Janicky v Commissioner of Fair Trading, Office of Fair Trading [2005] NSWADT 177

CITATION: Janicky v Commissioner of Fair Trading, Office of Fair Trading [2005] NSWADT 177 DIVISION: General Division APPLICANT PARTIES: Henry Janicky RESPONDENT Commissioner of Fair Trading, Office of Fair Trading FILE NUMBER: 053091 HEARING DATES: 24/06/2005 SUBMISSIONS CLOSED: 06/24/2005 DATE OF DECISION: 08/04/2005

BEFORE: Molony P - Judicial Member APPLICATION: Home Builder - issue of contractor licence - Home Builder - issue of supervisor or registration certificate - Home Building Act - home builder - issue of contractor licence - Home Building Act - home builder - issue of supervisor or registration certificate MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 2004 CASES CITED: Valstar v Commissioner for Fair Trading [2005] NSWADT 102 APPLICANT REPRESENTATION: In person RESPONDENT J Coss, solicitor ORDERS: The Tribunal affirms the decision made by the Commissioner on 30 March 2005 to refuse Mr Janicky's application for a Contractor Licence/Qualified Supervisor Certificate.

REASONS FOR DECISION Introduction 1 Mr Janicky is a Polish migrant who has spent all of his life working in the building industry. He studied at a Building Technical College in Poland for six years, between the ages of 16 and 22, the final three years of which were on a part-time basis. He then worked as a draftsman at the Design Office for Agricultural Buildings in Poland, for five years, and then ran a small business, with his brothers, doing minor building alterations and renovations for a further five years. 2 In 1984, following the Soviet occupation, Mr Janicky escaped from Poland and came to Australia. 3 Since arriving in Australia Mr Janicky has worked exclusively in the building and construction industry. He has held the following authorities under the Home Building Act 1989 and earlier legislation: plumber and gas fitter (6 January 1987 – 2 November 1995); plumber, drainer and gas fitter (17 August 2000 to date) carpentry and joinery (May 2004 to date); minor maintenance/cleaning (minor maintenance, non-structural – contract less than $5,000) (23 February 2001 to date); dry plastering (November 2003 to date); and waterproofing, internal and external (November 2003 to date). 4 In addition to employment in various capacities in the building industry, Mr Janicky has built two homes as an owner-builder in 1992 and 1997, built a medical centre in Lakemba, and been closely involved in a number of other construction projects. As can be seen from his licence history, he has also undertaken further training to expand his skills. In addition to training relating to specific trades, he has successfully completed courses in occupational health and safety, and modules 8 and 9 of the Certificate IV course in the Contractor's Management Program conducted by the Master Builders' Association. 5 Mr Janicky says that he posted an application for a "builders" contractor licence/supervisors certificate to the Office of Fair Trading on 24 December 2003. The Commissioner has no record of receiving this. Following Mr Janicky making inquiries as to the fate of the application, Mr Janicky made a fresh application which was received on 29 June 2004. The Commissioner sought further evidence in support of the application in October 2004: some further evidence was supplied. 6 On 1 February 2005 a delegate of the Commissioner advised Mr Janicky that his application for a builders' contractor licence/supervisors certificate under the Home Building Act 1989 had been refused. Mr Janicky sought an internal review of that decision on 15 February 2005. 7 On 30 March 2005 a delegate of the Commissioner confirmed the decision to refuse Mr Janicky's application. The basis for that decision was that Mr Janicky had not provided evidence that he holds any of the "acceptable qualifications" for the issue of a builders licence, or shown "10 years relevant post trade experience in carrying out or supervising a wide range of building construction works" which would enable him to be licensed based on his experience. 8 Mr Janicky lodged an application to review the decision of the Commissioner with the Tribunal on 16 March 2005. At that time, the application for review was taken to have been finalised in accordance with s.53(9) of the Administrative Decisions Tribunal Act 1997, thereby enabling Mr Janicky to lodge the application for review: s.55(1)(d) Administrative Decisions Tribunal Act 1997. The Tribunal's jurisdiction to determine the application for review is found in s.38 of the Administrative Decisions Tribunal Act 1997 when read with s.83B Home Building Act 1989. 9 The decision subject to review is that made on internal review. 10 The hearing of the review was listed before me on 26 June 2005. Initially, Mr Janicky was represented by a solicitor whose retainer he terminated before the hearing commenced. I urged Mr Janicky to reconsider that decision, suggesting that his case might be better put if he were legally represented. Mr Janicky elected to represent himself. 11 At the conclusion of the hearing I reserved my decision. Since then, on 11 July 2005, Mr Janicky forwarded further building references to the Tribunal and the Commissioner upon which he sought to rely. When those documents were drawn to my attention, I asked the Registrar to write to Mr Janicky advising him that the opportunity for both parties to present evidence to the Tribunal came to an end when the hearing was completed, and I reserved my decision. Legislation 12 The Home Building Act 1989 is essentially a consumer protection act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline. It regulates contracts for residential building work, both as to their content and who may enter them. It implies non-excludable warranties as to the quality of residential building work and services undertaken in NSW, and provides a mechanism for the resolution of disputes relating to residential building work. It establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: s.21(1)(a). 13 Section 24(1) provides that the Commissioner may grant certificates, including supervisor certificates, for the purposes of the Act. Section 25 deals with the issue of certificates. Relevantly, it provides: (1) The Director-General must reject an application for a supervisor or tradesperson certificate if: (a) the Director-General is not satisfied that the applicant is a fit and proper person to hold such a certificate, or (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding such a certificate. (1A)… (2) The regulations may specify or provide for the Director-General to determine additional qualifications that must be held or other requirements that must be met before any supervisor or tradesperson certificate is issued or before such a certificate of a particular kind is issued. (3) The Director-General must reject an application for a supervisor or tradesperson certificate: (a) if the Director-General is not satisfied that any such requirement would be met were the certificate to be issued, or (b) if the applicant has not completed, at a standard acceptable to the Director-General, any relevant examination or practical test (or both) conducted or nominated by the Director-General and required by the Director-General to be completed by the applicant. (4) A decision of the Director-General relating to: (a) the determining of qualifications or other requirements under subsection (2), or (b) the setting of standards or selecting of examinations or tests under subsection (3), cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act. 14 Clause 28 of the Home Building Regulation 2004 then provides: (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General 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. 15 The Commissioner has determined what qualifications and experience is necessary to obtain a builders/licence or supervisors certificate (here called "standards"). Those standards are to be found in a document entitled, "Qualifications - CONTRACTOR LICENCE (Q) - QUALIFIED SUPERVISOR CERTIFICATE", which is published as a brochure by the Commissioner and is downloadable from the Office of Fair Trading web site. Relevantly the standards provide: ' Builder (includes all residential building and building trade work) - Acceptable Qualifications and Experience A minimum of two years acceptable practical experience carrying out or supervising a wide range of building construction works PLUS attainment of any one of the following qualifications. N.B. In the case of applicants having undertaken an apprenticeship, the two years general building experience must be gained subsequent to completion of the apprenticeship - Certificate of Registration as a Chartered Architect under the Architects Act 1921 Degree in Building or Applied Science (Building) through a recognised Australian University Diploma in Technology (Building) - University of Technology, Sydney - Bachelor of Building (Construction management or Construction Economics ) University of Technology, Sydney - Degree, Diploma or Associate Diploma in Quantity Surveying or Applied Science (Quantity Surveying) or Technology (Quantity Surveying) through a recognised Australian University. - Degree in Engineering (Structural) - University of Technology, Sydney - All Construction based bachelor degrees (Australian Qualification Framework [AQF] Level 7) accredited by the Australian Institute of Building (AIB) - Certificate in Building - NSW Technical and Further Education (TAFE) Commission. - Associate Diploma in Applied Science (Building) - NSW Technical and Further Education (TAFE) Commission - Certificate in Building Foreman & Clerk of Works - NSW Technical and Further Education (TAFE) Commission - Advanced Certificate in Building Supervision - NSW Technical and Further Education (TAFE) Commission. - Advanced Building Studies Course - `Diploma in Building Studies (Course 2183 or 1262) (Level V) - NSW Technical and Further Education (TAFE) Commission. - Advanced Building Studies Course - `Certificate IV in Building Studies' - Residential (Course 2182 or 1261) (level IV) PLUS either Carpentry and Joinery Trade Course or Bricklaying Trade Course - NSW Technical and Further Education (TAFE) Commission. - Structural Engineering Diploma (Course 2992) - NSW Technical and Further Education (TAFE) Commission. - Certificate IV in Contractors Management Program through Back to Basics Business Training Pty Ltd PLUS either Carpentry & Joinery Trade Course or Bricklaying Trade Course NSW Technical & Further Education (TAFE) Commission. - Qualifications which in the opinion of the Department are equivalent to those listed above. BUILDING INDUSTRY SKILLS CENTRE (BISC) BUILDING LICENCE ASSESSMENT Applicants not holding any of the listed acceptable qualifications may still qualify for issue of a Contractor Licence/Qualified Supervisor Certificate as a builder by successfully completing the BISC Building Licence Assessment provided they satisfy the guidelines for entry into the examination. These guidelines are as follows: The applicant holds a Degree in (Civil) Engineering from an accredited Institution and can show 2 years experience in carrying out or supervising a wide range of building construction works. The applicant holds a Degree in Architecture from an accredited institution and can show 3 years experience in carrying out or supervising a wide range of building construction work. The applicant holds a TAFE (or equivalent) Trade Course Certificate in the trades of Carpentry and Joinery OR Bricklaying and can show 10 years relevant post trade experience in carrying out or supervising a wide range of building construction works. The applicant holds other relevant/acceptable qualifications in the building industry and can show 15 years overall building experience in carrying out or supervising a wide range of building construction works. The applicant holds no acceptable qualifications in the building industry, but can show 20 years experience in carrying out or supervising a wide range of building construction works. N.B. (i) Applicants for a Builders Licence/Certificate wishing to undertake the BISC Building Licence Assessment should enclose a detailed resume of their building industry experience with the application (ii ) Applicants accepted for the Building Licence Assessment will be notified in writing by the BISC of all details concerning the assessment & briefing session. … Evidence of Practical Experience A minimum of two statements verifying an applicant's practical experience should be submitted with the application. The statements MUST: - Be completed by a person such as: a holder of a Qualified Supervisor Certificate or Individual Contractor Licence (Q), building surveyor, building inspector, architect or relevant engineer who knows of the applicant' s work history. - Provide a detailed description of the type(s) of work performed by the applicant; and - Indicate the dates over which the applicant performed the work. Statement of Practical Experience forms are enclosed with the application form to assist you in obtaining the necessary supporting documentary evidence of your practical experience. Applicants for a Builders Licence/Certificate wishing to undertake the Building Industry Skills Centre's Building Licence Assessment or Oral Technical Assessment should enclose a detailed resume of their building industry experience with the application. … Evidence of Qualifications The Department requires to sight the original (or a copy certified by a Justice of the Peace as being a true copy of the original) of all qualifications which are tendered in support of an application. This requirement applies to TAFE/University Certificates and Licence Skills Assessments. Where original documents are submitted they will be copied and returned to the applicant by registered mail.' Issues 16 The issues to be determined in this appeal are: - Whether Mr Janicky holds an "acceptable qualifications" for the issue of a builders licence; and - If not, whether Mr Janicky, being the holder of a TAFE (or equivalent) Trade Course Certificate in the trades of Carpentry and Joinery, can shown 10 years relevant post trade experience in carrying out or supervising a wide range of building construction works, and thereby satisfy the guidelines for entry into the BISC Building Licence Assessment provided. 17 It is agreed that, if either question can be answered affirmatively, Mr Janicky otherwise meets the requirements for the issue of a builder contractor licence. It is also agreed that, by completing modules 8 and 9 of the Certificate IV course in the Contractor's Management Program conducted by the Master Builders' Association, Mr Janicky has undertaken a course of study which would enable him to be exempted from completing the BISC Building Licence Assessment, if he can satisfy the experience requirement. The Evidence of Mr Dagenhardt 18 The Commissioner led evidence from Phillip Wayne Dagenhardt, a senior assessor in the Office of Fair Trading, in respect of how the standards are applied. Mr Dagenhardt had not been involved in the decision to refuse Mr Janicky's application. His evidence was led on the basis of his extensive experience in the procedures within the Office of Fair Trading in evaluating applications for building licences, and his understanding of the practical application of the licensing regime. His evidence was helpful. Mr Janicky took advantage of the opportunity to question MR Dagenhardt. 19 Some of the evidence from Mr Dagenhardt concerned questions going to the Commissioner's interpretation of the standard. While ultimately the interpretation of the standard is a matter of construction for me, Mr Dagenhardt's evidence was of assistance in understanding the Commissioner's case and in making the Commissioner's reasoning clear to Mr Janicky. 20 Rather than set out Mr Dagenhardt's evidence here, it is convenient to deal with it in context in the discussion below. Acceptable Qualification 21 The first issue for determination concerns whether Mr Janicky holds an acceptable qualification to enable him to receive a Contractor Licence/Qualified Supervisor Certificate upon providing evidence of "a minimum of two years acceptable practical experience carrying out or supervising a wide range of building construction works". There are 14 qualifications specified. 22 Mr Janicky holds his original qualification from the Building Technical College in Poland, together with his various TAFE qualifications and authorities enabling him to do certain types of residential building work. He considers these to be acceptable qualifications. Despite that assertion, none of his qualifications appear in the first 13 specified qualifications. The only issue is whether his qualification from the Building Technical College satisfies the fourteenth qualification, "Qualifications which in the opinion of the Department are equivalent to those listed above". It should be noted that in his correspondence Mr Janicky refers to this apart of his education as being at "High School – Building and Construction", and that he has provided no documentary evidence in relation to that qualification. 23 In response to a question from Mr Janicky, Mr Dagenhardt explained that the Commissioner does not automatically accept overseas qualification. In order for a qualification obtained outside Australia to satisfy the equivalence requirement, the Commissioner's normal practice is to require that a translated copy of the overseas qualification be assessed by the Australian Institute of Building or TAFE NSW, under the Australian Qualification Framework, to determine equivalence. Mr Dagenhardt said it was his understanding that TAFE equivalent qualifications are assessed by TAFE NSW, while those of a higher level (above AQF 5) are assessed by the Institute. Mr Dagenhardt also made the point that specialist trade qualifications are not qualifications in construction. 24 In Valstar Commissioner for Fair Trading [2005] NSWADT 102 I had occasion to consider the standards determined by the Commissioner in respect of the issue of building consultancy (pre-purchase inspection) licences. There, I encountered great difficulty in understanding what that standard actually meant. In this case, the standard is much clearer and easier to understand, with one exception. The requirement that an applicant for a Contractor Licence/Qualified Supervisor Certificate demonstrate, "Qualifications which in the opinion of the Department are equivalent to those listed above", provides no guidance as to the basis upon which the Commissioner will formulate that opinion. Mr Dagenhardt's evidence as to the Commissioner's practice in such cases indicates the application of a coherent and understandable policy on the recognition of overseas qualifications, within the context of the Australian Qualification Framework. While I am not reviewing the standard, and do not have the power to do so (s.24(4)), I draw the Commissioner's attention to lack of specificity in this part of the standard. If a clear statement of what is required to satisfy the Commissioner of the equivalence of an overseas qualification was contained in the standard, be it in accord with Mr Dagenhardt's evidence as to the actual practice or otherwise, then applicants for a Contractor Licence/Qualified Supervisor Certificate would have a clear understanding of what is required of them. At present the requirement is amorphous. It would also assist this Tribunal, in reviewing decisions such as this, if the standards set clear criteria to be satisfied. 25 Be that as it may, the issue for me to determine, standing in the shoes of the Commissioner, is whether Mr Janicky's qualification from the Building Technical College in Poland is the equivalent of any of the 13 specified qualifications. There is simply no evidence before me, aside from Mr Janicky's assertions, that this is the case. I have no evidence as to what the course undertaken by Mr Janicky in Poland encompassed, and no evidence as to how it might equate to the content of any of the 13 specified qualifications, and no documentary evidence that he completed it. I am therefore not satisfied that Mr Janicky holds a qualification equivalent to any of them. Ten Years Experience 26 Mr Janicky provided the Commissioner with a series of references upon which he relied to demonstrate that he had "10 years relevant post trade experience in carrying out or supervising a wide range of building construction works". The Commissioner did not accept that much of the evidence relied on by Mr Janicky meets the requirements of the standard in terms of the evidence required. Much of it is from people whose qualifications are not in or related to building and construction, with some being from clients, albeit they are satisfied clients. Secondly, the Commissioner considered that the statements and references provided did not set out in sufficient detail the work performed by Mr Janicky. Thirdly, the Commissioner considered that the statements and references did not show 10 years post trade experience in carrying out or supervising a wide range of building construction works. 27 Mr Janicky took issue with the rejection by the Commissioner of statements from clients verifying work he had done for them. In passing I note that a common problem with these documents is their lack of specificity in relation to the construction work Mr Janicky carried out or supervised. The real issue, however, is that they do not meet the requirements of the standard in terms of the expertise and qualifications of the writers. Mr Janicky repeatedly expressed the view that the client is the best judge of the quality of the work. That is a proposition which, true or not, does not address the issue for determination by me, which requires me to assess whether Mr Janicky has satisfied the standard. As observed earlier, I do not have the power to review the standard. 28 Attachment A to the original decision to refuse Mr Janicky's application contains a very useful summary of the 32 documents relied on by Mr Janicky. The Commissioner's view of those documents is conveniently summarised at pages 13 and 14 of the decision made on internal review. Having examined the documents relied on by Mr Janicky I find myself in full agreement with the analysis undertaken on internal review. I agree that the majority of the references supplied are from people who do not hold the qualifications required by the standard, and that the balance do not provide evidence that Mr Janicky has 10 years relevant post trade experience in carrying out or supervising a wide range of building construction works. As I endeavoured to explain to Mr Janicky, this finding does not prevent him gathering fresh evidence which complies with the standard, and applying again. Conclusion 29 As a result I conclude that on the evidence provided to me Mr Janicky has not satisfied the requirements of the standard. As a result the correct and preferable decision was to refuse his application for a Contractor Licence/Qualified Supervisor Certificate. 30 The decision of the Tribunal is therefore to affirm the decision made by the Commissioner on 30 March 2005 to refuse Mr Janicky's application for a Contractor Licence/Qualified Supervisor Certificate.