Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Al-Shinawa v NSW Fair Trading, Department of Customer Service [2020] NSWCATOD 1 Hearing dates: 5 September, 31 October 2019 Date of orders: 06 January 2020 Decision date: 06 January 2020 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The Tribunal affirms the decision by NSW Fair Trading to refuse Mr Al-Shinawa a contractor licence in the category of general building work. Catchwords: ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – general building work - where applicant does not meet requirements of an instrument - where the instrument is policy rather than delegated legislation – whether the applicant has experience in a wide range of building construction work - applicant cannot verify their own experience. Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 Cases Cited: Briggs v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 175 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Locking v Department of Finance and Services [2013] NSWADT 239 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Trist v Commissioner for Fair Trading, NSW Office for Fair Trading [2006] NSWADT 303 Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108, Texts Cited: Instrument – Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building work (31 March 2017) Category: Principal judgment Parties: Haidar Al-Shinawa (Applicant) NSW Fair Trading, Department of Customer Service (Respondent) Representation: Solicitors: H Al-Shinawa (Applicant in person) NSW Fair Trading, Department of Customer Service (Respondent) File Number(s): 2019/190080 REAsons for Decision 1. Mr Al-Shinawa has applied for a review of the decision to refuse his individual contractor licence in the area of general building work. NSW Fair Trading, who is the respondent in this matter, refused that application – and confirmed the decision on internal review - because Mr Al-Shinawa had not demonstrated that he had attained a minimum of two years acceptable relevant industry experience in a wide range of building construction work. What is the relevant law governing this application? 1. The Home Building Act 1989 regulates the residential building industry in NSW. This includes establishing a licensing scheme for builders. In order to be granted a licence an applicant must satisfy certain requirements, including whether he or she has the relevant qualifications and experience to be granted a contractor licence. 2. The definition of "experience" is set out in Instrument – Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building work dated 31 March 2017. 3. According to this Instrument, and relevantly to this application, "experience" means experience gained by the applicant as an employee of the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained, where; 1. the applicant was supervised and directed by the holder of the licence; 2. the experience is verified in the relevant application form; and 3. the applicant received remuneration for the work. 1. Schedule 1 to the Instrument defines the relevant experience for a building contractor licence to be 'at least two years' relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date on which the application was made. 2. What is meant by a wide range of building construction work was considered in Locking v Department of Finance and Services [2013] NSWADT 239. In her decision, Deputy President Hennessy observed that: ... experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. ...Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing... A building contractor is also able to contract with the public.., and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate. 1. The relevant application form referred to in the Instrument states that: Referees' statements from licensed supervisors covering the minimum required period of practical experience must accompany this application for some licence categories. To check if the category you are applying for requires a Referees' Statement go to: www.fairtrading.nsw.gov.au/Tradespeople/Home_building_licensing/Licence_classes_and_qualifications.html and click on the relevant category to check the qualification and experience requirements. 1. The link to the category of 'general building work' specifies the practical experience requirements and states 'when getting your experience, you must be supervised and directed in your work by someone who holds an endorsed contractor licence or qualified supervisor certificate in the residential building work in which you gained your experience. They must confirm your experience on the referee's statement form.' 2. For the reasons set out in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108, I find that the instrument is not binding on the Tribunal. This is because rather than being delegated legislation made under an Act, it is instead policy. 3. I agree with the reasoning by the Administrative Appeals Tribunal in Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 that lawful ministerial policy should be applied unless there are cogent reasons to the contrary. In considering what these might be, I accept that if it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown. Role of the Tribunal on review 1. The role of this Tribunal is to review the previous decision and to make the correct and preferable decision. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10. 2. The Tribunal may take into account new information not previously before the decision maker. See Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 3. In accordance with s63 of the Administrative Decisions Review Act 1997, the Tribunal may affirm, vary or set aside the original decision. 4. In this case, it is not in dispute that the applicant holds a Certificate III in Carpentry and a Certificate IV in Building and Construction (Building) and so meets the qualification requirements set out in the Instrument – Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building work dated 31 March 2017. 5. What is in issue is whether Mr Al-Shinawa has attained a minimum of two years acceptable relevant industry experience in a wide range of building construction work. Has Mr Al-Shinawa attained a minimum of two years acceptable relevant industry experience in a wide range of building construction work? 1. In his application for a contractor licence in general building work, Mr Al-Shinawa stated that his relevant period of building experience spanned from 7 October 2015 to 30 May 2018. From October 2015 to July 2016, he gained his experience working on a site in Wentworth Point and from February 2017 to May 2018, he worked on a building site in Banksmeadow. Parkview Constructions Pty Ltd were in charge of both building sites. Mr Al-Shinawa also stated that he had worked for Parkview Constructions Pty Ltd from July 2016 to February 2017 on three building sites in Campsie. 2. Together with his application, Mr Al-Shinawa submitted a statutory declaration that whilst the experience he had gained at the construction company, Parkview Construction Pty Ltd, had exceeded the minimum two years full-time building experience stipulated in the Home Building Act, the director of the company, Mr Touma, had refused to sign off his referee statement telling Mr Al-Shinawa that he would only sign the referee statement if Mr Al-Shinawa stayed working for him for three years. According to Mr Al-Shinawa, this was because Mr Touma 'wants to hold him back and doesn't want others to become successful.' 3. In support of his contention that he had attained the relevant experience, Mr Al-Shinawa included photographs, emails and other documents from the company as part of his application. None of these documents provided evidence to satisfy me that Mr Al-Shinawa had gained experience in a wide range of building construction work as described in Locking v Department of Finance and Services [2013] NSWADT 239 4. In lieu of completed referee forms, Mr Al-Shinawa included Superannuation and Group Certificate documents as evidence of his employment with Parkview Constructions Pty Ltd. 5. Together with his application form, Mr Al-Shinawa submitted unsigned referee statements from Dennis Vanraalte and Jim McStravick, with Parkview Constructions Pty Ltd listed as the relevant employer. 6. Following the lodgement of his application form, officers from NSW Fair Trading completed checks of the relevant building sites, and made the following findings: 1. Between February 2017 and May 2018, only excavation and groundwork had been carried out on site at the Banksmeadow site. Accordingly, Mr Al-Shinawa had not demonstrated experience across all stages of construction work at this site; 2. The Wentworth Point property was only at the early stage of construction when the applicant finished work on the site in July 2019. Accordingly he had not demonstrated experience across all stages of construction work at this site; 3. According to records, the first Campsie-based project started in 2013 and completed prior to the time Mr Al-Shinawa commenced on site. Records showed that all major structural work for the two further Campsie-based sites had been completed at the time the applicant commenced on site. For this reason, NSW Fair Trading could not be satisfied that Mr Al-Shinawa had demonstrated experience across all stages of construction at these sites. 1. In relation to the Banksmeadow site, Mr Al-Shinawa insisted that, during his time there, he had conducted work relating to site establishment, excavation, preparation of scopes of work, ground services, the commencement of formwork, steel reinforcement, some waterproofing, the co-ordination of trades, engineers, architects, lift and window installers. He had also attended to variations and defects. 2. In relation to the Wentworth Point property, Mr Al-Shinawa stated that he had been doing various types of work including painting, kitchen installation, waterproofing, flooring, plasterboard, basement services, formwork, concreting and lift and window and façade installation. 3. In relation to two of the Campsie properties, Mr Al-Shinawa explained that he had been on site to repair the 3000 defects that had been identified in relation to the building work at these properties. 4. Mr Al-Shinawa disagreed with the finding of NSW Fair Trading that his work had been limited to 'contract administrator work', as set out in some of the documentation on file, stating that: As a contracts administrator working on a multi–million dollar company on a multi-million dollar project your roles and responsibilities will not be restricted, one day you could be helping out on the tools the other you'll be in the office coordinating and completing payments or conducting as induction..Contracts Administrator is just a title and is just there so that Parkview can underpay me for my work. 1. At first instance, and following internal review, NSW Fair Trading was not satisfied that Mr Al-Shinawa had the two-year practical experience required to be issued with the requested building contractor licence. 2. As set out above, this was because: 1. the referee statements submitted by Mr Al-Shinawa were unsigned and so could not be taken into consideration; and 2. the research conducted by NSW Fair Trading could not support a finding that Mr Al-Shinawa had attained the required two years acceptable relevant industry experience in a wide range of building construction work. 1. NSW Fair Trading instead found that Mr Al-Shinawa was eligible to receive a licence in the categories of Carpentry and Kitchen Bathroom Laundry Renovator. 2. In confirming the refusal of the application on internal review, NSW Fair Trading was not satisfied that Mr Al-Shinawa had demonstrated that he had achieved the practical competencies to be issued with a building authority in accordance with the Act. In reaching this conclusion, the internal reviewer found that: 1. the method by which Mr Al-Shinawa supported his building application was inadequate and incomplete and so could not satisfactorily demonstrate that he is capable of supervising, co-ordinating and managing the on-site construction of a residential dwelling; 2. Mr Al-Shinawa's explanation was unsatisfactory as to why he could not provide completed referee statements to confirm he was carrying out the roles and responsibilities required of a builder whilst on the sites. 1. When Mr Al-Shinawa appeared before me in support of his application for review of the decision by NSW Fair Trading to refuse his building contractor licence, I adjourned the proceedings to give Mr Al-Shinawa the opportunity to submit further evidence in in support of his application for review. 2. Mr Al-Shinawa submitted the following referee statements: 1. A referee statement by Frank Kotouc confirming that for a period of 15 months and three days in 2017, Mr Al-Shinawa worked on mixed purpose developments for Parkview Constructions Pty Ltd, where he was engaged in contracts administration and general building work. Attached to the referee statement are: 1. a series of bullet points with a list of general building related tasks, headed Building Site 1: Supervisors Dennis Vanraalte and Frank Kotouc; and 2. a table headed Employee: Haidar Al Shinawa; Mentor: Vinh Hunyh with a series of activities under the umbrella of Estimating Program and including estimating and bidding, safety and environment, cost and on-time performance. 1. A referee statement by Anthony Raso confirming Mr Al-Shinawa's full-time employment at Parkview Constructions between October 2015 and July 2016 on mixed purpose developments where, according to Mr Raso, the applicant was engaged in general building works, as set out in the accompanying document headed Supervisors: Wally Lazovic, Tony Raso and Mick Smyth, and the spread sheet headed Apprentice Programme which included activities related to safety and environment, quality, cost, on-time performance, people, plant and administration. 2. A referee statement by Mohamed Reslan for timber and steel framing work at a Beverley Park property for 1 month and 6 days in 2019. I am satisfied that Mr Reslan holds a contractor licence and that his statement is evidence of work performed by Mr Al-Shinawa in 2019 that involved timber and steel framing. 1. Contained on file are documents confirming that Mr Anthony Touma is a director of Parkview Constructions Pty Ltd and the only holder of an associated building licence for the company. 2. In their referee statements, Mr Raso and Mr Katouc do not specify the range of work undertaken by Mr Al-Shinawa. Instead, attached to their statements are those spreadsheets and documents described above that do not appear to be generated or adopted by either Mr Raso or Mr Katouc. None of these documents detail the wide range of building construction work described in Locking v Department of Finance and Services [2013] NSWADT 239. 3. Accordingly, the only evidence before me about the work carried out by Mr Al-Shinawa is that given by him. 4. I agree with the findings of Senior Member Scahill in Briggs v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 175, 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. ' 5. The referee statements provided by Mr Raso and Mr Kotouc are scarce on detail in relation to the building work in which Mr Al-Shinawa engaged and for which he was supervised. The documents attached to their referee statements do not appear to be endorsed by either Mr Raso or Mr Kotouc, neither of whom were called to give oral evidence in relation to the range of building work in which Mr Al-Shinawa engaged. In any case, these documents do not detail the wide range of building construction work as set out in Locking v Department of Finance and Services [2013] NSWADT 239. 6. Accordingly, Mr Al-Shinawa has provided insufficient information to enable me to conclude that he has experience in carrying out or supervising a wide range of building construction works. 7. I agree with the findings of Judicial Member Montgomery in Trist v Commissioner for Fair Trading, NSW Office for Fair Trading [2006] NSWADT 303 that: A licence should not be granted in circumstances where it is not possible to attest that the applicant is considered to have sufficient aptitude to perform the tasks authorised by the licence. A decision maker can only make such an attestation when sufficient evidence is provided to support it. 1. As was posited in that case, it may be the situation that Mr Al-Shinawa has the experience required but has not been able to demonstrate it. On the information before me, however, I cannot be satisfied that Mr Al-Shinawa possesses the relevant experience to be granted a contractor licence in general building work. Accordingly, the decision under review must be affirmed. Order 1. The Tribunal affirms the decision by NSW Fair Trading to refuse Mr Al-Shinawa a contractor licence in the category of general building 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: 06 January 2020