Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ozcelik v Commissioner for Fair Trading [2014] NSWCATOD 100 Hearing dates: 7 August 2014 Decision date: 07 August 2014 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: The respondent's decision to refuse the applicant's application for a contractor licence is affirmed. Catchwords: ADMINISTRATIVE LAW - Home Building Act 1989 - Contractor licences - Experience in a wide range of building work Legislation Cited: Home Building Act 1989 (NSW) Home Building Regulation 2004 Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Locking v Department of Finance and Services [2013] NSWADT 239 Category: Principal judgment Parties: Cem Ozcelik (Applicant) Commissioner for Fair Trading (Respondent) Representation: C Ozcelik (Applicant in person) Office of Finance and Services, NSW Fair Trading (Respondent) File Number(s): 1420177 reasons for decision 1Mr Ozcelik applied for a review of the NSW Commissioner of Fair Trading's decision to refuse his application for a contractor licence in the category of "general building work." The Commissioner refused that application on 29 October 2013 on the basis that Mr Ozcelik did not have at least two years' relevant industry experience in a wide range of building work. 2Mr Ozcelik applied for internal review of the Commissioner's decision on 20 November 2013 and the decision was affirmed by the internal reviewer on 13 March 2014. 3Mr Ozcelik then applied to this Tribunal for review of the Commissioner's decision on 24 April 2014. He explained that his application was filed outside the 28 day period specified by r 24(3) of the Civil and Administrative Tribunal Rules 2014 (NSW) because he waited for a referee to return from overseas so he could seek the referee's advice about applying to the Tribunal. The respondent did not object to the Tribunal granting leave to hear the application out of time. 4I dispensed with the requirement that an application for an extension of time be made in writing, pursuant to rule 8 of the Civil and Administrative Tribunal Rules 2014. 5I extended time for lodging the application under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), having considered that the application was approximately two weeks late, there was no prejudice to the respondent in allowing the application to proceed and the applicant had provided an explanation for the delay. 6On the day of the hearing, the Tribunal gave an oral decision, affirming the decision of the Commissioner. One of the parties requested written reasons for the decision pursuant to s 62 of the Civil and Administrative Tribunal Act 2013. These are those written reasons. LEGISLATIVE SCHEME 7Section 19(1) of the Home Building Act 1989 (NSW) provides that the Director General may grant contractor licences for the purposes of that Act. The "Director General" referred to in the Home Building Act 1989 is the Commissioner for Fair Trading (Home Building Act 1989, s 3). 8The procedure for applying for a licence is set out in Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW), which is applied by s 19(2) of the Home Building Act 1989. 9Section 20(1) of the Home Building Act 1989 provides for circumstances in which the Director General must refuse an application for a contractor licence. Section 20(2) of that Act provides that the regulations may fix or provide for the Director-General to determine additional 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. 10Clause 26(1)(b)(i) of the Home Building Regulation 2004 provides: 26 Additional requirements for obtaining contractor licences (1) Before a contractor licence is issued, the Director-General must be satisfied that: ... (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)... 11Clause 28(1)(b) of the Home Building Regulation 2004 provides: 28 Additional requirements for obtaining certificates (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: ... (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... 12The Commissioner for Fair Trading made an instrument pursuant to clause 28(1) of the Home Building Regulation 2004 on 3 July 2013, entitled "Qualification Requirements for an Endorsed Contractor Licence or Supervisor Certificate for General Building Work" ("Instrument"). The Instrument states, relevantly, that the Commissioner considers the possession of experience specified in the Instrument to be necessary for an applicant for the issue of a Licence or Certificate. 13The experience specified in the Instrument is "at least two years' relevant industry experience in a wide range of building construction work". 14The term "experience" is defined in the Instrument as follows: "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 ("the Work"), 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. 15On 18 January 2002, the beginning of a period for which Mr Ozcelik claims experience, s 4(1) of the Home Building Act 1989 relevantly provided that a person must not contract to do any residential building work except as or on behalf of an individual, partnership or corporation that is the holder of a licence authorising its holder to contract to do that work. 16At the same time, s 12 of the Home Building Act 1989 relevantly provided that an individual must not do any residential building work except as, or as a member of a partnership or an officer of a corporation that is, the holder of a licence authorising its holder to contract to do that work. BACKGROUND 17Mr Ozcelik's application to the Commissioner for Fair Trading for a contractor licence under s 19 of the Home Building Act 1989 on 27 September 2013 indicated that Mr Ozcelik was applying for a licence in the category of "general building work". 18Mr Ozcelik provided evidence, with his application, of having completed a Certificate IV in Building and Construction (Building) and a Diploma of Building and Construction (Building). Mr Ozcelik also listed a range of practical experience he had had since 2009 with different employers, all of which he described in the application as "carpenter formwork". Mr Ozcelik claimed to have worked for Trazmet Pty Ltd doing "carpenter formwork" from 22 September 2011 to "current". 19Mr Ozcelik's application included a referee's statement given by Mr Barchini of Trazmet Pty Ltd. Mr Barchini's reference indicated that Mr Ozcelik had participated in the construction of a commercial structure in Sydney between September 2011 and August 2012 and had participated in the construction of a residential high rise structure in Chippendale between August 2012 and September 2013. 20The application also included a referee's statement from Ferenc Vastag of Ibex Interiors Pty Ltd, dated November 2008, concerning Mr Ozcelik's duties with that company between April 2006 and February 2007. However, this reference did not use the Fair Trading "Referee's statement form". 21On 29 October 2013, a person who was apparently the Commissioner's delegate refused Mr Ozcelik's application for a contractor licence on the basis that he did not have a minimum of at least two years' relevant industry experience in a wide range of building construction work, as required by the Instrument. The delegate found that the building experience claimed for commercial work with Trazmet Pty Ltd at the commercial site in Sydney was not relevant experience as applicable to the home building industry. 22In relation to the work done by Mr Ozcelik as an employee of Trazmet Pty Ltd in the construction of a residential building at Chippendale, the delegate found that, as Trazmet Pty Ltd was only licensed for carpentry (formwork only), Mr Ozcelik could only have lawfully done this kind of work. 23The delegate did not refer to the reference provided by Mr Vastag. 24On 19 November 2013, Mr Ozcelik wrote to NSW Fair Trading enclosing a Referee Statement form completed by Soner Olcayto, who was a director of Biltmond Pty Ltd (formerly Richmond Homes). Mr Olcayto stated in his reference that Mr Ozcelik had done building construction work for his company in relation to a residential building in Fairfield from 18 January 2002 to 29 May 2003 and in relation to a single dwelling in Malabar from 7 April 2003 to 9 February 2004. 25NSW Fair Trading treated Mr Ozcelik's letter as an application for internal review. On 5 February 2014, an officer of NSW Fair Trading wrote to Mr Ozcelik, asking him to provide documentary information about the terms of his employment with Biltmond Pty Ltd. Mr Ozcelik did not do so. NSW Fair Trading also telephoned Mr Olcayto, who told the NSW Fair Trading officer that Mr Ozcelik had been a sub-contractor. 26On 14 March 2014, the internal review officer from NSW Fair Trading affirmed the original decision to refuse Mr Ozcelik's application. The reviewer found that Mr Ozcelik had gained "NIL experience" towards meeting the experience criteria for a building licence while working for Trazmet Formwork Pty Ltd, for the same reasons given by the original decision maker. The reviewer also found that Mr Ozcelik was subcontracted to Biltmond Pty Ltd and that, because he did not hold a licence at the time, he was not lawfully engaged by that company. For this reason, the reviewer found that Mr Ozcelik had no "experience" within the meaning of the Instrument. Evidence at hearing 27At the hearing, Mr Ozcelik gave evidence that he worked for Mr Olcayto, who was a director of Biltmond Pty Ltd, as a subcontractor from 18 January 2002 to 9 February 2004. Mr Olcayto held a supervisor certificate at the relevant time. Mr Ozcelik gave evidence that he supervised a range of persons on building sites whilst subcontracting for Mr Olcayto and that he gained a wide range of building experience during this period. 28Mr Ozcelik accepted that he did not hold a licence under the Home Building Act 1989 at that time. 29Mr Ozcelik said his experience for Ibex Interiors Pty Ltd was relevant to his application, but agreed under cross examination that that company carried out commercial work. He did not provide evidence that it held a licence under the Home Building Act 1989. 30Mr Ozcelik gave evidence that, when working for Trazmet Pty Ltd, he had looked after formwork structures, helped with plans and helped with set-outs. 31Mr Ozcelik also provided an affidavit in which he stated that he had been employed by Mr Olcayto "by means of Sub contract". He stated in the affidavit that Mr Olcayto did not pay him superannuation, did not tax him "PAYE," did not pay him any form of redundancy contribution, nor make any long service leave payments. 32Finally, Mr Ozcelik's brother Ceyhun Ozcelik provided an affidavit in which he stated that Mr Ozcelik had carried out a building project for Ceyhun Ozcelik in which Ceyhun Ozcelik had been an owner builder. Mr Ozcelik's brother said that Mr Ozcelik received no remuneration for this. respondent's SUBMISSIONs 33In relation to Mr Ozcelik's work for Biltmond Pty Ltd, the Commissioner accepted that Mr Olcayto held a supervisor certificate but submitted that Mr Ozcelik was not "lawfully engaged" by Biltmond Pty Ltd within the meaning of the Instrument. 34Mr Coss, for the Commissioner, submitted that Mr Ozcelik's work for Ibex Interiors Pty Ltd was not "experience" within the Instrument since that company did not hold a licence under the Home Building Act 1989. Further, Mr Coss submitted that unremunerated work for a home builder did not fulfil the definition of "experience" in the Instrument either. 35In relation to Mr Ozcelik's work for Trazmet Pty Ltd, Mr Coss submitted that some of it was commercial work and that, in any event, it was work for the holder of a licence to do carpentry (formwork) and, without more, the applicant did not satisfy the requirement of having demonstrated a wide range of building construction work. In support of this submission, Mr Coss relied upon Locking v Department of Finance and Services [2013] NSWADT 239. APPLICANT'S SUBMISSIONS 36The Applicant submitted that he had acquired a wide range of building experience when working for Mr Olcayto and that he was lawfully engaged at the time. He also submitted that his work for Trazmet Pty Ltd, for his brother and for Ibex Interiors Pty Ltd should count towards his experience for the purposes of gaining a licence. FINDINGS ON QUALIFICATIONS AND EXPERIENCE 37I am satisfied that Mr Ozcelik has satisfied the approved qualification requirements for a building licence. 38The main issue is whether Mr Ozcelik can satisfy the requirement of having obtained two years' relevant industry experience in a wide range of building construction work. Under the Instrument, the experience must have been as an employee of, or as 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. Further, the applicant must have been 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 must have been financially remunerated for the work. 39Mr Ozcelik has claimed experience with the following employers or contractors: (a)Biltmond Pty Ltd from 18 January 2002 to 9 February 2004; (b)Ibex Interiors Pty Ltd between April 2006 and February 2007; (c)Ceyhun Ozcelik for 8-12 hours per week for 8 months around 2011; (d)Trazmet Pty Ltd doing "carpenter formwork" from 22 September 2011 to September 2013. 40In relation to the work done with Biltmond Pty Ltd, I find that Mr Ozcelik was not an "employee" but a subcontractor. Mr Olcayto and Mr Ozcelik have both given evidence that Mr Ozcelik was a subcontractor, and this is consistent with the arrangements described by Mr Ozcelik whereby he was not paid superannuation by Biltmond Pty Ltd and no tax was deducted from the payments made to him. 41I also find that Mr Ozcelik was not lawfully engaged by Biltmond Pty Ltd. During the relevant period, ss 4 and 12 of the Home Building Act 1989 prohibited Mr Ozcelik from contracting to do, and from doing, residential building work on his own behalf, without a licence authorising him to do or contract to do that work. Mr Ozcelik accepts that he was doing residential building work and did not hold a licence. His engagement with Biltmond Pty Ltd was prohibited by the Home Building Act 1989 and he was not lawfully engaged by that company. 42For these reasons, Mr Ozcelik's work as a subcontractor for Biltmond Pty Ltd is not "experience" within the meaning of the Instrument. 43Mr Ozcelik's work for Ibex Interiors Pty Ltd between April 2006 and February 2007 is not "experience" for the purposes of the Instrument, as Ibex Interiors Pty Ltd did not hold a contractor licence authorising it to do residential building work. This was because it carried out commercial work. 44Mr Ozcelik's work with his brother Ceyhun Ozcelik in or around 2011 was not "experience" for the purposes of the Instrument, because Mr Ozcelik was not supervised or 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 he was not financially remunerated for the work. 45Mr Ozcelik also relied upon experience gained at Trazmet Pty Ltd between 2011 and 2013. I accept the respondent's submission that, as Trazmet Pty Ltd only held a licence to do carpentry (formwork), Mr Ozcelik could only lawfully do that kind of work whilst employed by that company. Thus, whilst Mr Ozcelik's experience there is of some relevance, it does not of itself constitute "a wide range of building construction work". To use Hennessy DP words in Locking v Department of Finance and Services [2013] NSWADT 239 at [17], experience in carpentry (formwork) "is only one aspect of the work required to be done in order to complete the construction of a residential dwelling". 46For these reasons, I am not satisfied that Mr Ozcelik has met the criterion of having a minimum of two years' experience in a wide range of building construction work, as it is defined in the Instrument. 47The Tribunal accordingly affirms the Commissioner's decision to refuse Mr Ozcelik's application for a contractor licence. ********** 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: 16 September 2014