ARMITAGE and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA - [2009] WASAT 234

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: ARMITAGE and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2009] WASAT 234

MEMBER: DR B DE VILLIERS (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
MR H BURKETT (SESSIONAL MEMBER)

HEARD: 10 NOVEMBER 2009

DELIVERED : 26 NOVEMBER 2009

FILE NO/S: VR 158 of 2009

BETWEEN: ROHAN ARMITAGE
Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Registration as builder - Practical experience in the work of a builder - Experience as supervisor of constructing steel frames and roof trusses - Experience as estimator and scheduler - Does the experience of an estimator and scheduler comply with the statutory requirements of 'practical experience in the work of a builder' or as 'supervisor of building work' to be registered as a builder - If the experience of estimator is 'practical', how much should be credited or must the total experience be credited - Does the experience gained in manufacturing of steel frames and roof trusses comply with the statutory requirements of 'practical experience in the work of a builder' or as 'supervisor of building work' to be registered as a builder - If the experience of manufacturing steel frames and roof trusses is 'practical', how much should be credited or must the total experience be credited Must the practical experience in the work of builder be gained on site or can it also be gained off site

Legislation:

Builders' Registration Act 1939 (WA), s 10, s 10(1)(b)(iv)(I)
State Administrative Tribunal Act 2004 (WA), s 10(4), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)

Result:

The application is dismissed
The decision of the Builders' Registration Board of Western Australia is affirmed, although a period of 10 months' work as estimator and scheduler is recognised as being practical experience in the work of a builder

Category: B

Representation:

Counsel:

Applicant: Ms K Roach (Representative)
Respondent: Mr M Mannes

Solicitors:

Applicant: N/A
Respondent: Builders' Registration Board of Western Australia

Case(s) referred to in decision(s):

Danze and Builders Registration Board of Western Australia [2008] WASAT 10
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
Frost and Builders' Registration Board of Western Australia [2008] WASAT 272
Lam and Builders' Registration Board of Western Australia [2006] WASAT 227
Rogers and Builder's Registration Board of Western Australia [2006] WASAT 299
SJ Smith v Builders' Registration Board of Western Australia (unreported, WASAT, 5 May 2006
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Armitage sought review of a decision of the Builders' Registration Board of Western Australia to refuse to recognise all or part of his experience as estimator and scheduler, as well as manufacturer of steel frames and roof trusses, as 'practical experience in the work of a builder' or as 'supervisor of building work' for the purposes of registration as a builder pursuant to s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).
Mr Armitage contended that he had approximately 39 months' experience as an estimator and scheduler and about 59 months' experience as a manufacturer of steel frames and roof trusses. He further said that he had either supervised or assembled many steel frames on site, and that if those periods were added, he satisfied the requirements of the Act. He should therefore, due to his practical and supervisory experience, coupled with the academic qualifications, be credited with sufficient time to comply with the statutory requirements of seven years.
Mr Armitage further contended that once it was found by the Tribunal that the experience, for example, that of an estimator, was in the work of a builder, the Tribunal had no discretion to 'cap' the maximum time that was credited. According to Mr Armitage, if an activity is found to be in the work of a builder, then the entire period that was spent in that profession must be credited.
The Builders' Registration Board of Western Australia opposed the application on grounds that neither Mr Armitage's work experience as a scheduler and estimator, nor as a manufacturer, constituted practical experience in the work of a builder or supervisor of building work as required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Builders' Registration Board of Western Australia did acknowledge that some of his work as an estimator and scheduler may be recognised, but not more than a total period of 12 13 months at the most.
The Builders' Registration Board of Western Australia contended that the Tribunal could 'cap' the maximum period recognised on the basis that the work of an estimator and scheduler was not so intimately part of the work of a builder that the entire period should be recognised.
The Tribunal found that part of Mr Armitage's knowledge and experience as scheduler and estimator constituted relevant but limited 'practical experience … in the work of a builder'. The Tribunal credited the total period of applicable, practical experience to the work of a builder to 10 months. The Tribunal further found that none of the experience of Mr Armitage as a manufacturer of steel frames and roof trusses fell within the practical experience of work of a builder.
The Tribunal further found that Mr Armitage's role in the construction and/or oversight of erection of the steel frames did not qualify him for credit as a 'supervisor of building work' as required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Tribunal was of the view that his involvement with site work was limited; he gave some advice and provided guidance that may be akin to that of an inspector, but not at the level that would equate with those of a supervisor. Mr Armitage therefore did not have the level of involvement, control or management over the erection of the frames that would qualify his involvement in site work as 'supervision of building work' for the purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).
The application for review was therefore unsuccessful, although the Tribunal recognised 10 months of practical experience in the work of a builder as far as the estimating and scheduling duties were concerned. The decision of the Builders' Registration Board of Western Australia to refuse Mr Armitage's registration was affirmed, since the total years of experience credited amounted to less than the seven years required by s 10(1)(b)(iv)(I) of the Builders' Registration Act1939 (WA).

Background

Mr Armitage, on 17 September 2009, lodged an application for review of a decision of the Builders' Registration Board of Western Australia (BRB) to refuse his registration as a builder.
The first directions hearing took place on 24 September 2009, at which the Tribunal made orders for the matter to be heard. A hearing date was set for 10 November 2009. The matter was also set down for mediation on 6 November 2009. It did not settle in mediation and the hearing went ahead.
In accordance with s 10(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal was constituted of a legally qualified member (Member de Villiers), a person who has special experience in the building industry (Sessional Member Mittonette), and a person who is familiar with the interests of persons engaged in the building industry (Sessional Member Burkett). Mr Mittonette is a registered builder and a member of the Building Disputes Tribunal. Mr Burkett is a registered painter with many years experience in the building industry. Both sessional members bring to the Tribunal extensive practical and theoretical experience in regard to the issues under consideration.
The hearing took place on 10 November 2009 and the decision was reserved at the conclusion of the hearing.
Mr Armitage, who was represented by Ms Roach, made written and oral submissions and also gave evidence. Mr Mannes, for the BRB, also made written and oral submissions and crossexamined Mr Armitage on his evidence. The Tribunal put wideranging questions to Mr Armitage and to counsel for the parties. The Tribunal took all of the submissions and evidence presented to it into account.

Powers of the Tribunal on review

The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the BRB.
The Tribunal is not limited to the statement of reasons given by the BRB (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the BRB at the time when the decision was made (s 27(1) of the SAT Act).
The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the BRB at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the BRB (s 29(5) of the SAT Act).

Issues in dispute

The main questions to be determined by the Tribunal can be summarised as follows:
a)Is the experience of Mr Armitage as an estimator and scheduler consistent with the practical experience in the work of a 'builder' as contemplated in s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) (BR Act)?
b)Is the experience of Mr Armitage as a fabricator of steel frames and roof trusses consistent with the practical experience in the work of a 'builder' as contemplated in s 10(1)(b)(iv)(I) BR Act?
c)Is the experience of Mr Armitage in the erection of the frames on site consistent with the practical experience in the work of a 'builder' or 'supervisor' as contemplated in s 10(1)(b)(iv)(I) of the BR Act?
d)If the experience of Mr Armitage as estimator and scheduler is in the work of a builder, can the Tribunal cap the maximum time credited or must all the time worked in this discipline automatically be recognised as being in the work of a builder?
e)If the practical experience of a builder had to be gained on site or whether it could also be off site?
It is undisputed that Mr Armitage has approximately 59 months' experience as a manufacturer of steel frames and roof trusses; some experience in the erection of such frameworks; and approximately 39 months' experience as an estimator and scheduler. If all of these periods were recognised as practical experience in the work of a builder, he would qualify for registration as a builder.
According to an internal assessment of the BRB, the entire period of estimator and scheduler ought to be recognised as being 'practical' in the work of a builder. The internal assessment recommended that no credit be given to the experience as manufacturer.
The BRB, however, refused to recognise any of the experience of Mr Armitage as practical in the work of a builder for the purposes of s 10(1)(b)(iv)(I) of the BR Act. In oral submissions during the hearing, Mr Mannes was willing to accept about 12 months as estimator and scheduler as practical experience in the work of a builder.
The BRB therefore concluded that none of Mr Armitage's experience comes within the framework of s 10(1)(b)(iv)(I) of the BR Act.

Statutory framework

Section 10(1)(b)(iv)(I) of the BR Act provides as follows:
10. Who may be registered
(1)Any person, not being a company or any other body corporate, who applies to be registered under this section as a registered builder shall, subject to subsections (2a) and (2b), be entitled to be so registered if and when -
(b)he has satisfied the Board that he
(iv)(I)has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders. (emphasis added)

Facts

The facts giving rise to the application can be summarised as follows.
Mr Armitage applied on 6 March 2009 to the BRB to be registered as a builder pursuant to s 10(1)(b)(iv)(I) of the BR Act. He submitted to the BRB extensive documentation of what he saw as his theoretical and practical experience in the building industry. The same information was available to the Tribunal in consideration of the review application.
The Tribunal was also provided with the inhouse assessment of the application done by the registrations manager of the BRB, Ms Lyn Micha. Ms Micha recommended to the BRB that a maximum period of 39 months as scheduler and estimator should be credited but that no credit should be given for the experience as manufacturer. The BRB decided, however, not to accredit any of the experience of Mr Armitage as being practical experience in the work of a builder as required by s 10(1)(b)(iv)(I) of the BR Act.
The BDT informed Mr Armitage on 29 April 2009 that after consideration of the application, it decided that the application be refused on the basis of insufficient experience.
In the application before the BRB and in the review proceedings before the Tribunal, Mr Armitage claimed credit for the following experience:
a)Housing and Commercial Wall Frames Pty Ltd: manufacturer of steel wall frames and roof trusses for period 1 January 1994 to 31 March 2003. Most of the work done was in a part-time capacity and the total period claimed amounts to 42 months. The internal assessment recommended that none of this experience be recognised. The BRB accepted the recommendation.
b)Housing and Commercial Wall Frames Pty Ltd: fabricator of steel wall frames and roof trusses for period 1 January 1994 to 31 March 2003. This period was fulltime and approximately 17 months could be credited. The internal assessment recommended that none of this experience be recognised. The BRB accepted the recommendation.
c)Fleetwood Pty Ltd: estimating scheduler for period 1 January 2006 to 31 December 2008. The total period of 39 months was recommended by the internal assessment to be recognised. The BRB rejected the recommendation and decided not to credit any of the experience.
Mr Armitage also claimed other experience before the BDT but did not pursue it in the Tribunal.
Mr Armitage was notified by letter dated 29 April 2009 that the BRB did not recognise any of his experience as being relevant to the practical experience of a builder for the purposes of s 10(1)(b)(iv)(I) of the BR Act.

Contentions

The contentions and evidence of the parties can be summarised as follows.
The BRB contends that none of the experience of Mr Armitage as an estimator and scheduler is of a practical nature in the work of a builder as contemplated by s 10(1)(b)(iv)(I) of the BR Act. The BRB in its final submission before the Tribunal was, however, willing to adjust its position and accept that about 12 months of the period as scheduler and estimator would be in compliance with s 10(1)(b)(iv)(I) of the BR Act since that would be the 'practical' proportion of Mr Armitage's experience that would satisfy the requirements of the BR Act.
The BRB emphasises that the type of work that falls within the requirements of the BR Act must be typical of the practical work in which a builder engages in the normal course of the profession. Work that is ancillary to the building process, such as the duties of a draftsman, a bookkeeper or an estimator, does not come within the 'practical' experience envisaged by the BR Act, or if it does, it should only be recognised to the extent that the experience is required for purposes of the practical work of a builder. The applicable experience of an estimator and scheduler can therefore be 'capped' to the extent that it is practical in the work of a builder.
The inclusion of the word 'practical' in the statute is, according to the BRB, indicative of the intention of Parliament and the industry that not all work or experience related to the building process should automatically qualify a person for registration as a builder. There must be a direct relationship between the type of work done by Mr Armitage and the practical experience in the work of a builder that the BR Act requires. According to the BRB, there is a public interest component to ensure that a person who is registered as a 'builder' has a minimum level of practical experience in the daytoday work of a builder. The theoretical course work can only be a back-up for practical experience in the daytoday work of a builder.
The BRB conceded, during the hearing, gaining relevant practical 'experience' is not limited to physical work on a building site. What is intended is that whatever work is done, it must qualify as practical experience 'in the work of a builder'. The BRB was, therefore, willing to accept that work that is not done on site may be recognised, provided that such work meets the requirements of being practical in the work of a builder.
If the statutory test is applied to the experience of Mr Armitage, the BRB concludes as follows:
a)The work as a manufacturer of steel frames and roof trusses does not comply with the requirements of the BR Act since it is not practical experience in the work of a builder.
b)The work done as an estimator and scheduler has limited relevance to the practical experience in the work of a builder and a maximum period of 12 months could be allowed.
c)The work done as a supervisor of the erection of the steel frames does not qualify as supervision within the context of s 10(1)(b)(iv)(I) of the BR Act since Mr Armitage was not effectively in the role of a supervisor.
d)The experience in the work of a builder can be gained on and off site.
The conclusion of the BRB is, therefore, that the Tribunal should not credit any of the work done by Mr Armitage as a manufacturer, but that a maximum of 12 months could be recognised as a scheduler and estimator. The decision of the BRB should, however, be affirmed since even if 12 months was recognised, Mr Armitage would not meet the seven years' experience of the BR Act.
Ms Roach, on behalf of Mr Armitage, rejects the findings and contentions of the BRB. Her contentions essentially rest on the following pillars, namely:
a)Mr Armitage's experience as a manufacturer of steel wall frames and roof trusses complies in its entirety with the requirements of s 10(1)(b)(iv)(I) of the BR Act and a period of 59 months should be recognised as practical experience in the work of a builder.
b)Mr Armitage's experience in supervising the erection of the frames further fulfils the BR Act since it is also practical experience in a supervising capacity. The experience forms part of the 59 months claimed in (a) above.
c)Mr Armitage's experience in estimating and scheduling complies in its entirety with the requirement of the BR Act and the period of 39 months should therefore be recognised as practical experience in the work of a builder. The BRB erred by concluding that the work of a scheduler and estimator is as ancillary to building as the work of a bookkeeper or site cleaner. The work of a scheduler and estimator is intimately involved in the building process, while the same cannot be said of a bookkeeper or site cleaner.
d)The BRB erred in its internal report by finding that work done off site in manufacturing could not be recognised for purposes of s 10(1)(b)(iv)(I) of the BR Act.
e)The BRB erred by proposing that the relevant scheduling and estimating experience of Mr Armitage can be 'capped' at a maximum of 12 months. Ms Roach contends that once it is found that work done by a person comes within the practical experience of a builder, there is no discretion to place a cap on the time that is recognised. The entire period spent in that specific skill or profession must therefore be credited. The entire 39 months as estimator and scheduler must therefore be credited since the BRB in its submissions to the Tribunal acknowledged that the work was practical in the work of a builder.
f)The theoretical component of s 10(1)(b)(iv)(I) of the BR Act is specifically aimed to ameliorate any shortcomings a person might have in the different aspects of building. It is virtually impossible for a person to have practical experience in all facets of the work of a builder. The BR Act therefore recognises that a person with at least seven years' experience in one field, say bricklaying, can qualify with the necessary theoretical basis in the other fields of building. Mr Armitage, on the one hand, satisfies the practical requirement with his work as scheduler and estimator, as well as fabricator, and on the other hand, the BRB accepts his academic qualifications meet the standard set by the BR Act.

Ms Roach concludes, therefore, that the BDT erred and that its decision should be substituted with a decision of the Tribunal that a period of 98 months be credited (made up of 42 months as parttime fabricator, 17 months full time as fabricator and 39 months as estimator and scheduler) and Mr Armitage be registered as a builder.

Consideration

The Tribunal will consider the submissions and evidence on the basis of the main questions as summarised by the parties:
a)Is the experience of Mr Armitage as an estimator and scheduler practical experience in the work of a 'builder' as contemplated in s 10(1)(b)(iv)(I) of the BR Act?
b)If the experience of Mr Armitage as scheduler and estimator is in the work of a builder, can the Tribunal cap the maximum time credited or should the entire period automatically be recognised as being in the work of a builder?
c)Is the experience of Mr Armitage as a fabricator of steel frames and roof trusses practical experience in the work of a 'builder' as contemplated in s 10(1)(b)(iv)(I) of the BR Act?
d)Is the experience of Mr Armitage in the erection of the frames on site similar to that of a supervisor of building work as contemplated in s 10(1)(b)(iv)(I) of the BR Act?
e)Is it necessary for the practical experience in the work of a builder to be gained on site or whether it could also be gained off site?
The Tribunal will deal with each of these questions separately.

Work as estimator and scheduler

The BRB acknowledges that the work of a scheduler and estimator does have a practical element that brings it within the ambit of the practical experience in the work of a builder.
The total potential period for which Mr Armitage can receive credit as an estimator and scheduler is 39 months. The BRB's internal assessment recommended that the entire period be credited but the BRB resolved that none be credited.
In the hearing, the BRB accepted that the work of a scheduler and estimator constitutes, at least in part, practical experience in the work of a builder.
The disagreement between the parties arises from the question whether the total period of 39 months' experience should be recognised or whether the Tribunal has discretion to cap the time credited to a shorter period.
The answer to the first question is that Mr Armitage's work as an estimator and scheduler can be brought within the realm of practical experience in the work of a builder.
The question of whether the experience can be capped will be dealt with below.

Can experience in the work of an estimator and scheduler be 'capped'?

As mentioned above, the BRB and Mr Armitage are in agreement that the work of an estimator and scheduler are within the practical work of a builder, but they differ as to whether the entire period spent as a scheduler and estimator should automatically be credited or whether the Tribunal can 'cap' the maximum time that is credited.
The BRB contends that the work of a scheduler and estimator has some relevance to the practical experience of a builder, but that it is not so intimately linked to the work of a builder to be recognised for the entire period. The BRB contends, therefore, that a maximum of about 12 months could be credited since that is by approximation the period of work in estimating and scheduling that would be of benefit to a builder in the practical course of his duties.
Mr Armitage describes his duties as scheduler and estimator at Fleetwood as follows: estimating and scheduling projects, nominating and ordering of materials, supervision of building quality, supervision of conformance to the Building Code of Australia and Australian Standards and supervision of construction. Fleetwood is a provider of transportable homes and portable accommodation.
In a letter dated 5 March 2009 to the BRB, he said as follows about his duties at Fleetwood:
My role in Fleetwood requires heavy involvement in the initial costing and tendering period followed by an intense period of classifications, qualification and variations. Post award, the intensity drops allowing me to focus on estimating and scheduling of new works, however, a degree of continued involvement is required throughout the duration of the project to ensure all variations are costed and scheduled accurately and that what has been costed is in fact what is being built.
In letters of reference provided on behalf of Mr Armitage, the following is said: Mr McGregor of Longmont describes Mr Armitage as displaying 'exemplary' skills in regulatory systems and contract management; Mr Mulligan of Longmont comments on his 'diverse abilities, from research, design, planning, specifying and implementing a range of mid size to large construction projects with a high level of professional skill and attention to detail'; Mr Howarth of Fleetwood says he has 'no hesitation' recommending Mr Armitage for registration as a builder in order for him to take over as the registered builder of Fleetwood.
None of these persons provided to the Tribunal a detailed analysis of how the duties of Mr Armitage coincide with the practical experiences in the work of a builder. Although they commented on his work ethic and reliability, they were largely silent about the question under consideration by the Tribunal. They were also not called by Mr Armitage to give more detailed evidence or to be cross-examined.
Mr Armitage contends that once work is recognised as being practical experience in the work of a builder, the entire period must be credited and the Tribunal does not have the discretion to cap it.
The Tribunal does not, for reasons that follow, accept the contention of Mr Armitage.
In the matter of Frost and Builders' Registration Board of Western Australia [2008] WASAT 272 (Frost), the Tribunal held that in some instances (in that matter the person was a draftsman) a cap could be placed on the total amount experience credited for purposes of recognising the proportion that is relevant to the practical experience in the work of a builder. The principle of allowing experience to be capped has therefore been dealt with by the Tribunal before. In fact, Ms Roach was asked by the Tribunal if she believed the Frost decision was wrong, and she replied 'no, the decision was correct'. She then went on to say that the decision did not deal with s 10(1)(b)(iv)(I) of the BR Act and hence it is not applicable to the question under consideration. Mr Mannes, in closing submissions, drew attention to the fact that the Frost matter did, indeed, deal with s 10(1)(b)(iv)(I) of the BR Act and that Ms Roach has, in effect, accepted the outcome of that decision.
The Tribunal will follow the principle established in Frost.
In the Frost matter, the Tribunal observed as follows:
69There are elements of design, estimating and scheduling that may be so related to the practical experience of a builder that it ought to be recognised as 'practical experience in the work of a builder'.
70'Estimating and scheduling' may seem to be somewhat at odds with the other practical tasks listed in the BRB table, but at the same time there may be aspects of 'estimating and scheduling' that qualify for recognition in the practical experience in the work of a builder. That explains why the BRB in the first place included 'estimating and scheduling' in its list.
71Mr Mannes indicated in oral submissions during the hearing that the category 'estimating and scheduling' sits somewhat uncomfortably with the other (practical) functions and he indicated that it may be reviewed by the BRB in due course. He did not offer any evidence from the BRB that it is reviewing the schedule with the intention to exclude from it from the list 'estimating and scheduling'. His submission merely confirmed the grey area on which a determination has to be made on the basis of the available evidence.
72Although it may appear as if the BRB's table presents an inconsistency and although the BRB may, according to Mr Mannes, intend to rectify it, the Tribunal is not bound by the BRB's classification of different categories of experiences on its web page.
73It is the view of the Tribunal that a limited period of practical experience in the work of a builder should be recognised as a result of Mr Frost's work and knowledge as a draftsman. Such an approach is consistent with the Danze decision.
74There is no doubt that a draftsman must, as has been pointed out by Mr Frost, have an excellent knowledge of construction and building methods. The BRB does not dispute it. The Tribunal also acknowledges the important role of a draftsman in the overall work of a builder. But that does not mean all of the draftsman's experience could be regarded as practical in the work of a builder in accordance with s 10(1)(b)(iv)(I) of the BR Act. From the perspective of a builder, he would require only very limited practical knowledge of the functions of a draftsman for purposes of the work of a builder.
75The Tribunal accepts that credits are given to draftsmen when they undertake the theoretical course for the completion of the Diploma of Builders Registration. That in itself, however, does not signify that the theoretical knowledge of a draftsman falls within the ambit of 'practical experience' as envisaged by s 10(1)(b)(iv)(I) of the BR Act. It merely means that a theoretical part of the study is taken to have been completed. In fact, it may be that the theoretical element is all that a builder needs to know of the work of a draftsman for purposes of the work of a builder. Repetition of drafting work will add little to the knowledge required by a builder. On the other hand, the acquisition of knowledge of design conventions, Planning Codes and Town Planning Scheme requirements which would assist in dealing with clients and advising on what can and cannot be built as a consequence, also equates to knowledge acquired by a builder over time.
In Frost, the Tribunal therefore accepted a key principle of relevance to this application, namely, that although the work of a person may be practical experience in the work of a builder, it does not mean that the totality of such work must automatically be credited for purposes of registration pursuant to s 10(1)(b)(iv)(I) of the BR Act. The total amount of the work credited can be capped if the Tribunal finds that only part of the experience is required for the normal daytoday work of a builder in the discharge of duties.
Section 10 of the BR Act sets out the minimum requirements that a person must meet to be registered as a builder. Section 10(1)(b)(iv)(I) of the BR Act specifically refers to the minimum required period of seven years' practical experience that Mr Armitage must have in the work of a builder or as a supervisor of building works.
The intention of the subsection is obvious - it strives to ensure that those persons who are registered as 'builders' in Western Australia must have sufficient practical experience in the work of a builder to undertake the tasks required of them, be it experience in the work of a builder or as a supervisor of building work.
It was acknowledged by the BRB during the hearing that it is virtually impossible for a person who seeks to be registered as a builder, pursuant to s 10(1)(b)(iv)(I) of the BR Act, to have practical experience in all the areas of work in which a builder engages. It is acceptable for a person to be registered as a builder if such person only has practical experience in some of the area/s of work in which a builder engages, with any shortcomings being ameliorated by the theoretical course work.
But the Tribunal also acknowledges that theoretical knowledge does not equate to practical experience. That explains why Parliament considered 'practical experience in the work of a builder' such an important prerequisite that those specific words are used in s 10(1)(b)(iv)(I) of the BR Act. Ensuring adequate practical experience in the work of a builder is in the interests of the profession, the general public and the client who requires the building work.
The mere fact that manufacturing of a product used in the course of building is a 'step in the building process', as contended by Ms Roach, is not, as far as the Tribunal is concerned, adequate for the manufacturing experience to be automatically classified as 'experience in the work of a builder'. Such an approach would widen the scope of the definition of practical experience in the work of a builder to an extent not intended by Parliament.
The intention of Parliament, by regulating access to the building industry, is clearly that the public must be protected by ensuring that those persons who are registered as builders have sufficient wideranging practical and theoretical knowledge to undertake the duties of a builder for which they are retained. The fact that a person is involved in a discipline that is related to the building industry does not mean in itself that some or all of that experience must automatically be credited as practical experience in the work of a builder.
Neither of the parties was able to assist the Tribunal by reference to decisions in Western Australia, or in the rest of Australia, regarding the classification of work of an estimator and scheduler in other jurisdictions that may assist in determining the question under consideration in these proceedings. The parties did, however, provide the Tribunal with various other references in supports of their respective contentions.
In the matter of Farano and Builders' Registration Board of Western Australia [2006] WASAT 4, the Tribunal emphasised that to properly construct the meaning of the phrases 'work of a builder' or 'supervisor of building work', the exact nature of the work done must be work in which a builder engages. It is incumbent on the builder to explain to the Tribunal the nature of his duties and why it falls within the scope of s 10(1)(b)(iv)(I) of the BR Act.
Although there is no conclusive list of practical experiences that would qualify for recognition, the list of functions referred to in Danze and Builders Registration Board of Western Australia [2008] WASAT 10 (Danze) is useful namely, constructing, altering, repairing, adding or improving the walls and structural parts of buildings.
That is further illustrated in Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 (Thorp), at [27], in which the Tribunal stated:
Thus a manager will be involved in all of the activities of a builder, beyond the actual physical supervision or oversight of the execution or performance of building work. Those activities may extend from liaison with the client, assisting with planning approvals, design, pricing, the development of a program for the works and scheduling of trades, attending to manage receipt of payments and payment for materials and trades throughout the contract period to practical completion and delivery of possession to the client against final payment and making necessary arrangements for performance of the builder's maintenance obligations.
The Tribunal must therefore pose the question to what extent, if any, from the perspective of the work of a builder, the BRB and the public, the knowledge or experience of a scheduler and estimator is 'practical' in the work of a builder.
The Tribunal, with the benefit of having at its disposal two sessional members with expertise in the building industry, accepts that some of Mr Armitage's knowledge of estimating and scheduling falls within practical experience in the work of a builder. It is not, in the opinion of the Tribunal, uncommon for a builder to be involved in aspects of estimating and scheduling, but that does not mean the builder would be an expert in the discipline.
Consistent with the decision in the Frost matter, the Tribunal is, however, satisfied that for the purposes of determining how much of the experience as estimator and scheduler is applicable to the practical experience in the work of a builder, a cap can be placed on the extent of the experience that is recognised. If that were not the case, absurd results may arise where a person in the manufacturing chain or in a peripheral profession, with little or no actual practical experience of the daytoday work of a builder, could be registered on the ground that he/she had completed the theoretical course and has experience in a field that is on the periphery of the building industry. Such an outcome would undermine the regulating authority of the BRB and erode public trust in the regulatory system and the accreditation of builders.
A similar question of what is meant by practical experience arose before the Tribunal in SJ Smith v Builders' Registration Board of Western Australia (unreported, WASAT, 5 May 2006 in regard to the compliance of a building surveyor with the 'practical' test entailed in s 10(1)(b)(iv)(I) of the BR Act.The Tribunal found as follows:
The applicant as a building surveyor attends site at particular strategic times in order to check building work.
It is true that he would have power under the statutory regime to cause steps to be taken in the event that some default was observed, including if necessary the issue of a stop work notice. But there is no control over the ordinary day to day activities of the builder and there is nothing done which constitutes any step in the completion of the building work itself. (emphasis added)
For those short reasons, therefore, we conclude that the applicant does not come within the requirement of having practical experience in the work of a builder.
It is the Tribunal's view that as far as practical experience in the work of a builder is concerned, a builder would only benefit in a limited way by the experience of a scheduler and estimator.
The Tribunal is therefore satisfied that the submission of the BRB is to be preferred, namely that limited credit should be given to the extent that Mr Armitage's experience as scheduler and estimator constitutes practical experience in the work of a builder.
Although the BRB, in its web-based table entitled 'What is practical experience in the work of a builder', recognises the functions of 'estimating and scheduling' as being practical for purposes of registration, the BRB also explicitly qualifies the table by emphasising that the information contained therein 'is for guidance only and is subject to the Board's discretion'.
This interpretation by the Tribunal is consistent with the Danze matter where the Tribunal concluded that the type of activities that ought to be taken into account must be those that are 'ordinary activities' undertaken by a builder. Only limited aspects of the work as scheduler and estimator can be regarded as practical 'ordinary activities' that are undertaken in the work of a builder.
The Tribunal is, on proper reflection of all the submissions and evidence, satisfied that a period of a maximum of 10 months' experience as estimator and scheduler should be credited for purposes of Mr Armitage's practical experience in the work of a builder in accordance with s 10(1)(b)(iv)(I) of the BR Act. Any further experience in the discipline would be valuable for purposes of his professional development in an area of specialisation, but not required for purposes as practical experience in the work of a builder.

Work as a manufacturer of steel wall frames and roof trusses

Mr Armitage contends that the entire 59 months in service of Housing and Commercial Wall Frames Pty Ltd as a manufacturer should be credited.
The BR Act does not classify or list what type of experiences and functions ought to be regarded as practical experience in the work of a builder. It is left for the BRB and, on review, the Tribunal to consider all the evidence before it and make a determination as to what, if any, experience of Mr Armitage falls within s 10(1)(b)(iv)(I) of the BR Act.
In the absence of a precise statutory list of practical experience deemed to fall within s 10(1)(b)(iv)(I) of the BR Act, it can be expected that a grey area will exist as to the applicability of specific experiences and trades. The BRB, and on review the Tribunal, are called upon to make a determination as to whether Mr Armitage's experience as a manufacturer of steel frames and trusses is practical 'experience in the work of a builder'.

The director of Housing and Commercial Wall Frames Pty Ltd, manufacturers of steel framing, Mr Ken Armitage, in a letter dated 2 February 2009, summarised the duties of Mr Rohan Armitage (applicant) as follows: to construct structural steel wall frames and roof trusses, supervision and management of the works, developing estimating package to quote for works, checking the quality of the finished works, site erection frames and compiling claims for works performed.
In his own description of his duties, Mr Rohan Armitage, in a letter dated 5 March 2009, described the nature of his work as follows: construct structural steel frames and roof trusses, develop estimate package for quotations, supervise and manage works, check quality of works, aid in erection of works, site measure, compile claims and liaise with clients. He concludes his letter by saying:
My primary role at Housing & Commercial Wall Frames Pty Ltd was the construction of steel wall and roof trusses. This involved the selection of the appropriate steel quality and section to meet engineer requirements, the cutting to length of the various steel sections to build the steel frames and trusses, the welding of the material and preparation of the frames for site erection.
Mr Armitage did not call any witnesses, other than to rely on his own evidence, to explain the nature of his duties in more detail and why such duties fall within the practical experiences of the work of a builder. Mr Armitage submitted letters of reference but those commented on his character rather than on the nature of the tasks he performed. The Tribunal was surprised, given the extent of Mr Armitage's experience, at the lack of detailed information he provided about the nature of his duties. The deliberations of the Tribunal would have been greatly assisted had Mr Armitage called an expert in the building industry, or the director of Housing and Commercial Wall Frames Pty Ltd, to explain in greater detail what exactly he did and how it interacts with the practical experience in the work of a builder, to verify the practical nature of his duties and to link it with those of a builder and the requirements of the BR Act.
Mr Armitage explained during the hearing that the training of a manufacturer was essentially done inhouse with no formal training or accreditation. The training basically involves welding of frames, use of tape measure, drilling holes, and painting of frames.
In examination, it appeared that Mr Armitage was primarily, if not exclusively, involved in the manufacturing of steel frames. The work was done off site at the instruction of a client. The client, usually a builder, would provide Mr Armitage with drawings, building plans, measurements and specifications and he would then manufacture the steel frames or cause them to be manufactured. The builder would erect the steel frames or cause them to be erected. If requested, Mr Armitage would visit a site to inspect the work or he may assist with erecting the frame.
The Tribunal considered the meaning of 'manufacture' and 'building'. 'Manufacture' is not to be equated to 'building'. The Macquarie Concise Dictionary (Revised 3rd ed, 2004) (Macquarie Concise Dictionary) defines manufacture as 'making of goods or wares by manual labour or by machinery, especially on a large scale'. 'Building' is defined as 'the act, business, or art of constructing houses, etc' (Macquarie Concise Dictionary).
The work as a manufacturer can therefore not be equated to the work of a builder merely because there is some interrelatedness with the building industry.
The BR Act provides a clear guideline as to what type of work should be credited by the Tribunal as being practical experience in the work of a builder. It uses the word 'practical' to emphasise the engagement a person must have in the actual building process. Mere theoretical knowledge would not suffice. The theoretical course work may supplement shortcomings in a builder's practical experience, but theory cannot substitute practical experience. The Tribunal must, therefore, give close scrutiny to the 'practical' experience of Mr Armitage, if any, in the work of a builder. This view of the Tribunal is consistent with those of Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273 at [28]:
The intent of s 10 is obviously to ensure that those applying for registration as a registered builder must have the requisite qualifications and experience. The provisions are for the public benefit as part of the regulation and control of the building industry and with the obvious object of ensuring that members of the public have the comfort of knowing that registered builders are suitably qualified. (Tribunal emphasis.)
In the matter of Danze, at [32], the Tribunal remarked as follows in regard to the importance of 'practical' experience required from a person who seeks to be registered as a builder:
The requirement for an applicant to have practical experience in the work of a builder, in addition to undertaking the prescribed course of training and examination, was added by the Builders' Registration Act No 44 of 1953 (WA) and the Builders' Registration Act No 63 of 1965 (WA) … It could therefore never have been then intended that a person solely engaged in carrying out 'associated work' could gain practical experience in the work of a builder, unless the work undertaken can be demonstrated to constitute constructing, altering, repairing, adding or improving the walls and structural parts of buildings. (emphasis added)
There is nothing in the evidence of Mr Armitage to support his claim that as a manufacturer, he has demonstrated practical experience in constructing, altering, repairing, adding or improving the walls and structural parts of buildings. This conclusion of the Tribunal is consistent with the internal assessment done by the BRB. Mr Armitage manufactures to specification a product that is used in the building industry, but that does not in itself give him the practical experience in the work of a builder.
In the matter of Rogers and Builder's Registration Board of Western Australia [2006] WASAT 299, the Tribunal emphasised that work done in relation to commercial fit-out of premises, does not constitute 'building work'. Although Ms Roach contends that the manufacturing of steel frames cannot be equated to the work of commercial fit-out, the Tribunal is satisfied that the test that work must be 'practical experience in the work of a builder' would exclude the experience of Mr Armitage.
In its internal assessment, the BRB summarised, as follows, the nature of Mr Armitage's work after they spoke to Mr Ken Armitage, the director of the company that employed Mr Armitage:
To avoid further confusion with the use of the word 'constructed', Mr Ken Armitage was contacted and [he] stated that Rohan was not involved in on site construction, other than to provide technical advice to the owner/builders to ensure that the manufactured product was installed correctly and adhered to product specifications. An example quoted was to ensure that the bolts were in the right places and brackets and screws were installed correctly. It is considered that Mr Armitage's involvement in the manufacture or production of a specific building product such as a steel frame does not constitute building work as defined under the Act.
The Tribunal put this summary to Mr Armitage during the hearing and asked him if it was a fair and accurate reflection of his duties while he was employed by Housing and Commercial Wall Frames Pty Ltd. He answered, 'Yes'.
Mr Armitage acts on the basis of technical drawings and specifications provided to the company; he manufactures steel frames according to specifications provided by a builder or engineer; he oversees the manufacturing process, but his duties are limited to manufacturing frames according to the specifications. Although he has involvement in the measurement of steel and painting of the frames, these functions are exclusively associated with the duties of a manufacturer.
In essence, he prepares and supplies a product at the instruction of a builder, to the builder, but that does not make him a builder. In the same way that he manufactures a product for the building industry, many other products are manufactured for the building industry, but all of those persons involved in the manufacturing process cannot claim that their experience in manufacturing equates to practical experience in the work of a builder.
The Tribunal is therefore not satisfied that the work done by Mr Armitage in the manufacturing of the steel frames constitutes practical experience in the work of a builder.
Mr Armitage could have assisted his contention by submitting more detailed evidence by an expert in the building industry in support of his claim. But the Tribunal had nothing to rely on except his evidence, his own assessment of his duties and the submissions of Ms Roach. The building experts who formed part of the Tribunal were adamant that nothing in the experience gained by Mr Armitage as a manufacturer could be brought within the ambit of practical experience in the work of a builder.
The Tribunal therefore finds that the BRB did not err by finding that none of the experience gained by Mr Armitage as a manufacturer while he was in the employment of Housing and Commercial Wall Frames Pty Ltd complies with the requirement of practical experience in the work of a builder as per s 10(1)(b)(iv)(I) BR Act.

Practical experience as supervisor

Mr Armitage contends that part of the practical experience he has gained in the work of a builder is to visit the building sites, to take measurements, to supervise the erection of the steel frames and to inspect and supervise the erection of the frames. He contended that he would have visited sites up to five times per week in his capacity as supervisor.
The Tribunal does not accept this contention for the following reasons.
Mr Armitage did not provide the Tribunal with any evidence of substance to indicate what the exact nature of his duties were when he visited sites, what his role as a purported supervisor was and what practical work he did to direct the erection of the frames. He gave a verbal description to the Tribunal of his duties as 'supervisor' but it lacked substance and credibility. He did not call any person to give evidence in support of his contention that he 'supervised' the erection of the frames.
In the matter of Lam and Builders' Registration Board of Western Australia [2006] WASAT 227, at [42], the Tribunal emphasised that the question of whether or not a person supervises comes down to the facts; namely, his ability to direct the work and/or the workers in the way a supervisor would. Mr Armitage did not provide any substance to demonstrate that he directed work on building sites for a sufficiently extended period of time to receive any recognition as a 'supervisor' of building works.
'Supervisor' is defined by the BR Act as:
[A] person, not being a builder, who oversees the execution or performance of building work, but does not include the foreman, leading hand or other person employed in a like or less responsible capacity in the building industry.
It appears from Mr Armitage's evidence that even when he visited building sites, he had no control over the work but could merely suggest to the builder what had to be done or, in the alternative, he was working as an employee of the company doing the erecting works. In those instances where he had involvement in erecting frames, it was as an employee and not as a supervisor. In fact, it was Mr Armitage's evidence that if builders requested Housing and Commercial Wall Frames Pty Ltd for assistance to erect frames, the company would direct the enquiry to another company that specialises in erecting such structures.
Mr Ken Armitage also informed the BRB, per telephone, that the duties of Mr Armitage on site were essentially limited to 'ensure that bolts were in the right places and brackets and screws were installed correctly'. This does not, in the view of the Tribunal, constitute 'supervision' as contemplated by s 10(1)(b)(iv)(I) of the BR Act.
In response to questions by the Tribunal, Mr Armitage indicated that about 30% of his time was spent on 'supervision of building work' as intended by s 10(1)(b)(iv)(I) of the BR Act. He could not provide the Tribunal with evidence as to how he calculated the 30%. There was also no evidence by the director of the company or anyone else to support his claim. It might have assisted his argument if he had called on persons, for whom he had worked in the past, for them to explain that he had control over their activities, but he only relied on his own evidence, which, according to the Tribunal, was not reliable. The Tribunal cannot accept his estimate as accurate in the absence of corroborating evidence.
The Tribunal accepts that Mr Armitage had visited building sites from time to time. At such visits, he may have given directions or assisted with making proposals for the frames to be erected. He may also have done constructing of the frames himself. The Tribunal also accepts that Mr Armitage had to ensure compliance with industry standards when the frames were erected. However, all of these actions fall short of being a 'supervisor of building works' as envisaged by s 10(1)(b)(iv)(I) of the BR Act.
In the matter of Frost at [94] [95], the Tribunal commented as follows on the work of a supervisor:
The word 'supervision' is used in s 10(1)(b)(iv)(I) of the BR Act in relation to the 'practical experience ... in the work of a builder' that a person should have in order to be registered as a builder. Inspection does not equate to supervision. Supervision is a much wider concept which includes inspection but also refers to the ability to direct, instruct, control and influence the building process.
The supervising activity should therefore be practical and hands-on and entail supervision of work done by a builder and/or trades. That means in essence the ability to direct, control, manage and influence building work. The Macquarie Concise Dictionary defines 'supervise' as 'to oversee (a process, work, workers, etc.) during execution or performance'. In the context of construction and the work of a builder, 'supervision' entails oversight and direction of the building process - thus meaning management and control over the practical work that is being done.
In the matter of Thorp, at [28], the Tribunal observed as follows in regard to the work of a supervisor:
A supervisor would be expected to attend site to meet trades at the commencement of activity in which they might be involved, to ensure that they properly understand the work to be undertaken but will not remain any longer on site than is necessary. At each site visit, the supervisor should inspect whatever work has been undertaken to ensure that it complies with the contract and to give directions in regard thereto.
There is insufficient evidence before the Tribunal to support the contention of Mr Armitage that he was a supervisor in erecting the frames. His work may have been akin to an inspection and giving limited advice, but it falls far short of supervision.
The Tribunal therefore finds that none of the experience gained by Mr Armitage when the frames were erected, constitutes 'supervision' in the work of a builder as required under s 10(1)(b)(iv)(I) of the BR Act.

Must the work be done on site?

Mr Mannes acknowledged, on behalf of the BRB, that practical experience in the work of a builder need not necessarily be on site. This is consistent with the Tribunal's decision in the Frost matter where it held as follows:
It appears that all the activities listed by the BRB in the table are very practical to the building process; for example, bricklaying, carpentry, supervising building work, wall and roof framing and owner/builder work. But it must also be acknowledged that practical experience in the work of a builder may go wider than it being limited to a person who does the physical work on site. The work of a builder involves far too many activities to interpret 'practical experience in the work of a builder' as only such experience that can be associated with physical labour. Practical experience is to be contrasted with academic or theoretical experience, it does not mean only physical work: see Danze at [28].
There is no need for the Tribunal to make any further findings in this regard since the parties were in agreement that experience gained by a person in the work of a builder can be on or off site.

Conclusion

In conclusion, the Tribunal's findings in regard to the questions posed are as follows:
a)Part of the experience of Mr Armitage as an estimator and scheduler ought to be recognised as practical experience in the work of a 'builder' as contemplated in s 10(1)(b)(iv)(I) of the BR Act.
b)The Tribunal can cap the maximum time credited for Mr Armitage's work as a scheduler and estimator for purposes of the applicability thereof to the practical experience in the work of a builder. A period of 10 months ought to be credited.
c)The experience of Mr Armitage as a fabricator of steel frames and roof trusses ought not to be recognised as practical experience in the work of a 'builder' as contemplated in s 10(1)(b)(iv)(I) of the BR Act.
d)The experience of Mr Armitage in the erection of the frames on site was not practical experience in the work of a 'builder' or 'supervisor' as contemplated in s 10(1)(b)(iv)(I) of the BR Act.
e)The practical experience in the work of a builder can be gained on site or off site.

Orders

1.The decision of the Builders' Registration Board of Western Australia not to recognise, for the purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA), the experience of Mr Armitage as estimator and scheduler as being 'practical experience in the work of a builder' is set aside and is substituted with a decision to recognise a period of 10 months as being 'practical experience in the work of a builder'.
2.The decision of the Builders' Registration Board of Western Australia not to recognise, for the purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act1939 (WA), the experience of Mr Armitage as 'supervisor of building work', is affirmed.
3.The decision of the Builders' Registration Board of Western Australia not to register Mr Armitage as a builder, pursuant to s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA), is affirmed since the total period of credit amounts to less than the seven years required for registration.

I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER