CITATION: Lincoln v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADT 169 DIVISION: General Division APPLICANT PARTIES: Stanley Lincoln RESPONDENT Commissioner for Fair Trading, Office of Fair Trading FILE NUMBER: 073098 HEARING DATES: 23 July 2007 SUBMISSIONS CLOSED: 23 July 2007 DATE OF DECISION: 30 July 2007 BEFORE: Handley R - Acting Deputy President CATCHWORDS: Home Builder - issue of supervisor or registration certificate - Home Building Act - home builder - issue of supervisor or registration certificate MATTER FOR DECISION: Principal matter LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 2004 CASES CITED: Alderton v Commissioner for Fair Trading (matter no 063334 - 16 March 2007) APPLICANT In person REPRESENTATION: RESPONDENT V Griswold, solicitor ORDERS: The decision of the Commissioner refusing Mr Lincoln's application for a Qualified Supervisor's Certificate for restricted electrical work is affirmed. REASONS FOR DECISION 1 This matter involves an application by Stanley Lincoln for the review of a decision of the Commissioner for Fair Trading ('the Commissioner') to refuse Mr Lincoln's application for a Qualified Supervisor's Certificate for restricted electrical work. The Facts 2 Mr Lincoln was born on 11 July 1954 and is aged 53. He has been employed in the domestic appliance repair industry for 19 years: six years with McCurdy Service Repairs and Spares of Ballina, and 13 years as the owner/operator of North East Appliance Repairs of Lennox Head. Mr Lincoln holds a Refrigerant Handling Licence LO 10052. During the course of his work, it is sometimes necessary to disconnect and reconnect domestic electric stoves. In June 2006, Mr Lincoln was awarded a TAFE Statement of Attainment in Restricted Electrical Work – Disconnect/Reconnect. 3 On 20 June 2006, Mr Lincoln lodged an application for a Qualified Supervisor's Certificate for restricted electrical work ('the Certificate') with the Office of Fair Trading ('the OFT'). By letter dated 9 August 2006, a delegate of the Commissioner notified Mr Lincoln that his application had been refused. Mr Lincoln sought a review of this decision. 4 By letter dated 8 March 2007, another delegate of the Commissioner notified Mr Lincoln that, following a review, the original decision had been confirmed on the ground, first, that he is unable to produce evidence of appropriate trade skills and, second, that he is unable to produce a letter from his employer outlining the reasons the Certificate is required and the circumstances under which it would be used. On 10 April 2007, Mr Lincoln applied to the Tribunal for a review of this decision. The Relevant Law 5 The Home Building Regulation 2004 ('the Regulation') was made by the Governor pursuant to s 140 of the Home Building Act 1989 ('the Act'). Clause 28(1) of the Regulation states relevantly: 28 Additional requirements for obtaining certificates (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 ... 6 In s 3 of the Act, "Director-General" is defined as meaning the Commissioner. 7 Information issued by the OFT in respect of restricted electrical licensing states that the purpose of such licensing is to allow appropriately trained and competent workers to undertake the straightforward disconnection/reconnection of electrical equipment where that electrical work is incidental to a person's principal function in the workplace. 8 Entry criteria for the Restricted Electrical Licensing Course completed by Mr Lincoln require that candidates for training must provide documentary evidence that they hold trade level qualifications, for example in the engineering, plumbing, electrotechnical and refrigeration trades. The OFT states that in order to qualify for the Certificate, the applicant must submit the following: "* a completed application form 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 this certificate will be used if issued." Submissions 9 Mr Lincoln stated that there are no trade level qualifications for the domestic electrical appliance repair industry in NSW. Most appliance repairers have not had any formal training. He applied for the Certificate because, in the course of his business, it is occasionally necessary to disconnect and reconnect electrical stoves. However, this is a very small part of, and therefore incidental to, the electrical appliance repair and servicing work which is his principal business. Mr Lincoln said in view of the fact that there is no appropriate trade level qualification in NSW, and that he has supplied a letter setting out his experience and the circumstances under which the Certificate would be used, he believes he satisfies the requirements of cl 28(1)(a) and (b) of the Regulation. 10 Ms Griswold, for the Commissioner, said although Mr Lincoln's background and experience appears to be "good", his area of work is not one in which the Certificate is available. He is unable to meet the requirement that he provide "evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment". The Commissioner has determined, pursuant to cl 28(1)(a) and (b) of the Regulation, that in order to qualify for the certificate, the documents listed in the OFT printed information on restricted electrical licensing (see above) must be submitted by the applicant. Because Mr Lincoln is unable to meet this requirement, he is not qualified for the Certificate. 11 Ms Griswold referred the Tribunal to the ex tempore (oral) decision of Judicial Member Grant in Alderton v Commissioner for Fair Trading (matter no 063334 - 16 March 2007) ('Alderton') where, on similar facts, the Judicial Member confirmed the Commissioner's decision. Discussion 12 Mr Lincoln has provided a copy of his TAFE Statement of Attainment in Restricted Electrical Work – Disconnect/Reconnect, dated June 2006, together with his academic transcript. It is not clear why he was permitted to enrol in the TAFE Restricted Electrical Licensing Course if he does not meet the entry criteria set out in par 7 above. Mr Lincoln has provided copies of the Statement of Practical Experience (the Workplace Assessment Report form) submitted with his application, together with seven references attesting to his efficiency, reliability and integrity. In my view, it is clear from these references that Mr Lincoln is highly regarded by those for whom he provides repair services. 13 I accept that while Mr Lincoln's principal business is the servicing and repair of domestic electrical appliances, the servicing and repair of electric stoves constitutes a very small part of his work. Thus, in my view, the disconnection/reconnection of electric stoves is incidental to his principal work. 14 I note that, as was pointed out by Judicial Member Grant in Alderton, s 25(4) of the Act provides that the Tribunal cannot review determinations of the Commissioner relating to the standards or qualifications for the Certificate. While no evidence of the Commissioner's determination in the case of such Certificates has been provided, I accept Ms Griswold's submission that the information published by the OFT, included in the documents filed with the Tribunal pursuant to s 58 of the Administrative Decisions Tribunal Act 1997, reflects the Commissioner's determination in respect of the additional qualifications that must be held or other requirements that must be met before the Certificate is issued. 15 Notwithstanding that the Tribunal cannot review such a determination of qualifications/standards, in my view, it is not unreasonable for me to comment that the information published by the OFT is not as clear as it might be, and appears to have mislead Mr Lincoln into thinking he could qualify for the Certificate. However, this was also in part because of an apparent anomaly in relation to the domestic electrical appliance repair industry in NSW in so far as there is no trade qualification or certificate required to undertake this work. 16 The result of there being no required trade qualification for the domestic electrical appliance repair industry in NSW, and of Mr Lincoln having no other appropriate trade level qualification that would satisfy the entry requirements for the Restricted Electrical Licensing Course, is that he is unable to satisfy the third of the five requirements for a person to qualify for the Certificate, set out in par 7 above. 17 A strict application of the wording of the information published by the OFT, set out in par 7 above, also results in a self-employed person such as Mr Lincoln being unable to comply with the last requirement for applicants for the Certificate because he is unable to supply a letter from his employer setting out the reasons the Certificate is required and the circumstances under which it will be used. 18 The overall result is that Mr Lincoln, an experienced and reputable domestic electrical appliance repairer, is unable to qualify for the Certificate for which he has undertaken training and reached the required level of attainment. 19 The safety of the community is clearly a paramount objective of the Act and Regulation. However, it does appear, as was discussed at the hearing, that a person such as Mr Lincoln "falls through the cracks", his industry currently lacking regulation and, thereby excluding him from obtaining the Certificate. This means that where he is called to service or repair an electric stove, and disconnection and reconnection of the stove is required, he will need to engage another appropriately qualified tradesperson who has been issued with a Certificate by the Commissioner or is otherwise licensed to perform such work, to perform the disconnection/reconnection task. Decision 20 The decision of the Commissioner refusing Mr Lincoln's application for a Qualified Supervisor's Certificate for restricted electrical work is affirmed. 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.