Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ullrich v Commissioner for Fair Trading [2014] NSWCATOD 11 Hearing dates: 9 December 2013 Decision date: 13 March 2014 Jurisdiction: Occupational Division Before: A Scahill, Senior member Decision: The decision is affirmed Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Licensing and Registration (Uniform Procedures) Act 2002 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409 Tange v NSW Fair Trading [2013] NSWADT 201 Category: Principal judgment Parties: Simon Ullrich (Applicant) Takahe Enterprises Pty Ltd (Applicant) Commissioner of Fair Trading (Respondent) Representation: S Ullrich (Applicant in person) W Maynard (Respondent) File Number(s): 133289, 133290 reasons for decision Introduction 1The Applicant in this matter, Mr Ullrich, has applied for a review of a decision to refuse his application for a qualified supervisor certificate in the category of "general building work." Mr Ullrich did not hold prior licensing in the building industry in NSW. The Department of Finance and Services refused that application because Mr Ullrich had not demonstrated that he has a minimum of two years relevant industry experience in a wide range of building construction work as required by the relevant Act, Regulations and Instrument. 2The Tribunal also notes that an identical Application for a contractor licence was made by Takahe Enterprises Pty Ltd the corporate entity which employs the Applicant. In applying for a contractor licence, Mr Ullrich is seeking to become the company's nominated supervisor. The parties and the Tribunal agree that the outcome in Mr Ullrich's application will be the outcome of Takahe's application. Legislative Scheme Required Standards 3The Home Building Act 1989 (the Act) is concerned with the regulation of the home building industry in New South Wales. The Act also sets out the licensing requirements and the powers of the Director General and NSW Fair Trading ("the Respondent"). 4Section 20(2) of the Home Building Act 1989 (the Act) deals with standards required for the issuing of contractor licences. It 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. 5Section 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. 6This means that in reviewing the Respondent's decision the ADT must apply the standards set by the Respondent without going behind them. 7Clause 26(1)(b)(i) of the Home Building Regulation 2004 reads: 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). 8The Tribunal understands that in the absence of previous licensing in NSW, the Applicant is applying for both a builder's licence and a qualified supervisor certificate. Qualifications and Experience 9Clause 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. Relevant Gazetted Instrument requirements 10The 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 3rd July 2013 (see: NSW Government Gazette No. 90, 12 July 2013). They do not permit a reference to be provided for the purpose of calculating experience by an architect. The Tribunal understands from the Respondent's submissions that from 2nd May 2013 an architect was no longer eligible to provide such a reference. 11However at the time of lodgement of the Applicant's application with the Respondent, the requirements were different and permitted a reference to be provided by a registered architect. The Tribunal accepts that for the purpose of this Application an architect is in the category of persons who may provide a reference. The ADT's approach to this matter 12The ADT's approach to dealing with this kind of review was set out by the Tribunal in the matter of Tange v NSW Fair Trading [2013] NSWADT 201 at paragraphs 47-51 - set out below. 13Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 14A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 15The Tribunal is able to take account of evidence that was not before the decision maker but is bound by the standards set in the Instrument. Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 16In this matter the only issues for consideration are whether the Applicant has shown that he has gained two years relevant industry experience and if so whether that experience is in a wide range of building construction work. Application for review lodged out of time 17The Respondent's internal review decision had been made on 27 August 2013.The Applicant had lodged his application for review of the Respondent's internal review with the ADT on 2nd October 2013. This was outside of the 28 days' time limit set by the ADTA 1997. The Applicant provided reasons for the delay - a work injury; a necessary trip to his home in New Zealand and the disruption of having to move house. The Respondent did not press an objection to the delay. The Tribunal determined to extend the time for lodgement of the Application to 2nd October 2013 and accepted it out of time in accordance with section 57 of the ADTA 1997. Brief Background 18On 27 March 2013 the Applicant lodged an application for a qualified supervisor certificate in the category of general building work. In support of his application, the Applicant submitted the following: ◦ CTI Certificate IV in Building and Construction (Building) CPC40110 dated 5 December 2012; CTI Diploma in Building and Construction (Building) CPC50210 dated 5 December 2012; Referee's Statement from architect Garry Stanley dated 21st March 2013. 19On 3rd May 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. The Notice specifically requested further information about the Applicant's working arrangements with architect Mr Stanley and for references from licensed builders. An officer of the Respondent, D of FT then rang the Applicant on 15 May 2013 and had a telephone conversation with him about the Respondent's requirements in certifying 2 years' experience. On 26 May 2013 the Applicant responded to the Respondent's request for more information about his experience. The Applicant noted that It was a pre-requisite for the course he had undertaken to obtain his qualifications to demonstrate he had 10 years' building experience and he had done so to the satisfaction of CTI; and That he had not been employed by the architect Mr Stanley - but had worked closely with him on projects. 20The Applicant also provided a list of work undertaken between February 1995-February 2013. council compliance inspection reports on projects he had undertaken; and a copy of a sub-contract for a job undertaken in 1998. 21On 21 June 2013, the Respondent wrote to the Applicant refusing his application for a qualified supervisor certificate on the basis that he did not meet the requirements of clause 28(1) (b) of the Home Building Regulation 2004. The Respondent referred to the fact that the Applicant had been neither an employee of the architect Mr Stanley, nor lawfully engaged by him for remuneration. Accordingly the Respondent was not satisfied that the Applicant had "two years acceptable relevant industry experience in a wide range of building construction work." The Respondent noted that the Applicant's meeting of the CTI's 10 year experience for the purposes of undertaking the qualification did not mean that he met the Respondent's 2 year requirement. 22Specifically the Respondent did not accept that the work with Mr Stanley, architect, had been in a wide range of building work, nor was there the requisite supervisory relationship between Mr Stanley and the Applicant. The Respondent did not consider that owner/builder work provided the appropriate attestation to "experience". 23The Applicant sought review of the Respondent's refusal by letter dated 11 July 2013. His letter included more information about his professional background; a letter dated 13th August 2012 from Mr Stanley and a letter dated 11 July 2013 from TJ Pride, structural engineer, who had worked on projects with the Applicant - commenting favourably on his ability as a builder. 24On 26 August 2013, an officer of the Respondent wrote a file note of his telephone conversation with Mr Stanley, concluding that the relationship between the Applicant and Mr Stanley was one of being "a referral point" and that there had not been an employer/employee or sub-contracting relationship. 25Again on 26 August 2013, an officer of the Respondent wrote a file note of his telephone conversation with the Applicant concerning whether there had been an employer/employee or sub-contracting relationship with Mr Stanley. The officer, Mr Hadden, noted that he had advised the Applicant that it appeared he had been illegally sub-contracting as he did not have a contractor licence. 26On 27 August 2013 the Respondent advised the Applicant that his application for internal review of the decision to refuse him a qualified supervisor licence in 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. 27On 1st October 2013 the Applicant lodged his current request for review of the Respondent's decision with the ADT. 28At the hearing on 9 December 2013 the Tribunal had before it The Applicant's application for review in the ADT with annexures; The Respondent's s58 documents containing the previous correspondence between the parties; A letter of reference from architect Dorota Link dated 17th May 2000; A D of FT Statement of Practical Experience from architect Dorota Link dated 24th May 2000; A D of FT Statement of Practical Experience from builder Mirko Naidofski dated 18th February 2005; A D of FT Statement of Practical Experience from builder Albert Frisoli dated 7th May 2005 An affidavit made by the Applicant dated 18 November 2013 Reference dated 10 November 2013 from concreter, Nick Diorio Reference dated 17 November 2013 from plumber Duncan Craik Reference dated 6 November 2013 from electrician George Fotopoulos; Referee statement on DoFT form dated 15 November 2013 from builder, Mirko Naidofski The Respondent made submissions about Mr Ullrich's experience through its solicitor, Mr Maynard. The Applicant and Mr Stanley gave oral evidence. The Respondent's Case in the Statement of reasons 29The Respondent's case was set out in the Statement of Reasons dated 26 August 2013. In short the Respondent concluded that neither of the referees, Mr Pride, engineer nor Mr Stanley, architect was able to provide the reference necessary for the Applicant. The engineer, Mr Pride, was not licensed under the Home Building Act and could not act as a referee. Further the Applicant had worked in this regard as an unlicensed sub-contractor - which meant this experience could not be relied upon. Mr Stanley, the architect was qualified to act as a referee. However he had not employed the Applicant - rather he had referred clients to him. 30The Respondent concluded in its Statement of Reasons: "in relation to the extent of his experience as well as to period of time of the experience, (the Applicant) has not satisfied the requirement of two years relevant experience in a wide range of building construction work." The Hearing Respondent's case at hearing 31At hearing the Respondent relied on its reasoning in the Statement of Reasons. 32Additionally the Respondent referred to the further evidence provided by the Applicant with his Application for Review and the materials referred to above filed after the Application for Review. 33In relation to the documents provided by the architect Dorota Link, the Respondent submitted that the owner/builder work performed for Ms Link by the Applicant was specifically excluded by the provisions and in any event Ms Link had indicated that the Applicant had supervised the work - and not that he had been supervised. 34The Respondent submitted that Messrs Fotopoulos, Craik and Diorio did not hold builders licenses and hence their references could not be used to calculate the 2 years' experience. Nor did they supervise the Applicant. At hearing the Applicant conceded this point. 35The Respondent submitted that Messrs Fotopoulos, Craik and Diorio did not hold builders licenses and hence their references could not be used to calculate the 2 years' experience. Nor did they supervise the Applicant. At hearing the Applicant conceded this point. 36The Respondent submitted that the builder Mr Frisoli, may have been an appropriate referee. However the reference document provided by Mr Frisoli, dated 7 May 2005, did not include the dates of work. It could not be used in calculating the 2 year experience period. The Applicant advised that Mr Frisoli was now deceased and did not provide other evidence of his dates of work with Mr Frisoli which was able to assist in calculating the 2 year period. 37The Respondent submitted that Mirko Naidofski, a licensed builder was a suitable referee. The D of FT pro forma Reference provided by Mr Naidofski dated 15 November 2013 attested to the Applicant having worked with Mr Naidofski from 1st January 2003 until February 2005 on 3 sites. It said that he had been employed as a carpenter "but did many types of work form painting, plastering etc. and also as Site Maner."The Tribunal understands this is "site manager". The reference noted that the work had been part-time, but did not set out what proportion of time. In commenting on the part-time nature of the work Mr Naidofski has said "As this was some time ago & I don't have access to records I cannot give specific dates, Work locations and employment details et but his employment would vaty for 3 to 4 days 5Days as needs arose. This is to the best of my knowledge." 38Accordingly the Respondent was unable to calculate how much of the total 2 years and one month could contribute to 2 years full-time experience. The Applicant's Case at hearing 39The Applicant's case in summary was that he had 35 years' experience working in the building industry; all of the references provided attested to the quality of his work; and he had never been subject to a complaint about his work. 40The Applicant's case in relation to his experience was that the architect, Mr Stanley was a valid referee under the regulatory provisions at the time of lodgement of his application; The time spent working with the architect, Mr Stanley was from 15 January 2007 to December 2012 and met the 2 year experience requirement; The relationship with Mr Stanley was not merely one of referral point for clients; Mr Stanley supervised the projects he worked on; on a very conservative base this experience under the supervision of Mr Stanley amounted to 6 months; His resume showed the requisite wide range of building construction work; The experience working with licensed builders Mr Frisoli and Mr Naidofski equated to 19 - 19.2 months. On this basis he had the necessary 2 years' experience. Evidence of Mr Stanley 41Mr Stanley provided a Reference dated 13th August 2012 on his own letterhead and a Referee's Statement on a Fair Trading form dated 21 March 2013. There is a file note completed by Colin Hadden of a telephone conversation on 26 August 2013 with Mr Stanley. 42Mr Stanley's written reference of 13th August 2012 does not refer to supervising the applicant - but rather to having known the applicant and listing the applicant's qualities in having undertaken 10 projects for Mr Stanley's clients. He recommends the Applicant for Builders Certification. 43 Mr Stanley's D of FT pro forma Referee Statement of 21 March 2013 indicated that Mr Ullrich had been a full time sub-contractor "employed and/or supervised by me carrying out a wide range of building work in the.... period 15 January 2007 to 21 December 2012." 44 The pro forma aspects of the statement certify that the Applicant has demonstrated a level of knowledge and experience in a wide range of building work which would allow him to competently perform the roles and responsibility of a licensed builder - then listing some 9 aspects of building work. 45The form attests that Mr Stanley has "supervised the applicant" on "class 1a Additions/Alterations to existing buildings." In free hand Mr Stanley has listed the applicant's roles and responsibilities on the projects as: General project management and construction to handover: Including liaison with clients, architect, structural engineer, and councils. Effective and efficient ordering of materials and site management. Supervision and co-ordination of trades including concreter, carpenter, plumber, tiler, electrician and kitchen installer. 46In his file note of a telephone conversation with Mr Stanley on 26 August 2013, Mr Hadden concludes that there was neither employment nor sub-contracting relationship between Mr Stanley and the Applicant and that the relationship was one of being a referral point. 47In his oral evidence Mr Stanley made the following points: In the projects he had worked on with the Applicant his own role had been to be an agent for clients - obtaining the approval for plans; obtaining the construction certificate; administering the contract ; attending on site and ensuring the intent of the design was carried out. The Applicant would raise issues with the project at site meetings; His role was not to supervise the Applicant - his role was contract administration; Often there was no licensed builder on site; Most of the people to whom he had referred the Applicant were owner/builders; He could answer some of the questions posed on the Referee statement form because he had been on site with the Applicant - although he was not there every minute of the day Consideration 48The parties agreed that the Applicant satisfies the qualifications requirement and the sole issue was in relation to whether the Applicant could demonstrate the necessary 2 years' experience. The Tribunal agrees with this. 49The Tribunal finds that although CTI accepted the Applicant's experience as providing the prerequisite 10 years' building experience prior to being accepted into its course his is not the standard that the Respondent or the Tribunal is bound to apply in considering this application. 50The Tribunal understands that the provisions specifying who may provide a reference for the purposes of establishing 2 years of supervised experience in a wide range of building construction work changed in May 2013 to exclude an architect. The Tribunal considers however that the Application should be considered taking into account the provisions on foot at the time of the Applicant's original application to the Respondent. In this respect an architect is a suitable person to attest to the matters set out in the paragraph below. 51The qualifications and experience requirements on foot at the time of lodgment of the application in March 2013 are set out below. 52"Experience" means experience gained by the applicant as: (a) an employee of the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience is gained; or (b) a person otherwise lawfully engaged by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the class of residential building work in which the experience is gained and who has supervised and directed the applicant in the doing of the work, and in respect of which the applicant is financially remunerated for their work during the relevant period; Schedule 1 of the Instrument requires that the "experience" must be at least 2 years' relevant industry experience in a wide range of building construction work. 53The essential elements of this definition of experience include the requirement that the holder of the contractor licence or supervisor certificate "has supervised and directed the applicant in the doing of the work." Neither the Home Building Act nor Regulation defines the meaning of supervision or direction in this context. To interpret the meaning of these terms it is helpful to look at the overall intention of the legislation. The Home Building Act 1989 is essentially a consumer protection act, which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline. 54The Tribunal interprets the purpose of the requirement of 2 years' experience under supervision and direction prior to the issuing of a licence to be to ensure that consumers can be satisfied that an individual contractor has been appropriately educated in the standards recognised by the building profession by another qualified building professional. 55In this instance Mr Naidofski has attested to having employed the Applicant part-time for the period 1st January 2003 to February 2005. However he has not been available to assist the Tribunal to calculate the full-time equivalent of this. 56Mr Stanley struck the Tribunal as being an honest and forthright witness. In his evidence he said that he did not supervise the Applicant. Nor did he employ or lawfully engage the Applicant. 57Mr Frisoli is now deceased. The Applicant did not provide an alternative source to verify the period of time for which he worked for Mr Frisoli. Qualifications and Experience 58I am satisfied that Mr Ullrich has the relevant qualifications. He obtained a Certificate IV in Building and Construction and a Diploma from CTI. 59The Tribunal finds that Mr Stanley did not employ nor engage the Applicant as a subcontractor. Mr Stanley stated that he did not supervise the Applicant in the carrying out of his work. Accordingly the Applicant's work with Mr Stanley does not qualify to be considered as experience as set out by the relevant instrument. 60Mr Naidofski has not been available to assist the Tribunal to calculate the full-time equivalent of the Applicant's part-time employment with him between January 2003 and February 2005. Conclusion 61Based on all the evidence, I am not satisfied that Mr Ullrich has been able to demonstrate a minimum of two years supervised relevant industry experience in a wide range of building construction work. Accordingly, the correct and preferable decision is to affirm the Department's decision. 62The same outcome follows as noted in relation to the application made by Takahe Enterprises Pty Ltd, the Applicant's corporate employer. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 March 2014