Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Locking v Department of Finance and Services [2013] NSWADT 239 Hearing dates: 5 September 2013 Decision date: 05 September 2013 Jurisdiction: General Division Before: Magistrate Hennessy, Deputy President Decision: The decision of the respondent to refuse the Applicant's application for a contractor's licence in the category of "general building work" is affirmed. Catchwords: MERITS REVIEW - whether decision to refuse applicant's application for a contractor's licence in the category of "general building work is correct and preferable decision - whether applicant has a minimum of two years relevant industry experience in a wide range of building construction work. Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Licensing and Registration (Uniform Procedures) Act 2002 Category: Principal judgment Parties: Brett Locking (Applicant) Department of Finance and Services (Respondent) Representation: B Locking (Applicant in person) B Bourke (Department of Finance and Services) (Respondent) File Number(s): 133213 reasons for decision Introduction 1Mr Locking has applied for a review of a decision to refuse his application for a contractor's licence in the category of "general building work." The Department of Finance and Services refused that application because Mr Locking had not demonstrated that he has a minimum of two years relevant industry experience in a wide range of building construction work. Legislative Scheme 2Section 20(2) of the Home Building Act 1989 (the Act) provides that the regulations may fix or provide for the respondent to determine 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. 3Section 20(5) of the Act provides that a decision of the respondent relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act. 4Clause 26(1)(b)(i) of the Home Building Regulation 2004 reads: Page 2. Before a contractor licence is issued, the Director-General must be satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is equivalent of a supervisor certificate complies with the requirements prescribed by clause 28(1). 5Clause 28(1) provides: (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and (b) has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required. 6The current standards and other requirements determined by the Director- General in relation to the qualifications, examinations and experience required for an endorsed licence or supervisor certificate to do or to supervise building work are set out in an Instrument effective 26 March 2012 (see: NSW Government Gazette No. 33, 30 March 2012). This post dates the Instrument applying at the time of the Internal Review decision. Brief Background 7On 9 November 2013 the applicant lodged an application for a variation to his current carpentry and joinery licence no. 218691C in the category of general building work. In support of his application, the applicant submitted the following: (1)HIA Certificate IV in Building and Construction (Building) CPC40110 dated 16 October 2013 (2)Referee's Statement building work from Wayne John O'Connell, Licence no. 152434C - category of builder dated 6 November 2013. 8On 10 December 2013, the respondent issued a Notice under section 14 Licensing and Registration (Uniform Procedures) Act 2002 (the LRUPA) requesting further information to allow the application to be further considered. 9On 2 January 2013 a Referee's Statement was received from Wayne O'Connell, Licence No. R99538 category of builder. On 10 January 2013, the respondent issued a further Notice under section 14 of LRUPA requesting further information so that the application could be Page 3. considered. Again a detailed resume was requested. 10On 21 January 2013, the applicant provided a resume setting out his experience and in support of this attached the following references: (i)Mr Ken Mallise (undated) who worked with applicant as a subcontract carpentry team in 1982-83 (ii)Mr W McDonald, Manager, Spaceway Home Improvements Builders Licence no. 35125 who employed the applicant as a carpenter from April 1984. Letter dated 11 October 1984 (iii)Mr J R Erskine, home owner for whom the applicant carried out renovations to his house dated 25 September 1984 (iv)Manager, Contractors Pty Ltd Licence no. 5037 confirming he worked on numerous construction sites for and with the applicant (v)Manager, Novocates Management Consultancy & Marketing, who carried out electrical and security installations on numerous job sites that the applicant has been directly involved with (vi)William H Hudson who confirms the applicant has been involved in doing carpentry and joinery work on several projects involving maintenance of warehouses under his control. Letter dated 17 January 1999 (vii)Mr Ken Mallise (undated) who worked as a partner for 3 years with the applicant doing extensions, renovations, carpentry and joinery to building of new cottages. 11On 25 January 2013 the respondent issued a third Notice under section 14 of LRUPA requesting Mr Wayne O'Connell, referee, to contact Fair Trading to verify the applicant's work experience. 12On 14 February 2013 the respondent advised the applicant that his application to vary his individual contractor licence to the category of building was refused on the basis he failed to satisfy the practical experience requirements. That is, he did not have a minimum of at least two years relevant industry experience in a wide range of building construction work. 13On 6 March 2013 the applicant requested an internal review of this decision. On 10 April 2013, the respondent advised the applicant that the decision of the internal review was to affirm the original refusal of his application. The respondent provided him with a Statement of Reasons outlining that the refusal was on the same basis as before. Qualifications and Experience 14I am satisfied that Mr Locking has the relevant qualifications. He obtained a Certificate IV in Building and Construction from HIA. In relation to experience the applicant was a self-employed carpenter for between 6 months and a year. He was a sub-contract carpenter to Mr O'Connell from 1 January 1995 to 1 January 2000 and again, for another entity, from August 2003 to November 2012. "Experience" means experience gained by the applicant as a bona 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: the holder of an Owner-Builder Permit; or 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; 15Based on his experience, Mr Locking does not meet the "Experience" requirement. His experience has been gained as a sub-contract carpenter or by being self-employed. It has not been gained as an "employee". 16Mr W O'Connell, the provider of the Referee Statement, previously held a contractor licence in the category of builder. During 1995 to 2000 Mr O'Connell sub-contracted the applicant to do carpentry work for him. Mr O'Connell has stated that the applicant performed the following duties: (b)site set out (c) Page 5. bearers and joist floor construction as well as a slab (d)cut out and erect wall frames and cutting out roofs (e)assembled frames and trusses (f)garage and fencing jobs (g)extensions where new roofs have to be cut into existing roofs for a seamless join; and (h)managed some sites for him organising other trades. 17This experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. Carpentry and joinery work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling. 18A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing. 19A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate. Conclusion 20Based on all the evidence, I am not satisfied that Mr Locking has a minimum of two years relevant industry experience in a wide range of building construction work. Accordingly, the correct and preferable decision is to affirm the Department's decision. ********** 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: 25 October 2013