Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mavay v Director General, Department of Finance & Services [2011] NSWADT 217 Decision date: 13 September 2011 Jurisdiction: General Division Before: S Frost, Judicial Member Decision: Set aside the reviewable decision and remit the matter for reconsideration by the Respondent in accordance with a direction that the Respondent accept that the Applicant meets the "experience" requirement in the relevant determination, as referred to in [10] and [11] of these reasons Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Electricity (Consumer Safety) Act 2004 Category: Principal judgment Parties: Stephen Mavay (Applicant) Director General, Department of Finance & Services (Respondent) Representation: Coyne Legal (Applicant) B Bourke (Respondent) File Number(s): 113039 Reasons for decision 1GENERAL DIVISION (S FROST, JUDICIAL MEMBER)): In October 2010 Mr Mavay applied under the Home Building Act 1989 (HB Act) for a Qualified Supervisor Certificate - Electrical. His application was refused. That refusal decision is a reviewable decision for the purposes of the Administrative Decisions Tribunal Act 1997 (ADT Act): s 83B of the HB Act. 2Mr Mavay applied for an internal review of that decision under s 53 of the ADT Act. Section 53(6) of the ADT Act requires the internal review to be finalised within 21 days, which in this case was by 24 January 2011. That deadline was not met, and so the internal review was taken by s 53(9)(b) of the ADT Act to be finalised on that day. As a result, Mr Mavay became entitled under s 55 of the ADT Act to apply to the Tribunal for review of the original refusal decision. He did so on 15 February 2011. 3In the meantime, the Respondent had notified Mr Mavay on 27 January 2011 - that is, three days after s 53 of the ADT Act treated the internal review as having been finalised (implicitly, adversely to Mr Mavay) - that the original decision had been overturned. But that position was reversed five days later when the Respondent notified Mr Mavay that the certificate had been cancelled on the basis that it had been issued in error. 4Despite those later events, Mr Mavay's application to the Tribunal is well founded and the Tribunal has jurisdiction to review the original refusal decision. The issue 5The issue for the Tribunal to determine is whether a Qualified Supervisor Certificate - Electrical should be issued to Mr Mavay. 6That will depend on whether Mr Mavay has "at least 12 months relevant electrical wiring installation work experience in residential, commercial and/or industrial situations requiring knowledge and understanding of the AS/NZS 3000:2007" as required by the licensing provisions which are set out more fully below. The licensing requirements 7Licensing of participants in the electrical trade is controlled by the HB Act and the Home Building Regulation 2004 (HBRegulation). 8Section 24(1)(b) of the HB Act gives the Director-General power to grant a supervisor certificate for the purposes of that Act. Section 25(2) of the HB Act provides that 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 such a certificate is issued. 9Subclause 28(1) of the HB Regulation provides as follows: 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. 10The parties agree that a determination (Attachment "A" to the Respondent's Submissions (RS)) made by the then Commissioner for Fair Trading on 3 July 2009 pursuant to subclause 28(1) of the HB Regulation is relevant to Mr Mavay's application. It is also not in dispute that the Respondent is satisfied as to Mr Mavay's qualifications but not as to his experience. 11The "experience" requirement in the determination is as follows: At least 12 months relevant electrical wiring installation work experience in residential, commercial and/or industrial situations requiring knowledge and understanding of the AS/NZS 3000:2007. Practical experience may be gained either during or after completion of an apprenticeship. How does an applicant establish relevant experience? 12The practice of the Office of Fair Trading (OFT), which administers the licensing regime, is to require an applicant to submit one or more "Referee's Statements" to support the application for a certificate. The standard form of the "Referee's Statement" requires the referee to attest to the various types of electrical wiring work experience gained by the applicant, under supervision of the referee, and the various environments in which that experience has been gained. 13The current standard form of Referee's Statement on the OFT website includes the following notation: Please note that applicants must have experience in ALL types of low voltage electrical wiring work listed below . 14That notation is followed by five separate types of activities, expressed as follows: * Installation of cable support and cable mechanical protection methods. * Must include metallic conduit, non-metallic conduit, supporting cable clips/ties, cable trays/trunking and underground systems. * Design, installation and determination of low voltage power lighting and control circuit wiring. * Must include consumer mains, sub-mains and final sub-circuits. * Must include protective earth systems including MEN wiring systems. * Installation of electrical apparatus and equipment. * Must include switchboards and circuit protection devices, heating, cooling, lighting and power apparatus, electric motors and/or transformers and controls. * Fault finding, maintenance and repair of LV wiring systems and electrical equipment. * Must include LV power and control circuit wiring and electrical apparatus and equipment. * Test and verify compliance of LV electrical wiring systems and electrical equipment. * Must include mandatory testing of insulation resistance, earth continuity/resistance, polarity and earth fault - loop impedance as well as load and leakage current tests. Mr Mavay's experience 15Mr Mavay submitted three Referee's Statements in support of his application for a supervisor certificate. They were all dated in July 2010 and are on a form now apparently superseded (it seems that the current Referee's Statement became the standard form on around 28 July 2010: RS [5]). 16The earlier form does not contain the same level of detail as the current Referee's Statement. Instead it asks for the referee to state how much experience (whether hours, days, weeks or months) the applicant has in specified activities in a "residential/domestic" or an "industrial/commercial" setting. 17One of the "old form"Referee's Statements (folios 11-12), covering only four days of activities, may be put to one side since it adds nothing to the information in the other two. 18The remaining two referees are Ben Sobol and Peter Webb. Mr Sobol attests to Mr Mavay's having acquired a total of 41 days of "residential/domestic" experience across all five specified categories of activity (consumer mains; circuit wiring; switchboard installation; circuit re-wiring; and verification and testing (all above)), and 8 days of "industrial/commercial" experience across the following four activities: * 400V to 230V Motor Wiring & Testing * Control Wiring * Refrigeration/Air Conditioning Wiring * Verification and Testing (All Above) 19Mr Sobol does not attest to Mr Mavay's having obtained any experience in the remaining two "industrial/commercial" categories of "Hazardous Area Wiring" or "High Voltage/Neon Sign Wiring". 20Mr Webb's form mentions only "industrial/commercial" experience, as follows: * 400V to 230V Motor Wiring & Testing - 5 days * Control Wiring - 18 months * Hazardous Area Wiring - 2 days * Verification and Testing (All Above) - 6 months 21All of this experience was gained by Mr Mavay while working on Navy vessels and on Sydney Ferries. 22In an apparent attempt to convert the information on the "old form" Referee's Statements so as to "fit" the current forms, an officer of OFT contacted each of the referees on 1 February 2011. The officer completed a Referee's Statement (on the current form) on the basis of the information provided by each referee. In addition to that, Mr Webb provided a completed (current) Referee's Statement in which he deleted some of the words printed on the form and also added some specific comments. 23As recorded by the officer, Mr Sobol now attests to Mr Mavay's having satisfied, over a period of three months, all five activity types specified on the form (see [14] above) in "single dwellings", "multiple dwellings", and "commercial" (but not "industrial") work situations, and the only qualification is in relation to the first work type - "installation of cable support and cable mechanical protection methods" - where the officer has noted "(exclude steel conduit)". 24Mr Webb, as a result of the hand-written amendments he made to the form he provided, now attests to Mr Mavay's experience as follows (Mr Webb's deletions are shown with the text struck through; the additions are underlined): * Installation of cable support and cable mechanical protection methods. * Must include metallic conduit, non-metallic conduit, supporting cable clips/ties, cable trays/trunking and underground systems . * Design, installation and determination of low voltage power lighting and control circuit wiring. * Must include consumer mains, sub-mains and final sub-circuits. * Must include protective earth systems including MEN wiring systems. MEN USED AT GEN SET VESSEL IS THE MAIN EARTH * Installation of electrical apparatus and equipment. * Must include switchboards and circuit protection devices, heating, cooling, lighting and power apparatus, electric motorsand/ or transformers and controls. * Fault finding, maintenance and repair of LV wiring systems and electrical equipment. * Must include LV power and control circuit wiring and electrical apparatus and equipment. * Test and verify compliance of LV electrical wiring systems and electrical equipment. * Must include mandatory testing of insulation resistance, earth continuity/resistance, polarity and earth fault - loop impedance as well as load and leakage current tests . 25The reference in Mr Webb's hand-written additions to "MEN" is a reference to "Multiple Earthed Neutral" (discussed further below). On the form, Mr Webb also included a hand-written note to the effect that all of Mr Mavay's experience was gained on vessels, which Mr Webb regards as "commercial" experience. Consideration 26The dispute between the parties centres on the question whether the experience gained by Mr Mavay while working on marine vessels is relevant experience for electrical licensing purposes.Mr Mavay submits that it is; the Respondent disagrees. 27The practical summary of the Respondent's position is represented in [67] of RS as follows: The Referee Statement of Mr Peter Webb clearly shows the Applicant does not meet the mandatory requirements of experience of installing land based consumer mains and the MEN wiring system. The Referee Statement notes that the vessel is used as the earth ... 28Even accepting for the moment that "experience of installing land based consumer mains and the MEN wiring system" are "mandatory requirements" (a matter to which I will return later), it does not follow from Mr Webb's Referee Statement that Mr Mavay does not meet those requirements. This is because Mr Sobol's statement (as recorded by the OFT officer) says the exact opposite. The only references in the Referee's Statement to "consumer mains" and "MEN wiring system" are in the second bullet point (see [14] above) and Mr Sobol unconditionally accepted the proposition that Mr Mavay had experience in this area, in relation to three of the four work situations, namely "single dwellings", "multiple dwellings" and "commercial". 29Of course, I accept that Mr Sobol's statement does not establish that Mr Mavay has twelve months experience in installing land based consumer mains and the MEN wiring system, but it is not suggested that that level of experience is required in any event. What is required is twelve months experience across a range of activities, not twelve months in any single one of them. 30As to whether each of the activities is a "mandatory requirement" in the first place (see [28] above), the answer must be "no". It is not the Referee's Statement that sets the standard, but the Commissioner's determination of July 2009. While the OFT is entitled to ask referees to comment in relation to the areas specified on the form, and to take into account the information provided by the referees, it is not entitled to treat the form as if it has re-written the requirements. The Referee's Statement form is a servant of the decision-maker, not its master. 31A significant issue for the Respondent is that its expert, Mr Ian Neeson, in his report dated 10 March 2011, cast doubt on the relevance of Mr Mavay's commercial vessel experience on the basis of his, Mr Neeson's, apparent understanding that AS/NZS 3000:2007 did not, or at least might not, apply to commercial vessels. His report says: It is important to note the electrical systems on commercial vessels are outside the intended application of the Wiring Rules (AS/NZS 3000:2007). Clause 1.2 of the Standard, in part, states: "The principal application of this Standard is to electrical installations in all types of premises and land used by electricity consumers." This is not to say that the Wiring Rules may not be invoked for such a purpose, however commercial vessels, ships and the like are commonly subject to underwriters rules such as those of Lloyd's. 32In addition to the written report, the Respondent relies on significant parts of Mr Neeson's oral evidence, as summarised at RS [52]-[53]: A significant issue raised by the expert Mr Neeson is the Multiple Earthed Neutral earthing system (MEN). This was a system for earthing electrical installations in a house or home unit, and consisted of an earth wire or an electrode driven into the ground. If a fault occurs on the land based installation it can affect other installations. Mr Neeson stated the MEN earthing system cannot apply to ferries as they do not connect to an installation (exception: residential vessels installed at marinas which can be multiple connected). He further explained that vessels have a TNCS (Terra Neutral Connector Separate Earth Wire). While the earthing systems are similar they are not the same as far as the experience requirement is concerned. 33Mr Mavay called Mr Ian Ritchie to provide further expert evidence to the Tribunal. Mr Ritchie says in his report, dated 16 May 2011, at [4.6.2]: The reality is that the commercial vessel electrical wiring experience gained by Mr Mavay was on vessels under state registration as granted under the NSW Marine Safety Act 1998 utilizing AS/NZS 3000:2007. 34Later in the report, at [4.6.3.2], Mr Ritchie notes that the Marine Safety Act mandates the application of certain parts of the National Standard of Commercial Vessels (NSCV), which are appended to his report. Clause 2.13.1.1 of the relevant part of the NSCV (folio 44 of the Applicant's materials) says: Earthing arrangements shall comply with AS/NZS 3000 and the provisions in Clauses 2.13.1.2 to 2.13.1.4 of this Chapter. 35Significantly, Clause 2.13.1.2.1 makes specific mention of MEN as one of the methods of earthing for "AC systems at voltages greater than 50V". 36I am satisfied on the basis of Mr Ritchie's report, and the relevant parts of the NSCV to which he has referred, that Mr Neeson's statement to the effect that the MEN earthing system cannot apply to ferries, cannot be sustained. 37Mr Neeson also acknowledged that, while there are aspects of marine electrical wiring that are different from wiring in buildings, the wiring systems are fundamentally and essentially the same. That acknowledgment appears to be broadly consistent with the relevant parts of the NSCV. 38A final contention made by the Respondent is that Mr Mavay "lacks the requisite experience in relation to installing, repairing, altering, removing or adding to an electrical installation or the supervising of that work in residential, commercial or industrial places" (RS [61]) because so much of his work has been on NSW ferries. To understand this contention fully, it is necessary to note some of the fundamental building blocks on which the licensing provisions are constructed. 39The starting point is that a person is prohibited by s 14(1) of the HB Act from doing any "electrical wiring work" unless he holds a certificate of the kind for which Mr Mavay has applied. The HB Act defines "electrical wiring work" to have the same meaning as in the Electricity (Consumer Safety) Act 2004 (ECS Act), namely (s 3(1) of that Act): the actual physical work of installing, repairing, altering, removing or adding to an electrical installation or the supervising of that work 40The ECS Act defines "electrical installation" to mean (subject to exceptions that are not relevant here): any fixed appliances, wires, fittings, apparatus or other electrical equipment used for (or for purposes incidental to) the conveyance, control and use of electricity in a particular place ... 41Finally, subsections 3(2) and 3(3) of the ECS Act say: (2) For the purposes of this Act, place includes land (whether or not covered with water), premises, buildings and other structures. (3) For the purposes of this Act, a person or thing is in a place if the person or thing is located in, on, over or under the place. 42The suggestion in the Respondent's contention, then, is that because a vessel is not (or might not be) a "place" for the purposes of the ECS Act, any experience gained on a vessel should be disregarded. I do not accept that proposition. The question is whether the experience gained is "relevant" experience requiring knowledge and understanding of the Standard. Experience can be relevant in that context even if it has been gained on vessels. In fact, Mr Neeson acknowledged as much when he said (see RS [50]) that it was possible to demonstrate sufficient relevant experience by working on "ships" only. 43I am satisfied that the experience gained by Mr Mavay on commercial vessels is "relevant electrical wiring installation work experience in ... commercial situations requiring knowledge and understanding of the AS/NZS 3000:2007". When that experience is combined with the experience he gained while working with Mr Sobol, it is clear that Mr Mavay satisfies the "experience" requirement in the relevant determination. Decision 44The appropriate decision is to set aside the reviewable decision and remit the matter for reconsideration by the Respondent in accordance with a direction that the Respondent accept that Mr Mavay meets the "experience" requirement in the relevant determination, as referred to in [10] and [11] of these reasons. ********** 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: 13 September 2011