Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdul-Rahman v Department of Finance and Services [2014] NSWCATOD 96 Hearing dates: 18 August 2014 Decision date: 27 August 2014 Jurisdiction: Occupational Division Before: R. Deutsch, Senior Member Decision: The Respondent's decision to refuse the Applicant's application for a contractor licence is affirmed. Cases Cited: Ivanovski v Commissioner for NSW Fair Trading, Department of Finance and Services (2013) NSW ADT 274 Zada v Director-General, Department of Finance and Services, NSW Fair Trading (2014) NSWCATOD 16 Category: Principal judgment Parties: Omar Abdul-Rahman ( Applicant) Department of Finance and Services, NSW Fair Trading (Respondent) File Number(s): 1420241 reasons for decision 1The Applicant has applied to this Tribunal for a review of a decision made by the Respondent to refuse to issue an individual contractor's licence in the category of general building work under the Home Building Act 1989 (NSW) (the Act). 2At the hearing the Tribunal was advised that the sole issue for determination by the Tribunal is whether the Applicant meets the experience component required to be satisfied in order for the grant of a licence under the Act as set out in the Instrument dated 13 July 2013 (the Instrument) made pursuant to clause 28(1) of the Home Building Regulation (2004) (NSW). 3For abundant clarity the Respondent advised the Tribunal that it * accepts the Applicant has the required qualifications specified in the Instrument being a Certificate IV in Building and Construction CPC40108 and the Diploma of Building and Construction CPC50208; and * no longer presses the grounds of fitness and propriety as previously argued. BACKGROUND TO THE APPLICATION 4The Applicant is the holder of a qualified supervisor certificate, number 51642S in the categories of Plumber and Roof Plumber, Gasfitter, LP Gasfitter and Drainer. The certificate was first issued on 21 February 2008 and is current until 20 February 2017. 5At various times between 1998 and 2007 the Applicant held other authorities under the Act in the category of plumber, gasfitter and drainer. 6Between 11 November 2005 and 11 November 2013 the Applicant was the nominated supervisor of Lion Plumbing Pty Ltd a company that held a contractor license, number 179710C in the category of plumbing. 7Between 24 June 2009 and 20 October 2010, the Applicant was also the nominated supervisor of BH Plumbing (Aust) Pty Ltd. 8On 13 November 2013, the Applicant made an application (the Application) for the issue of an individual contractor licence in the category of general building work. That application was supported by a Referee Statement provided by Mr Ghazi Sangari dated 10 November 2013. Mr Sangari is the holder of an individual contractor licence in the category of general building work first issued on 22 September 2000 and current until 22 September 2016. 9In that Referee Statement Mr Sangari indicated that the Applicant performed work along the following lines: From 1 September 2012 to 15 October 2013, the Applicant provided assistance to a supervisor on a construction site situated at Glenn Alpine, New South Wales. The day-to-day activities included site supervision, trade management and materials handling. This was a new duplex site with a two story building being constructed with the lower floor being on a sloping site. From 10 November 2010 to 5 December 2011 the Applicant fully supervised the trade, materials handling, OH&S, trade coordination, authority and approvals in respect of a construction situated at a property at Croydon Park NSW. This was a new two-storey home construction. 10In the Referee Statement, Mr Sangari did not indicate the exact nature of the Applicant's engagement with him. 11Following consideration by the Respondent, the Application was refused on 18 February 2014. 12On 21 March 2014, the Applicant requested an internal review of the Determination. 13On 4 June 2014, the Respondent confirmed the earlier Decision to refuse the grant of a licence to the Applicant and on 4 July 2014 the Applicant sought review in this Tribunal. 14On 14 August 2014, the Applicant submitted a further Referee Statement from a Mr Zeitoun in which Mr Zeitoun indicated that the Applicant had worked on a project situated at Burwood NSW continuously from 1 November 2013 up until the present. This project consisted of the construction 38 unit apartments with a basement and the work was done on a daily basis with subcontractors and contractors. The Applicant's role was to organise the subcontractors and prepare construction programs and interact with the architect and engineer. 15The Referee Statement submitted on 14 August 2004 was assessed internally by the Respondent but did not cause the Respondent to be swayed from its original decision. 16In addition further enquiries were made of Mr Sangari in relation to the earlier Referee Statement but again the responses to such enquiries did not cause any change to the Respondent's position. THE LEGISLATIVE FRAMEWORK 17The regulation of the home building industry is dealt with largely by the Act and the Home Building Regulation 2004 (the Regulations). 18Section 20(2) of 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. 19The Regulations in turn provides for the Respondent to determine such standards and the Respondent has in fact done so. 20Most importantly, a person is prohibited from doing any residential building work unless he is the holder of an "endorsed contractor licence" pursuant to section 13 of the Act. 21Clearly, section 13 applies to the Applicant and in those circumstances clause 26(1)(b)(i) of the Regulations requires the Respondent (or upon review, the Tribunal) to be satisfied that the Applicant complies with clause 28(1) of the Regulations. 22Clause 28(1) 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 the work for which the certificate is required. 23The experience which the Applicant must have gained in order to satisfy the Director-General is outlined in an Instrument made pursuant to clause 28(1). 24In that Instrument, experience means experience gained by the Applicant as : (a)An employee of; or (b)A person otherwise lawfully engaged by the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained, where during the relevant period, the Applicant was: (c)Supervised and directed in the doing of the work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the work; and (d)Financially remunerated for the work. 25Thus, although the Instrument is somewhat awkwardly written, it seems that according to the Instrument, the Applicant must have been either an employee of, or a person otherwise lawfully engaged by someone who held a relevant licence. 26Furthermore, in either case the Applicant must have been both supervised and directed in the doing of the work by the holder of that licence and must have been financially remunerated for the work. 27As was explained to the Applicant at the hearing, there are a number of problems arising from the foregoing analysis with the experience which the Applicant outlined in some detail at the hearing. 28First, and perhaps most importantly in this case "experience" for these purposes would not include experiences in circumstances where the "supervisor" is an owner-builder most particularly because the person in question would not be an employee of or a person otherwise lawfully engaged by someone who held a relevant licence (Zada v Director-General, Department of Finance and Services, NSW Fair Trading (2014) NSWCATOD 16 at 32 and Ivanovski v Commissioner for NSW Fair Trading, Department of Finance and Services (2013) NSWADT 274). The Tribunal notes that the Applicant worked on six different projects in places such as Glenacre, Ermington and Croydon Park during a period running from 2003 up to 2012 but in each case it was within the confines of an owner- builder arrangement. 29Secondly, in relation to projects in Glenn Alpine and Burwood it would appear that while these were substantial projects, the Applicant was not financially remunerated for his involvement ( Zada). For example, when pressed in a phone conversation with a representative of the Respondent, the referee Mr Zeitoun conceded that he was not paying the Applicant in relation to the work undertaken at the Burwood development. 30Thirdly, in a more general sense it does not appear from the available evidence that the Applicant was at any time in any real sense an employee or a person who was lawfully engaged by someone who held a relevant licence. 31On the employee question it is true that just because someone is not treated as an employee for tax purposes that person can still be an employee. The classification given to the arrangement by the parties may be wrong or it may be the case that there is a difference between how it is classified for tax and other purposes. 32In this case however there seems no tangible basis for treating the Applicant as an employee of a builder in any given situation. They did not treat him as one for tax or other purposes and from the limited evidence available, there seems to be no basis for treating him as an employee based on the limited supervision which he appears to have been subjected to. 33Equally there appears to be no evidence to suggest that he was ever lawfully engaged by a builder. 34When one discounts these experiences on the basis that they do not fit the required experience criteria, there remains little that can be included as experience that is genuinely relevant. DECISION 32 The Respondent's decision to refuse the Applicant's application for a contractor licence is affirmed. ********** 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: 27 August 2014