Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175 Hearing dates: 3 August 2018 Date of orders: 25 October 2018 Decision date: 25 October 2018 Jurisdiction: Occupational Division Before: Scahill Senior Member Decision: The Tribunal dismisses Mr Briggs' application and affirms the Respondent's decision to refuse him a building contractor licence. Catchwords: ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – Where application rejected on basis that Applicant did not meet requirements of an instrument made by the Respondent - Whether the Tribunal is satisfied that the Applicant has the requisite qualifications and experience to be a builder Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 Home Building Amendment Act 2014 (NSW) Home Building Regulation 2004 (NSW) Home Building Regulation 2014 (NSW) Licensing and Registration (Uniform Procedures) Act 2004 Cases Cited: Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 Locking v Department of Finance and Services [2013] NSWADT 239 Thukral v Commissioner of Fair Trading [2006] NSWADT 356 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 Zada v Director General Department of Finance and Services NSW Fair Trading [2014] NSWCATOD 16 Texts Cited: Second Reading Speech Building Services Corporation Bill, October 1989 Category: Principal judgment Parties: Jake Briggs (Applicant) Commissioner for Fair Trading, Department of Finance Services and Innovation (Respondent) Representation: Solicitors: Mr Pagin (Applicant) Ms Kumar (Respondent) File Number(s): 2017/00386659 Publication restriction: Nil REASONS FOR DECISION 1. The matter before the Tribunal was a review of the decision to refuse Mr Briggs' application for a Contractor's Licence in the category of "General Building work". The Respondent refused the application on the basis that Mr Briggs had not demonstrated that he had the minimum of two years relevant industry experience in a wide range of building construction work. 2. The application was lodged with the Respondent on 27 June 2017 and refused on 15 September 2017. The Respondent affirmed the decision to refuse to grant a contractor licence on 24 November 2017 on internal review. Mr Briggs applied for this review in the Tribunal on 21 December 2017. Legislative scheme and Licensing Standards, Home Building Act 1989 1. A contractor licence permits its holder to contract to do, and to do (but only if the licence is also endorsed), residential building work and/or specialist work. See sections 4, 21, 26 and 28 of the Home Building Act 1989 - the Act. 2. Section 19(1) of the Act specifies that the Secretary (the Commissioner for Fair Trading, "the Commissioner") may grant contractor licences for the purposes of the Act. 3. Section 20(1)(a1) of the Act specifies that the Commissioner must refuse an application for a contractor licence if the Commissioner is not satisfied as to the matters of which the Commissioner is required to be satisfied by sections 33B and 33C of the Act. 4. Section 33C(1)(b)(i) provides that a contractor licence must not be issued unless the Commissioner is satisfied that the Applicant satisfies the requirements of section 33D for the issue of a supervisor certificate to the Applicant (if the Applicant is also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate). 5. Section 33D(1) of the Act empowers the Commissioner to make standards in respect of the minimum qualifications and experience required for a person to be issued with an authority under the Act. 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: 1. 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 2. 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 3. is capable of doing or supervising work for which the certificate is required. The Instrument 1. Historically, the Commissioner has set out what is considered the appropriate qualifications and kind and period of experience to enable an Applicant to carry out and supervise the relevant work, in a document headed, Instrument - Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work ('Instrument'). The most recent Instrument is dated 31 March 2017. 2. The Instrument provides that, for a contractor licence to be issued, an Applicant must demonstrate * a minimum of two years' relevant industry experience; * in a wide-range of residential building work, * where a majority of that experience was obtained within ten years of the date on which the application was made. 1. The Instrument defines "experience" as experience gained by an Applicant as: * An employee of; or * A holder of a supervisor certificate and as a nominated supervisor for the contractor licence held by; or * A holder of an endorsed contractor licence contracted to; or * 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 this is verified in the Relevant Application Form; and * Received remuneration in accordance with law for the Work which the Applicant carried out. Status of the Instrument 1. The Respondent submitted that prior to the decision in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 ("Whitehouse"), applications for review of the Commissioner's decision were determined by the Tribunal by reference to the applicable Instrument. 2. The Whitehouse decision found that the Instrument is not binding on the Tribunal. However, the Respondent submitted that the requirements set out in the Instrument were appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision. 3. Further, in the case of Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [33] the Tribunal found that it may have regard to the Instrument as a policy. 4. The Tribunal understands the significance of this is that section 64 of the Administrative Decisions Review Act 1997 requires the Tribunal to give effect to any relevant government policy in force at the time the decision was made - except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. The issues 1. The Respondent refused Mr Briggs a building contractor licence because: * it was not satisfied that he had demonstrated a minimum of two years relevant industry experience; and * his experience was not in a wide range of residential building work; * with the majority of the experience obtained within 10 years of the date on which the application was made. 1. The Respondent considered that much of Mr Briggs' experience had been obtained as an apprentice carpenter and this was not relevant industry experience in a wide range of residential building work. Further, one of Mr Briggs referees had not been a licensed contractor at the time of supervising Mr Briggs. Experience gained within 10 years of application 1. Mr Briggs had lodged his application with the Respondent on 27 June 2017. The majority of the experience needed to have been gained therefore within 10 years of 27 June 2017. Accordingly, the majority of the experience was required to have been obtained after 27 June 2007. Material provided by Mr Briggs 1. As part of his application for a contractor licence, Mr Briggs submitted a number of documents in support of his application, including Referee's Statement - General Building Work (Builder) forms and Applicant's On-Site Building Experience forms from the following persons: 1. Gordon Paul Anderson ('Referee 1') builders licence 245613C dated 3 May 2017; detailing having supervised the Applicant at 5A Cook Street, Mortdale NSW between 4 May 2009 and 5 September 2009 (4 months) in the construction of a new garage. 2. Louis Borg ('Referee 2') builders licence 48818S dated 4 April 2017; detailing having supervised the Applicant at Sydney Wharves, Pyrmont between 3 September 2007 and 12 December 2008 (5 months and 12 days) in the construction of apartments. 1. During assessment of the application, the Respondent on 26 July 2017 issued a Notice under section 14 of the Licensing and Registration (Uniform Procedures) Act 2004 to the Applicant, requesting amongst other things further evidence of his practical experience. 2. In response, on 1 September 2017 Mr Briggs provided: * A further Referee's Statement - General Building Work (Builder) form and Applicant's On-Site Building Experience form completed by Gerard Ryan ('Referee 3') builders licence number 62611S dated 17 August 2017. This stated that Mr Ryan had supervised Mr Briggs at Star Casino, Pyrmont between 11 May 2009 and 1 February 2011 (i.e. 20 months) in the construction of a retail arcade and restaurant. Mr Ryan provided an additional written reference addressed "to whom it may concern"; and * An updated Referee's Statement - General Building Work (Builder) form completed by Referee 2, Mr Borg, dated 4 April 2017 and Applicant's On-Site Building Experience form dated 4 April 2017; detailing having supervised the Applicant at Sydney Wharves between 3 September 2007 and 1 May 2009 (19 months and 1 day) in the construction of apartments. This was a longer period than that specified by Mr Borg in the previous referee statement. 1. For the Internal Review, Mr Briggs provided a letter from his employer Multiplex Pty Ltd dated 5 October 2017 signed by Shannon Butler, HR Advisor. The letter stated that Mr Briggs had been employed at Multiplex between 4 October 2006 and 14 October 2016. The letter particularised that Mr Briggs had predominately undertaken building and construction work in the period between 4 October 2006 and 15 January 2010 and detailed Multiplex sites that Mr Briggs had worked on. 2. Mr Briggs' own letter dated 10 May 2017 detailed that he had worked in the industry for 14 years, and that it was hard to pin down his experience with one licensed supervisor, as Multiplex rotated staff between job sites. 3. Mr Briggs included a letter of reference from Stuart Blanch of Multiplex ('Referee 4') dated 3 February 2018 as an exhibit to his Affidavit affirmed 26 March 2018. Mr Blanch stated that Mr Briggs was under his supervision as a trainee at Regent Place, Sydney CBD during the construction of a 56-storey residential building with lower ground retail stores, between 4 October 2006 and 20 January 2008 (i.e. 15 months and 2 weeks). 4. Mr Briggs also provided a letter of reference from Bill Manning, (Referee 5), Multiplex Pty Ltd, dated 28 June 2018. 5. After the hearing Mr Briggs provided a further submission to the Tribunal received by the Tribunal on 29 August 2018. Mr Briggs continued to press that he had the relevant requisite experience. He wished to use his skills and experience to ensure the provision of culturally appropriate universal accessible housing for First Peoples of Australia with a disability. He provided a letter from Mr Gary Oliver chief executive officer of the National Congress of Australia's First Peoples dated 1 August 2018. The letter supported the crucial advocacy work being undertaken by the First Peoples Disability Network in the planning and implementation phases of the National Disability Insurance Scheme. The Respondent in reply maintained its position that Mr Briggs' referees did not demonstrate that Mr Briggs had been involved in a wide range of building work. Mr Briggs' outline of experience 1. In his written statement before the Tribunal Mr Briggs stated that he commenced working at Multiplex Australasia Pty Ltd on 4 October 2006 as a trainee. This involved among other things: * site supervision; sub-prime contractor management; coordination of works in trade; and * general labour works such as demolition, concreting, steel fixing and materials handling. 1. In October 2007 Mr Briggs completed a certificate II in general construction at TAFE. On 4 October 2007, Mr Briggs changed roles within Multiplex to that of apprentice carpenter. This role involved, among other things: * supervision to trades; * liaising with clients; * programming; * planning, coordination of works on trades; and * general carpentry, such as: flooring; cladding; hanging doors; joinery work; structural beams; lintels; balustrades; decks; handrails. 1. On 17 January 2010 Mr Briggs had an accident. As a result of this accident Mr Briggs experienced quadriplegia. Mr Briggs returned to work for Multiplex after his accident in March 2011. Since 17 January 2010, Mr Briggs has worked in such roles as "Document controller". Mr Briggs said his functions included but were not limited to: * coordinating all activities relating to the document control procedure, including technical documents, drawings and commercial correspondence; * ensuring that control copies of latest approved documents and drawings were given to the appropriate staff, clients, subcontractors and suppliers as applicable; * monitoring processes and compliance to company document verification systems; * checking quality of documents and typing/formatting of project documents; * inputting document data into the standard registers ensuring that the information was accurate and up-to-date; generating the various document control transmittal reports as required. 1. From December 2011 to October 2016, Mr Briggs continued at Multiplex in contracts administration. In 2012 Mr Briggs completed Computer Assisted Drafting A – tools and obtained his certificate. 2. Mr Briggs commenced a certificate IV in building and construction at TAFE New South Wales in 2012 and completed this in 2016. 3. In October 2016 Mr Briggs left Multiplex and commenced his current role with First Peoples Disability Network as project and business development manager. 4. On 20 February 2017 Mr Briggs obtained an owner/builder permit for alterations and additions to a property at Tuggerawong. A Final Occupation certificate was issued on 8 March 2018. References provided by Mr Briggs 1. The application process requires that an Applicant provide referee statements which attest to the length and scope of experience that the Applicant has gained under the supervision of the referee. The Respondent requires that a referee must be a licensed contractor to provide the reference. Letter of reference from Mr Stuart Blanch dated 3 February 2018 1. Mr Blanch provided a letter dated 3 February 2018, addressed "To whom it may concern". The letter set out that Mr Briggs was a trainee under Mr Blanch's supervision at Regent Place Sydney CBD, a 56-storey residential building with lower ground retail stores, between 4 October 2006 to 20 January 2008. As a trainee, Mr Briggs started learning the following skills: * site supervision, * subcontractor management, * coordination of works between trades 1. Mr Briggs also completed extensive general labouring works, including structural components and defect works. 2. Mr Blanch's reference listed Mr Briggs as working on: * multiple types of demolition mainly through concrete; * structural components such as the placement of reinforcement steel in structural beams, walls and columns and assisting formwork carpenters to form up; * general works such as driving the builders construction tower hoists, forklift elevated work platforms, and erecting and dismantling restricted height scaffolding * concreting in various small to medium forms * helping crane crew move material and crane material platforms; * erect and dismantling edge protection; * relieving and acting as first-aider; * labour for bricklayers, façade installers and landscapers; * building temporary hoardings and other structures; * temporary waterproofing works * defects and apartment finishing works including installation and pointing of silicon; plasterboard patching and final/finishing painting works. 1. Mr Blanch gave evidence by telephone. Mr Blanch said he had worked for Multiplex for many years. He does not hold Home Building Act licencing. He came through as an apprentice and then became a supervisor. His original trade had been in carpentry. He had worked previously for Lend Lease and Civil and Civic. He had followed the same course as Mr Briggs and had progressed to the foreman's role. 2. Mr Blanch said it is not necessary to have a licence to work in the large-scale construction work. He has completed both high-rise and low-rise residential work commercial builds and aquatic work. Low-rise includes walk up style three storeys. 3. He confirmed that he had supervised Mr Briggs who was under instructions as to what to do. 4. The defects work consisted of tidying up the building and some of the nitty-gritty. Mr Briggs then needed to present the fixes to the client. He did this hands-on, under the supervision of Mr Blanch. He also confirmed that Mr Briggs worked with other contractors directly to increase his experience in the building industry. This included concrete chopping, gyprock, and kitchen installation. It was similar to work in the regular home building industry. It required the same basic skills - just on a multilevel. 5. Mr Blanch said that the Star City job, was all commercial. Mr Briggs worked on the demolition and the diversion of the public. After demolition he was then involved in structural work. There was a very wide range of work - which is the nature of large constructions. All the trades had to work together. There was multitasking of the different trades. 6. Mr Blanch considered that Mr Briggs' work had been at the level of a tradesman. Mr Briggs was at the late apprenticeship stage. He was starting to coordinate works and direct contractors. He was getting ready to be doing more supervisory roles. Mr Briggs did a lot of communication with contractors because he had the knowledge of sequencing. 7. Mr Blanch thought that 75% of the work was carpentry work - setting up carpentry formwork, framing then hanging doors and door frames. It also involved working in waterproofing and with the gyprockers. 8. Mr Blanch said that when he was supervising Mr Briggs from October 2006 to January 2008 he had others under his supervision. This included a foreman and engineers. There was another apprentice, a leading hand carpenter and general labourers. As well as supervising Multiplex employees, Mr Blanch was also overseeing the contractors. There were 50 or 60 contractors in any given area. The Multiplex employees work directly with the contractors. Mr Briggs had been working with a small group of contractors on the job. 9. At Multiplex they train apprentices and transition them towards supervisory roles. Their apprentices learn the sequencing of works and how to talk to subcontractors. Once an apprentice finishes their apprenticeship, they then move to being an assistant supervisor. They may later be promoted to foreman. The progression from apprentice to assistant supervisor is really up to the individual. Mr Briggs had been more mature when he was an apprentice. Mr Briggs had the respect of the people he worked with. He had good communication skills. Evidence of Mr Gerry Ryan 1. The Tribunal had before it a referee's statement from Gerry Ryan a contractor. The statement was dated 17 August 2017. The statement set out that Mr Ryan had supervised Mr Briggs at Star Casino between 11 May 2009 and 1 February 2011. The job was a retail arcade/restaurant. The statement set out that Jake was responsible for the supervision/coordination and programming of the subcontractors for the procurement of a new retail arcade at the Star Casino. 2. Mr Ryan also provided an undated letter headed " To whom it may concern" The undated statement set out as follows. This is to verify that during my association with Jake Briggs on a work basis, he carried out the following works. * General carpentry. Wall framing, door frames and door hanging, roof sheeting * formwork and concrete placement and finishing. * Site set out. Worked with surveyor doing gridlines set out and levels. * Coordination of subcontractors. * Scaffolding for subcontractor tractor access. * Creating new openings in existing walls by use of universal beams and laminated veneered lumbar beams. * Work closely with demolition contractors, ensuring services isolation procedures were followed, and consideration to existing stakeholders and the general public. * The procurement of bathroom renovations, which included correct waterproofing detailing, tiling, electrical, plumbing joinery fit off. * Implementing defect rectifications on completed apartment blocks. 1. Mr Ryan had worked for Multiplex for 22 years. He had been an apprentice carpenter and joiner and had worked his way up to leading hand, sub-foreman and foreman. He held a building contractor's licence - but it has now expired. He now works with the airport authority. He held a supervisor's licence and has also held other certificates. He obtained experience working on low-rise residential when he was an apprentice at Multiplex and he was loaned out to other builders. The majority of his work however had been on high-rise. 2. Mr Ryan had supervised Mr Briggs on Star City Casino doing a large-scale refurbishment. His referee's form dated 17 August 2017 set out that he had supervised Mr Briggs from May 2009 to February 2011. The form stated that the work was additions/alterations to an existing dwelling. Mr Briggs was responsible for the supervision/coordination and programming of the subcontractors for the procurement of a new retail arcade at the Star Casino. 3. He considered that the work on Star City Casino, while commercial, was quite transferable in nature as it involved framing, joinery putting in lintels and support beams. The work at Star City of framework joinery and support beams had been mainly carpentry with some structural work. 4. Mr Ryan thought that half of the work was carpentry work and half of it was general duties. There were safety aspects - building access ways and temporary accommodation. There were about 20 to 30 different sub trades including bricklaying, tiling and waterproofing. Mr Briggs had worked with him on a daily basis. There would have been a crew of around 30. Mr Ryan said that he would not have supervised Mr Briggs personally for the whole time. There would been different leading hands and foreman. The group consisted of 3 to 4 apprentices and labourers. 5. Mr Ryan said that it had taken him a while to move from an apprentice carpenter. He had not taken on a foreman's role until the last three of the 22 years with Multiplex. It takes a while to get from being a carpenter to a foreman. 6. Mr Ryan said that Mr Briggs would have had a wide range of experience including having been loaned out to builders and residential work. The Multiplex loan out scheme has the apprentices being loaned out to work with bricklayers, plumbers and carpenters. The aim is to move the apprentices to being foremen. Evidence of Mr Louis Borg. 1. Mr Borg provided 2 referee's statement both dated 4 April 2017. The first stated that Mr Borg had worked with Mr Briggs at Sydney Wharves 8 & 9 Pyrmont from 3 September 2007 to 12 December 2008 being 15 months and two days. The second referee statement also dated 4 April 2017 stated that Mr Borg had worked with Mr Briggs from 3 September 2007 to 1 May 2009 a period of 19 months and one day at the same site. 2. Mr Borg's statement dated 19 June 2017 set out that Mr Borg, the holder of a qualified supervisors certificate, had supervised Mr Briggs from 3 September 2007 to 1 May 2009 - a period of 19 months and one day. This was on a building site constructing apartments at Pirrama Road Pyrmont. Mr Borg listed Mr Briggs' roles as: * supervision to finishes in apartments; * programming, planning of trades * liaise with clients * general carpentry: flooring, cladding, hanging doors, joinery, structural beams placed and lintels supporting window, balustrade mezzanine and stair works. * Decks and handrails, waterproofing, demolition, temporary shed builds, glazing for balustrades and defect works. 1. Mr Borg had been a carpenter and had worked on the tools for 10 years. In 2007 he got a job with Multiplex where he has worked until now. He had 10 years prior to working at Multiplex, working in residential work. He had worked on two main jobs for Multiplex. He had then undertaken defects work on another Multiplex project. 2. At the hearing, Mr Borg did not have his written references in front of him. He could not be precise about the dates during which he had worked with Mr Briggs – but he knew it was between 2007 and 2010. He had worked with Mr Briggs on the Sydney Wharves 8 and 9 residential work and the Darling Island/Pyrmont work. He had supervised Mr Briggs on a daily basis. As an apprentice, Mr Briggs was undertaking general construction work. He had also been lent out to other builders to get exposure to a range of trades. He and Mr Briggs had worked on defects for about six months on the Darling Island project. 3. He had provided the second reference and added in the information about the general carpentry work. He had supervised the contractors. The defect work that Mr Briggs undertook would include painting touch-ups. It was more than general labouring work as you needed a tradesman to do this. He agreed that most of the work that Mr Briggs had undertaken with him was carpentry. The defects work involved coordinating trades to undertake the defects. He thought that Mr Briggs would have done 70% of that work himself. Some of the defects would have been minor. Evidence of Mr Gordon Anderson 1. Mr Anderson gave evidence by telephone. He is the director of Abode carpentry and renovations - a company doing kitchens, bathrooms and extensions. There are 11 employees. He could not recall exactly the dates that he had supervised Mr Briggs as he did not have his statement in front of him. Currently the company has a builders licence and Mr Anderson is the supervisor. Mr Briggs had worked with him at 5A Cook Street Mortdale on a new garage and some internal structural works. The garage involved groundwork to completion. Mr Briggs had done the framework, cladding and roofing lining. The electrical work had been done by a contractor. Mr Briggs' role was as a carpentry assistant. This involved him in all of the works as there were only three men on the site at the time. Mr Anderson had been there full-time. Mr Anderson considered that carpentry is one of the widest trades. He was the carpenter on the site and they had another licensed builder working with them. The garage took three of the six months. Mr Anderson had undertaken full-time supervision of Mr Briggs for three months. He did not recall the timeframe of working at Star City Casino. He had been employed as a subcontractor to Multiplex at that time and he worked with Mr Briggs there. He thought he might have been asked to verify his reference by the Department of Fair Trading late last year. He estimated that he had worked with Mr Briggs from May to September 2009. Because it was a long time ago he could not be precise. Mr Briggs' work with him had been predominantly carpentry work. Reference of Mr Bill Manning dated 28 June 2018 1. Mr Manning provided a written reference on Multiplex letterhead dated 28 June 2018. He could not be contacted on the day of hearing. The Tribunal could not ascertain if Mr Manning was licensed. The reference stated: "Jake Briggs started at Multiplex as a mature age carpentry apprentice. He was under my supervision at Wharfs 8 and 9 Pyrmont Sydney, a residential project between 04.11.2007 to 06.05.2009. Following that, Jake and I worked together at The Star Casino Pyrmont, a commercial refurbishment of the gaming floor, new retail area and hotel from 07.09.2009 to 15.01.2010. Prior to joining Multiplex, Jake had already acquired appropriate skills from the construction sector in steel fixing and concreting. While working under my supervision, Jake's practicality, skills and knowledge were equal to most qualified tradesman relating to structure and carpentry due to his previous industry experience and maturity. Jake's skillset of Carpentry and general works included: * General timber and steel track/stud framing. * Installation of doors windows and glazing balustrades. * Build, fixture and placement of timber, steel and formwork stair units. * Cut, place and fixture of various structural timber/steel lintels and beams. * Placement of reinforcement steel in various structural beams, slabs and columns * Co-ordination of subcontractors and site supervision * Site set out * Cladding installation of various materials of timber, aluminium and fibre cement * Concrete placement and finishes. * Erect and dismantle restricted height scaffolding * Defect rectification * Erect and removal of mesh edge protection * General demolition works with jackhammering and concrete cutting * Installation of timber flooring * Plasterboard gyprock lining and finishing * Installation of joinery * Assisting crane crew * Waterproofing * Build temporary hoardings * Painting and silicone work Reference of Ms Shannon Butler HR advisor Multiplex Australia dated 5 October 2017 1. The Tribunal had before it a letter from Ms Shannon Butler HR advisor at Multiplex Australasia. The letter confirmed that Mr Briggs was employed by Multiplex from 4 October 2006 to 14 October 2016. Ms Butler stated that during the period of his employment, Jake had physically undertaken building and construction work predominantly during the period October 4, 2006 to January 15, 2010 on a number of Multiplex jobsites. Ms Butler stated that the company considered that Mr Briggs had a wide range of experience in construction. 2. Ms Butler listed the sites as including Regent Place – City of Sydney; Darling Island – Sydney Harbour foreshore authority, Sydney Wharf and The Star, including the hotel and MUEF. The letter sets out that to gain experience and increase expertise across all areas of building and construction, Multiplex rotate their building and construction workforce around various sites. As part of his job, Jake was required to work with various builders, supervisors and engineers learning and undertaking skills to increase his knowledge and technical expertise, which is as noted by the referee letters. Multiplex do not place a construction worker with a single supervisor, however performance, knowledge and skill set are monitored to provide …. 3. The Tribunal notes that this sentence was incomplete. The Respondent's submissions 1. The issue was whether or not Mr Briggs had sufficient experience. There were three relevant tests: * whether Mr Briggs had two years full-time experience; * whether the experience is relevant; and * whether it was in a wide range of residential work. 1. All applications for the same category of licence or certificate are assessed against the relevant Instrument. Prior to the decision in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108 ("Whitehouse"), applications for review of the Commissioner's decision were determined by the Tribunal by reference to the applicable Instrument. 2. The Respondent acknowledged that the Instrument is not binding on the Tribunal, in line with the Whitehouse decision. However, the Respondent submitted that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision. At the very least, the Instrument provides a useful guide for the Tribunal. 3. Further, the Tribunal may have regard to the Instrument as a policy, as was done in the case of Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [33]. In addition to qualification requirements, the Instrument provides that, for a contractor licence to be issued, an Applicant must demonstrate a minimum of two years' relevant industry experience in a wide-range of residential building work, where a majority of that experience was obtained within ten years of the date on which the application was made. The Tribunal in Limberis had found no reason to depart from this aspect of the Instrument. 4. The Applicant appeared to be relying upon experience he obtained whilst being employed as an apprentice carpenter in support of his application for a builder's licence. The very nature of an apprenticeship dictates that the Applicant was being supervised in the trade of carpentry, and accordingly would not likely to have been in a position to supervise others carrying out a wide range of construction work. Referees' licences 1. Only Mr Borg and Mr Ryan were licensed at the time of supervising Mr Briggs. Mr Anderson was not licensed at the time he supervised Mr Briggs, and nor was Mr Blanch. It was not clear whether Mr Manning had been licensed or not. 2. Mr Blanch's evidence was that in the period October 2006 to January 2008 he had been supervising up to 80 people. It was questionable therefore how much direct supervision he provided to Mr Briggs. He had also conceded that 70% of the work Mr Briggs undertook was carpentry work. 3. Mr Borg said he had worked with Mr Briggs from September 2007 to May 2009. There was some overlap between this period of time and the period during which Mr Blanch said he had supervised Mr Briggs. Both had said that they had supervised Mr Briggs directly - so that at least one of them must be overstating the extent of their supervision of Mr Briggs. Mr Borg had also been supervising other people as well as Mr Briggs. The reference from Mr Manning also overlapped this period of time. It was not possible for two people to have closely supervised Mr Briggs at the same time. 4. At the time Mr Borg supervised Mr Briggs on the construction of apartments at Sydney Wharves, Mr Briggs was still an employee carpentry apprentice and therefore restricted to carpentry duties. Accordingly, this building site would not afford Mr Briggs relevant wide-ranging residential building experience. Mr Borg had conceded that a lot of the work undertaken by Mr Briggs when he supervised him was as a general labouring carpenter. It had taken Mr Borg 10 years to make the leap into a supervisor role and this was indicative for Mr Briggs. If one accepted Mr Borg's updated reference which added a period until May 2009, it was still the case that the only change was to include more general carpentry work as set out on the second reference. 5. Mr Gerry Ryan held a licence. However, he was unclear when tested about the period of time during which had supervised Mr Briggs. It was most likely that the period had been from May 2009 to January 2010. He stated that the work had been half carpentry and half general duties, although the skills were transferable. He referred to the Multiplex loan out scheme where he had supervised 3 to 4 other workers at the same time as Mr Briggs. He had said that Mr Briggs had been exposed to other trades - but Mr Ryan did not adequately supervise Mr Briggs in those trades. 6. Mr Anderson had given evidence of having supervised Mr Briggs in constructing a garage. He admitted that he had guessed the dates that the Applicant was on site. His poor recollection regarding the Applicant's work experience dates during a period where he would have purportedly been under his close supervision indicates that this reference may not be reliable. The Respondent submitted that the construction of a garage shed is not considered to be a 'wide range' of relevant construction work, being a non-habitable structure. 7. Mr Anderson was himself a carpenter. He could only speak to Mr Briggs' work in carpentry roles. There was also an overlap with the reference given by Mr Ryan relating to May 2009. 8. The central reason for refusing the Applicant's application for a licence was that the Applicant had not satisfactorily demonstrated that he had obtained the practical experience requirement. 9. Taken as a whole, the Applicant's referees had indicated that he has had experience in building and construction work during the period between October 2006 and February 2011. However, the Applicant had indicated that his accident took place on 17 January 2010 and he did not return to work until March 2011. It appears his experience during that period at the very least had been overstated. 10. Referee 3, Gerard Ryan, provided a reference indicating supervision of the Applicant during the construction of a retail arcade at Star casino. This construction was commercial in nature and would be quite different from residential building work. Moreover, Referee 3 had indicated that he supervised the Applicant between May 2009 and February 2011, however as previously noted the Applicant suffered an accident in January 2010 and did not resume work until March 2011. It is also worth noting that part of the reference period coincides with the period that the Applicant was purportedly under the supervision of Referee 1, Gordon Anderson, (May 2009 to September 2009). Accordingly, the Respondent submitted that Referee 3 had overstated the Applicant's experience, it is not considered relevant experience as it is commercial in nature, and the reference may not be reliable due to the inconsistencies in dates. 11. Referee 4, Mr Stuart Blanch, provided a reference indicating supervision of the Applicant during his traineeship at Multiplex during the construction of a 56-storey residential building with lower ground retail stores. It is not known whether Referee 4 is a licensed builder, as no licence details appear on his letter of reference, and a licence search of his name produces no results. If Referee 4 is not licensed, under the instrument, he is not acceptable as a referee. It is submitted that in order to verify that the Applicant has adequate experience, the Referee should be licensed under the regime too. 12. Further, the reference letter indicated that the Applicant 'started learning' skills in site supervision, sub-contractor management and co-ordination of works between trades. The period of this reference is in relation to work performed between 4 October 2006 and 20 January 2008. Most of that period is more than 10 years from the date of the Applicant's application for a licence (27 June 2017). The Instrument specifies that the majority of relevant experience should be within 10 years of the date of application. 13. The reference details work more of the nature as a general labourer, of a junior capacity that would befit a trainee that has recently commenced employment with a large commercial builder. Accordingly, the reference does not sufficiently demonstrate the level of experience required for a builder's licence. 14. Whilst the Applicant's previous employer Multiplex advised that the Applicant had been employed with them for a period of ten years, and they considered he had 'relevant industry experience' it should be noted that the letter had been provided by a HR advisor, not a licensed builder who supervised or worked on any site with the Applicant. 15. In summary, during his employment at Multiplex, the Respondent considered that the work carried out by the Applicant was that of a trainee on a construction site, which led into an apprenticeship as a carpenter. At the completion of his apprenticeship, the Applicant then moved into an office-based position. In this role the Applicant carried out document control duties. The Respondent submitted that none of these roles would be considered the duties, the role and responsibilities of a residential builder. 16. The respondent submitted that it is unfortunate that the Applicant, despite his many years of service at Multiplex, cannot produce adequate references in support of his application for a builder licence. The Applicant had submitted in his material that this is due to Multiplex moving employees around, making it difficult to 'pin down the experience with one licensed supervisor'. The Applicant's former employer's HR Advisor itself stated "Multiplex rotate their building and construction workforce around various sites" and they "do not place a construction worker with a single supervisor". 17. In Zada v Director General Department of Finance and Services NSW Fair Trading [2014] NSWCATOD 16, Senior Member Frost noted on the issue of supervision in an employee relationship (at paragraph 36): "Supervision and direction are often very relevant to the enquiry. Those concepts are also relevant to the "experience" question, as is evident from their use in paragraph (c) of the definition in the Instrument. That is why it may be more instructive to start the enquiry by considering the level of supervision and direction provided by the licence holder rather than to focus on either the label used or the tax arrangements in place. The greater the level of supervision and direction, the more likely it is that an employment relationship exists. And if the worker is not closely supervised and directed, then he or she is not likely to reach the requisite level of "experience" in any event, no matter what label has been applied to the relationship. The proper task is to examine "the totality of the relationship between the parties"." 1. Regrettably, the nature of Applicant's work arrangement whilst employed at Multiplex may have not afforded him the opportunity to have the level of supervision by a suitably qualified referee that would be acceptable for a building licence application. However, it would not be in the public interest to set a precedent where Applicants may satisfy experience requirements without demonstrating verifiable references produced by licensed persons who have closely and consistently supervised the Applicant's work. 2. The Respondent submitted that taken as a whole, none of the five referees had been reliable in setting out the timeframes of their supervision. There had been overlaps in the timeframes. There had been numerous sites on which Mr Briggs was working and it was also some time ago. The Tribunal needed more reliable and credible information which had not been provided. Mr Briggs had a wealth of experience, but it was not wide ranging – it was mainly carpentry work. He had commenced his carpentry apprenticeship on 4 October 2006 and completed it on 9 August 2011. Since he had resumed work after his accident in 2010, his role had been as a document controller and also undertaking contract negotiations in a large commercial firm. This was quite different to that of a residential builder. 3. In the matter of Locking v Department of Finance and Services [2013] NSWADT 239 the Tribunal had said that it was necessary for an Applicant to show that they were capable of supervising all trades. This needed to be independently verified. There was a lack of sufficient detail provided by the Applicant beyond what was required of a carpenter. 4. Most of Mr Briggs' experience could not be considered to be a wide range of building works. He was a trainee who moved into the role of an apprentice. 5. Mr Blanch said that 70% of Mr Briggs' work had been in carpentry. Mr Ryan had said 50% of the work had been in carpentry. On this basis, Mr Briggs' supervised work had been predominantly in carpentry. Mr Briggs may well have the relevant experience for a carpentry contractors licence, but it was insufficient for a building licence. The Applicant's submissions 1. The Applicant submitted that although some of his experience had been gained in the commercial world it was still relevant to acquiring skills. The "Instrument" was a guideline from which the Tribunal could depart. 2. Not all of Mr Briggs experience had been in the last 10 years but the majority certainly had been. It was not required that the experience be subject of a development application - but it had been. 3. The Tribunal should accept that the work undertaken between October 2006 and January 2008 under Mr Blanch at the Lumiere residential project was the same or similar to work required in residential building work. The Star City project had involved a wide range of structural work. It had given Mr Briggs experience working vertically in very large projects. He had worked in a supervisory capacity over contractors. He had carried out carpentry work - for instance in constructing stud walls. 75% of the work was carpentry. A lot of the work was overlapping. Carpentry involves other trades as well. 4. Although Mr Blanch does not hold a building licence, it was not necessary for him to do so. This did not diminish his capacity to have supervised Mr Briggs. Mr Briggs had worked with a very small group of 10. The Tribunal should note that the way in which Multiplex operates ensures that apprentices gain a very broad range of experience. They are given the opportunity to see the entire sequencing of a building from start to finish. The length of time it takes to progress from apprentice to supervisor stage depends on the individual. It was clear that Mr Briggs was more mature than others. He should be credited with approximately 14 months under Mr Blanch's supervision. 5. Mr Ryan had supervised Mr Briggs for 6 to 7 months from May 2009 to 17 January 2010. His contracting licence had now expired. Mr Briggs undertook some residential work under his supervision. During this time, Mr Briggs had been loaned out to another builder. The majority of his experience had been on the Star City project. Even though this was commercial, much of the work was still relevant to residential building - such as lintels, joinery, building access and temporary accommodation. Mr Ryan had said that the job presented a wide range of experience for Mr Briggs. He had worked directly with Mr Briggs. There had been a number of others under his supervision as well as Mr Briggs at the time. 6. Mr Gordon Anderson had supervised Mr Briggs on a residential site for 5 to 6 months. Mr Anderson was a director of Abode which had 11 employees and undertook kitchen and bathroom works. He was the supervisor under the company's licence. There had been a new garage and a renovation. Mr Briggs had been directly involved in all of the works. This included kitchen, laundry renovation, joinery, rigging work and fit out. All of this work can be done by a carpenter and it was. Mr Anderson conceded that he couldn't recall if he had a licence at the time. However, he said there was a licensed builder on the site who had undertaken some supervision of Mr Briggs. A great deal of weight should be placed on this 5 to 7 months of experience. 7. Mr Borg had worked with Mr Briggs on two projects - Wharves eight and nine, 105 apartments and the Darling Island project. Mr Borg had been a carpenter by trade with 20 years' experience. The Darling Island work was on defects which meant that Mr Briggs had to undertake repairs himself as well as getting contractors to rectify defects. The skills from this role were directly transferable to residential work. Mr Borg was supervising two or three apprentices and there were 200 - 300 people on site. He was confident about the dates being September 2007 to May 2009. He had said that the work was more than general labouring work; it was tradesman's work and it was predominantly carpentry. Cumulatively, Mr Briggs had undertaken 30 months of work under Mr Borg's supervision. 8. Mr Manning's written reference stated that he had worked with Mr Briggs from November 2007 to May 2009. He had said that there had been a wide range of works and general building experience and it was not just carpentry work. 9. The Applicant submitted that where there was an overlap between the work undertaken with Mr Borg and with Mr Manning, it had all been for Multiplex as the employer. There was 39 months of supervised work in a wide range of building skills. 10. The Tribunal should not discount or exclude the work that Mr Briggs had undertaken prior to commencing his apprenticeship with Multiplex when he had worked in steel fixing and formwork. This should also be counted as part of his relevant experience. 11. Mr Briggs' experience since his accident in document controlling and contract negotiations was all relevant experience. It was all part of the wide definition of experience and fits within the Building Code of Australia list. Mr Briggs had obtained a great deal of experience since his accident in 2010. He had also obtained further qualifications and certificates. The Tribunal's Findings of fact 1. The Tribunal understands that Mr Briggs commenced working at Lake Macquarie concretors from January 2004 to March 2004, pouring concrete slabs for residential dwellings. From May 2004 to January 2006, Mr Briggs then worked for Central Coast Reo and Aqua seal waterproofing. Mr Briggs worked as a steel fixer for Central Coast Reo. This involved placing and fixing reinforcement steel for structural weight-bearing beams, structural weight-bearing columns, blade walls, stairs, ramps, slabs and pools going into residential houses, apartment blocks and other large commercial buildings. 2. Mr Briggs worked as a waterproofer for Aqua seal waterproofing. This involved fixing and cleaning substrates in wet areas and balconies in preparation of application of waterproofing membranes going into residential houses, apartment blocks and other large commercial buildings. From May to September 2006 Mr Briggs took part in a plumbing course and obtained his certificate III in roof plumbing. He then commenced working at Multiplex on 4 October 2006 as a trainee. 3. The Tribunal understands that Mr Briggs was an apprentice in carpentry with Brookfield Multiplex constructions Pty Ltd from 4 October 2006 to 9 August 2011. After completion of his apprenticeship, Mr Briggs moved into office-based roles within the company as a contracts administrator assistant and as a construction planner until his employment with Multiplex ceased in 2016. Qualifications 1. The Tribunal is satisfied that Mr Briggs has the relevant qualifications. He obtained a Certificate IV in Building and Construction in 2016. The issues for the Tribunal to determine 1. The Tribunal considered the evidence in the light of the following three issues. * whether Mr Briggs had two years full-time experience; * whether the experience was relevant; and * whether it was in a wide range of residential work. The Intention of the Act – Consumer Protection 1. The Second Reading Speech to the HBA set out that the main objectives of the HBA are "to promote and protect the interests of owners and purchasers of dwellings and to set standards for competence within the industry". 2. The Tribunal observed in Thukral v Commissioner of Fair Trading [2006] NSWADT 356, that the Act has many functions, and focuses on consumer protection "The [Act] is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaged in residential building work, and makes provision as to their competence, fitness and solvency, and their discipline. By issuing contractor licenses and certificates, the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence " 1. The Tribunal approaches its findings keeping in mind that granting of a licence is a representation that Mr Briggs has the competence to undertake the work of a building contractor. 2. The Tribunal notes the findings in the matter of Whitehouse. The Tribunal is satisfied that the requirements set out in the Instrument are appropriate and sound and ought to be followed by the Tribunal in determining the correct and preferable decision. Analysis of Mr Blanch's evidence 1. Mr Blanch stated that he had supervised Mr Briggs for a period of 15 months in three days from 4 October 2006 to 20 January 2008. Mr Blanch described Mr Briggs as a trainee who performed at the level of a tradesman. He stressed Mr Briggs' maturity. In relation to the level of supervision that Mr Blanch undertook he said that Mr Briggs was under instructions as to what to do. At the same time, the Tribunal notes that Mr Blanch estimated that he was supervising at least 60 people on the job. Mr Blanch stated that the defects work that Mr Briggs undertook was hands-on under his supervision. The Instrument does not describe the level of supervision necessary. However, the Tribunal draws an inference from the objects of the Act that the aim of the supervision is to ensure that Mr Briggs was instructed in what to do; that he was observed to do it and corrected if necessary. Mr Blanch states that Mr Briggs also worked for other contractors. It is unclear who they were or whether they were asked to provide references. Mr Blanch conceded that the Star City job was all commercial. The Tribunal understands that Mr Briggs was still an apprentice while he was being supervised by Mr Blanch. Further Mr Blanch estimated that 75% of the work was carpentry work. The Tribunal is not satisfied that this constitutes a wide range of building construction work despite the fact that a witness described carpentry as one of the broadest of the trades. The evidence of Mr Gerry Ryan 1. The Tribunal is satisfied that Mr Ryan held a building contractor's licence which has now expired. The Tribunal considers that Mr Ryan is likely to understand the role of the builder and is able to assess Mr Briggs' level of competence. Mr Ryan stated that he personally supervised Mr Briggs on the Star City Casino refurbishment project between May 2009 to February 2011. The Tribunal does not take into account this period of supervision in a commercial/retail project as the purpose of Mr Briggs' licensing is specifically for residential work. Mr Ryan stated that at least half the work was carpentry. The Tribunal notes that even if this work were taken into account, Mr Ryan cannot attest to supervising Mr Briggs in a wide range of building construction work. The evidence of Mr Louis Borg 1. Mr Borg stated that he had supervised Mr Briggs in residential work on Wharves 8 & 9 from 3 September 2007 to 1 May 2009. Some of this overlaps with the period of time that Mr Briggs was supervised by Mr Blanch – an overlapping period of 4 to 5 months from 3 September 2007 to 20 January 2008. The period of 20 January 2008 to 1 May 2009 during which Mr Borg states that he supervised Mr Briggs is a period of approximately 15.5 months. The Tribunal is satisfied that Mr Borg has held a qualified supervisor licence and is able assess Mr Briggs' work. The period of 15.5 months included six months on defects work at Darling Island. Again, Mr Borg stated that most of the work was carpentry work. the Tribunal cannot be satisfied that it was a wide range of building construction work. Evidence of Mr Gordon Anderson 1. Mr Anderson was uncertain about the dates of his supervision but stated that he had undertaken full-time supervision of Mr Briggs on a home garage and home renovation project for three months. The Respondent queried the breadth of this work given that it involved a home garage. The Tribunal is satisfied that this falls within the definition of residential building work. Again, however Mr Anderson considered that the work was predominantly carpentry work Evidence of Mr Bill Manning 1. The Tribunal was provided with a letter from Mr Manning but did not hear from him. Mr Manning stated that he supervised Mr Briggs from 4 November 2007 to 6 May 2009. At the same time, however, Mr Borg claimed to have been supervising Mr Briggs from the period 3 September 2007 to 1 May 2007. It appears that there are only four days during which Mr Borg's supervision did not cross over with Mr Manning's supervision. Mr Manning stated that Mr Briggs was undertaking the Star City Casino job between 7 September 2009 and 15 January 2010 - a period of approximately four months. As this work is predominantly commercial in nature, the Tribunal does not take it into consideration. The Tribunal further notes that Mr Manning's reference refers to carpentry work primarily. Reference of Ms Butler 1. The purpose of the references is to attest to Mr Briggs' technical abilities. The Tribunal does not take into account Ms Butler's reference for the purpose of assessing Mr Briggs' competence. Tribunal's findings on Mr Briggs' experience 1. The Tribunal must reach the correct and preferable decision concerning Mr Briggs' competency to be licensed as a building contractor. The Tribunal must be satisfied that Mr Briggs would be safe and competent to be licensed as a building contractor. 2. It is clear that it is not possible for an applicant to verify their own competence themselves. This underlines the importance of the role of a supervisor who is a competent practitioner. The Tribunal does not consider that it is necessary for a referee to be the holder of a licence currently to provide this evidence. There is also a case for considering that building practitioners who have followed an alternative path to builders licensing through the HBA should also be considered as appropriate to assess the competency of an applicant. It is clear for instance that Multiplex has its own method of ensuring that its employees are competent and that they proceed to promotion into supervisory roles. To reach the correct and preferable decision, it is necessary for the Tribunal to look at all the circumstances of the matter. 2 years' experience 1. The Tribunal was presented with evidence of imprecise dates and overlapping periods of supervision of Mr Briggs between Mr Blanch, Mr Borg and Mr Manning. The Tribunal is unable to reconcile these overlapping periods to be satisfied that there was two years of supervised experience. Relevant work 1. Some of Mr Briggs work was in residential building both in multistorey residential work and in a home garage and renovations. Some part of Mr Briggs experience with Multiplex was in commercial work. Some of the work was in defects work. The Tribunal cannot be satisfied about the period of relevant work that Mr Briggs has undertaken. Wide range of residential work. 1. The referees estimated that the greater part of Mr Briggs work was in the area of carpentry. The Tribunal is not satisfied that the experience was in a wide range of building construction work Decision. 1. There are issues for the Tribunal about the accuracy of the referees' dates of supervision of Mr Briggs; overlapping supervisory periods and the proximity and intensity of the supervision of Mr Briggs. Unfortunately Mr Briggs was denied the opportunity by his accident of progressing through Multiplex's promotional system to become a supervisor. 2. The referees assessed Mr Briggs' work as primarily of a carpentry nature. In short, the referees considered that the work undertaken under their supervision of Mr Briggs was 50% to 70% in carpentry. 3. In this respect, the Tribunal cannot be satisfied by the referees' reports that Mr Briggs had been supervised in a wide range of building construction work. 4. In keeping with the Tribunal's decision in the matter of Locking v Department of Finance, the Tribunal does not consider that this constitutes experience in a wide range of building and construction work. 5. In these circumstances the Tribunal does not consider that Mr Briggs has the requisite experience demonstrated to obtain his builders licence on the basis of the information before the Tribunal at present. Orders 1. The Tribunal dismisses Mr Briggs' application and affirms the Respondent's decision to refuse him a building contractor licence. ********** 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 October 2018