Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Watts v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2017] NSWCATOD 60 Hearing dates: 14 July and 19 December 2016 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Occupational Division Before: N S Isenberg - Senior Member Decision: 1 The decision under review is set aside. 2 In substitution for the decision under review, Mr Watts' qualified supervisor's certificate for the category of Air Conditioning and Refrigeration under the Home Building Act 1989 is varied to include the category of Electrical Wiring Work. Catchwords: MERITS REVIEW - Home Building Act 1989 - instrument made under Home Building Regulation 2004 - electrical wiring work - variation of qualified supervisor certificate - 12 months' experience - no referee's statement. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Home Building Amendment Act 2014 Home Building Regulation 2004 Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Texts Cited: Model Litigant Policy for Civil Litigation NSW Category: Principal judgment Parties: Christian David Watts (Applicant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) Representation: Counsel: L Goodchild (Applicant) Solicitors: NSW Fair Trading, Department of Finance, Services and Innovation (Respondent) File Number(s): 1620097 reasons for decision 1. Mr Watts, the Applicant, holds a qualified supervisor certificate in air-conditioning and refrigeration. This matter involves Mr Watts' application to the Tribunal to review a determination by a delegate of the Commissioner for Fair Trading, Department of Finance, Services and Innovation, (the Respondent sometimes referred to in these reasons as the Commissioner) to refuse an application by Mr Watts to vary his licence to include a qualified supervisor certificate for electrical wiring (the Licence Application). 2. Mr Watts was informed by the Commissioner that the Licence Application was refused (the initial decision) because certain information was "not on an approved Referee's Statement Form" and because Mr Watts had "not demonstrated a minimum 12 months' experience required". 3. Mr Watts requested an internal review of the initial decision. The decision of the internal reviewer (the review decision) was: …. Christian Watt has not provided evidence of the required 12 months relevant electrical wiring work experience in the form determined by the Commissioner as acceptable for the issue of an electrical authority. 1. The reviewer did not accept Mr Watts' proposal that other documents signed by the relevant Referee be accepted in lieu of the Referee's Statement: …. a licensed individual (the Referee) who is to verify the relevant experience "must verify the applicant's experience on a current NSW Fair Trading 'Referees Statement Electrical Work' form" (the Referee's Statement) .... 1. I observe that the above extracts from the review decision are from page 148 of the s 58 documents referred to below. 2. After receiving the review decision, Mr Watts applied to this Tribunal (the Application). Material before the Tribunal 1. The Commissioner relied on documents filed under s. 58 of the Administrative Decisions Review Act 1997 (ADR Act) and written submissions filed 8 December 2016. Mr Maynard, solicitor representing the Commissioner, also made oral submissions on his behalf. 2. References in these reasons to page numbers of documents are to pages of the s 58 documents unless stated to the contrary. References to paragraphs of written submissions on behalf of the Commissioner are to paragraphs in the written submissions filed 8 December 2016. 3. The Applicant relied on: 1. Certain of the s 58 documents. 2. The Application and attachments thereto. 3. His affidavit affirmed 25 June 2016 (the June affidavit) and the tabbed but unpaginated bundle of documents which is Exhibit CDW-1 to that affidavit. 4. NSW Vocational Training Tribunal Information Guide for Trade Recognition Applicants in respect of Electrical Industry Trades dated August 2011. 5. His affidavit affirmed 22 August 2016 of 58 pages (the August affidavit) and the copy job sheets marked A to CP annexed thereto. 6. A document headed Additional Work Performed and Observed filed 19 December 2012 which is Exhibit A4. 7. Outline of Applicant's Submissions dated 19 December 2017. 8. His oral evidence during the hearing. 9. Oral submissions made by Ms Goodchild during the hearing. Jurisdiction of the Tribunal 1. The Tribunal is empowered to review the refusal of the Licence Application (s 83B(1) of the Home Building Act 1989 (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. 2. Section 64 (4) of the ADR Act states: In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. 1. The Licence Application was made in July 2014 under the Act. 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. All references in these reasons to legislative provisions are to provisions of the Act unless stated to the contrary. 3. The functions of the Commissioner under the Act when the hearing took place include at s 106(b): to set, assess and maintain standards of competence of persons doing residential building work 1. Section 25 (4) provides that the Tribunal, in reviewing an application for an administrative review cannot review the determining of qualifications or setting of standards by the Commissioner under other provisions of s 25. There is no dispute that the experience standards required for the licence variation are not reviewable by the Tribunal. Consideration Issues for the Tribunal – the Instrument 1. The Commissioner has signed an instrument (the Instrument) in which he determined the possession of qualifications, the passing of examinations and the possession of certain specified experience to be necessary for an applicant for the issue of a relevant licence or certificate. 2. There is no dispute that Mr Watts possesses the qualifications and has passed the examinations required by the Instrument. 3. Both the initial decision and the review decision referred to the Applicant having failed to prove to the Commissioner's satisfaction that he had satisfied relevant experience requirements of the Instrument. 4. The issue in dispute is whether Mr Watts has obtained the experience required by the Instrument in respect of Electrical Wiring Work. 5. The Instrument was made by the Commissioner on 20 December 2013 pursuant to cl 28 (1) of the now repealed Home Building Regulation 2004 (the 2004 regulation). The Instrument remains operative in relation to the matter before the Tribunal because cl 75 of the Home Building Regulation 2014 (the 2014 Regulation) provides: 75 Repeal and savings consequent on that repeal (1) The Home Building Regulation 2004 is repealed. (2) Any act, matter or thing that, immediately before the repeal of the Home Building Regulation 2004, had effect under that Regulation continues to have effect under this Regulation. Experience required pursuant to the Instrument 1. The experience requirements for the Specialist Work Category of Electrical Wiring Work are set out in the first row of Column Two of the Instrument. The requirements are: At least 12 months' relevant Electrical Wiring Work Experience utilising knowledge and understanding of the AS/NZS 3000:2007 in the residential, commercial and/or industrial areas required by the NSW Fair Trading 'Referee's Statement Electrical Work' form current at the date of the application. Relevance of "12 months' relevant Electrical Wiring Work Experience" 1. "Electrical Wiring Work" (Work) is defined in the Instrument to mean "the category of specialist work prescribed by clause 46 (2) (i) of the Regulation". The nature of the Work is not in dispute. 2. The meaning of "12 months' relevant [Work] Experience" is in dispute. The parties informed the Tribunal that they were aware of no relevant authority on this point. The amount of Work carried out by Mr Watts is also in dispute. The Applicant's position 1. Ms Goodchild submitted that the Instrument should be interpreted using a common-sense approach having regard to the vocational nature of the Instrument. She said that the Commissioner had been asked what the Applicant needed to do in order to comply with the Instrument and had not responded. 2. The Tribunal should have regard to the usual occupational issues, especially those involving apprentices. These included annual leave, public holidays and TAFE training on one day in each working week. On the Applicant's calculations this left 188 working days to gain experience during a 12 month period. The experience must include time to travel to and from locations at which Work was carried out. 3. Ms Goodchild also referred to the evidence given by Mr Watts as to the amount of Work he carried out under Mr Gillmeister's supervision. I refer to that evidence separately in these reasons Commissioner's initial position 1. The initial decision includes, at page 102, the statement: Contact has been made with Mr Gillmeister who was the applicant's previous employer. It has been verified, that he supervised you carrying out relevant Electrical wiring work experience which equated to one month full-time experience. 1. Mr Maynard informed the Tribunal, without instructions and subject to obtaining instructions, that on prior occasions when the issue had been before the Tribunal, the Commissioner had accepted that 12 months' relevant experience included such holidays and TAFE training as the Applicant had submitted. Commissioner's subsequent position 1. Mr Maynard orally conceded on 14 July 2016 that there was no evidence to support the reference in the initial decision to "one month experience" at page 102. In the Commissioner's written submissions at [6] and [8] the Commissioner stated that the one month estimate was "not the basis of any part of the decision and in (sic) not argued by the Respondent". 2. In relation to the issue of 12 months' required experience, Mr Maynard obtained express instructions from NSW Fair Trading during the hearing on 19 December. Mr Maynard informed the Tribunal that those instructions were to the effect that "12 months' experience may need more than a year …. because it is a full 12 months of actual experience. …. My instructions are that not even 48 weeks in a year is accepted as a full year"; "five days a week - the normal working week times 52" is required. 3. Mr Maynard said that no authority had been provided to him to support this interpretation of the Instrument and he was aware of no judicial or statutory authority on which the Commissioner could rely. 4. He said "The respondent concedes 155 hours electrical experience gained by the applicant which equates to 22 days." 5. Mr Maynard said that no rationale was provided to him in support of the calculation and he was unable to assist the Tribunal as to how the 155 hour concession was determined. The Applicant's response 1. Ms Goodchild said the definition of what is 12 months' relevant experience posited by the Respondent is contrary to common sense. Fifty-two weeks of continuous work for five days a week for seven hours of each day does not take into account the vocational nature of the definition. There is nothing in either the referee's statement nor the workplace evidence to say the Work must be 35 hours a week seven days a week for 52 weeks. That is intentional. This is meant to be a flexible approach, very much assessing the work that has been undertaken by the apprentice. 2. It is a curious omission that the Commissioner does not accept what the TAFE and worksheets represent and the Commissioner submits that they are not in sufficient detail for the Tribunal to be able to make a decision. Her calculations indicate that the Commissioner requires 1820 hours of experience that is 7×5×52 and no rationale has been provided by the Commissioner in support of that submission. The Commissioner has allowed 155 hours experience without providing any basis for that calculation and it is not supported by any authority. The Tribunal's finding in relation to 12 months' relevant experience 1. I observe that the Tribunal has not been informed of any relevant authority as to the meaning of "12 months" nor as to any difference between "12 months" and "one year". 2. None of the Act, the 2004 Regulation, the 2014 Regulation or the Interpretation Act 1987 provide any assistance on these issues. 3. I find that, as submitted by the Applicant, and not disputed by the Commissioner: 1. the context of the Instrument is occupational. 2. Annual holidays and public holidays are not normal working days. 3. Apprentices are required to attend TAFE on one day in each working week. 1. I note the Applicant's submission that the number of working days available to gain relevant experience in a period of 12 months is 188 days comprising 52 weeks of five days (260 days) minus 20 days' annual holidays minus 52 days' TAFE experience. This calculation does not have regard to public holidays, sick leave, carer's leave or any form of leave other than annual leave. 2. There is no dispute that there are public holidays in New South Wales on at least eight days each year, namely New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, the Queen's Birthday, Christmas Day and Boxing Day. There is no evidence before me nor is there any authority of which I am aware to the effect that an apprentice should be required to work or gain relevant work experience on any such days. 3. The Applicant did not submit that seven hours a day was inappropriate in gaining relevant experience and the Commissioner did not submit that travelling time to and from job sites should not be taken into account in determining relevant experience. 4. Having regard to the above submissions and my findings, I reject the Commissioner's submission that the reference to 12 months' relevant work experience in the Instrument requires the Applicant to have carried out relevant work for seven hours a day on five days a week for 52 weeks. That submission was not supported by statute or judicial authority, has no regard to the context in which the legislation and the Instrument apply, and does not seem to me to be a common-sense approach to the issue. 5. I find that the maximum number of days' relevant experience which could reasonably be attained in the course of a relevant apprenticeship, having regard to the requirements of the Instrument, is the 188 days calculated by Ms Goodchild reduced by 8 days for the specific holidays I referred to above. That leaves 180 days for Work in a 12 months' period. The Applicant submitted, and the Commissioner did not dispute, that there is no requirement that the 12 months' period must be continuous. I have not taken into account whether sick leave, carers' leave or any form of leave other than annual leave should or should not be included in the calculation of maximum relevant experience. Requirements and use of the NSW Fair Trading 'Referee's Statement Electrical Work' form (the Referee's Statement) 1. One of the grounds stated in the initial decision was that certain information was "not on an approved Referee's Statement Form". 2. Page 142 contains the reviewing officer's recommendation and reasons. Those reasons include: The applicant has failed to provide a Referee's statement for Electrical Work form from his employer Michael Gillmeister. He has stated the reason being that he left his employment on bad terms. …. The reviewer understands that the Commissioner's Instrument is quite explicit in requiring electrical wiring experience to be verified on a current Referee's statement Electrical Work form. 1. The decision of the internal review was that the form of evidence from Mr Watts was not acceptable and an approved referee "must verify the applicant's experience on a current NSW Fair Trading 'Referees Statement Electrical Work' form". 2. I observe that during the hearing on 14 July 2016 I asked Mr Maynard whether there was any evidence to support the reviewer's understanding of the "explicit" verification requirement of the Instrument as stated at page 142. No evidence was provided at that time. Instead, the Commissioner's written submissions filed on 8 December 2016 include at [6] and [8] the following question and answer: Question – Does FT concede the Referee Form is not critical? Answer – Yes. 1. I find that both the initial decision and the review decision's requirement that certain information must be on an approved Referee's Statement has no legal justification and those decisions, in that respect are invalid. 2. The relevant requirement, as set out in the Commissioner's own Instrument, relates not to the use of the particular form, but to the provision of relevant experiential information in "areas required by the [form] current at the date of the application" 3. It may well be that officers of Fair Trading regard the use of the Referee's Statement as best practice and that its use assists their work. However, the Commissioner is well aware, having been informed on numerous occasions by this Tribunal and the Administrative Decisions Tribunal, that there is no legal requirement for the Referee's Statement to be used by an applicant in support of an application for an occupational license or authority under the Act. The repeated insistence on such use by the Fair Trading officers and the need for that insistence to be repeatedly addressed by the Tribunal does not assist the "just, quick and cheap resolution of the real issues" in relevant matters before the Tribunal nor does it evidence compliance by the Commissioner with his duty to co-operate with the Tribunal pursuant to the requirements of s 36 of the Civil and Administrative Tribunal Act 2013. Section 58 documents 1. I observe that s 58(1) of the ADR Act provides: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: …. (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. 1. There is no doubt, having regard to the initial decision, the review decision and the Commissioner's own written submissions, that the contents of the Referee's Statement and the wording of the Instrument are critical to both the initial decision and the review decision and accordingly that the Commissioner considers them "to be relevant to the determination of the application by the Tribunal ". 2. For reasons which have not been explained to the Tribunal, neither of those documents were included in the documents filed pursuant to s 58 of the ADR Act. Unsubstantiated submissions 1. At [13] the Commissioner submitted: An expert in the Respondent's Licensing section, Mr David Martin who is a licensed electrician, has discussed with the Applicant the work he did and has reviewed the time sheets for work done. It is submitted the total experience shown does not amount to twelve months, although some electrical wiring work was done. 1. Mr Maynard conceded that there was no evidence before the Tribunal as to: 1. any expertise of Mr Martin, 2. that Mr Martin was a licensed electrician, 3. that there had been any discussion between Mr Mark and Mr Watts; or 4. that Mr Martin had reviewed any time sheets. 1. At [14] the Commissioner submitted: The Respondent has requested Mr Gillmeister to make an estimate of the electrical work done. No reply has been received at this date. 1. The only evidence of any communication with Mr Gillmeister, other than attempts on 18, 19 and 22 January 2016 between Mr Gillmeister and officers of Fair Trading to make contact (pages 99 and 100) is the phone note found at page 96. That phone note does not refer to any request by the Respondent for Mr Gillmeister to make an estimate of electrical work carried out by Mr Watts. 2. I observe that the Commissioner is aware that the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including relevant factual material and any applicable written or unwritten law (s 63 ADR Act). I find that it is not appropriate that any party makes submissions as to facts which the party is aware are not substantiated by any evidence before the Tribunal. Model Litigant Policy for Civil Litigation 1. I have referred in the immediately preceding headings "Requirements and use of the NSW Fair Trading 'Referee's Statement Electrical Work' form (the Referee's Statement)", "Section 58 documents" and "Unsubstantiated submissions" to matters and procedures which appear to be within the knowledge of the Commissioner but appear not to be observed at all times by NSW Fair Trading officers. I observe that the Model Litigant Policy for Civil Litigation of the New South Wales Government includes the following: Introduction 1.1 This Policy has been endorsed by Cabinet to assist in maintaining proper standards in litigation and the provision of legal services in NSW. This Policy is a statement of principles. It is intended to reflect the existing law and is not intended to amend the law or impose additional legal or professional obligations upon legal practitioners or other individuals. 1.2 This Policy applies to civil claims and civil litigation (referred to in this Policy as litigation), involving the State or its agencies including litigation before …. tribunals …. 1.3 Ensuring compliance with this Policy is primarily the responsibility of the Chief Executive Officer of each individual agency in consultation with the agency's principal legal officer …. 1.4 Issues relating to compliance or non-compliance with this Policy are to be referred to the Chief Executive Officer of the agency concerned. The obligation 2. The State and its agencies must act as a model litigant in the conduct of litigation. Nature of the obligation 3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. 3.2 The obligation requires that the State and its agencies, act honestly and fairly in …. litigation by: a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation; …. c) acting consistently in the handling of claims and litigation; d) endeavouring to avoid litigation, wherever possible …. …. g) not relying on technical defences …. …. 1. I make no other observations in relation to the role of the Commissioner / NSW Fair Trading as a model litigant in accordance with the policy endorsed by Cabinet as set out above. Mr Watts evidence 1. I make the following observations and findings in respect of Mr Watts' evidence. 2. As noted above Mr Watts provided two affidavits to the Tribunal, the June affidavit and the August affidavit. He also gave oral evidence. Mr Watts was available for cross examination. However. the Commissioner chose not to cross examine him and not to test any of the facts stated in his affidavits or the oral evidence he gave or any other aspect of the proceedings. 3. Mr Maynard submitted, and Ms Goodchild conceded, that Mr Watts was not an expert and could not give opinion evidence. There is no dispute on this point. However, there is also no dispute that Mr Watts gave and was entitled to give factual evidence as to what he did, saw and heard. 4. I have no reason to doubt Mr Watts' veracity and, subject to any express findings to the contrary, I accept the factual evidence he gave. Mr Watts' relevant work experience and Mr Gillmeister 1. Mr Watts' unchallenged evidence in the June affidavit, concerning his work experience and Mr Gillmeister, includes: 7. In order to become a refrigeration mechanic, at the beginning of 2011 I commenced an apprenticeship in that trade with Michael Gillmeister of Gillmeister Electrical and Refrigeration Pty Ltd (Now called Gillmeister Pty Ltd). At the same time, I commenced a Certificate III course in Air Conditioning and Refrigeration at Ultimo TAFE. 8. Mr Gillmeister is qualified in Refrigeration, Air Conditioning and as an Electrician. His licence number is 114175C. 9. During my second year at TAFE I was advised by TAFE that it was possible for me to also obtain qualifications to become an electrician as well as a refrigeration mechanic. I was told that if I was working for an electrician, which I was, it was possible for me to obtain dual qualifications as both a refrigeration mechanic and an electrician. I was told this could be done by following what I now know to be Pathway 1. 10. In order to comply with the requirements of Pathway 1, in mid-20121 enrolled in the Certificate III course in Electrotechnology Electrician UEE30811 at Ultimo TAFE. I was then studying both for certificates at the same time. 11. I was keen to become qualified in both the refrigeration and electrical fields because I was being exposed to a significant amount of electrical wiring work in the tasks I was doing during my refrigeration apprenticeship with Mr Gillmeister. 12. I completed my TAFE course in Air Conditioning and Refrigeration at the end of 2013. 13. I completed my other TAFE course being Certificate III in Electrotechnology Electrician and was awarded my certificate on 18 December 2014. The certificate is document …. 14. I completed my Refrigeration and Air Conditioning apprenticeship with Mr Gillmeister in early 2014 and then became duly qualified in that field. My licence number is 71993S. 15. After completing my apprenticeship, I continued working for Gillmeister Electrical and Refrigeration Pty Ltd until 28 November 2014. My email of resignation is document …. 16. I was accordingly employed by Gillmeister Electrical and Refrigeration from the beginning of 2011 until 28 November 2014, a period of nearly four years. 17. From the very beginning of my employment with Gillmeister Electrical and Refrigeration Pty Ltd, and throughout my employment, I undertook a significant amount of electrical wiring work under the supervision of Mr Gillmeister. 18. I did not keep a detailed record of every electrical wiring task that I undertook but estimate that at least 30% to 40% of my time over the nearly four years was spent doing such work. 19. Document tab [7a] is a schedule which I prepared as part of my request to the Respondent for an internal review. That schedule sets out many examples of tasks which I undertook during 2011 to 2014 in the electrical wiring field. I would have had more tasks documented but for the fact that I experienced a computer failure on two occasions and lost many records. I say that there were many electrical wiring tasks that I undertook under the supervision of Mr Gillmeister between 2011 and 2014 in addition to those recorded in Document tab [7a]. I have asked Mr Gillmester to produce records for all jobs on which I worked for the whole period of my employment. 20. In order to obtain my Certificate III in Electrotechnology Electrician I was required to provide Workplace Evidence Forms setting out electrical wiring tasks carried out by me under the supervision of Mr Gillmeister. Document tab [5e] contains 22 such forms relating to work performed by me and observed by Mr Gillmester over many periods of time during 2011,2012,2013 and 2014. All such forms have been signed by Mr Gillmeister and each form details the nature of the electrical wiring tasks and the number of times observed. Although the first of such documents refers to the date of completion of the tasks being 1 April 2012 I say that much of those tasks were undertaken during 2011. 21. The 22 forms mentioned in paragraph 20 above show that Mr Gillmeister has certified that he observed me undertaking 439 individual electrical wiring tasks. Each form he has certified says as follows: "OBSERVATION To be completed by the supervisor. Initial each part of the table where you can testify that the applicant has demonstrated the specified skills to a level that is satisfactory for safe industry workplace practice, and within acceptable time spans and quality outcomes. These tasks must be demonstrated in an environment that relates to the electrical contracting industry and the installation of electrical wiring and equipment in buildings." 22. I say that during my employment with Gillmeister Electrical and Refrigeration Pty Ltd I had significantly more than 12 months electrical wiring experience. I regularly experienced electrical wiring work in each of the nearly four years I was employed by that company. 23. My initial application to the Respondent to obtain a licence as an electrician is document tab [5]. That document which is dated 16 October 2015 sets out details and circumstance of my resignation from Gillmeister Electrical and Refrigeration Pty Ltd. Documents tab numbers [5 a to e] were attached to that application. I say that the contents of that application are true and correct. Relationship between Mr Watts and Mr Gillmeister 1. Mr Watts provided a statutory declaration with his Licence Application stating that he was unable to provide the Referees Statement for the reasons set out in an attached letter and he declared that all of the evidence, documentation and statements he provided was true. 2. The attached letter recounts the history of Mr Watts' relationship with Mr Gillmeister. Relevantly Mr Watts states that although he was engaged as an air-conditioning and refrigeration apprentice he was asked to carry out a lot of electrical work as well as refrigeration work. 3. He decided to seek to become a dual tradesman and obtained a certificate in Electrotechnology after having sat a CAPSTONE examination. As part of the TAFE requirements he was required to produce a folder of workplace evidence confirming he had achieved certain tasks and the relevant number of times they were observed by a qualified electrician. The evidence of documents in that folder includes 22 pages of Workplace Evidence which is referred to elsewhere in these reasons. 4. Mr Watts states that after four years of employment with Mr Gillmeister's company: … I had been involved in more than enough electrical work to obtain this and seeing as my employer at the time was a qualified electrician he was able to sign this and I was able to complete the course. I resigned from Gillmeister Pty Ltd in late 2014 as I felt I was being unfairly treated … 1. Mr Watts gives examples of what he states was unfair treatment by Mr Gillmeister. As Mr Gillmeister was not called as a witness and has not had the opportunity to respond I will not detail the alleged unfair treatment. Alleged reversal of decision to vary licence to include electrical wiring 1. The Commissioner's "initial assessment sheet-individual" which commences at page 54 of the s 58 documents includes at item 12 on page 59 under the heading "Outcome" the words "Assessors determination – Grant". It appears that after the partial complete completion of the assessment sheet the assessor carried out further investigations, in particular in relation to Mr Watts' express inability to supply a Referee's Statement and undertook third-party checks to verify that the application could be accepted "without the referee's statement being supplied on the prescribed form" (page 68). 2. The s 58 documents include several email chains. One such chain which is at page 77 shows an internal email within NSW Fair Trading. It includes the following: …. Is it possible to get a record of who signed off the apprenticeship papers to State Training for the Electrical CoP? We are currently in a situation where the applicant is providing potential false and misleading information and this may affect the outcome of his application … 1. A phone note dated 23 December 2015 by a Fair Trading officer which appears at page 95 and which refers to a conversation between two Fair Trading officers refers to logbooks for TAFE signed off by the employer, but a lack of any formal document signing off electrical apprenticeship. The phone note includes "VTT also received paperwork at the time of the process with them that indicated that there had been some significant difficulties between the employer and the applicant" and in relation to "Action required" the phone note states: …. referee to be contacted by phone to validate: …. Whether the referee was approached and unwilling to provide reference or if in fact there were concerns as to applicants competency, Would he complete referee statement now (subject to above being verified). If the referee is unwilling to provide but there is no concerns as to competency - consideration to be given to referring applicant to OTEN potentially and accepting information on TAFE log books. To be determined conversation with referee 1. On page 96 is a phone note of a telephone discussion on 12 January 2016 between a Fair Trading officer, whose name appears as the Assessing Officer on the individual assessment sheet, and Mr Gillmeister. After Mr Gillmeister had confirmed that he did sign documents in relation to electrical modules completed by Mr Watts, the phone note continues: Mr Gillmeister then advised that he was sent a form from Mr Watts to complete. This form was the electrical referee statement form. Michael advise that he did not sign off on the form as he felt that Christian needed a bit more experience in the electrical field. He advised that he would sign off if Christian completed a full apprenticeship in the trade of Electrical. 1. I observe that the phone note contains no reference as to whether the referee had any concerns as to Mr Watts competency. Pages 99 and 100 show that the Fair Trading assessor attempted unsuccessfully to contact Mr Gillmeister by telephone on 18 January 2016. Mr Gillmeister returned his call in the morning of 19 January and there was apparently another attempt by Mr Gillmeister to contact the assessor on 22 January. There is no evidence before the Tribunal that any contact took place between the assessor and Mr Gillmeister other than 12 January. On 1 February that assessor sent an email to Mr Watts (page 102) informing him that his variation application had been assessed and refused. 2. Neither party requested the issue of a summons requiring Mr Gillmeister to give evidence in these proceedings. However, a summons was issued to his company which had employed Mr Watts requiring the company to produce various documents, some of which are referred to in these reasons. 3. I observe that Ms Goodchild submitted that the evidence showed that the Commissioner had initially agreed to grant a licence. Subsequent to a discussion with Mr Gillmeister that decision was reversed. 4. The evidence outlined above indicates that a partly completed initial assessment form included the words "Assessors determination - Grant". The evidence shows that the assessor had not then completed his investigation and that on completion of the investigation, including what appears to be a brief telephone discussion with Mr Gillmeister, who was not subsequently contacted despite his attempts to contact the assessor, the Licence Application was refused. 5. I am not satisfied that there was an initial agreement to grant the Licence Application and I reject Ms Goodchild's submission. False and misleading information 1. Paragraph 5 of the Commissioner's submissions stated that Mr Watts had suggested that his work for another company (his current employer) might be relevant to the Licence Application. I understand this "suggestion" is the basis for the statement at page 77 to the effect that Mr Watts was "providing potential false and misleading information". 2. The submission in that paragraph was withdrawn by Mr Maynard it being apparent that officers of Fair Trading had misread the Licence Application. 3. I find that there is no evidence before the Tribunal that any part of the Licence Application included "potential false and misleading information". Further observations and findings in respect of Mr Watts' evidence 1. I observe that the document referred to in paragraph 9 of Mr Watts' June affidavit as being at tab [7a] comprises 15 pages of dates, location and description of works and duration of working days as well as photographs. The evidence, which Mr Watts affirmed was true, is that the electrical wiring work he carried out, as set out in these pages, under the supervision of Mr Gillmeister, totals 93.3 days. 2. At paragraph 20 in his June affidavit Mr Watts refers to 22 Workplace Evidence Forms. Certified copies of these forms are located at pages 26-29 and 31-49. I have perused the 22 forms and observe that the OBSERVATION stated at paragraph 21 of the June affidavit is accurate. Mr Gillmeister is named as supervisor in each form and Mr Watts' oral evidence is that he witnessed Mr Gillmeister signing and initialling each of the forms in evidence. 3. I have found that the maximum number of days' relevant experience which would reasonably be obtained in the course of a relevant apprenticeship for the purpose of the Instrument in a 12 months' period is 180 days. Mr Watts evidence was that he commenced employment under Mr Gillmeister's supervision "from the beginning of 2011". He resigned on 28 November 2014. In the June affidavit Mr Watts stated at [18] "…. at least 30% to 40% of my time over the nearly 4 years was spent doing [Work]". 4. For the purpose of this calculation I assume that Mr Watts commenced his employment at the start of February 2011 and the employment ended at the end of November 2014. A period of some 3.75 years. I find that the number of days during which Mr Watts worked under Mr Gillmeister's supervision during this period was approximately 689 days being 180 multiplied by 3.83. On Mr Watts' unchallenged evidence he carried out relevant Work for between 207 and 276 days, respectively being 30% and 40% of 689. Provision of information required by the Referee's Statement 1. The Instrument requires that the Work experience utilise knowledge and understanding of relevant standards "in the residential, commercial and/or industrial areas required by the [Referee's Statement] current at the date of the application". 2. The form sets out six categories of supervised low-voltage electrical wiring work experience which must have been achieved by the Applicant. That work is to have been acquired for each category in any one or more of the following work situations - single dwellings, multiple dwellings, commercial and industrial. 3. The work categories are: 1 Installation of cable support and cable mechanical protection methods. Must include metallic conduit, non-metallic conduit, supporting cable clips/ties, cable trays / trunking and underground systems. 2 Design, installation and termination of low voltage power lighting and control circuit wiring. Must include consumer mains, sub-mains and final sub- circuits. 3 Design, installation and termination of low voltage power lighting and control circuit wiring. Must include protective earth systems including MEN wiring systems. 4 Installation of electrical apparatus and equipment Must include switchboards and circuit protection devices, heating, cooling, lighting and power apparatus, electric motors and/or transformers and controls. 5 Fault finding, maintenance and repair of LV wiring systems and electrical equipment. Must include LV power and control circuit wiring and electrical apparatus and equipment. 6 Test and verify compliance of LV electrical wiring systems and electrical equipment. Must include mandatory testing of insulation resistance, earth continuity/resistance, polarity and earth fault - loop impedance as well as load and leakage current tests. 1. Mr Watts' evidence at paragraphs three, six and 12-143 of the August affidavit refers to the above six types of low-voltage Work, his estimate of the number of hours per week of Work he carried out during 2011, the details of each electrical wiring job carried out by him under the supervision of Mr Gillmeister between February 2012 and 28 November 2014 for which he has supporting documentation such as invoices, job sheets and his own records as set out the June affidavit. In relation to each electrical wiring job which is referred to the affidavit provides details of date of job, venue, nature of work carried out, type of work in accordance with the Referee's Statement's six categories and refers to supporting documentation being annexed job sheets or workplace evidence forms and their location in the exhibit to the June affidavit. 2. The affidavits were admitted to evidence without objection. Mr Watts was not cross-examined on his evidence and I accepted his factual evidence. 3. I find that all of the six categories of work required by the Referee's Statement are dealt with in the jobs detailed in the August affidavit. 4. I found above that Mr Gillmeister had certified on 22 separate work evidence forms that Mr Watts had demonstrated specified skills to a level that is satisfactory for safe industry workplace practice and within acceptable time and quality outcomes in the required environment. 5. Accordingly, I find that Mr Watts has attained experience in all areas of work experience required by the Referee's Statement current at the date of his application for a variation of his licence and that his work experience has been certified by Mr Gillmeister, a referee who held a qualified supervisor certificate or contractor licence in electrical wiring work during the period of time of the stated experience and who has certified that he supervised Mr Watts carrying out the electrical wiring work. Issues of danger and safety 1. The Commissioner submitted under the heading "submissions on experience": 9. …. the need for caution is higher in establishing that a person can receive an electrical licence than for other trades where there is less danger of serious injury or death if there is defective work. 10. In this matter the only relevant referee, who can provide independent qualified evidence, is not supporting the Applicant in his application. 11. These two factors are, it is submitted, critical in considering the Applicant's own evidence. 1. I observe that the above submission, in the context of the potentially greater risk of danger of serious injury or death in relation to operating under an electrical wiring licence compared to other trade licences, does not appear to have been addressed by the Applicant. No evidence or authority was provided by the Commissioner in support of the submission. However, it may be, that on a common-sense basis, the submission has merit in relation to a comparison with some trade licences. 2. I observe that the Workplace Evidence form at page 26 of the s 58 documents, bears the subheading "Apply OH&S practices in the workplace". I have already found that the form was signed and initialled by Mr Gillmeister as Mr Watts's supervisor. The form evidences that on multiple occasions Mr Gillmeister observed Mr Watts carrying out occupational tasks including the following: Identify workplace injury risks and minimise those risks Identify workplace health risks and minimise those risks Correctly select and wear appropriate PPE Correctly use ladders and personal anchoring points Check workplace equipment for correct condition and function Participate in workplace safety meetings Select correctly rated testing devices for testing of supply Safely test for supply at 230/400 volt load points Safely isolate and tag load points connected to 230 or 400 volt supplies 1. Mr Gillmeister has certified on page 26 that Mr Watts "has demonstrated the specified skills to a level that is satisfactory for safe industry workplace practice and within acceptable time spans and quality outcomes … In an environment that relates to the electrical contracting industry and the installation of electrical wiring and equipment in buildings". 2. I observe that the Workplace Evidence form at page 33 relates to the requirement to "Document occupational hazards and risks in electrical work". That form describes six separate categories of task each of which has been observed by Mr Gillmeister on multiple occasions. Mr Gillmeister has certified Mr Watts's experience using the same wording as on page 26. 3. Having regard to the material before me I am satisfied that, to the extent that the submission is valid, and I make no findings in that regard, Mr Gillmeister has certified in writing that Mr Watts has demonstrated the specified OH&S and safe industry workplace practice skills to a satisfactory level. 4. Accordingly, I find that, to use the wording of the submission, the issue of caution in establishing by independent qualified evidence, has been satisfied in favour of Mr Watts, by "independent qualified [written] evidence" from Mr Gillmeister, notwithstanding the Commissioner's submissions at [10]. Jones v Dunkel submission 1. After Mr Maynard returned from obtaining specific instructions during the hearing on 19 December 2016 he informed the Tribunal that he had been instructed to put the submission that the absence of Mr Gillmeister entitles the Tribunal, on the authority of Jones v Dunkel, to infer that Mr Gillmeister would have opposed the Applicant receiving the license variation applied for. 2. I observe that in Jones v Dunkel (1959) 101 CLR 298 it was held that in certain circumstances if a party did not call a particular witness, the evidence of that witness would not have assisted that party's case. 3. The facts in this matter are that: 1. Mr Watts has relied on certain documents signed or initialled by Mr Gillmeister or produced by Mr Gillmeister's company which formerly employed Mr Watts. 2. The Commissioner has at times sought to rely on oral statements by Mr Gillmeister and has subsequently resiled from reliance on those statements. 1. I find that it may well have assisted the Tribunal in its deliberations and may well have saved a substantial amount of time if Mr Gillmeister had been called as a witness. However, I also find that no inference adverse to Mr Watts' case arises from any failure to call Mr Gillmeister. Accordingly, I reject the submission Mr Maynard informed me he was instructed to make. Decision and orders 1. On the material before me and having regard to my above findings, the correct and preferable decision of the Tribunal is that Mr Watts attained at least 12 months' relevant Electrical Wiring Work experience prior to the date of his application to the Commissioner. 2. Accordingly, I order that: 1. The decision under review is set aside. 2. In substitution for the decision under review, Mr Watts' qualified supervisor's certificate for the category of Air Conditioning and Refrigeration under the Home Building Act 1989 is varied to include the category of Electrical Wiring Work. ********** 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: 24 April 2017