attached Building Experience form. It is also clear from the Applicant's Declaration in the Referee's Statement that the Applicant reviewed the Referee's Statement and Building Experience form and was satisfied that these accurately reflected "ALL" of his experience and employment history under the supervision of Mr Akkouche. 3. On the evidence before me, and in the absence of verification in the "Relevant Application Form", of the additional experience claimed by the Applicant in the period 1 July 2014 to 1 June 2019, as required by the Instrument, I give no further consideration to the Applicant's claim for this additional experience. Has the Applicant satisfied the Experience criteria specified in the Instrument 1. The Applicant did not contend that he held, or had previously held any licences or certificates and accepted that the experience that he relied upon for an endorsed contractor licence for general building work during the period 1 August 2018 to 16 January 2023 was gained by him as an employee. It was conceded by the Respondent that the Applicant has established that he has at least two years' relevant industry experience in a wide range of building construction work, and it was not contested that this experience was obtained within 10 years of the date of the Application. However, it was the Respondent's case that this experience did not fall within the definition of "Experience" as set out in the Instrument as the Applicant was not an employee of KI Building Services or Mr Akkouche during the period 1 August 2018 to 16 January 2023. 2. As referred to above, the definition of "Experience" in the Instrument relevantly means experience gained by the Applicant as 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, in this instance in general building work. The Respondent accepted that Mr Akkouche has been the holder of a contractor licence in the category of general building work since 19 June 2003 and did not dispute that KI Building Services was the primary builder at both the West Gosford Site and the North Gosford Site relied upon in the Application. The Respondent accepted that KI Building Services has been the holder of a contractor licence in the category of general building work, and that Mr Akkouche has been the Nominated Supervisor of KI Building Services since 15 January 2018. 3. However, the Respondent did not accept the Applicant's contention that he was employed by Mr Akkouche or KI Building Services and instead submitted that the Applicant was employed by MLC Contractors Group during the relevant period. The Respondent also submitted that MLC Contractors Group did not hold a contractor licence in general building work. Documentary material in relation to the Applicant's employer The Application 1. As previously referred to, the Applicant stated in section 6 of the Application that his period of employment was 1 July 2014 to the "present", namely 16 January 2023. He gave the name of his employer as Mr Akkouche. In the "Applicant's Checklist" (Checklist) for the Application, the Applicant confirmed that he had read the relevant industry experience requirements relating to general building work. In relation to the statement in the Checklist, "My Referee's Statement Form includes my nature of employment", the Applicant stated that he had read the requirements and then ticked the box that he had obtained his experience as "a paid Employee". 2. In his Referee's Statement, Mr Akkouche referred to the Applicant's term of employment as full time and that the nature of employment was as an employee. The Referee's Statement contains the following statement in the Declaration signed by Mr Akkouche: This work was whilst as an employee or as a sub-contractor, where they held an endorsed contractor licence or held a qualified supervisor certificate and were the nominated supervisor for a contractor licence. The work was financially remunerated. Assessment of Application 1. The Initial Assessment Sheet contains notes of the telephone call made by the Respondent's delegate to Mr Akkouche on 7 June 2023 and indicates that Mr Akkouche verified that the Applicant worked for KI Building Services as a full time employee being paid wages and superannuation. Following this conversation, it was noted by the delegate that "Based on the reference provided and assessment conducted, if the [Applicant] is able to provide proof of employment for experience claimed with KI Building Services, and verify the primary builder at [the North Gosford Site], his practical experience may be accepted. A wide range of roles and responsibilities have been demonstrated". 2. On the same day, a Notice under s 14(1) of the Licensing and Registration (Uniform Procedures) Act 2002 was issued to the Applicant seeking additional information, including confirmation from the Applicant's superannuation fund, that KI Building Services had been contributing super to the fund on his behalf for the entire duration of his claimed experience, namely 1 August 2018 to 16 January 2023. 3. In response to the Notice, the Applicant provided a letter on KI Building Services letterhead dated 8 June 2023. The letter was signed by Mr Akkouche, as Director of KI Building Services, and stated as follows: I [Mr Akkouche] confirm that I have been paying the superannuation contributions of my employee [the Applicant] to the elected superfund…since 1 July 2014. These payments are being made through my partnership company MLC Contractors Group Pty Ltd. 1. The Applicant also provided copies of his superannuation statements for the period 1 July 2018 to 30 June 2022, showing superannuation contributions from MLC Contractors Group. As the delegate considered that no evident link could be established between KI Building Services and MLC Contractors Group, ASIC searches were sought by the Respondent and as of 30 June 2023, the Respondent was awaiting this material. 2. "The Home Building Licensing Reassessment Sheet – Individual" (Reassessment Sheet) indicates that the delegate spoke with the Applicant on 30 June 2023 in relation to the Application. It was recorded that the delegate asked the Applicant "based on his employment contract was he employed by [KI Building Services] or [MLC Contractors Group]" and the Applicant advised that "he is an employee of [MLC Contractors Group]. However, that is the way the directors have structured their business, all employees are employed by MCL and invoicing to clients is carried out under [KI Building Services]". It was noted that MLC Contractors Group was under external administration and that the Applicant has been advised that his employment would soon be moved on to MLC Structures. Notice of Refusal 1. Following a review of various company searches, the delegate found that based on the information provided by the Applicant, he was not an employee of KI Building Services but rather an employee of MLC Contractors Group, who at no time had held a licence in the category of building. The delegate concluded that as the Applicant was not employed by the primary builder on site, his practical experience could not be accepted. A Refusal Notice dated 17 July 2023 was sent by the Respondent to the Applicant advising that the Application had been refused and setting out the reasons. Internal review request 1. On 3 August 2023, the Applicant sought internal review of the delegate's decision to refuse the Application. As referred to above, the Applicant relied on additional experience gained under the direction and supervision of Mr Akkouche for further periods between 1 July 2014 and 5 November 2018 in the company names of MLC Contractors Pty Ltd and MLC Contractors Group. 2. In a letter dated 3 August 2023, the Applicant stated that he was initially employed by Mr Akkouche, who was the Managing Director of MLC Contractors at the time of his employment on 1 July 2014. He stated that he had since remained under Mr Akkouche's direction and supervision through the completion of multiple building projects that Mr Akkouche had been responsible for. The Applicant stated that he has not been involved in, or had any knowledge or input to any changes in management or business accounts, finances, hierarchy, or structures. The Applicant stated that it was not reasonable or fair to have the Application refused based on the formality in which Mr Akkouche had employed him, and in the way that Mr Akkouche had been managing his companies and conducting his business. 3. The Applicant provided material from ASIC to identify the link between Mr Akkouche and MLC Contractors, as provided his superannuation contributions for the additional periods of experience that he relied on. The superannuation statements provided by the Applicant indicated that MLC Contractors made contributions to the Applicant's superannuation fund between 1 July 2014 and 10 May 2017. 4. In the internal review decision dated 17 August 2023, the delegate affirmed the decision to refuse the Application as the Applicant had not satisfied the practical experience requirements. The delegate indicated that he agreed with the original decision that the experience relating to the West Gosford Site and the North Gosford Site could not be accepted as the Applicant was not an employee of KI Building Services or Mr Akkouche. The delegate indicated that the additional sites could not be considered as there was no verification of this work by Mr Akkouche. Further material relied upon by the Applicant Statement of the Applicant 1. In his statement dated 25 October 2023, the Applicant stated that on or about 1 July 2014, he commenced working with Mr Akkouche in building and construction and was interviewed for the role by Mr Akkouche and Mr Chandab. The Applicant stated that he was initially employed by MLC Contractors, and that Mr Akkouche was a director of, and a shareholder in, MLC Contractors from 22 July 2010 and was the Nominated Supervisor for the period 17 June 2016 to 26 June 2017. He stated that he worked on various building projects under the guidance and supervision of Mr Akkouche and the company MLC Contractors. He continued working on a full time basis for MLC Contractors Pty Ltd and MLC Contractors Group throughout 2014 until late December 2022. The Applicant stated that during his employment, he had direct contact with Mr Akkouche and was under his direct supervision, and continued to work with Mr Akkouche under both KI Building Services and MLC Contractors. The Applicant stated that he continued to work on the North Gosford Site under the supervision and direction of Mr Akkouche, whilst being paid through MLC Contractors, the employment entity for KI Building. 2. The Applicant indicated that he had difficulties in reconciling the Respondent's reasoning for refusing his Application on the basis that he was not an employee of KI Building Services or Mr Akkouche, and stated that he had no control over who paid his superannuation entitlement or input into the process. He confirmed that he worked for KI Building Services from around August 2018 until the date of his statement, and that it was not apparent to him why Mr Akkouche had structured his business and employee's payment of wages through "MLC entities". 3. The Applicant stated that in January 2018, his employer was changed to KI Building Services, and that he received a call from Mr Chandab, with the following conversation taking place: Chandab: "You will be working full time in Gosford with [KI Building Services]. Do you agree?" [Applicant]: "Yes, I do". Chandab: "You will be reporting to [Mr Akkouche] and dealing directly with him and [KI Building Services] only". [Applicant]: "Yes, I have already spoken to [Mr Akkouche]. I agree". Chandab: "We will need to formalise this". 1. The Applicant indicated that this agreement was not formalised in writing but that he understood he was then under the employment of KI Building Services for the following reasons: 1. He worked at only one site, firstly the West Gosford Site and then the North Gosford Site; 2. His "boss" was Mr Akkouche and no longer Mr Chandab; 3. He reported to Mr Akkouche and no longer to Mr Chandab; 4. He requested leave, pay rises and employment entitlements from Mr Akkouche; 5. He switched to the KI email domain name and email sign off; 6. He answered the phone as "[KI Building Services]"; 7. He no longer spoke to customers of MLC; and 8. He had no further interaction with the business affairs of MLC. 1. Copies of various text messages and communications between Mr Akkouche and the Applicant were provided (exhibit A5). The Applicant indicated that during his employment under the supervision of Mr Akkouche from July 2014 until recently, it appeared that he had been paid by the employment services entities in the MLC Group and that he had no control in relation to such asset planning. He stated that whilst he was paid through MLC entities, he had performed work since January 2018 exclusively for KI Building Services, under the supervision of Mr Akkouche. He stated that he had been informed and believed that it is common in the construction industry to utilise service entities for employees, staffing and contractors. Statement of Mr Akkouche 1. The statement of Mr Akkouche indicated that he had been the Director of KI Building Services since 31 July 2018 and was also a shareholder in that company. He said that he had been a licenced builder in the category of general building since 19 June 2003. He stated that he was in business with his associate, Mr Chandab to "operate the business of form work and labour hire through MLC" and that up until June 2018 all business dealing were conducted directly through MLC Contractors and MLC Contractors Group. At the time of purchasing the West Gosford Site, he stated that he received asset planning advice that he ought to separate the operations entity from KI Building Services, being the building entity, and MLC Contractors Group being the employment and employee remuneration entity. He then registered KI Building Services in general building work due to the nature of the potentially high risk project at the West Gosford Site. 2. Mr Akkouche confirmed that for the period 1 July 2014 to 22 December 2022, the Applicant was in the employment of MLC Contractors and MLC Contractors Group and that at all relevant times, the Applicant was under his supervision for works at MLC. He stated that he was advised by his accountant that he had paid the Applicant superannuation contributions since 1 July 2014, and that these payments were made through his related entity MLC Contractors Group. Statement of Mr Chandab 1. In his statement of 24 October 2023, Mr Chandab stated that he was a Director of MLC Contractors from 15 February 2010 to 26 June 2018 and Director of MLC Contractors Group from 30 August 2016 to 22 December 2022. He said that he conducted his business with Mr Akkouche and operated the business of form work and labour hire for KI Building Services. He stated that he and Mr Akkouche had been working in the construction industry together since 2010 under MLC Contractors and MLC Contractors Group and were shareholders of both companies together. Further, he said that he and Mr Akkouche were both directors of MLC Contractors from 2010 to 8 August 2016. Mr Chandab stated that between 1 July 2014 and 22 December 2022, the Applicant had been an employee and remunerated through MLC Contractors and MLC Contractors Group. 2. Mr Chandab stated that since the commencement of the West Gosford site, the Applicant continued to work with Mr Akkouche under KI Building Services, whilst continuing to be remunerated through MLC Contractors Group. Mr Chandab said that he had observed the Applicant working directly with Mr Akkouche on various projects throughout his employment and receiving instructions, directions and supervision from Mr Akkouche whilst at the West Gosford Site and North Gosford Site. Letter from El Masri Accounting Services 1. A letter from Mr El Masri, Principal Accountant and Tax Agent, co-signed by Mr Accouche and Mr Chandab was adduced by the Applicant and indicated that Mr El Masri was the acting accountant of MLC Contractors Group and KI Building Services collectively. He referred to providing Mr Akkouche and Mr Chandab with advice about of conducting business in an organisation structure with MLC Contractors Group being the organisations' primary business and KI Building Services as the secondary business. He stated that the "purpose" of conducting the businesses as separate entities within the same organisation was to protect the interests of Mr Chandab and Mr Akkouche, with the company MLC Contractors Group being the "organisations" primary asset holder. Mr El Masri confirmed that the Applicant had been employed full time and remunerated by MLC Contractors Group for the period 1 June 2018 to 20 December 2022 and had been undertaking work for and under the direction and supervision of Mr Akkouche of KI Building Services throughout this period. Applicant's oral evidence 1. The Applicant gave oral evidence at the hearing and was cross examined by Ms Robosa. At the outset, the Applicant confirmed that there was nothing about his statement that he wished to clarify. In cross examination, he confirmed that he was initially employed by MLC Contractors on a verbal contract and that MLC Contractors was his employer for the additional periods of experience that he sought to rely on. The Applicant acknowledged that MLC Contractors did not hold a licence in general building work, and for certain periods it only held a contractor licence in general concreting. He stated that Mr Akkouche did hold a licence in general building. 2. The Applicant was asked whether he was employed by MLC Contractors Group, after MLC Contractors went into liquidation in August 2017. The Applicant agreed that he was so employed, up until the start of the project at the West Gosford Site. The Applicant stated that his contract with MLC Contractors was a verbal one and conceded that MLC Contractors Group did not hold a contractor licence in general building work, and that the licence issued to MLC Contractors Group was limited to general concreting. 3. The Applicant was taken to his statement where he had said "I continued working on a full-time basis for [MLC Contractors] and [MLC Contractors Group] throughout 2014 till late December 2022". The Applicant then indicated that he wished to correct his statement and that he had entered into a verbal contract with Mr Akkouche around 1 August 2018 and was employed by him from that point onwards. He said that the statement was meant to say "between" instead of "throughout". The Applicant agreed that MLC Contractors Group was placed into external administration and a liquidator appointed on 22 December 2022 but that he was employed by Mr Akkouche from 1 August 2018 to around 1 January 2023. 4. The Applicant stated that the notes made by the Respondent's delegate in relation to their telephone call on 30 June 2023 that the Applicant was still employed by MLC Contractors Group was incorrect. The Applicant stated however that MLC Contractors Group paid his superannuation contributions from 2018 to 30 June 2022. The Applicant also stated that the reference to him telling the delegate that he had been advised that his employment would soon be moved to MLC Structures was also incorrect and denied being aware of the existence of MLC Structures. 5. The Applicant also gave evidence that the reference in his statement to being paid by MLC, the employment entity for KI Building Services, whilst working on the North Gosford Site was an error. He said that from 1 August 2018, he was being paid by Mr Akkouche, including his work on the North Gosford Site and that the reference in his statement to being paid by MLC Contractors Group at this time was also a mistake. He stated that that he had only just noticed the errors. The Applicant said that he had a verbal contract with Mr Akkouche and that for the purposes of his statement, he considered Mr Akkouche and KI Building Services to be the same entity. The Applicant acknowledged that as of January 2018, Mr Chandab was the sole Director and Secretary of MLC Contractors Group. He stated that Mr Chandab advised him that he was to work at Gosford but that he did not direct him to do so. 6. Following cross examination, the Applicant was given an opportunity to clarify his evidence and stated that whilst he performed work exclusively for KI Building Services under the supervision and reporting of Mr Akkouche, his superannuation contributions were paid through MLC entities, and that this was a payroll concern. In response to questions from me, the Applicant stated that he had not been involved in the North Gosford Site after January 2023, and that he sought other employment. When asked about the reference in his statement that he continued to work at the North Gosford Site project, he clarified that as of the date of his statement, namely 25 October 2023, he had returned on a part time basis about a month after he left. He said that he had been "on and off employment from 2023 onwards". 7. The Applicant said that to his knowledge, Mr Akkouche had been in Lebanon since 1 January 2023, but that Mr Akkouche continued to supervise him through voice and vide calls as well as through photos and videos. In re-examination by Ms Robosa, the Applicant confirmed that Mr Akkouche had been in Lebanon at the time of signing his statement and that his signature was a digital one. Evidence of Mr Chandab 1. At the outset of his evidence, Mr Chandab confirmed that he had access to his statement. The Applicant did not ask Mr Chandab any questions, and he was then cross examined by Ms Robosa. Mr Chandab confirmed that his accountant was Mr El Masri. He also confirmed that MLC Contractors did not have a contractor licence in general building work and only had a general concreting licence. Mr Chandab confirmed that at the time it was operating, MLC Contractors was only doing form work and concreting work. Mr Chandab agreed that MLC Contractors Group only held a general concreting licence. He confirmed that the number of employees of MLC Contractors Group varied between seven to twelve, depending on how busy it was. He also confirmed that the Applicant was an employee of MLC Contractors Group. 2. Mr Chandab clarified that he and Mr Akkouche were "sort of partners" in MLC Contractors and MLC Contractors Group; that he was dealing with Mr Akkouche; and that Mr Akkouche had a building company on the side too. He stated that KI Building Services was a separate company and was Mr Akkouche's company. He said that Mr Akkouche was his "ex-partner, we sort of split ways but we remain together but we split ways." 3. Ms Robosa referred to his statement in which he said he provided labour hire for KI Building Services, and Mr Chandab said as follows: Yes. So we used to provide the labour and the resources for KI Building Services, yes. They were a building company and we used to just provide men for them and the form work for them and we did a bit more than that obviously, like providing [the Applicant] to run the whole thing for them but we also provided several men to do the form work and the concreting work. 1. Mr Chandab stated that the workers provided "were all our workers. They remained our workers, yes". In relation to the Applicant, he stated that when the work quietened down and he and Mr Akkouche "sort of split ways", Mr Akkouche decided to keep the Applicant for KI Building Services, "although that never got transferred." He stated that the Applicant was not shifted to the building side and the Applicant continued to be paid through Mr Chandab's payroll. Mr Chandab confirmed that he directed the Applicant to work for KI Building Services and directed him to be assigned to the Gosford sites. In relation to the relationship between MLC Contractors Group and the Applicant, Mr Chandab stated that he was giving KI Building Services "men" and Mr Chandab invoiced Mr Akkouche for the Applicant's hours and the hours of the other men. He said that if the Applicant was part of that 100 hours, Mr Chandab would just invoice him that 100 hours. 2. Mr Chandab confirmed that the Applicant had been an employee and remunerated through MLC Contractors and MLC Contractors Group and that the Applicant ceased employment with MLC Contractors Group when it went into liquidation on 22 December 2022. Mr Chandab stated that he then opened MLC Structures, in which he was the only employee. He said that the Applicant was not being paid by MLC or himself after that and that he did not know who paid the Applicant's wages or superannuation after 22 December 2022. He stated that the Applicant was not getting paid by MLC Structures. When asked if the Applicant was aware of the existence of MLC Structures, Mr Chandab said as follows: Of course, yes. 100% yes, he should be aware of it because we're still trading now as I am… and I still do all of [Mr Akkouche's] work… So I'm still sending men out to [KI Building Services] but sending subcontractors now…and then yes, I invoice him through my company and I pay other subcontractors. 1. Mr Chandab indicated that work at the North Gosford Site had slowed down a lot because of money issues and was on hold but his understanding was that the Applicant was still working there. Evidence of Mr Akkouche 1. At the outset of his evidence, Mr Akkouche confirmed that he had access to his statement. The Applicant indicated that he had no questions and Ms Robosa then cross examined the witness. Mr Akkouche gave evidence that he helped Mr Chandab with operating MLC Contractors and MLC Contractors Group and helping find man power or labour. Mr Akkouche confirmed that KI Building Services was a separate entity to MLC Contractors Group and had always been a separate entity. Mr Akkouche confirmed that he got his workers for KI Building Services for the Gosford sites from MLC Contractors Group. He stated that MLC Contractors was how he got to "use" the Applicant and how he met him. Mr Akkouche stated that although the Applicant was "directly employed under MLC, he was carrying out work for KI Building Services". He confirmed that the Applicant was one of the employees of MLC Contractors Group who was assigned to work at Gosford for KI Business Services. 2. Mr Akkouche indicated that he did not know where the Applicant was transferred as an employee after MLC Contractors Group went into liquidation. He also confirmed that there was no contract between the Applicant and KI Building Services. 3. In re-examination, Mr Akkouche agreed that there was a verbal contract that the Applicant was to work at the West Gosford Site. Mr Akkouche went on to state that although the Applicant was under the employment of MLC, he was under Mr Akkouche's direct supervision. He stated that the Applicant is highly competent, and that Mr Akkouche regarded him as one of the best professionals he had come across. Mr Akkouche stated that he highly recommended the Applicant and that the Applicant had been caught up in the logistics of how the companies were formed and operated. Mr Akkouche said as follows: It's sad that [the Applicant] was caught in the middle of it but yes, the reality is I moved away from MLC years ago because of some of the issues that I didn't see eye to eye with my former business partner and although I've been at one stage just a shareholder or now just an associate, [the Applicant] sadly has been in the middle of it and I feel that he's been done wrong by. And yes, if there's anything we can do to rectify any mistakes that we've done in the past, we'd like to help [the Applicant] cross the line. 1. I then asked Mr Akkouche about the verbal contract that he had referred to in response to a question by the Applicant. Mr Akkouche agreed the verbal contract was to work under him and under his supervision. Mr Akkouche confirmed that the Applicant remained an employee of MLC Contractors Group, whilst under his supervision. Consideration 1. In his submissions, the Applicant made a number of references to decisions of this Tribunal including Issa v Commissioner for Fair Trading [2022] NSWCATOD 159 (Issa) and Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 (Hall). In my view, the decision in Issa provides little assistance in making my determination in this matter, given that the Respondent accepts that the experience relied upon in the Application satisfies the requirement of at least two years' relevant industry experience in a wide range of building construction work and was obtained within 10 years of the date of the Application. The sole issue in dispute in the current matter is whether or not the experience referred to in the Application was gained by the Applicant as an employee of the holder of a contractor licence in the category of general building work as is required by the definition of "Experience" set out in the Instrument. 2. In the case of Hall, the issue to be determined was whether or not the applicant in that matter had gained his experience as a bona fide employee or as a subcontractor. It is clear that the Instrument does not contain a definition of "employee", and the Tribunal in Hall referenced a number of decisions in relation to the interpretation of "employee" and I accept the Tribunal's comments in that case. 3. In the current matter, however, the Respondent did not dispute that the Applicant was an employee and in receipt of remuneration for such work. Unlike the case of Hall, the question in the current matter is not about the nature of the employment relationship, but rather about the identity of the Applicant's employer. Accordingly, I find that the decision in Hall provides little assistance in determining this question. 4. When I asked the Applicant at the outset of the hearing about what his case would be in relation to who his employer was from 2014, he indicated that he was initially employed by MLC Contractors where Mr Akkouche was a Director, and that Mr Akkouche was personally responsible for employing him on behalf of MLC Contractors. It was contended by the Applicant that from 2014 until 2023, Mr Akkouche paid his wages and his superannuation and was his supervisor for this entire period. The Applicant clarified that his case was that from 2014 to 2018, he was employed by MLC Contractors, and that from 2018 he was employed by either KI Building Services or Mr Akkouche. 5. Whilst a letter from Mr El Masri was adduced by the Applicant, and Mr El Masri appeared to have made handwritten notes on the material he produced under summons, he did not attend for cross examination in the proceedings. On this basis, I give limited weight to the letter from Mr El Masri and no weight to the handwritten notations on the summonsed material. 6. It is apparent that the documentary evidence adduced from Mr Chandab, Mr Akkouche and the Applicant was at times contradictory and confusing, especially as it related to the Applicant's employer. However, a number of matters were clarified in the oral evidence of Mr Chandab and Mr Akkouche. 7. Having regard to the totality of the evidence, including the Applicant's superannuation statements, I find that from July 2014 to approximately August 2017 when the company went into liquidation, the Applicant was employed by MLC Contractors. I further find that from that time up until approximately July 2018 the Applicant was employed by MLC Contractors Group. I find that throughout this period, the Applicant was paid wages, and superannuation contributions made on his behalf, initially by MLC Contractors and then by MLC Contractors Group. It appears from the Applicant's superannuation statements that in 2015, superannuation contributions were also made on his behalf by Reds Building and Carpentry Pty Ltd. 8. I accept that a telephone conversation took place sometime in 2018 between the Applicant and Mr Chandab in relation to the Applicant working full time in Gosford with KI Building Services as set out in the Applicant's statement. I find that this conversation took place whilst the Applicant was employed by MLC Contractors Group, and I accept Mr Chandab's evidence that he directed the Applicant to be assigned to the Gosford sites to work for KI Building Services. I accept that from 1 August 2018 until approximately 22 December 2022, that the Applicant worked at the West Gosford Site and then at the North Gosford Site under the supervision of Mr Akkouche, the Nominated Supervisor for KI Building Services, which was the primary builder for these sites. 9. It is clear however, that the Applicant continued to be paid by MLC Contractors Group throughout this period, and that MLC Contractors Group paid the Applicant's superannuation contributions during this time. 10. I have regard to the statement of Mr Akkouche in which he stated that MLC operated as a business of form work and labour hire. I also have regard to the statement of Mr Chandab in which he stated that he operated the business of form work and labour hire for KI Building Services. In his oral evidence, Mr Chandab confirmed that his company used to provide the labour and the resources for KI Building Services, and they did a lot more than that, like "providing [the Applicant] to run the whole thing for them" and that the workers that were provided to KI Building Services were the workers of MLC Contractors Group and remained the workers of MLC Contractors Group. I accept Mr Chandab's evidence that this was the case and that he invoiced KI Building Services for the Applicant's hours and the hours for the other men. 11. Mr Chandab's evidence is supported by a series of documents headed "Taxable payments annual report document" for KI Building Services for the 2019-20, 2020-21, and 2021-22 financial years that were produced under summons by Mr El Masri. These documents show payments being made by KI Building Services in each of those financial years, to various payees, including to MLC Contractors Group. On this basis, I do not accept the contention that Mr Akkouche or KI Building Services were paying the Applicant's wages or superannuation contributions. I do accept however, that KI Building Services were invoiced for the Applicant's work and that payments were made to MLC Contractors Group for this purpose. 12. I accept the evidence given by Mr Akkouche that MLC Contractors Group and KI Building Services were always two separate entities, I also accept his evidence that he got his workers for KI Building Services for the Gosford sites from MLC Contractors Group and that is how he got to use the Applicant. I accept his evidence that KI Building Services had a contract with MLC Contractors in relation to the engagement of workers and that is how the Applicant got involved with KI Building Services. 13. Accordingly, I am satisfied that whilst the Applicant was directly employed by MLC Contractors Group between 1 August 2018 and 22 December 2022, he was carrying out work for KI Building Services during this time, under the supervision of Mr Akkouche. I find that the Applicant was one of the employees of MLC Contractors Group who was assigned to work at Gosford for KI Building Services during this time. 14. Whilst the Applicant gave evidence that the record of the telephone conversation between him and the Respondent's delegate on 30 June 2023 contained a number of inaccuracies, I prefer the contemporaneous record of the call that was made by the delegate. Accordingly, I accept that the Applicant told the delegate that he was then an employee of MLC Contractors Group and also that he had been advised that his employment would soon be moved to MLC Structures. Whilst the Applicant denied having knowledge of MLC Structures, the evidence from Mr Chandab as to whether the Applicant was aware of MLC Structures, was "of course yes" and that the Applicant should have been aware of it. There is no evidence to suggest that the Respondent or the delegate were aware of MLC Structures prior to the telephone conversation with the Applicant and the record of the call being made. Accordingly, I accept that the details of the delegate's record of the telephone conversation on 30 June 2023 are accurate. 15. In all of the circumstances, I am satisfied that for the period 1 August 2018 to 22 December 2022, the Applicant was an employee of MLC Contractors Group, who carried on a labour hire business. I am satisfied that on 1 August 2018, the Applicant was assigned by Mr Chandab, the Director of MLC Contractors Group to work for KI Building Services at the West Gosford Site as well as the North Gosford Site under the supervision of Mr Akkouche, the Nominated Supervisor for the general building licence held by KI Building Services. I am satisfied that throughout this period, the Applicant remained an employee of MLC Contractors Group and continued to receive his pay and entitlements from that company. I am satisfied that whilst the Applicant carried out work for KI Building Services, that company was the host firm. Whilst I accept that the Applicant was subject to the direction and supervision of Mr Akkouche, I am satisfied that no employee-employer relationship resulted between the Applicant and KI Building Services: Re Advanced Australia Workplace Solutions Pty Ltd, Print S0253 (AIRCFB, Giudice J, McIntyre VP, Redmond C, 25 October 1999). 16. Whilst the Applicant sought to rely on a number of further statements and documents in MFI A and MFI B to establish that the Applicant was directed in his work by Mr Akkouche, used a KI Building Services email and was viewed by others as working for KI Building Services, these documents were not admitted into evidence. I note that even if such documents had been admitted into evidence, they would not have assisted me in my determination, especially in light of my finding that whilst the Applicant was assigned to work for KI Building Services, he remained an employee of MLC Contractors Group, 17. In circumstances where the Applicant was an employee of MLC Contractors Group for the period 1 August 2018 to 22 December 2022, and where MLC Contractors Group did not hold a licence in general building work, I am not satisfied that the Applicant has established that the experience set out in his Application was gained as an employee of the holder of a contractor licence in the category of general building work, as is required by the definition of "Experience" as set out in the Instrument. 18. It is apparent from the evidence of Mr Chandab and Mr Akkouche that they both hold very positive views of the Applicant and his skills, and expressed regret at the effect that the structuring of the employment relationship has had on the Applicant. I have regard to the view expressed by the Applicant that he should not be held accountable for the way in which Mr Chandab and Mr Akkouche chose to structure their business. However, as previously referred to, this Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument and it is clear that the Instrument limits "Experience" to experience gained by an applicant as an employee of the holder of a contractor licence, and in this instance, in the category of general building work. I have found that the Applicant was not an employee of the holder of such a contractor licence. 19. Accordingly, taking into account the findings made above, I am not satisfied that the Applicant has established that he has at least two years' relevant industry Experience and that he meets the requirements of s 33C(1)(b)(i) and s 33D(1)(b) of the HBA. Accordingly, the HBA provides that a contractor licence must not be issued. 20. It follows that that the correct and preferable decision in this matter is to affirm the Respondent's decision and to refuse the Application at this time. The Applicant is not precluded from making a further application for a contractor licence in general building in the future. 21. 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: 15 November 2024