Glenn v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 213

CITATION: Glenn v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 213

DIVISION: General Division

APPLICANT PARTIES: Keith James Glenn RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading

FILE NUMBER: 073139

HEARING DATES: 6 July 2007

SUBMISSIONS CLOSED: 6 July 2007

EXTEMPORE DECISION DATE: 6 July 2007

DATE OF DECISION: 14 September 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 2004

CASES CITED: Dimakis v Commissioner for Fair Trading [2007] NSWADT 165

APPLICANT In person REPRESENTATION: RESPONDENT F Campora, Solicitor

ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Mr Glenn applied to the Commissioner for Fair Trading for a contractor's licence/qualified supervisor certificate for the work category of disconnection and reconnection of fixed electrical equipment under the Home Building Act 1989 ("the Act"). A delegate of the Commissioner refused the application and the refusal was affirmed on internal review. 2 The purpose of a restricted electrical licence is to enable a tradesperson, whose primary trade is something other than electrical work, to undertake basic disconnection and reconnection of electrical wiring where it is incidental to the person's principal function in the workplace. Mr Glenn's application was refused on the basis that disconnection and reconnection of electrical wiring was not involved in his primary employment and that he intended to use the restricted licence to obtain secondary employment. 3 Mr Glenn applied to the Tribunal for an external review of the determination. The Tribunal's task on review is to make the correct and preferable decision on the evidence before it: section 63 Administrative Decision Tribunal Act 1997. The matter came before me for hearing on 6 July 2007. At the conclusion of the hearing I determined that the licence should not be granted and I gave brief reasons for my decision. Mr Glenn has requested written reasons for my decision and these reasons are provided in response to that request. Applicable legislation 4 The Home Building Act 1989 is concerned with the regulation of residential building work in NSW. Residential building work is defined in section 3 of the Act to mean: "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. 5 Section 14 provides in part: 14 Unqualified electrical wiring work (1) An individual must not do any electrical wiring work (whether or not it is also residential building work), except: (a) as a qualified supervisor (being the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work), or (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of such a qualified supervisor. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. 6 The Commissioner's power to issue contractor licences is found in section 20, which relevantly provides: 20 Issue of contractor licences ... (2) The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued. (3) The Director-General must reject an application for a contractor licence if: (a) the Director-General is not satisfied that any such requirement would be met were the contractor licence to be issued, or (b) the Director-General is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or (c) the Director-General is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work, or the supplying of a kit home, of a kind proposed to be authorised by the contractor licence. (5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act. 7 A licence authorising the disconnection and reconnection of fixed electrical equipment is a licence authorising the holder to do specialist work: section 21(1)((b) of the Act and clause 46(2)(j) of the Home Building Regulation 2004. 8 Clause 28(1)(a) of the Home Building Regulation 2004 specifies that before a certificate is issued, the Commissioner must be satisfied that the applicant has such qualifications or has passed such examinations or practical tests, or both, as the Commissioner determines to be necessary to enable the applicant to do so, or to supervise, the work for which the certificate is required. 9 Clause 28(1)(b) of the Home Building Regulation 2004 specifies that before a certificate is issued, the Commissioner must be satisfied that the applicant has had experience of such a kind and for such a period, as the Commissioner considers would enable the applicant to do so, or to supervise, the work for which the certificate is required. 10 The Commissioner has determined standards ("the standards") that must be met before any contractor licence is issued and these are set out in a document titled Restricted Electrical Licensing ("the standards") which states: "RESTRICTED ELECTRICAL LICENSING Qualifications CONTRACTOR LICENCE (Q) QUALIFIED SUPERVISOR CERTIFICATE WHY HAVE RESTRICTED LICENCES/ CERTIFICATE? The broad character of the electrical licensing legislation is such that even minor electrical tasks can require the involvement of the holder of a full electrical licence or certificate. This can mean that, if a job is primarily another trade (e.g. mechanical, plumbing etc.) and the work cannot be completed without the disconnection and reconnection of electrical wiring, then two workers are required for the job. It is necessary to have a fully qualified electrical tradesperson to carry out the task of disconnecting and reconnecting the electrical wiring at equipment and a non-electrical worker to carry out the non-electrical task. The purpose of restricted electrical licensing is to provide a means of allowing appropriately trained and competent workers to undertake the straight forward disconnection/reconnection of electrical equipment where that electrical work is incidental to the person's principal function in the workplace. NB. ELECTRICAL EQUIPMENT DOES NOT INCLUDE ANY COMPONENT PART OF FIXED WIRING AND ASSOCIATED SWITCHGEAR, ACCESSORIES AND FITTINGS.* * There is a definition of 'equipment' included in the Competency Standards for the National System of Restricted Electrical Licences. LIMIT OF WORK PERMITTED The type of work covered by the licence/certificate is limited to: - Disconnection/reconnection of electrical wiring at the equipment itself and only to the extent necessary to permit the non-electrical work to be performed. - Replacement of equipment on a 'like for like' basis. - Testing necessary for the safe isolation of the equipment to be disconnected/reconnected. - Testing necessary for the safe operation of equipment. - Replacement of "blown" fuses and resetting of "tripped" circuit breakers. - Restricted electrical work is confined to equipment operation at voltages up to 650V alternating current and direct current and is limited to the following areas of fixed wiring: 1. Domestic Equipment 2. Plumbing Equipment 3. Commercial/Industrial Equipment 4. Refrigeration/Air Conditioning Equipment 5. Instrumentation/Process Control Equipment 6. Laboratory/Scientific Equipment 7. Communication/Computing Equipment The work does NOT include disconnection/reconnection at: 1. the switchboard; 2. lighting fittings; 3. switchgear; 4. switches; 5. power points; 6. other electrical accessories. TRAINING Training for restricted electrical licences/certificates involves on-the-job and off-the-job components. Off-the-job - Consists of a National Restricted Electrical Licensing training course available through TAFE and other providers. The modules applicable in NSW are: - Disconnect/Reconnect Equipment - Modules 1 & 2. - Associated Electrical Work (for Refrigeration Trades) - Modules 1 & 2 + 3a & 4a. On-the-job - Consists of supervised workplace experience and achievement of competencies verified by an approved assessor. ENTRY CRITERIA FOR TRAINING Important Note The National Restricted Electrical Licensing course is NOT an entry level course It is intended to build upon skills and training already held by participants. Candidates for training must provide documentary evidence that they hold trade level qualifications related to maintaining, servicing and/or repairing relevant equipment. Engineering, Plumbing, Electrotechnical and Refrigeration tradespersons can satisfy the above requirement by providing to the training provider at the time of enrolment, AND to the Department of Commerce on application for a licence/certificate, a certified copy of the relevant: Craft Certificate; or Certificate of Proficiency; or Australian Recognised Trade Certificate; as issued by a State or National Department of Employment and Training. Enquiries regarding eligibility for a Craft Certificate or Certificate of Proficiency should be made to the Department of Technical Education and Co-Ordination. Enquiries regarding eligibility for an Australian Recognised Trade Certificate should be made to the Local Trades Committee. Persons who are not eligible for one of the above Certificates should contact the Department of Commerce regarding their qualifications before undertaking off-the-job training. QUALIFICATIONS REQUIREMENTS FOR RESTRICTED ELECTRICAL LICENSING Endorsement of Restricted Electrical work will only be made on a Contractor Licence where the applicant already holds an existing Contractor Licence. All other applicants must apply for a Qualified Supervisor Certificate. The purpose of Restricted Electrical licensing is to allow straight forward disconnection/reconnection of electrical equipment where that electrical work is incidental to a person's principle function in the workplace. Restricted Electrical licensing is NOT intended to allow persons to contract the carrying out of disconnection/reconnection work as a principal activity. Qualified Supervisor Certificate Applicants not holding an authority with Fair Trading may be granted a Qualified Supervisor Certificate in this category. As stated above, a Contractor Licence will not be granted. New applicants must pay the application fee for a Certificate while existing holders of a Certificate need to pay the fee for a variation as shown in the fee schedule. In order to qualify for a Qualified Supervisor Certificate for restricted electrical work, the applicant must submit the following: a completed application form together with the appropriate fee (see schedule); evidence of completion of the relevant components of an approved Restricted Electrical Licensing Course; evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment (see entry criteria for training); a completed Workplace Assessment Report form; and a letter from the applicant's employer outlining the reasons the Restricted Electrical certificate is required and the circumstances under which the certificate will be used if issued. Contractor Licence (Q) The qualification requirements for issue of a Contractor Licence for restricted electrical work are as detailed above for a Qualified Supervisor Certificate. However, where the applicant is self-employed, he/she must submit a letter outlining the reasons the Restricted Electrical Licence is required and the circumstances under which the licence will be used if issued. The applicant will need to pay a fee for a licence variation. Evidence and Submissions 11 Mr Glenn relies on the documentation that he submitted with his application. He also attended the hearing and gave evidence in support of his application. He seeks this licence to enable him to undertake secondary employment work. The work that he anticipates that he may be able to obtain varies but includes restricted electrical work - washing machine repairs and electrical appliances, test and tagging and repairs to electrical leads including plug replacements. His evidence is that he has many years of experience in performing this type of work but that in the past there has always been an electrician in his workplace to sign off on the work. 12 He said that he is unable to obtain certification from his primary employer to show that electrical work is incidental to his principle function. His principal function is undertaking mechanical work on buses and this does not require a licence to disconnect/reconnect of electrical equipment. He says that in some circumstances it would be convenient to be able to undertake this type of work however he concedes that it is not required as part of his principal function. He has not yet secured secondary employment that would allow him to obtain that certification. 13 The Commissioner contends that Mr Glenn does not meet the standards. She submitted that the standard does not allow a person such as Mr Glenn, to apply for a restricted electrical licence. The standard applies to a restricted number of trades (engineering, mechanical, plumbing and refrigeration) who may commonly in the course of their work require that equipment they work on be disconnected and subsequently reconnected. The mechanical work on buses that Mr Glenn undertakes, it was submitted, is not such a trade. He is therefore ineligible for a restricted electrical licence. 14 The Commissioner says that the wish to undertake secondary employment cannot be considered work as being incidental to his principal function in the workplace. She also argues that the broad spectrum of the duties Mr Glenn would like to perform cannot be reasonably and safely assessed as to whether he requires an authority for disconnect/reconnect of electrical equipment or whether the work should be undertaken by a person who holds an electrical authority under the Act. Findings 15 In issue in this matter is whether Mr Glenn is eligible to apply for a Restricted Electrical Licence and whether he has satisfied the standards. 16 In Dimakis v Commissioner for Fair Trading [2007] NSWADT 165 Judicial Member Molony considered the issue of whether the holder of a contractor licence in the categories carpentry and joinery is eligible to apply for a Restricted Electrical Licence. He stated: 21 The standard does not state what trade qualifications are required to meet the general eligibility requirements for a Restricted Electrical Licence. In the explanation of why restricted electrical licences are necessary, plumbing and mechanical trades are used as examples of trades in which work cannot be completed without the disconnection and reconnection of electrical wiring. There is nothing to indicate that the examples there given are intended to restrict the trades eligible. Rather, the clear words of that explanation point to the eligibility requirements being that applicants be appropriately trained and competent workers to undertake the straight forward disconnection/reconnection of electrical equipment, where that electrical work is incidental to the person's principal function in the workplace. 22 Engineering, mechanical, plumbing and refrigeration trade qualifications are specifically mentioned under the heading "Entry Criteria for Training." That is in the context of those trades being able to satisfy the requirement that they hold "trade level qualifications related to maintaining, servicing and/or repairing relevant equipment," by production of their relevant trade qualifications. The passage provides advice as to how those trades might prove their qualifications and cannot be read as limiting eligible applicants to those trades only. 23 The passage under the heading "Qualification Requirements for Restricted Electrical Licences" says that endorsements will only be made on existing contractor licences to allow straight forward disconnection/reconnection of electrical equipment where that electrical work is incidental to a person's principle function in the workplace. There is no restriction set as to they types of contractor licence which may be so endorsed, so long as applicants satisfy the incidental purpose requirements, and otherwise meet the requirements of the standard. ... 27 The standard, in its explanation of why there are restrictive electrical licences, provides some guidance as to what is intended. In leading to a statement of the eligibility criteria a situation is posited in which "a job is primarily another trade and the work cannot be completed without the disconnection and reconnection of electrical wiring, then two workers are required for the job." This indicates that the drafter envisaged a licensee's principal function being assessed in the context of the jobs they actually perform. This is reinforced by the formulation of the test in those explanatory paragraphs as being "incidental to the person's principal function in the workplace." While the words "in the workplace" are not used in the statement of qualification requirements, these earlier explanatory words are sufficient to persuade me that a licensee's primary function is intended to be ascertained by reference to work actually done, rather than by reference the type of trade or general work they undertake. If that had been the intention the result would have been readily achieved by use of the words "principal trade" or "trade," rather than "principal function." 17 I agree with that assessment. It is the jobs that Mr Glenn actually performs that will determine his eligibility for a restrictive electrical licence. 18 In the circumstances of this matter Mr Glenn states that he holds a Craft Certificate and therefore meets the entry criteria for training. If this is correct, it is possible that Mr Glenn is able to establish that he has sufficient qualifications for that purpose. However, an assessment of the principal function that Mr Glenn actually performs shows that it is not work that cannot be completed without the disconnection and reconnection of electrical wiring. In these circumstances he is not able to satisfy the applicable standards. It follows, in my view, that the Commissioner has correctly determined that his application should be refused. I therefore affirm that determination. Findings The decision under review is affirmed.