CITATION: Parker v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 56 DIVISION: General Division APPLICANT Robert Conrad Parker PARTIES: RESPONDENT Commissioner for Fair Trading, New South Wales Office of Fair Trading FILE NUMBER: 073376 HEARING DATES: 13 February 2008 SUBMISSIONS CLOSED: 13 February 2008 DATE OF DECISION: 19 February 2008 BEFORE: Handley R - Judicial Member CATCHWORDS: Home Building Act - home builder - issue of contractor licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 2004 CASES CITED: N/A APPLICANT A Petrie, barrister REPRESENTATION: RESPONDENT W Maynard, solicitor ORDERS: The decision under review is set aside and in substitution therefore the Applicant, Mr Robert Conrad Parker is to be issued with an individual contractor licence in the category of 'Plumber, Drainer, Gasfitter and LP Gasfitter'. REASONS FOR DECISION 1 On 18 December 2007, Robert Parker applied to the Tribunal for a review of a decision by the Commissioner for Fair Trading ('the Commissioner') to refuse Mr Parker's application for an individual contractor licence in the category of 'Plumber, Drainer, Gasfitter and LP Gasfitter' on the ground that the Commissioner was unable to determine whether Mr Parker has had suitable work experience in his trade. The Facts 2 The facts are not in dispute. Mr Parker was born on 20 November 1982 and is aged 25. After leaving school at the age of 16, he commenced employment as, he thought, an apprentice plumber with a licensed plumber, Kieran Dwyer of Dwyer's Plumbing Service, on 2 January 1999. Mr Parker states that Mr Dwyer encouraged him to enrol in a 'Certificate III in Plumbing Trade' at TAFE, which Mr Parker commenced in 1999, and paid him an apprentice wage of $250 per week in cash, but without other entitlements. 3 Mr Dwyer ignored Mr Parker's initial requests for formal documentation, but eventually, after 18 months, Mr Dwyer told him that they should start 'with a clean slate', and they entered into a four year apprenticeship agreement, commencing on 1 July 2000. Thereafter, Mr Parker was initially paid $280 per week with the benefit of the normal entitlements of an employee. Mr Parker continued to work for Mr Dwyer until 2 July 2004. On 30 June 2004, Mr Parker was issued with a Certificate of Proficiency stating that he had successfully completed an apprenticeship on that date. 4 Since then Mr Parker has had the following employment as a plumber: from 5 July 2004 to 16 August 2004, with BPS Plumbing; from 1 November 2004 to 25 December 2004, with John Coleman Plumbing; from 3 February 2005 to 11 July 2005, with Michael Major; from 11 August 2005 to 13 October 2005, with Mr Washer Plumbing Service (licensed plumber John Boyle); from 23 January 2006 to 22 April 2006, with Chiswick Plumbing (licensed plumber Lorenzo Poletto); and from 30 October 2006 to date with Ajax Plumbing. 5 On 24 November 2006, Mr Parker lodged an application with the Office of Fair Trading ('the OFT') for an individual contractor licence in the category of 'Plumber, Drainer, Gasfitter and LP Gasfitter'. Attached to the Application were referees' statements, including a statement from Mr Dwyer stating that he had employed Mr Parker from 2 January 1999 to 2 July 2004, together with copies of Mr Parker's certificates and academic transcript. 6 On 11 December 2006, a delegate of the Commissioner wrote to Mr Parker requesting that he supply references covering a further period of 18 months supervised work experience. Mr Parker subsequently approached his local State Member of Parliament, Frank Sartor, who wrote to the Minister for Fair Trading pointing out that Mr Parker had worked for Mr Dwyer for a period of 18 months before formal apprenticeship papers were signed. On 16 May 2007, the Commissioner wrote to Mr Sartor stating: "The criteria to obtain a contractor licence in the category of Plumbing, Draining, Gas fitting and Liquefied Petroleum Gas fitting is Certificate III in Plumbing, a four year apprenticeship plus two years practical trade experience post apprenticeship." 7 The Commissioner noted further that Mr Parker had been advised to contact the Vocational Training Tribunal concerning the commencement date for his apprenticeship to discuss whether his Certificate of Proficiency could be backdated, and also to supply further documentation and references by 26 May 2007. 8 On 27 June 2007, a delegate of the Commissioner wrote to Mr Parker stating that the Commissioner had determined to refuse his application for a contractor licence because the additional information requested in the letter dated 11 December 2006 had not been provided. Mr Parker sought an internal review of this decision. On 23 November 2007, another delegate of the Commissioner confirmed the original decision after an internal review, stating that he was unable to determine whether Mr Parker had completed suitable "post-trade level" experience and noting that Mr Parker had failed to provide the additional information requested. The Relevant Law 9 Section 19(1) of the Home Building Act 1989 provides that the Commissioner may grant contractor licences for the purposes of the Act. Section 20(2) provides that the regulations may fix or provide for the Commissioner 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". Section 20(3)(a) requires the Commissioner to reject an application for a contractor licence if not satisfied that any such requirement would be met were the contractor licence to be issued. Section 20(5) states that a decision of the Commissioner relating to determining standards or other requirements under section 20(2) cannot be reviewed by this Tribunal. 10 Clause 28(1)(a) and (b) of the Home Building Regulation 2004 provide that in the case of an application for a licence such as that sought by Mr Parker, the Commissioner must be satisfied (a) that the applicant "has such qualifications or has passed such examinations or practical tests, or both" as the Commissioner considers necessary for the applicant to do or supervise the work for which the licence is required, and (b) 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 or supervise the work for which the licence is required. 11 The OFT has issued a brochure setting out "the technical/formal qualifications and practical experience" accepted by the OFT for the issue of an individual contractor licence in the category sought by Mr Parker. The brochure states relevantly: "Plumber, Drainer, Gasfitter and LP Gasfitter Completion of the Certificate III in Plumbing Trade and Plumbing Technology Certificate IV through TAFE NSW (or equivalent) PLUS six years acceptable supervised general practice trade experience." Discussion 12 The Commissioner does not dispute that Mr Parker has the necessary academic qualifications. The issue is whether he has the required trade experience. The Commissioner submits that two of Mr Parker's six years practical trade experience must be post apprenticeship. Mr Maynard, for the Commissioner, described this as "office policy". He said the Commissioner relies on the statement of required experience set out in the letter to Mr Sartor dated 16 May 2007, quoted above at paragraph 6. 13 Ms Petrie, for Mr Parker, said that Mr Parker had worked for Mr Dwyer for a period of five years and six months (from 2 January 1999 to 2 July 2004) and has subsequently had more than six months experience working for other licensed plumbers. Thus, he satisfies the requirement for experience set out in the OFT brochure. Ms Petrie noted that the forms on which referees are required to complete their referee statements make no distinction between apprenticeship and post apprenticeship periods of employment. 14 Mr Maynard noted that some of the referees' statements gave little detail of the work undertaken by Mr Parker while in their employment. He also pointed to the confusion caused by the official record of Mr Parker's apprenticeship stating a commencement date of 1 July 2000 and a completion date of 30 June 2004. Mr Parker's 'Certificate of Proficiency' in respect of his apprenticeship states his apprenticeship was completed on 30 June 2004. 15 A review of the documents shows that the first referee's statement completed by Mr Dwyer for Mr Parker, dated 31 August 2006, attached to Mr Parker's original application, specifies the period of employment as 2 January 1999 to 2 July 2004. I note that this statement gives inadequate detail of the work undertaken by Mr Parker during his employment by Mr Dwyer. A second referee's statement completed by Mr Dwyer for Mr Parker, dated 10 August 2007, tendered and admitted in evidence at the hearing, provides what appears to me to be adequate detail of the work undertaken, but specifies the period of employment as 1 July 2000 to 30 June 2004. In my view, sufficient evidence has been provided by Mr Parker - namely his own account of what happened, his transcript of academic record showing he was enrolled in TAFE in 1999, and an undated statutory declaration from another plumber, Grant Logan - for me to find that Mr Dwyer's first referee's statement correctly states the dates during which he employed Mr Parker, that is from 2 January 1999 to 2 July 2004. 16 As I have said, Mr Parker has provided a second referee's statement completed by Mr Dwyer, dated 10 August 2007 providing adequate detail of the work undertaken by Mr Parker during his employment with Mr Dwyer, which I find was for a period of five years and six months. Of the other referees' statements, those of Lorenzo Poletto, dated 13 September 2006 (in respect of a period of employment of three months from 23 January 2006 to 22 April 2006), John Boyle, dated 4 September 2006 (in respect of a period of employment of two months from 11 August 2005 to 13 October 2005), and Michael Major, dated 11 February 2008, tendered and admitted in evidence at the hearing (in respect of a period of employment of five months from 3 February 2005 to 11 July 2005) appear to me to be adequate in terms of describing the work undertaken by Mr Parker. I note Mr Parker has also submitted references in respect of the period of his employment from 1 November 2004 to 25 December 2004 with John Coleman Plumbing, and of his employment with Ajax Plumbing from 30 October 2007 to date (tendered and admitted into evidence at the hearing), which provide no detail of the work undertaken. Mr Parker said his work for Ajax Plumbing is as a construction plumber working on a multi-storey building. 17 The period of employment in respect of which Mr Parker has provided references giving adequate detail of the work undertaken by him, totals over six years. I note Mr Parker's evidence at the hearing that during the latter part of his employment by Mr Dwyer, Mr Dwyer would on occasion leave Mr Parker to run his business, subject to Mr Dwyer being available by phone, while Mr Dwyer took his family on holiday for periods of two or three weeks. 18 The standard for the practical experience required by the Commissioner for the issue of an individual contractor licence in Mr Parker's case is set out in the published brochure to which I have referred above. The only evidence as to a different standard that of two of the six years being post-apprenticeship experience is the statement to this effect in the letter from the Commissioner to Mr Sartor dated 16 May 2007. In my view, it is the published standard that should be applied and Mr Parker meets this standard. In any event, if the unusual circumstances of Mr Parker's case, in which his apprenticeship would have been completed on 1 January 2003 had Mr Dwyer completed the apprenticeship formalities at the time he first employed Mr Parker on 2 January 1999, are taken into account, effectively Mr Parker has completed more than two years post-apprenticeship trade experience. 19 In my view, the correct and preferable decision in the circumstances of this case is that the Commissioner should be satisfied that Mr Parker has the requisite experience for the issue of a licence in accordance with clause 28(1)(b) of the Home Building Regulation 2004. Decision 20 The Commissioner's decision dated 23 November 2007 is set aside and in substitution therefore Mr Robert Conrad Parker is to be issued with an individual contractor licence in the category of 'Plumber, Drainer, Gasfitter and LP Gasfitter'. 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