Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Atteya v Commissioner for Fair Trading [2016] NSWCATOD 113 Hearing dates: 23 June 20116. Final submissions received 3 August 2016 Date of orders: 25 August 2016 Decision date: 25 August 2016 Jurisdiction: Occupational Division Before: N S Isenberg, Senior Member Decision: The decision under review is affirmed. Catchwords: Merits review; home building - endorsed contractor licence application - general building work - relevant industry experience - Instrument made 5 January 2015 – acceptable referee - remuneration with money. Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 Category: Principal judgment Parties: Farouk Saad Aly Atteya (Applicant) Commissioner for Fair Trading, Office of Finance, Services and Innovation (Respondent) Representation: Solicitors: F Atteya (Applicant in person) Commissioner for Fair Trading, Office of Finance, Services and Innovation (Respondent in person) File Number(s): 1620053 Reasons for decision Background 1. On 28 September 2015 the Applicant applied to the Respondent for an Individual Contractor Licence in the category of general building work (the Application). The Application was refused by the Respondent. An internal review confirmed the original refusal on the basis that the Applicant had not demonstrated that he had a minimum of two years' relevant industry experience in order to meet the practical experience requirements of the Home Building Act 1989 (the Act) (the Decision). 2. The Applicant applied to this Tribunal on 2 March 2016 to review of the Decision. Material before the Tribunal at the hearing 1. The Respondent relied on: 1. a bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) (the s 58 documents); 2. a letter dated 20 July 2016 from the Respondent to the Applicant (the Respondent's letter) enclosed with which was a phone note of two telephone discussions between a referee of the Applicant and an officer of the Respondent (the phone note); and 3. oral submissions made by Mr W Maynard solicitor, on behalf of the Respondent, during the hearing. 1. The Applicant relied on: 1. the Application, which formed part of the s 58 documents. Attached to the Application were various documents evidencing the successful completion by the Applicant of certain building courses together with a referee's statement by Mr Mahmoud Hamdan (the First Reference); 2. a letter from the Applicant to the Respondent dated 23 November 15 attached to which is a referee's statement by Mr Ashraf Elkhauly (the Second Reference) signed by the referee on 15 November 2015.; 3. a memorandum dated 8 June 2016 by the Applicant attached to which is a referee's statement by Mr Mohamed Abu-Mahmoud (the Third Reference) signed by the referee on 8 June 2016; 4. a statement 'To Whom It May Concern' from Homezone Construction Pty Ltd signed by Mr Elkhauly dated 27 June 2016 attached to which is a second referee's statement by Mr Elkhauly (the Fourth Reference); and 5. oral evidence and oral submissions to the Tribunal by the Applicant. Jurisdiction 1. The Tribunal is empowered to review the Decision (s 83B(1) of the Act and s 55 of the ADR Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision, the Tribunal is to either make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision. Consideration 1. I observe that during the course of the hearing the parties agreed to vary the Application from an application for an Individual Contractor Licence to an application for an Endorsed Contractor Licence (the Varied Application). Legislative scheme 1. The Act is part of the legislative scheme which regulates aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, cancellation and suspension of contractor licences, supervisors' certificates and trades persons' certificates in the industry. 2. Relevant provisions in the Act include: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) … or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or … (2) The regulations may fix or provide for the Secretary 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. (3) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued, or … (5) A decision of the Secretary relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Tribunal in an application for an administrative review made under this or any other Act. 33C Additional requirements for obtaining contractor licences (1) A contractor licence must not be issued unless the Secretary is satisfied that: (a) … (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) satisfies the requirements of section 33D for the issue of a supervisor certificate to the applicant, and … 33D Additional requirements for obtaining supervisor and tradesperson certificates (1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary 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 Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) … 1. On 5 January 2015 the Acting Commissioner for Fair Trading signed an instrument under s 33D(1) (the Instrument) determining the possession of qualifications or the passing of examinations and the possession of experience necessary, amongst other matters, for an applicant for the issue of a relevant licence or certificate to be as set out in the instrument. The relevant experience is stated to be: At least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made. The word "Experience" is defined, in my opinion somewhat opaquely, as follows: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or (c) a holder of an endorsed contractor licence contracted to; or (d) a holder of a supervisor certificate in the capacity of a nominated supervisor for a contractor licence held by an individual, partnership or corporation contracted to, 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 the applicant, during the relevant period, was: ● 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 ● remunerated with money in accordance with law for the Work which the applicant carried out; Concessions by the parties 1. The Respondent conceded that the Applicant has demonstrated that he has met the qualification requirements for a building licence. 2. The Applicant conceded that: 1. references to evidence of relevant experience must be provided by a licensed builder; 2. in respect of the work referred to in the First Reference: 1. the supervising licenced builder was Mr Talul Hamdan, who had not given the reference, and 2. Mr Mahmoud Hamdan, who signed the reference, was not a licensed builder; 1. the Third Reference correctly states that the Applicant was not an employee or subcontractor and he carried out the work on a voluntary basis in order to obtain experience. Issues for the Tribunal 1. The parties agree that in order to qualify as an endorsed licensed contractor for general building work the Applicant must satisfy requirements of both qualifications and experience. The Respondent has conceded that the Applicant has satisfied the approved qualification requirements for the licence. However, the Respondent submits that the Applicant had not provided evidence of the required practical experience. Accordingly, the issue before the Tribunal is whether or not the Applicant has gained that experience in accordance with the Instrument. 2. Relevant experience of the Applicant as defined in the Instrument is required to be provided by one or more licensed builders. Consideration of material before the tribunal 1. It may be that some or all of the work referred to in the First Reference would be relevant experience. However, the relevant referee is not a licensed builder and accordingly is not acceptable as a referee. Accordingly, I find that the experience referred to in the First Reference cannot be taken into consideration for the purpose of satisfying the requirements of the Instrument. If the relevant licensed builder on the sites referred to in the First Reference had provided a referee's statement it may be that the Applicant's experience on those sites could have been taken into account in respect of his application. 2. It is a requirement of the Instrument that an applicant be "remunerated with money in accordance with law for the Work which the applicant carried out". However, the Applicant has conceded the accuracy of the statement in the Third Reference that the six months' work carried out on the site referred to in that Reference was performed on a voluntary basis. Unfortunately for the Applicant, and irrespective of the practical value of that work, I find that the experience referred to in the Third Reference cannot be taken into account as relevant experience for the purpose of the application. 3. I note that both the Second and Fourth References were given by Mr Elkhauly and that he is accepted by the Respondent as a licensed builder and as an appropriate referee. I observe that the Second Reference states that the Applicant was engaged full-time as a subcontractor on the sites referred to in that Reference. The same sites are referred to in the Fourth Reference which states that the Applicant was employed as an employee on a full-time basis. 4. It may be that there is an easily explainable reason for the difference between the statements that the Applicant was both "engaged as a subcontractor" and "employed as an employee" on the same sites. However, the phone note appears to contain details of two telephone discussions between an officer of the Respondent and Mr Elkhauly on 8 July 2016. The phone note refers to several of the sites described in the Second and Fourth References as sites at which the Applicant carried out work under Mr Elkhauly's supervision. 5. The phone note states, in relation to a site at Greenacre in respect of which the Second Reference stated the Applicant was engaged full-time as a subcontractor for a period of 12 months between January 2007 and January 2008 and in respect of which the Fourth Reference stated the Applicant was employed full-time during the period January 2007 to December 2007 and gained "12 months experience": the applicant only came about one or two days a week to look and learn. He did not do the job… The applicant asked questions about bricking and concreting, that was all". 1. The phone note also states: I asked the referee if he paid the applicant for any of the work; and the referee stated that it was voluntary work, that the applicant only came to look and learn, to ask questions, and that he did not pay him. I stated, "so you did not pay him any money," and the referee confirmed, "no it was voluntary work… 1. In relation to other sites set out in the Second and Fourth References the phone note states "the applicant did not do any work". The phone note also states in relation to a referee's statement form apparently signed by Mr Elkhauly: I advised the referee that the form stated that the applicant was his employee, and asked again if he employed the applicant, and did he pay him? Referee confirmed that the applicant was not his employee, and that he did not pay him. 1. The Respondent's letter states that the phone note was enclosed when it was sent to the Applicant and states: I note that I telephoned you on Tuesday, 19 July 2016 to advise you that Mr Elkhauly had advised Fair Trading that he had not paid you for the work you did for him. I noted that the definition of "Experience" in the Instrument required that the Applicant (yourself) be remunerated for the work. I advised you that Fair Trading would therefore maintain its refusal. I invited you to provide me with evidence that you had been remunerated. However you conceded, as I understood you, that you had not been remunerated for any of the work you had done to gain experience. 1. I observe that no material was provided to the Tribunal by the Applicant in response to the invitation by the Respondent. I also observe that a mandatory condition within the definition of Experience in the Instrument is that the Applicant be "remunerated with money in accordance with law for the Work which the applicant carried out." In the circumstances, and notwithstanding any and all practical experience gained by the Applicant in respect of the work referred to in the Second and Fourth References I find that that experience cannot be taken into consideration for the purpose of the Varied Application. 2. I also observe that the determination by the Commissioner/Secretary relating to determining standards or other requirements under s 20(2), as set out in the Instrument, is not reviewable by the Tribunal (s 20(5)). Decision 1. Having regard to my above findings on the material before me I am satisfied that the Applicant has not met the statutory requirements for the issue of an endorsed individual contractor license for general building work. Accordingly, the correct and preferable decision is that the licence not be granted Orders 1. The Tribunal's order is that the decision under review 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: 25 August 2016