Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Vella v Department of Finance and Services [2013] NSWADT 84 Hearing dates: 11 March 2013 Decision date: 22 April 2013 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed Catchwords: Two years' relevant industry experience in a wide range of building construction work; endorsed contractor licence Legislation Cited: Sections 21, 25, 26, 27, 32, 33, 106 Home Building Act 1989; clauses3, 9, 28, 46, 50 Home Building Regulation 2004 Cases Cited: Kocoski v Department of Services, Technology and Administration [2011] NSWADT 135 Category: Principal judgment Parties: Mark Vella (Applicant) Department of Finance and Services (Respondent) Representation: M Vella (Applicant in person) Legal Services, Department of Finance and Services (Respondent) File Number(s): 123321 REASONS FOR DECISION 1This was an application by Mr Mark Vella, the applicant, for review of a decision of the respondent, Department of Finance and Services (Department of Fair Trading) to refuse an application for a contractor licence, category building. 2On 26 July 2012 the applicant lodged an application with the respondent to vary his individual contractor licence to include the category of general building work. The applicant provided detailed documentation with the application which the respondent had regard to, as noted in the respondent's internal review decision of 22 October 2012. The respondent decided that the applicant did not have the required two years' relevant industry experience in a wide range of building construction work. The applicant applied for review of that decision by the tribunal. 3For many years the applicant has conducted a business, installing and renovating kitchens, pursuant to a relevant authority/ contractor licence under the Home Building Act 1989 (the Act). The applicant applied to vary that authority to include in the contractor licence, category building. It is the respondent's refusal of the application which is the subject of the current review proceedings. The evidence 4The applicant provided written documentation including statements by the applicant and his wife; references by Allan Jackson (licenced builder), David Goodwin, Walter Duber, Peter McKinnon (P&L McKinnon Building), Viison Kitchens, Kel Russell and Craig McMahom (Bricklayers), Gary Borg (Electrician, Easy Go Electrical), Colin Menser (Electrical Contractor).Copies of file notes of conversations with the Respondent were provided and the applicant's wife gave oral evidence about this issue. Also submitted were copies of advice on the respondent's website about the requirements for an application for a contractor licence, category building, and copies of TAFE certificates as to qualifications obtained; and folders relating to various building projects. A photo album with photos of building works undertaken was also provided. The applicant gave oral evidence, as did his wife, Cathy Vella. 5The respondent provided section 58 documents (exhibits R1 and R2). 6In his written statement the applicant stated that in 2010 he had an interview with Ian Skanes, headteacher of the local TAFE, and asked whether he had the necessary qualifications to apply for a building licensed and if not, what qualifications were needed. At that time, the old criteria, dated 18 August 2008, were in use by the respondent, and were referred to by the TAFE teacher in providing advice to the applicant. The applicant was advised that as he ran his own business, and had been in the building trade the many years, the best way for him to apply was to complete certain components for Certificate III in carpentry. As his trade certificate from Malta needed upgrading, he would then need to complete an 18 month course for Certificate IV in building. He was also advised that it would be best for him to build a home locally, which would be used as his evidence of works, proving that he was able to project manage building works by organising trades, obtaining quotes and doing estimates as to costs and quantities, while continuing to run his own kitchen business. 7The applicant states that he owned a duplex in Sydney which he need to sell in order to fund the building of a home. The process took approximately 12 months to sell the duplex in Sydney because of various issues, all at considerable cost. He purchased a block of land locally and began to build the home on the land in February 2011. Around this time, February 2011, he had another interview with Ian Skanes, TAFE head teacher. At this interview a copy of the department's criteria was handed to him. This criteria did not state that he could not use a home built under an owner builder permit nor did it state that he had to be employed for a period of two years by a builder . He was advised by the TAFE head teacher that if he passed the required TAFE building course and built his home as evidence of building work then he would not have a problem meeting the department's requirements for a builders licence. He completed his Certificate III in carpentry on 31 December 2011. At this time his wife communicated with the respondent and was advised to complete all documentation when the applicant finished his Certificate IV in building in June 2012. There was no mention at this time that the criteria for applying for a builders licence was to change in March 2012, just before the anticipated finishing date of the applicant's course. In June 2012 he completed the course, achieving the Certificate IV in building and he received the certificate on 24 July 2012. 8The applicant had been building his home as evidence of work and this had been inspected by the teacher at TAFE who is also a licenced builder; and the building work was also inspected by the Council. He had previously informed the Council inspector that the home was his evidence of work for an application for a builders licence and the inspector advised the applicant that he would make sure that he conducted all the inspections personally. The inspector has written a reference which has been submitted with the application, and to the tribunal (reference of Mr Jackson). The applicant states that when the house was eventually finished it was placed for sale and attracted a quick sale at the higher end of the market. He is proud of the work which he undertook on this property and states it is of high standard. 9During the last week of his TAFE course the applicant asked his wife to ring the Department to obtain a licence application form and confirm all requirements needed to apply for the builders licence. She made the phone call, downloaded the application documentation from the respondent's website and it was apparent that the respondent's criteria had changed on 26 March 2012; and that the applicant would not be able to meet the current criteria as he had built his home under an owner builder's permit, as his evidence of experience in a wide range of building construction work, instead of being employed by a builder for a period of two years. 10The applicant and his wife gave evidence of trying to have a personal meeting with someone from the respondent's licensing branch without success. 11The applicant states that he has 34 years experience in the building industry and has built homes, and provides photographic evidence of these homes. He firmly believes he can show the Department that the homes he has built are of high standard, and some are of complex nature, so that Department would be satisfied that he has the necessary experience required. Some of the homes with which he has been involved are over 20 years old, and there are no complaints, and they are still in good repair. He notes that the references he supplies also include a reference from the kitchen company that he subcontracts to, Viision Kitchens, confirming his high standard of workmanship. That referee notes that it would be useful if the applicant was authorised to undertake building work as they sometimes do jobs renovating kitchens where there are other associated building works required. If the applicant had his builders licence he would be able to participate in this wider range of work. 12The applicant has a son, employed as apprentice, and the applicant obtaining his builders licence would enable him to provide his son with a wide scope of building work experience to also enable his son to apply for his builders licence when the time came. He would like to contribute more to the trade in which he has worked, he has other sons and could help build their futures. 13The applicant's wife gives evidence of being married to the applicant since 1996 and they have six children. Their daughter was involved in a serious horse-riding accident , causing disability and they have spent the last eight years supporting her rehabilitation, that is why there was a large gap since the completion of their former home and making the decision in 2010 to start the process of qualifying for a builders licence. The applicant's wife also gives evidence of making phone calls on the applicant's behalf and speaking with the local TAFE headteacher, and the officers of the Respondent. She noted that having had a business within the trade, of joinery, this would give evidence of the business side of things, dealing with clients, estimating costs. She notes that her husband worked very hard studying and working on the home which he was building as evidence of work. There were also emotional and financial stresses - they lost income when they sold the city properties in order to buy the land to build the house for the purposes of qualifying for the builders licence. 14 She gives evidence of carefully obtaining the necessary information as to how to qualify for the licence, at various points in time, noting that when she downloaded the necessary documentation and criteria she noted that the requirements had changed on 26 March 2012, some 10 weeks prior to her husband completing his course. She was extremely worried at that time as to how he was going to comply with the new criteria. The TAFE teacher advised them to complete the application and apply as each matter should be dealt with on its own merits. She also gives evidence of trying to speak to the licensing section herself. She noted the internal review decision refused the application on the same grounds as the initial decision. 15Cathy Vella noted that when one compares the applicable criteria at the time that her husband, the applicant, commenced the course and commenced working on the house which they built on the block of land, as evidence of his building experience, to the current criteria, the criteria were different - this was the criteria they downloaded from the Department's website in February 2011 when the applicant first had his interview with the headteacher from TAFE. That criteria was different in that there was no requirement for two years' paid building experience as an employee under a builder, and no stipulation that a home could not be used that has been built under an owner builder permit. Cathy Vella states this indicates that the TAFE teacher had been correct at that time in advising that a homebuilt under a home builder permit could be used as evidence of his building experience. Cathy Vella also stated that the applicant had recently applied for and received his carpentry licence together with his licence for kitchen and bathroom and laundry renovations. He applied for these licenses just prior to Christmas on the recommendation of his solicitor. Cathy Vella states that they had been intimidated by what was written in the department's letter, from applying for these licenses before that time. In this context she referred to folio 53 of the section 58 documents, the record of the internal review decision, dated 22 October 2012. The letter records the applicant is not qualified for the contractor licence, category building, on the basis of not having the necessary two years' experience, and then goes on, after forming that conclusion, to state the following: The reviewer notes the applicant has met the requirements for the issue of the carpentry licence as he has completed certificate III in Carpentry CP30208. The reviewer also notes the applicant has met the requirements for a Kitchen, Bathroom and Laundry Renovation licence....The reviewer therefore concludes the applicant can be issued with the categories of Kitchen, Bathroom and Laundry Renovation and Carpentry as a variation to his existing licence. If the applicant wishes to withdraw the application for general building and choose the alternative categories he is required to notify Fair Trading of his intention to do so within 28 days of the date of this review" 16Cathy Vella stated that the way this letter read, and the way both she and the applicant perceived it, was that to proceed to request that the applicant be issued with these additional licenses, it was required that the applicant withdraw the application for the building licence. As the applicant did not wish to withdraw the application for the building licence, then the applicant did not feel that he was in a position to request that the additional categories (that he qualified for) be issued as part of his contractor licence. This meant the applicant delayed in obtaining the benefit of those further licence categories. 17Cathy Vella gave evidence of her phone conversations with the Department and was cross examined about this issue. The tribunal found Cathy Vella to be a clear, consistent and coherent witness and the tribunal accepts her evidence as reliable and accurate. It was clear to the tribunal that Cathy Vella undertakes most of the paperwork on behalf of her husband, it is clear that she keeps notes of what occurs, and the tribunal accepts her recollection as accurate. The tribunal therefore has no reason to doubt the evidence of Cathy Vella that at all times in the process of trying to obtain the building licence qualifications, including conversations with officers of the respondent, the applicant and his wife sought advice in an appropriate way and acted in reliance on that advice. 18Initially at the time of deciding to undertake the TAFE course to qualify for a building licence the applicant relied on the advice of the TAFE teacher as well as a printout from the Department's website of the relevant qualification criteria for a contractor licence in the category building. Relying on the TAFE teacher's advice and a printout of the qualification criteria from the Department's website, the applicant was of the view that the educational qualification and building a home, and ensuring inspection by the TAFE teacher who is a licensed builder, and the Council officer, would satisfy the department's requirements. The tribunal accepts Ms Vella's evidence that at the time of submitting the application, when printing out the application forms, she also printed out the eligibility criteria from the Department's website, and noted that it had changed since February 2011, and that the change took place in March 2012. The tribunal accepts Ms Vella's evidence as to conversations which she had with the Department after that time, in trying to arrange a personal interview to discuss her husband's application. The respondent's representative noted in cross-examination that the licensing branch does not talk to individuals. He subjected Ms Vella to cross-examination and in the tribunal's view MsVella answered questions responsively and accurately. Ms Vella was a very impressive witness and the tribunal found her to be a witness of integrity and reliability. 19The applicant gave evidence that his wife does most of the organisation and paperwork for his business and it is clear to the tribunal that he relies on her in this regard. The applicant told the tribunal of numerous building tasks which he has undertaken which included organising trades, supervising trades, costing works, project management, coordination of timing of work, and this has been required both in his kitchen renovation business, and where he has assisted owner builders, and in his recent project where he built a house, on land they had purchased. He details a number of projects where he has been engaged in a significant amount of building work for owner builders including working alongside licenced contractors (such as bricklayers) and also of consulting with builders where needed. The Tribunal found Mr Vella to be a witness of truth and the tribunal had no basis to disregard his evidence. The tribunal also accepted his evidence that he was keen to contribute to the industry, that he had skills to contribute, and is the father of six children including several sons. The applicant's evidence that he wished to run a business with integrity, and train his sons in the business, was credible in the tribunal's view. 20The respondent's case was that the applicant was unable to satisfy the requirement for at least two years' experience in a wide range of building construction work having regard to the terms of the applicable Instrument made pursuant to clause 28 of the Home Building Regulation (the Regulation) dated 26 March 2012 ("the Instrument"). This is further discussed below> The law Section 21 of the Home Building Act 1989 (the Act) provides for the authority to undertake residential building work by holders of contractor licences: 21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following: (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), (b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). (1A) A contractor licence that authorises its holder to contract to do residential building work authorises the holder to supply such building components as are necessary for any such work done by the holder. (2) The authority conferred by a contractor licence: (a) is subject to the conditions applicable to the contractor licence for the time being, and (b) may, on the application of the holder of the contractor licence, be varied by an order of the Director-General set out in a notice served on the holder of the contractor licence. 21The Act provides for the issue of various authorities under the Act, as defined in s33: 33 Definition In this Division, "authority" means: (a) a contractor licence (whether or not an endorsed contractor licence), or (b) a supervisor or tradesperson certificate, or (c) an owner-builder permit. 22The Act provides generally for the functions of the Director General: 106 Functions of Director-General under Act The Director-General has the following functions: (a) to promote and protect the interests of owners and purchasers of dwellings (including the purchasers of kit homes) and users of water supplies, sewerage systems, gas, electricity, refrigeration and air conditioning, (b) to set, assess and maintain standards of competence of persons doing residential building work or specialist work, (c) to complement the work of industry organisations, public authorities and educational institutions in promoting standards, (d) to give general advice and guidance to the public, (e) to monitor the operation of insurance provided for the purposes of this Act. 23The requirements to be satisfied by an applicant for a contractor licence are set out in s26 of the Act, and for a contractor licence endorsed as equivalent of a supervisor certificate, section 26(1)(b)(i) requires the applicant to further satisfy clause 28 of the Home Building Regulation 2004 (the Regulation). Those provisions state: 26 Additional requirements for obtaining contractor licences (1) Before a contractor licence is issued, the Director-General must be satisfied that: (a) the applicant has, or proposes to have, such numbers of nominated supervisors for the contractor licence as the Director-General considers are needed to ensure that all work for which the contractor licence is required will be done or supervised by qualified individuals, and (b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate: (i) complies with the requirements prescribed by clause 28 (1), and (ii) is not disqualified from holding a supervisor certificate or a supervisor certificate of a particular kind, and (iii) is not the holder of a supervisor certificate that is suspended. (2) Despite clause 25 (1) (a) (xii), the Director-General may issue a contractor licence if: (a) the licence authorises its holder to do residential building work or specialist work of the kind prescribed by clause 46 (clause 46 (1) (a) and (b) excepted) but not of any other kind, and (b) the Director-General is of the opinion that: (i) there is no evident risk to the public that the applicant will be unable to complete building contracts entered into in the future for the doing of residential building work or specialist work of that kind, or both, and (ii) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator, and (c) the licence is subject to a condition that the holder not do work: (i) if the contract price exceeds $20,000 (inclusive of GST), or (ii) if the contract price is not known-where the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST). (3) Despite clause 25 (1) (a) (xiii), the Director-General may issue a contractor licence if the Director-General is of the opinion that: (a) there is no evident risk to the public that the applicant will be unable to complete building contracts entered into in the future for the doing of residential building work or specialist work of that kind, or both, and (b) the relevant person concerned took all reasonable steps to avoid the bankruptcy, liquidation or appointment of a controller or administrator. (3A) A contractor licence issued under subclause (3) may be issued subject to any of the following conditions: (a) that the licence authorises its holder to do residential building work or specialist work of the kind prescribed by clause 46 (clause 46 (1) (a) and (b) excepted) but not of any other kind, (b) that the holder of the licence not do work: (i) if the contract price exceeds $20,000 (inclusive of GST), or (ii) if the contract price is not known-where the reasonable cost of the labour and materials involved in the work exceeds $20,000 (inclusive of GST). (4) An individual may be a nominated supervisor for a contractor licence only if the individual: (a) holds an endorsed contractor licence or a supervisor certificate that authorises its holder to supervise some or all of the work done under contracts for which the contractor licence applied for or held is required, and (b) is, or is proposed by the applicant or holder to be, an employee of, or a member of the partnership or director of the corporation that is, the applicant or holder, and (c) made a consent declaration that is lodged with the Director-General and has not been revoked. (5) In subclause (4) (b), "employee" means an employee who is required, by the terms of employment, to work for his or her employer otherwise than on a casual or temporary basis. (6) Subject to subclause (7), an individual cannot be the nominated supervisor for more than one contractor licence unless the Director-General: (a) is satisfied that special circumstances exist that will ensure that the individual, either alone or in conjunction with one or more other nominated supervisors, will supervise all work done under contracts for which each contractor licence is required, and (b) gives written permission. (7) The holder of an endorsed contractor licence does not require the Director-General's permission to become the nominated supervisor for only one other contractor licence. (8) The Director-General may, by order, exempt an applicant from a requirement in relation to nominated supervisors if the Director-General is satisfied that there are special circumstances that warrant it. 24Clause 28 of the Regulation states: 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 (c) is capable of doing or supervising work for which the certificate is required. (2) Despite clause 25 (1) (a) (xii) and (xiii), the Director-General may issue a qualified supervisor certificate if the Director-General is satisfied that the relevant person took all reasonable steps to avoid the bankruptcy, winding up or appointment of a controller or administrator. 25The Director General has set out the qualifications and experience required to satisfy clause 28 of the Regulation in the Instrument of 26 March 2012. 26The Instrument sets out the qualification and experience requirements for an endorsed contractor licence and supervisor certificate to do or supervise general building work. The Instrument states that it commences on the date which it is signed which was 26 March 2012. The Instrument specifically states that it is made by the Commissioner as the Director-General under the Regulation. It is not in dispute in the current matter that the applicant has satisfied the education/qualification requirements specified in Column 1 of the Schedule of the Instrument. Column 2 sets out the experience required as "At least two years' relevant industry experience in a wide range of building construction work". 27The interpretation section of the Instrument states that "Certificate" and "Licence" are respectively a supervisor certificate, or endorsed contractor licence, to do or supervise general building work. The interpretation section also defines "Experience": "Experience" means experience gained by the applicant as our bone fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement but excludes experience gained as an employee of: (a) the holder of an Owner - Builder Permit; or (b) a company wholly owned by an individual or individuals being or including the applicant and which owned land on which the applicant did owner - builder work as, or for, the holder of an Owner - Builder Permit 28Section 32 of the Act provides for the authority conferred by an owner builder permit: 32 Authority conferred by owner-builder permits An owner-builder permit authorises its holder to do such residential building work as is described in the permit on the land specified in the permit. Discussion 29In a prior decision - Kocoski v Department of Services, Technology and Administration [2011] NSWADT 135 (8 June 2011) - I set out in detail the provisions of the Act and Regulation applicable to owner builders and licensed contractors, I will not repeat all the legislative provisions in these Reasons for Decision. I found as follows: As set out above a clear distinction is drawn throughout the Act and the Regulation between those who hold a contractor licence and are authorised to do residential building work pursuant to the contractor licence; and those who are authorised pursuant to an owner builder permit. Further, it is clear that the availability of an owner builder permit is an exception to the framework which is set up by the Act and the Regulation, that those who provide residential building work are to be licensed. Some of those legal provisions are set out above in these Reasons for Decision. That the category of owner builder is meant to be an exception to the licensing scheme imposed by the legislation is also indicated by the fact that the legislation does not permit a further owner builder permit to be issued to a person who has held an owner builder permit within the preceding five years (refer section 31(3) above). 30In that case I found that the applicant whose work was primarily as an owner builder on his own property and assisting family members who were owner builders, and as a project manager with the Roads and Traffic Authority, did not have the necessary experience in a wide range of building construction work. That matter can be distinguished from the present matter as the present applicant has extensive experience as a contractor in the category of joinery managing his own kitchen installation business, working with builders, subcontractors and tradespersons as part of this business. Whilst the Act does clearly distinguish between owner builders and licensed contractors the present applicant has significant experience in related work, and numerous references testifying to his skills and acumen. Further his work as an owner builder was personally inspected by a TAFE head teacher and builder, as well as a Council inspector who knew the work was to be part of his application for a contractor licence and who has provided a personal reference in relation to the application. The applicant's experience is of a significantly different quality to the applicant in the prior matter. As was noted by the referee Alan Jackson, licensed builder: "Mark's building project [at Nabiac]... was used as an assessment tool for a number of the competencies in the qualification, and documented evidence has been recorded. I found Mark's work on this project to be of a high quality and in accordance with current standards and regulations....... Mark shows high organisational skills and has a good professional approach towards his clientele, he also has recently completed his Certificate IV in Building and Construction at TAFE" 31Mr Jackson details that he has 40 years experience in the construction industry, and up until recently operated as a professional building consultant and in this role reported on numerous occasions to the Consumer, Trader, Tenancy Tribunal regarding complaints and litigation against builders. He notes he was involved with the applicant for the last two years in the capacity of training and assessing him for his qualification in Carpentry (Certificate III). The applicant's statement also indicates that Mr Jackson was the Council inspector who inspected this building work for the Council. Another licensed builder, Mr McKinnon, also testifies as to observing the construction of the home in Nabiac. 32In the case of Kocoski v Department of Services, Technology and Administration [2011] NSWADT 135 (8 June 2011), I observed: The Tribunal considers that the reference to "industry experience" is a reference to experience in the relevant industry, in this case the industry of home building, or the industry which provides residential building work. That industry is regulated in NSW by the Act and Regulation which provides for licensing of those who do residential building work, including builders and those who carry out and supervise residential building work. Experience is a process of the Applicant personally undergoing the experience, through observing and encountering, of the industry. The Tribunal considers that the term "industry experience" in the context within which it used, for the purpose of assessing eligibility to be granted a contractor licence as a builder under the Act which regulates residential building work, means experience within the home building industry. This means observing or encountering through personal experience, the industry. Two years of such experience is required, not a brief transient encounter with the industry. A requirement for two years relevant industry experience, would thus require relevant experience working within the industry with those licensed to do such work - that is, experience gained while working with recognised industry providers of residential building services such as licensed contractors/builders. 33In the passage cited above I did not equate experience with a requirement for experience as an employee. Further, I now observe that whilst the passage above quoted appears to limit relevant experience to experience of the home building industry, that arises from the facts of that particular case, and the experience of that particular applicant. There may be cases where the experience of an applicant is relevant, and would satisfy a requirement of experience in a wide range of building construction work even where the experience was not gained specifically in the home building industry. Each case must be considered on its particular facts. 34I do consider that the present applicant has considerable experience of the residential building industry through his work in joinery as a kitchen installer over several years, where he has worked alongside others in the home building industry. His references indicate a high level of professionalism and skill, although a number of references are from tradespeople who have worked alongside the applicant such as bricklayers and electricians, or kitchen installation companies, some references are from builders as referred to above, but not builders who have employed the applicant. His recent work as an owner builder was particularly inspected by licensed builders who were also respectively a TAFE head teacher and a Council inspector. 35The issue in this case is whether the applicant satisfies the requirements for at least two years' experience in a wide range of building construction work. There is no dispute that the applicant has completed required education qualifications. 36It is the respondent's contention that when regard is had to the definition of experience in the Instrument then the applicant's experience does not suffice, as the experience was not gained as a bona fide employee paid during the relevant period of employment in accordance with an award or enterprise agreement, and further, experience as an employee of an owner builder is specifically excluded from the experience which can be counted towards two years' relevant industry experience in a wide range of building construction work. The respondent notes there are no transitional provisions which would apply to the applicant's experience and that the words of the Instrument are clear and binding upon the tribunal. 37The applicant relies on his considerable experience in building and project management tasks gained while managing his kitchen installation business, as well as considerable experience gained working as an owner builder and assisting owner builders. In particular he relies on recent work on his property as an owner builder which he undertook while completing assessment for his building Certificate IV course. As such it was inspected twice by the TAFE head teacher who is also a licensed builder, and by a Council inspector and experienced builder, Mr Jackson, both of whom have provided references. 38The applicant also relies on the fact that he sought advice from TAFE and officers of the respondent, before working as an owner builder as a way of gaining his building experience. He states this was done at considerable expense and if he had known that it was insufficient to comply with the new requirements he would have made sure he worked in the employ of a licensed builder. Now he will have to undertake two further years as an employee to meet the respondent's requirements, which will cause him considerable delay. He commenced his course when the old criteria were in place, he relied on advice on the respondent's website and advice of his TAFE teacher, during his time of studying the criteria changed and he is now ineligible due to not having been an employee of a builder. He received no advice or warning that the criteria was to change and feels he has been disadvantaged. 39The applicant's wife, Cathy Vella, made submissions on the applicant's behalf. Those submissions were detailed and persuasive in relation to the applicant acting to the best of his ability to plan to meet the respondent's requirements, and the disadvantage they feel now that criteria have changed. She also made a submission that the relevant Instrument refers to an "endorsed contractor certificate" and that in her reading of the Act and the Regulation this is nowhere defined. She queried whether the Instrument in fact applied to an endorsed contractor licence and a certificate, but not to a contractor licence. She queried whether an "endorsed contractor certificate" was a contractor licence in the category of building, and submitted there was nothing in the Act or Regulation to indicate this. 40The tribunal stood the matter down to give the respondent's representative time to take instructions. On resumption he said that "head office's advice" was that all contractor licences were "endorsed contractor licences". The tribunal asked for advice as to where the legislation provided for this and the respondent's representative indicated he had not sought any advice on this, and made no submission as to the legislative basis. The tribunal offered the respondent an opportunity to provide written submissions on the issue, which was declined. "Endorsed contractor licence" 41The Tribunal has reviewed the Act and Regulation to ascertain the references to "endorsed contractor licence": Section 21 of the Act and clause 46 of the Regulation relevantly provide: 21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following: (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), 46 Categories of residential building work or specialist work (1) For the purposes of sections 21 (1) (a) and 27 (1) (a) of the Act, the following categories of residential building work are prescribed: (a) general building work, (b) swimming pool building, (c) swimming pool repairs and servicing, (d) structural landscaping, (e) carpentry, (f) joinery, (h) bricklaying, (i) stonemasonry, (j) dry plastering, (k) wet plastering, (l) painting, (m) decorating, (n) wall and floor tiling, (o) general concreting, (q) excavating, (r) underpinning or piering, (s) fencing, (t) glazing, (u) waterproofing, (v) roof tiling, (w) roof slating, (x) roof plumbing, (z) metal fabrication, (aa) minor tradework, (ab) minor maintenance and cleaning, (ac) kitchen, bathroom and laundry renovation, (ad) erection of pre-fabricated metal-framed home additions and structures. (2) For the purposes of sections 21 (1) (b) and 27 (1) (b) of the Act, the following categories of specialist work are prescribed: (a) plumbing work, (b) water plumbing work, (c) draining work, (d) gasfitting work, (e) liquefied petroleum gasfitting work, (f) advanced liquefied petroleum gasfitting work, (g) air-conditioning work, (h) refrigeration work, (i) electrical wiring work, (j) disconnection and reconnection of fixed electrical equipment. 42Section 21(1) (a) accordingly provides that the authority conveyed by the contractor licence is the authority to do the residential building work described in the contractor licence, being a category prescribed by the Regulation. Clause 46 of the Regulation sets out categories, including at cl.46 (1)(a) "general building work". 43Section 26 of the Act provides for the issue of an endorsed contractor licence, and states that an endorsed contractor licence is equivalent to a supervisors certificate: 26 Issue of endorsed contractor licences If a contractor licence is issued to an applicant who the Director-General considers is qualified to hold a supervisor certificate, the Director-General may, instead of issuing such a certificate, endorse the contractor licence to show that it is equivalent to such a certificate. 44Section 27(2) of the Act refers to the supervision of those with tradesperson certificates by holders of supervisors certificates (and pursuant to s26 of the Act this can apply to a contractor licence so endorsed): Authority conferred by certificates 27 Authority conferred by certificates (1) A supervisor certificate authorises its holder to do (and to supervise) the following: (a) any residential building work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations), (b) any specialist work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations). (2) A tradesperson certificate authorises its holder to do any specialist work that is described in the certificate when it is issued (being work of a category or categories prescribed by the regulations), but only under the general supervision, and subject to the control, of the holder of an endorsed contractor licence or a supervisor certificate authorising supervision of the work. (3) The authority conferred by a supervisor or tradesperson certificate: (a) is subject to the conditions applicable to the certificate for the time being, and (b) may, on the application of the holder of the certificate, be varied by an order of the Director-General set out in a notice served on the holder of the certificate. 45These provisions of the Act and Regulation indicate that a builder is authorised to supervise work by tradepersons on a building project if the builder has an endorsed contractor licence authorising supervision of the work. Other references to "endorsed" in the Regulation, in the context of a contractor licence, also indicate that the contractor licence is issued with an endorsement indicating the work authorised by the holder: 50 Work descriptions on contractor licences or certificates (1) Extended descriptions of the work that the holders of various categories of contractor licences or certificates are authorised to do or contract to do are provided in Schedule 5. If the work that a contractor licence authorises its holder to contract to do is described in the contractor licence by the use of a work description specified in Column 1 of the Table in Schedule 5, the description is to be taken to refer to the work specified for the work category in Column 2 of that Table. SCHEDULE 5 - Extended descriptions of work authorised by contractor licences or certificates (Clause 50) Holders of contractor licences or certificates on which are endorsed one or more of the work categories listed in Column 1 of the Table are authorised to contract to do or to do, as the case may be, the specialist work or the residential building work more fully described in Column 2 of the Table opposite each such work category. Work categories endorsed on contractor licences or certificates but not listed in Column 1 are to be taken as referring to the work involved, as a matter of trade practice, in the trade or building activity described by the endorsed work category. 46The Tribunal finds that the provisions of the Act and the Regulation set out above indicate that an "endorsed contractor licence" is a contractor licence issued with an endorsement as to the category of prescribed residential building work which the contractor licence authorises the holder to do. The reference in the Instrument to "endorsed contractor licence" is to a contractor licence endorsed with the category of general building work, which authorises the holder to undertake and supervise such work. The tribunal accordingly finds that the Instrument applies to the application for a contractor licence, category building. However, as can be seen from the tribunal's consideration of this issue, the legislative provisions are not as clear as would be desirable, and a clear definition of "endorsed contractor licence" would appear to be a useful inclusion in the legislation. Conclusions 47The issue for the tribunal to determine is whether the applicant can be issued with a contractor licence, category building, according to the law and the evidence, and whether this is the correct and preferable decision. The tribunal is bound by the provisions of the Act. Section 25(4) of the Act provides that the tribunal cannot review the standards set by the Director General, as applicable to supervisors certificates and tradespersons certificates. That the Director General may set standards is clearly provided in s106 of the Act (set out above, and refer also s25 below). Section 26(1)(b)(i) (set out above) provides that a person applying for an endorsed contractor licence equivalent to a supervisor's certificate must satisfy clause 28 of the Regulation (set out above).Section 25 of the Act provides that the regulations may provide for the Director General to set additional standards, and that the standards cannot be reviewed by the tribunal: 25 Issue of certificates (1) The Director-General must refuse 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) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a certificate the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. (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 refuse 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. 48Whilst section 25 refers to supervisors and tradepersons certificates and not contractor licences or endorsed contractor licences, the tribunal accepts, considering the discussion of the Act and Regulation above in these Reasons for Decision, that where the applicant applies for a contractor licence which is the equivalent of a supervisors certificate, then the standards applicable to the supervisors certificate are required to be satisfied, and these standards, set out in cl 28 of the Regulation, made pursuant to s25 of the Act, cannot be reviewed by the tribunal. 49As discussed above, the tribunal accepts that an application for a contractor licence, category building, which authorises the applicant to do and supervise building work, is an application for an endorsed contractor licence equivalent to a supervisors certificate. The Instrument of 26 March 2012 is made pursuant to clause 28 of the Regulation, and is the applicable Instrument for the purpose of determining whether the applicant qualifies for the contractor licence, category building. 50As set out above, the Instrument requires an applicant to have at least two years' experience in a wide range of building construction work, and the interpretation section of the Instrument defines "Experience": "Experience" means experience gained by the applicant as our bone fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement but excludes experience gained as an employee of: (a) the holder of an Owner - Builder Permit; or (b) a company wholly owned by an individual or individuals being or including the applicant and which owned land on which the applicant did owner - builder work as, or for, the holder of an Owner - Builder Permit 51As noted above the tribunal considered the issue of industry experience in the case of Kocoski v Department of Services, Technology and Administration [2011] NSWADT 135 (8 June 2011), and in the present matter has found that the current applicant's experience is qualitatively different from the experience of the applicant in that prior matter. However, that Tribunal decision was made before the making of the Instrument of 26 March 2012, and must be read in that context. 52As to experience, the Instrument indicates that in considering whether an applicant possesses at least two years' experience in wide range of building construction work, experience means experience gained by the applicant as a bone fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement, and excludes employment by an owner builder. The words of the Instrument appear also to exclude work experience gained as a volunteer which in the tribunal's view may make entry to the industry difficult for some dedicated applicants who obtain experience through voluntary work. However the tribunal has no jurisdiction to review the Instrument itself. 53The applicant was not employed and paid pursuant to an award or enterprise agreement when he engaged in work as an owner builder on the Nabiac property, and this experience is therefore not able to be considered. The applicant has been self-employed in his own business and the Instrument does not allow work experience by those who are self-employed (rather than employed as a bona fide employee) to be considered. As such there is no benefit to the tribunal carefully considering the nature of the applicant's experience in his work as a kitchen installer. The tribunal accepts that in this role the applicant will have worked with many trades, planned projects and managed budgets and schedules of work. Indeed his references testify to this. However this is not work as a builder in a wide range of building construction work, and the applicant is unable to count experience gained as an owner builder, and working for owner builders, as detailed above. 54The tribunal finds when considering the applicant's experience and the words as the applicable Instrument, that the applicant does not have experience which satisfies the requirement of at least two years' experience in a wide range of building construction work. 55The tribunal has considered the evidence of the applicant and his wife that they relied on advice available to them as to eligibility requirements. The tribunal finds on the evidence that the specific advice given to the applicant was not by the respondent but by the TAFE head teacher, although it is also clear that a printout of the respondent's website setting out the requirements was also relied upon. The tribunal also accepts that the applicant acted on the advice of the TAFE headteacher and the respondent's website. The criteria for determining experience that satisfies the requirement of a wide range of building construction work, changed on 26 March 2012 before the applicant finished his Certificate IV in building. The applicant could not apply for the contractor licence in building until he had completed this qualification - if he had applied earlier he would not have been successful, even under the old criteria before the making of the Instrument of 26 March 2012, because he would not have had the necessary education qualification. The earliest date that the applicant could apply for the contractor licence was July 2012 and the Instrument of 26 March 2012 was the applicable Instrument at that time. 56For the reasons detailed above the tribunal finds that the correct and preferable decision, according to the law and the evidence, is that the applicant does not satisfy the requirement for at least two years' experience in a wide range of building construction work, as required by the Instrument made pursuant to clause 28 of the Regulation (and ss25 and 106 of the Act). As such the applicant does not qualify for a variation of his contractor licence to include the category of building. Accordingly the tribunal must affirm the decision of the respondent. ********** 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: 22 April 2013