Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thakur v Secretary, Department of Customer Service [2024] NSWCATOD 150 Hearing dates: 5 September 2024 Date of orders: 17 September 2024 Decision date: 17 September 2024 Jurisdiction: Occupational Division Before: K Robinson, Senior Member Decision: (1) In proceeding 2024/00250255: (a) The decision under review is set aside. (b) The Applicant is to be granted a contractor licence under the Home Building Act 1989. (2) In proceeding 2024/00250786: (a) The decision under review is set aside. (b) The Applicant is to be granted a contractor licence under the Home Building Act 1989. Catchwords: ADMINISTRATIVE LAW – administrative review - Home Building – Applications for contractor licences – individual and company - employee – remuneration – not a subcontractor Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Commissioner for Fair Trading v Hall [2023] NSWCATAP 320 Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 Shi v Migration Agents Registration Authority [2008] HCA 31 YG and GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None Cited Category: Principal judgment Parties: Vineet Thakur and Vthakur Enterprises Pty Ltd (Applicants) Secretary, Department of Customer Service (Respondent) Representation: Self-Represented (Applicant) Department of Customer Service (Respondent) File Number(s): 2024/00250255; 2024/00250786 Publication restriction: Nil REASONS FOR DECISION 1. Vineet Thakur applied for a general building contractor licence on 5 February 2024. The reason Mr Thakur applied for the licence was so that he could do building work in his own right unsupervised. He also applied for a licence for a company Vthakur Enterprises (the Company), nominating himself to be the supervisor for its licence. 2. The Secretary of the Department of Customer Service (the Respondent) refused both applications because the Respondent was not satisfied Mr Thakur was an employee on the basis he was paid by his employer via a company arrangement. 3. The Respondent conducted an internal review at Mr Thakur's request and in both matters the internal review affirmed the Respondent's original decision. 4. Mr Thakur and the Company seek review of the decision to refuse Mr Thakur and the company a licence. Relevant Legislation and Instrument 1. Section 20(1) of the Home Building Act 1999 (the HB Act) provides that the Secretary must refuse an application for a contractor licence if not satisfied as to the matters specified in ss 33B and 33C of the Act. 2. Section 33C(1)(b)(i) of the HB Act provides that the Secretary cannot issue a contractor licence equivalent to a supervisor certificate unless satisfied the requirements in s 33D of the Act are met. 3. Section 33D(1) of the HB Act provides: 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. Section 20(2) of the HB Act permits the Secretary to, 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. 2. The Commissioner of Fair Trading signed an Instrument on 15 December 2022 which relevantly provides: 1. pursuant to section 20(2) of the Act, the qualifications and experience or additional standards or other requirements required to be held or met by the applicant for an endorsed contractor license; and 2. pursuant to section 25(2) of the Act, the qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a qualified supervisor or tradesperson certificate to be as follows: (a) where the application is received by the Secretary on or after the date on which this Instrument is signed ("the Commencement Date"): (i) the possession of qualifications or the passing of examinations specified in Column 1 of Table A to Schedule 1; and (ii) the possession of experience specified in Column 2 of Table A opposite the relevant matter in Column 1;… 1. The Instrument contains a definition of "experience", which relevantly provides: "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 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; or … 1. The Instrument contains a definition of "remuneration": "Remuneration" means wages, salary and director's fees paid to an applicant under a contract of employment and/or under s federal or state industrial agreement to provide services under which the person is employed on a regular basis but does not include bonuses, commissions, allowances or any other ad-hoc payments, including payments from a profit sharing arrangement between the applicant and any other party, where such payments are the only payments made to the applicant for the work the applicant carried out. 1. Section 20(5) of the HB Act provides that a decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under s 20(2) cannot be reviewed by this Tribunal in an application for an administrative review. Material before the Tribunal 1. Two applications for review attaching the internal review reasons and original decision regarding both Mr Thakur and the Company were before the Tribunal. Mr Thakur attended the hearing and gave evidence, was cross examined and made oral submissions. 2. The Respondent provided a bundles of material filed under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) regarding each of Mr Thakur and the Company, two written submissions and the Instrument. The Respondent made oral submissions at the hearing. 3. The Tribunal had made an order that evidence in Mr Thakur's proceeding was also evidence in the Company's proceeding. Applicant's case 1. Mr Thakur submits he and his company should both be granted licences because he was employed and was paid a salary by his employer during the relevant period of supervision of his performance of building work and so satisfies the experience requirements prescribed by the Instrument. Respondent's case 1. The Respondent submits that because Mr Thakur was paid for his work via a arrangement involving a company he does not receive remuneration within the meaning of the definition of the Instrument and consequently Mr Thakur was not an employee within the definition of the Instrument during the period he performed building work under supervision, instead Mr Thakur was a subcontractor. The Respondent submits that if Mr Thakur cannot be granted a licence, the Company cannot be granted a licence because Mr Thakur cannot be the supervisor of the Company for the purposes of a licence for the Company. Role of the Tribunal Jurisdiction 1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 83B of the HB Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a licence application. The Tribunal has jurisdiction to hear and determine this application for review. Administrative Review 1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). 2. The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Respondent but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 3. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act. Consideration Issue for determination 1. There is no dispute that Mr Thakur holds the requisite qualifications and has performed the prescribed relevant work to be granted a licence. There is also no dispute that if Mr Thakur is granted a licence the Company should also be granted a licence because Mr Thakur will be able to be the nominated supervisor under the Company's licence. 2. The Respondent's submissions cited no authorities, however at the hearing the Tribunal raised the decision of Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 upheld in Commissioner for Fair Trading v Hall [2023] NSWCATAP 320. The Respondent submitted that decision was most analogous to the facts in this review, except that it considered a different definition of remuneration in the Instrument. 3. The Respondent agreed Mr Thakur satisfied the definition of employee for all intents and purposes within the general meaning of the term 'employee' under the Instrument in terms of the nature of the relationship between the company Mr Thakur performed work for and Mr Thakur, but for the payment arrangements between that company and Mr Thakur which occurred via the Company. 4. Therefore the only issue for determination in this review is whether the payment arrangements between the licenced building company Mr Thakur performed work for, Mr Thakur and the Company have the effect of making Mr Thakur something other than an employee within the meaning of the Instrument. The Applicant's history 1. Mr Thakur's unchallenged evidence was that he entered into a contract for employment with the licenced building company he performed work for in 2019. He was then told some time later by his accountant it would be better for him to be paid via a company arrangement. Mr Thakur then spoke to his boss who agreed Mr Thakur could be paid his salary by the Company issuing an invoice to the licenced building company Mr Thakur performed work for. 2. Mr Thakur was given leave including annual leave and sick leave, pay rises and a uniform by his employer but had to pay his own superannuation. Mr Thakur provided financial records to show the money paid to the Company for his salary was then paid to him and that money was his sole income. 3. There was no written contract between the Company and the licenced building company Mr Thakur performed work for. There was only an arrangement that Mr Thakur would be paid his salary via the Company. Was the Applicant an employee under the Instrument? 1. I am satisfied on the material before the Tribunal that the Company was solely a vehicle for Mr Thakur to receive his salary and that Mr Thakur was not a subcontractor in the legal sense of the definition. 2. I am also satisfied on the material before the Tribunal Mr Thakur was paid a salary or wages under his contract for employment with his employer within the meaning of the definition of remuneration under the Instrument. 3. Therefore in all the circumstances I am satisfied Mr Thakur was an employee within the meaning of the Instrument. Unlicenced subcontracting 1. At the hearing the Respondent also made a submission that because the company Mr Thakur worked for paid Mr Thakur via the Company, there was a potential breach of s 4 of the HB Act because s 4(2) prohibits licenced companies from contracting for residential building work with unlicenced people and companies. I cannot accept this submission because on the material before the Tribunal I am not satisfied there was any contracting for home building work between the licenced building company Mr Thakur performed work for and the Company. Conclusion 1. Therefore, in all the circumstances and on the material before the Tribunal, I am satisfied the correct and preferable decision is that Mr Thakur should be granted a general building contractor licence and the Company should also be granted a licence because Mr Thakur can be the nominated supervisor under a licence held by the Company. 2. It follows the decisions of the Respondent should be set aside and instead Mr Thakur should be granted a general building contractor licence and the Company should also be granted a general building contractor licence. Order 1. In proceeding 2024/00250255: 1. The decision under review is set aside. 2. The Applicant is to be granted a contractor licence under the Home Building Act 1989. 1. In proceeding 2024/00250786: 1. The decision under review is set aside. 2. The Applicant is to be granted a contractor licence under the Home Building Act 1989. ********** 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: 17 September 2024