Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Field v Commissioner for Fair Trading [2017] NSWCATOD 118 Hearing dates: 3 July 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Home Building Act – supervisor's certificate – qualifications – whether qualifications directly relate to the work to be performed Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Home Building Regulation 2014 Category: Principal judgment Parties: Mathew John Field (Applicant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) Representation: Solicitors: M Field (Applicant in person) Fair Trading Legal Services, Department of Finance, Services and Innovation (Respondent) File Number(s): 2017/00127088 REASONS FOR DECISION 1. In February 2017 Mathew John Field applied for a Qualified Supervisor Certificate in the specialist work category of disconnection and reconnection of fixed electrical equipment (Appliances and Motors). His application was refused because the Commissioner for Fair Trading ("Fair Trading") determined that Mr Field did not meet the relevant qualifications to be granted the certificate. That decision was affirmed on internal review on 13 April 2017 and Mr Field now seeks review of that decision by the Tribunal. Legislation 1. The Home Building Act 1989 ("the Act") is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work. 2. Section 24(1)(b) of the Act provides that supervisor certificates may be granted for the purposes of the Act. Section 25(2) states that the regulations may provide for additional qualifications that must be held before a supervisor certificate is issued. 3. Clause 28(1) of the Home Building Regulation 2004 provided: (1) Before a certificate is issued, the Director-General must be satisfied that the applicant: (a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General 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 Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and (c) is capable of doing or supervising work for which the certificate is required. 1. The current standards and other requirements in relation to the qualifications, examinations and experience required for a supervisor certificate are set out in an Instrument which commenced on 17 July 2012 (see: NSW Government Gazette No. 80, 3 August 2012). Although the Instrument was made under the 2004 Regulations, there was no argument before me that it remains effective under the Home Building Regulation 2014 which are the Regulations currently in force. Qualifications 1. The qualifications required for the grant of a supervisor certificate for disconnection and reconnection of fixed electrical equipment are set out in Schedule One and Schedule Two of the Instrument. An applicant must meet the requirements of both Schedules. Fair Trading does not dispute that Mr Field meets the requirements in Schedule Two, but considers he does not meet those in Schedule One. 2. Schedule One of the Instrument provides for several qualifications. Of relevance to this application is the requirement that an applicant possess "A Certificate III level qualification in a trade or higher education qualification that directly relates to the work to be performed" (emphasis added). 3. Fair Trading states the purpose of restricted electrical licensing, such as that for the disconnection and reconnection of fixed electrical equipment, is to allow appropriately trained and competent workers to undertake the straightforward disconnection and reconnection of electrical equipment where that electrical work is incidental to the person's principal function in the workplace. Does Mr Field possess the relevant qualification? 1. Mr Field has completed a Certificate III in Carpentry. The basis of Fair Trading's decision to refuse Mr Field's application was because his Certificate III in Carpentry does not directly relate to the work to be performed by him. 2. When he made the application for the certificate, Mr Field was working for a company in Sydney but has now commenced work for another. He states that the work is essentially the same and that he has done similar work for about 10 years. On the application form he described the work he performs as "service technician for boom gates, roller shutters, auto doors, auto gates" and that his principle function is to "fault find and repair". His then employer stated that the company specialises in the service and repair of automatic doors, gates, roller shutters and boom gates and service technicians often identify failed motors, power supplies, inverters and control boards. 3. Mr Field was asked by Fair Trading to provide further information about the type of work he performs. In response, he stated that his role is to "fault find electrical/mechanical problems" with the roller shutters and other automated gates and doors. 4. Mr Field has provided a copy of his employment agreement with his new employer. His position with his new employer is also as a service technician. The purpose of this position is to carry out "corrective service and preventative maintenance on a range of nominated equipment in a professional and customer oriented manner". The requirements for the position include: * an electrical licence; * product knowledge and diagnostic capabilities; * knowledge of basic electronics and electrical theory, principles of microprocessor controlled equipment and multi-meter instruments; and * mechanical knowledge. 1. In a letter from Mr Field's new employer, the Field Service Manager Special Products states that in the position of service technician "from time to time carpentry work may be involved in altering doorway openings etc.". 2. At the hearing Mr Field provided evidence and photographs of what he stated was carpentry work required of him as a service technician. He stated that his role is not to fix the electrical motor in roller doors and other equipment but to simply replace them. He said that nine times out of ten the issue with a non-working shutter or door is damage to the door itself. He described one incident shown in the photographs where he was required to repair damage to a warehouse wall and brickwork. He also described other work, such as altering doorways, which forms part of his job. He stated this work requires carpentry and general building skills and described himself as a carpenter working on roller doors. 3. I accept that the purpose of the supervisor certificate for disconnection and reconnection of fixed electrical equipment is to allow a person in the course of their work to disconnect and reconnect electrical equipment without the need to hold an electrician's licence. The most obvious example is to allow a plumber to disconnect and reconnect a hot water heater. It is apparent that the intention is to allow a person to do such electrical work where that work is incidental to the work ordinarily performed by the person. 4. The evidence provided by Mr Field did not demonstrate that the primary work he performs is carpentry. I accept that from time to time Mr Field does do some carpentry work in the course of repairing or installing the various doors, gates and shutters on which he works. It is apparent that the carpentry skills he possesses means that he is able to perform this additional work at the same time as he repairs a roller shutter or door, but that work is not his principal role. His principal role is to diagnose electrical and mechanical problems with the shutters, doors and gates and make repairs. His position with his current employer requires electrical and mechanical knowledge. Any carpentry work he performs is incidental to that function. 5. Mr Field has not demonstrated that a Certificate III in Carpentry directly relates to the work to be performed by him as a service technician for boom gates, roller shutters, automatic doors and automatic gates. He therefore does not possess the requisite qualifications for the grant of the certificate and the decision under review must be affirmed. Order 1. 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: 04 August 2017