Kanaan v Commissioner for Fair Trading [2014] NSWCATOD 126

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kanaan v Commissioner for Fair Trading [2014] NSWCATOD 126 Hearing dates: 12 September 2014 and 8 October 2014 Decision date: 31 October 2014 Jurisdiction: Occupational Division Before: R Deutsch, Senior Member Decision: Respondent's decision is affirmed Catchwords: experience; general building work; financially remunerated Legislation Cited: Home Building Act 1989 (NSW) Home Building Regulations 2004 (NSW) Cases Cited: Locking v Department of Finance and Services 2013 NSWADT 239 Category: Principal judgment Parties: Danny Kanaan (Applicant) Commissioner for Fair Trading (Respondent) File Number(s): 1420208

reasons for decision

BACKGROUND 1The Applicant has applied to this Tribunal for a review of a decision made by the Respondent to refuse an application by the Applicant for a variation to his contractor licence. Had the variation been granted, the licence would have covered the category of "general building work" under the Home Building Act 1989 (NSW) (the Act). The rejection of the variation application leaves the Applicant in the position where his licence covers only the work category "day plasterer". 2In order to secure the variation, the Applicant needs to satisfy the requirements for the work category "general building work". These are spelt out in some detail in an Instrument made pursuant to clause 28 (1) of the Home Building Regulations 2004 (the Regulations). 3Under the Regulations, the Applicant has to satisfy the Respondent that: * he has completed the approved qualification requirements, and * he has at least two years' relevant industry experience in a wide range of building construction work. 4The Applicant satisfied the Respondent that he had the approved qualifications as he supplied evidence that he had successfully completed: * CPC 50210 Diploma of Building and Construction (Building), and CPC 40110 Certificate IV in Building and Construction (Building). 5The Applicant failed to satisfy the Respondent that he had the relevant experience and therefore the sole issue for determination by the Tribunal is: Does the Applicant meet 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 3 July 2013 (the Instrument) made pursuant to clause 28(1) of the Home Building Regulation (2004) (NSW)? 6"Experience" in this context is a defined term 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: (a) supervised and directed in the doing of the Work by the holder of an endorsed contract the licence or supervisor certificate authorising its holder to supervise the Work; and (b) financially remunerated for the Work. 7Although awkwardly worded, the definition is to the effect that the Applicant must have been either an employee of; or a person otherwise lawfully engaged by someone who held a relevant licence. 8Furthermore, 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.