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. APPLICATION TO THIS CASE 9The Applicant provided a summary of his relevant site experience which amounted to four building works at four different addresses all for the same building company, namely Prominent Building Pty Ltd ("Prominent"). In each case, the Applicant described his work as "managed the site, managed the trades, controlled OHS & contracts". The duration of these building works were 7,7,7 and 9 months respectively. 10A reference was provided by a representative of Prominent, Mr Raymond Sarkis dated 5 November 2013 in which Mr Sarkis indicates that the Applicant had worked for the company at various stages from 20 February 2007 to 5 November 2013. During that time the total amount worked according to the reference covered some 30 months. The description of the work again covered "managed the site, managed trades and controlled OHS and contracts". 11In response to this reference a representative of the Respondent contacted Mr Sarkis by phone on 12 December 2013 and the conclusion which that representative reached after those discussions was that: * the Applicant was subcontracted for the plastering and building work; * the Applicant did not do any hands on work or structural work; * the Applicant ordered, supplied, managed the trades, OHS and contracts; * the Applicant had so many jobs to do, he subcontracted out all the structural work. 12On that basis, the Respondent concluded that the Applicant held at the relevant time only a licence to contract for plastering work. To the extent that Prominent was subcontracting general building work to the Applicant, the Applicant could not have been lawfully engaged by Prominent, as the Applicant did not hold a relevant building licence. 13Accordingly, the Applicant has not demonstrated that * he was employed or lawfully engaged by the holder of a contractor licence * he was supervised by the holder of an endorsed contractor licence or qualified supervisor certificate in the relevant class of residential building * he has sufficient experience in supervising residential building construction work to satisfy the experience requirement for the issuing of an endorsed contractor licence in general building work under the act and the regulations. 14That decision was made on 23 January 2014. 15Mr Sarkis provided a further more detailed reference dated 5 February 2014 in which he indicated that the Applicant had worked for Prominent as Project Manager from 20 February 2007 to 5 November 2013. 16The reference provided the following additional important information: "During his employment as an employee and sub-contractor with Prominent, under the supervision of Raymond Sarkis.....has enabled (the Applicant) to gain all relevant skills and experience required to become a qualified builder. Under my supervision, I have trained (the Applicant) to implement the practical experience needed to comply with the Building Codes of Australia - standards 1a, 1b,2,10a and 10b. This included hands-on experience and emphasis on structural work of a building. This has led to (the Applicant) to further coordinate the construction of buildings and other structures, and allow him to perform the following tasks: a) Examine and interpret clients plans or arrange the drawing of plans to meet building regulations b) Submit tenders (offers to do jobs at a stated price), quotes or prices for a project to clients c) Arrange the submission of plans to local authorities for approval and arrange inspections of building work d) Organise employees and/or subcontractors to carry out all stages of building negotiate rates of pay e) Calculate quantities of materials required for building projects and order these building suppliers or advertise for tenders f) Arrange delivery times of materials to coincide with various stages of the building process g) Supervise the work of employees and/or subcontractors to ensure buildings over an acceptable standard and are proceeding according to the contract requirements and program schedule h) Coordinate the activities of office staff involved in the preparation payment accounts i) Comply with State and Federal legal legislation and Building Codes of Australia j) Ensure a Safe Work Place with WHS site induction carried out before work commences k) Ensure subcontractors work within time and budget I wish to confirm and declare that (the Applicant) is a very competent builder and have provided him with all the skills and experience needed to support his application for a Builders Licence." 17In September 2014, further information was provided to the Respondent including a detailed reference from Mr John Haddad a representative of another building company, North Shore Building Developments Pty Ltd ("North Shore"). 18This reference indicates that the Applicant is employed by the building company on a full-time basis, six days per week, the employment having commenced on 11 November 2013. 19Mr Haddad states that North Shore is involved in the construction of low to high rise residential projects, including commercial and industrial buildings throughout Sydney. 20The reference also indicates that, since the commencement of his employment with North Shore, the Applicant has been responsible for a variety of tasks including: * Preparation of construction contracts; Evaluation of tender documents Estimating construction cost of projects in accordance with approved architectural plans and specifications Producing a labour and ad material schedule for ordering managing selected material including identifying leadtimes and organising storage goods whether on or off site Organising and planning construction work which involves project management liaising with subcontractors quality-control contract administration and planning delivery times Administering progress claims in ensuring that all materials paid for been delivered and signed off Maintaining a clear understanding of the principles of planning and a thorough understanding of the Building Code of Australia Participating in the execution of various building elements some under the supervision of specialist contractors like electricians and plumbers whilst on other occasions executing works such as the erection of scaffolding, excavation and reinforcing trenches, bricklaying and various elements of the construction project to facilitate progress, erection of formwork, installation of reinforcing, aiding the pouring and screeding of concrete, executing carpentry works and fixing of doors and hardware, assisting cement renderers during everyday tasks to facilitate progress and cleaning and maintaining the site in an orderly fashion 21Mr Haddad then concludes that he is "happy to recommend (the Applicant') to an institution and recognising (sic) him as a competent Building contractor". 22The Tribunal was also provided with a copy of a PAYG payment summary for the year to 30 June 2014 indicating that the Applicant had been employed by North Shore since 13 November 2013 and had been paid a sum from which tax had been withheld. 23It is my understanding from what Mr Maynard (representing the Respondent), said at the hearing on 8 October 2014, that the Respondent accepted without reservation that the Applicant has been employed by North Shore in the appropriate capacity and that the period of time commencing 11 November 2013 up to the present, counts towards the two year period required by the Regulations. 24The more difficult question for the Tribunal is to determine the extent to which the previous work conducted with Prominent is to count. 25The state of the evidence presented by the Applicant in relation to his work with Prominent is very poor. It is almost impossible for this Tribunal to determine as an objective fact the extent to which the Applicant engaged in relevant work as an employee. The Tribunal was provided with certain PAYG summaries and these coincide with the dates of work referred to in Mr Sarkis's reference. The work the Applicant carried on as part of that employment is a matter of some conjecture, there being different summaries provided initially to the Respondent as compared to that which was belatedly referred to by Mr Sarkis. 26There is also a question hanging over the issue as to whether the Applicant was financially remunerated for the building work he is alledged to have completed. 27There has clearly been a falling out between the Applicant and Mr Sarkis and part of this seems to relate to the financial arrangements between the parties. 28The position was made more difficult by the absence of Mr Sarkis as a witness to explain some of the inconsistencies that exist between his initial statement and that which followed the following year. 29Mr Maynard indicated to the Tribunal at the hearing on 8 October 2014, that the Respondent had some suspicions regarding the state of evidence but nothing more was said regarding this issue. 30In the circumstances I am left to consider the current state of the evidence as it stands and I have no basis for making any rash assumptions as to the suspicions alluded to by the Respondent. 31Clearly, there is confusion in the minds of both Mr Sarkis and the Applicant as to the delineation between the Applicant's work as a plasterer and as a builder and I believe this may have contributed in part at least to the clumsy way in which the evidence has been presented to the Respondent and to the Tribunal. 32On balance, while I do not necessarily share the Respondent's suspicions, I cannot satisfy myself based on the current state of the evidence that the Applicant has a minimum of 2 years relevant experience. 33In this context I conclude that the Applicant was an employee of Prominent - this I believe is clear from the PAYG payment summaries which, notwithstanding the Respondent's suspicions, I must accept as genuine. Mr Sarkis indicated in his February 2014 reference that he was an employee and while that seems inconsistent with his earlier statements, in light of the PAYG summaries that may well be the result of a layman's misunderstanding of what amounts to an employee as opposed to a sub-contractor. 34I also accept that the Applicant was financially remunerated for the work he did as an employee - even though the remuneration may not have been paid and is the subject of a dispute between the parties, that does not mean that the Applicant was not financially remunerated. 35The problem arises as a result of the work which it seems the Applicant is said to have done for Prominent. According to the February 2014 reference from Mr Sarkis, that work embraced a number of aspects as indicated earlier. 36However, the matter of Locking v Department of Finance and Services 2013 NSWADT 239 at paragraghs 18-19, Deputy President Hennessy summarised multiple roles of the builder as follows: "18. A 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. 19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and coordinate 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 the work is passed fit when appropriate." 37Mr Sarkis was not called as a witness at the hearing and accordingly there was no opportunity for him to be asked any specific questions regarding the nature of the work carried out by the Applicant or indeed for there to be any cross examination in relation to his written reference. 38In the circumstances, I am left with no option but to work from the written reference provided and on that basis, I am not satisfied that the Applicant has the relevant general building experience referred to in the two paragraphs quoted from the decision in Locking above. 39In this context, I note the contrast between the reference provided by Mr Sarkis and that provided by Mr Haddad. Mr Haddad's reference provided detailed information about the exact nature of trades which the Applicant was involved with in his day-to-day work and it is that kind of information which is vital to enable the Respondent and consequently this Tribunal to make decisions favourable to an Applicant. That information is sadly lacking from Mr Sarkis's reference. 40Thus, I conclude that on the basis of the evidence available, the Applicant's only relevant experience is the work which he has completed to date with North Shore. That period of time is only 12 months and accordingly, the requirement for the variation sought to be made is not satisfied. DECISION OF THE TRIBUNAL 41Based on all the evidence, I am not satisfied that the Applicant has a minimum two years relevant industry experience in a wide range of building construction work and accordingly, the correct and preferable decision is to affirm the Respondent's decision. ********** 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: 31 October 2014