Carulli v Commissioner for Fair Trading
[2006] NSWADT 346
•06/12/2006
CITATION: Carulli v Commissioner for Fair Trading [2006] NSWADT 346 DIVISION: General Division PARTIES: APPLICANT
Frank Carulli
RESPONDENT
Commissioner For Fair Trading, NSW Office of Fair TradingFILE NUMBER: 063104 HEARING DATES: 05/06/06 SUBMISSIONS CLOSED: 06/26/2006
DATE OF DECISION:
12/06/2006BEFORE: Higgins S - Judicial Member CATCHWORDS: Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Home Building Act 1989
Home Building Regulation 2004CASES CITED: Mohammed v Director General, Department of Fair Trading [2003] NSWADT 62 REPRESENTATION: APPLICANT
RESPONDENT
In person
W. Maynard, Legal OfficerORDERS: The decision of the Commissioner is affirmed.
REASONS FOR DECISION
Introduction
1 This is an application by Frank Carulli (‘Mr Carulli’) seeking review of a decision of the Commissioner for Fair Trading (‘the Commissioner’) to refuse his application for a variation to this contractor licence no.50365C from the category of ‘carpenter and joiner’ to that of ‘builder’. The Commissioner refused the application on the grounds that he was not satisfied that Mr Carulli had the qualifications, or passed examinations, or practical tests, or both necessary to enable him to do building work.
The Statutory Framework
2 The Home Building Act 1989 (‘HB Act’) regulates residential building work in New South Wales. An essential part of that regulation is the licensing and regulation of persons who engage in such work. Section 3 of the HB Act defines “residential building work” to mean the following:
3 A ‘dwelling’ is defined in s. 3 of the HB Act as follows:B Act to mean the following:
“residential building work” means any work involved in, or involved in co-ordinating or supervising any work involved in:
(a) construction of a dwelling, or
(b) the making of alterations of additions to a dwelling, or
(c) the repairing, renovation, decoration or protective treatment of a dwelling.’
4 Clause 46 of the Home Building Regulation 2004 (‘the HB Regulation’) sets out the different types of residential building work. These include: general building work, carpentry, joinery, flooring, bricklaying, stonemasonry, dry plastering, wet plastering, painting, decorating, general concreting, demolishing, underpinning or piering, fencing, glazing, roof tiling, mechanical services, metal fabrication, minor tradework, minor maintenance and clearing and kitchen, bathroom and laundry renovation.
“dwelling” means a building or portion of a building that is designed, constructed or adapted for use as a dwelling (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat).
It includes any swimming pool or spa constructed for use in conjunction with a dwelling and such additional structures and improvements as are declared by the regulations to form part of a dwelling.
It does not include buildings or portions of buildings declared by the regulations to be excluded from this definition.
5 Section 12 of the HB Act prohibits individuals from doing any residential building work or specialist work (eg plumbing, gas fitting and electrical wiring - see s.3) unless the individual is:
6 Section 13 of the HB Act prohibits an individual from doing any residential building work unless the individual is the holder of a contractor licence, a supervisor or tradesperson certificate, or an owner builder permit, or the individual works under the supervision or direction of an individual who is the holder of such a licence, certificate or permit.
the holder of a contractor licence to do that work, or
is a member of a partnership or officer of a corporation that is the holder of a contractor licence to do that work; or
the holder of an owner builder permit to doe that work; or
an employee of the holder of such a licence.
7 Division 1 of Part 3 of the HB Act makes provision for the issue of contractor licences and Division 2 of that Part makes provision for the issue of supervision and tradespersons certificates. A contractor licence authorises its holder to contract to do any residential building work that is described in the contractor licence when issued: see s.21 of the HB Act. On the other hand, a supervisor certificate authorises its holder to do and to supervise any residential building work that is described in the certificate when issued: see s.27 of the HB Act. Where a contractor licence is issued to a natural person, the Commissioner is also able to endorse that licence to show that the holder of the licence is also qualified to hold a supervisor certificate: see s.26 of the HB Act.
8 Section 19(1) of the HB Act gives the ‘Director-General’ (defined in s. 3 of the HB Act to be the Commissioner) power to grant contractor licences for the purposes of the Act.
9 Section 20 of HB Act deals with the issue of a contractor licence and relevantly provides as follows:
10 Clause 26 of the HB Regulation sets out additional requirements for obtaining a contractor licence. That clause relevantly provides as follows:
20 Issue of contractor licences
(1) …
(2) The regulations may fix or provide for the [Commissioner] to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.
(3) The [Commissioner] must reject an application for a contractor licence if:
(4) A decision of the [Commissioner] relating to determining standards or other requirements under sub-section (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act.
(a) The [Commissioner] is not satisfied that any such requirement would be met were the contractor licence to be issued, or
…
11 Clause 28(1) of the HB Regulation provides as follows:
26 Additional requirements for obtaining contractor licences
(1) Before a contractor licence is issued, the [Commissioner] must be satisfied that:
(a) …
(b) The applicant, if so applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor’s certificate:
(i) complies with the requirements prescribed by clause 28(1), and …
12 The Commissioner has set out in a brochure, which is publicly available, the technical/formal qualifications and practical experience that he has determined as being necessary for a contractor licence or a qualified supervisor certificate for the various categories of residential building and building trade work. That brochure is commonly referred to as Form L20.
28 Additional requirements for obtaining certificates
(1) Before a certificate is issued, the [Commissioner] must be satisfied that the applicant:
(a) has such qualifications or has passed such examinations or practical tests, or both, as the [Commissioner] determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and
(b) has had experience of such kind and for such a period, as the [Commissioner] considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and
(c) is capable of doing or supervising work for which the certificate is required.
13 Form L20 sets out two different ways in which a person can satisfy the qualification standards and experience necessary for a builder contractor licence or supervisor certificate. One way is by having one or more of the specified qualifications from the institutions listed on the form plus a minimum of two years post apprenticeship or qualification practical in the ‘carrying out or supervising a wide range of building construction works’. It is not disputed that Mr Carrulli does not have any of the qualifications that are listed.
14 The alternative way to satisfy the qualification standards and experience necessary for such a licence or certificate is by successfully completing a BISC Building Licence Assessment. However, there are some pre-requisites to being able to qualify to sit for this Assessment. These pre-requisites, so far as they are relevant to this application are stated in Form L20 to be as follows:
15 Form L20 also sets out what is required as evidence of ‘practical experience’. These requirements are as follows:
‘BUILDING INDUSTRIES SKILLS CENTRE (BISC) BUILDING LICENCE ASSESSMENT
Applicants not holding any of the listed acceptable qualifications may still qualify for issue of a Contractor Licence/Qualified Supervised Certificate as a builder by successfully completing the BISC Building Licence Assessment provided they satisfy the guidelines for entry into the examination. These guidelines are as follows:
…-
…-
The applicant holds a TAFE (or equivalent) Trade Course Certificate in the trades of Carpentry and Joinery OR Bricklaying and can show 10 years of relevant post-trade experience in carrying out or supervising a wide range of building construction works.
…-
…-
…-
NB (i) Applicants for a Builders Licence Certificate wishing to undertake the BISC Building Licence Assessment should enclose a detailed Resume of their building industry experience with the application;
(ii) Applicants accepted for the Building Licence Assessment will be notified in writing by the BISC of all details concerning the assessment & briefing session.’
Issues
‘Evidence of Practical Experience
A minimum of two statements verifying an applicant’s practical experience be submitted with the application. The statements MUST:
Statement of Practical Experience forms are enclosed with the application form to assist you in obtaining the necessary supporting documentary evidence of your practical experience.
Be completed by a person such as: a holder of a qualified supervisor certificate or individual contractor licence (Q), building surveyor, building inspector, architect or relevant engineer who knows of the applicant’s work history;
Provide a detailed description of the type(s) or work performed by the applicant; and
Indicate the dates over which the applicant performed the work.
Applicant for a Builder’s Licence/Certificate wishing to undertake the Building Industry Skills Centre’s Building Licence Assessment or Oral Technical Assessment should enclose a detailed resume of their building industry experience with the application.’
16 In the internal review determination, the Commissioner’s delegate questioned many of the matters relied on by Mr Carulli in his application. However, at the hearing, Mr Maynard, who appeared for the Commissioner, contended that even if no issue was taken as to the content of the material relied on by Mr Carulli, this material failed to satisfy the required 10 years relevant post-trade experience. Additionally, even if the 10 year post-trade experience requirement was satisfied, this did not mean that Mr Carulli had the necessary qualifications and experience. It only meant that Mr Carulli was entitled to sit the BISC Building Licence Assessment and it was only on completion of this Assessment that Mr Carulli satisfied the qualification standards and experience necessary for the issue of a builder contractor licence and supervisor certificate.
17 The essence of Mr Carulli’s contention was that he met the qualification standards for a ‘builder’ contractor licence as he is the holder of a TAFE Trade Course Certificate in carpentry and joinery and he had provided evidence to show 10 years relevant post-trade experience in carrying out or supervising a wide range of building constructions works.
Mr Carulli’s qualifications and experience
18 Mr Carulli was issued with his contractor licence No 50365C on 27 October 1993. That licence authorised him to contract to do carpentry and joinery. Mr Carulli continued to be the holder of this licence until 1996. After this time Mr Carulli ceased doing residential building work and began working in the construction industry. He was not required to be licensed under the HB Act to do this work so he let his contractor licence lapse.
19 It would appear that during 2002, Mr Carulli wanted to move back to do residential building work as a builder. As discussed below, he made his first application for an endorsement to his licence in October 2003. His second application, on which the decision that is the subject of review in this application is based, was made on 20 July 2005. In that application Mr Carulli described his employment history as follows:
20 In support of his application Mr Carulli enclosed the following completed pro forma Statements of Practical Experience:
Period of Employment: 10/01/88 to 10/01/92 – full time
Name of Employer: Concrete Construction Pty Ltd – major building projects
Type of Work: Apprentice
Period of Employment: 01/03/92 to 25/03/94 – full time
Name of Employer: Charlie’s Carpentry Pty Ltd – Department of Housing
Type of Work: Carpenter
Period of Employment: 01/04/94 to 08/07/95 – full time
Name of Employer: EFI Formwork Contractors
Type of Work: Formworker
Period of Employment: 11/07/95 to 20/08/96 – part time
Name of Employer: Skilled Engineering Pty Ltd
Type of Work: Carpenter
Period of Employment: 08/05/96 to 12/01/98
Name of Employer: Peter Favetti & Sons Pty Ltd
Type of Work: Carpenter in charge
Period of Employment: 03/12/98 to 10/03/2000 – full time
Name of Employer: Peter Favetti & Sons Pty Ltd
Type of Work: Interpreting plans and specifications, setting out quality assurance
Period of Employment: 07/07/00 to 02/02/05
Name of Employer: Peter Favetti & Sons Pty Ltd
Type of Work: Leading hand Carpenter, setting out and supervising bricklayers and directing workforce as well as assisting in estimating
21 In addition to the abovementioned statements, Mr Carulli provided the following references:
(a) Statement of Anthony Nass, the holder of a building contractor licence –
(b) Statement of Seliciano Rodriguez - who the Tribunal understands to be the holder of a builder contractor licence
Mr Nass stated that he supported Mr Carulli’s application as he had been involved in both the domestic and commercial building industry. He went on to state that he came from a family involved in the construction industry. In this regard he said that Mr Carulli’s father had been a builder in Sydney for over 20 years and that he had passed his knowledge onto his son.
Mr Seliciano Rodriguez stated that he had known Mr Carulli since 1975 and that he knew him to be a competent carpenter and builder. He endorsed Mr Carulli’s application as Mr Carulli had been working in the building industry all his life and he studied the building rules and building codes as well as good building contract management. Mr Rodriguez also made mention of the fact that Mr Carulli came from a family of builders.
22 In written submissions filed on 26 June 2006, Mr Carulli provided additional information about his work experience. This included a letter, dated 22 June 2006 from Neale Lawson, Customer Service Manager of the Building and Construction Industry Long Service Payments Corporation, of which Mr Carulli is a registered member/contributor. In that letter Mr Lawson states that Mr Carulli had performed eligible building and construction work for 15 years and 136 days, which includes his employment as an apprentice. The letter also lists Mr Carulli’s employers and the dates of employment, which appear to be consistent with that contained in his application.
(a) R. Britt, Project Manager of Concrete Constructions (NSW) dated 4 November 1991 – Mr Britt stated that Mr Carulli had been employed by the company to work on the construction of the Holiday Inn Coogee Beach Hotel. He stated that Mr Carulli’s role was that of a 3rd and 4th year apprentice carpenter and joiner and that his work commenced from the early structural stages of the hotel through to the final handover.
(b) Christine Karananasios, Administration Assistant, of Skilled Engineering Ltd dated 20 August 1996 – in her reference Ms Karanasios certified that Mr Carulli had worked for the company as a casual carpenter from 11 July 1995 and that he was continuing to work on a casual basis at the time of writing the reference.
(c) Mr Ray Favetti, Manager of Peter Favetti & Sons Bricklaying Pty Ltd, dated 13 January 1998 – in this reference Mr Favetti stated that Mr Carulli was employed with the company from 8 May 1996 to 12 January 1998 as a carpenter and that he was part of the company’s overall construction team.
(d) Mr Peter Favetti, managing director of Peter Favetti & Sons Bricklaying Pty Ltd , dated 17 September 2001 – in this reference Mr Favetti stated that Mr Carulli had been employed by the company for 5 years and that his work was mainly concerned with large commercial works in the field of carpentry but that his role was also varied as required.
(e) Mr Ray Favetti, Business Manager, Peter Favetti & Sons Bricklaying Pty Ltd, dated 26 September 2003 – in this reference Mr Ray Favetti certified that Mr Carulli had been employed with the company from 3 December 1998 to 20 September 1999 and that he was again employed with the company on 10 March 2000 and continued to be employed with the company at the time of writing the reference. He also stated that Mr Carulli was employed by the company in the capacity of leading hand/carpenter and that the company was involved in numerous projects which ranged from small residential to multi-storey residential and large commercial projects. He went on to explain that Mr Carulli’s position varied from project to project, with the majority of his time being spent in interpreting plans and specifications, setting out of the works, erecting door frames, placing DPC and flashings in position. In addition to this he was in charge of quality assurance and spent time supervising bricklayers and assisting with the tendering and procuring contracts process.
(f) Charlie Cuschiere, Director of Charlie’s Carpentry Pty Ltd dated 25 March 1994 – in his reference Mr Cuschiere certified that Mr Carulli had worked for his company for a period of 2 years and he certified that he had the utmost confidence in his ability as a tradesman (contractor or contract of carpentry – joinder) and he would recommend him for any position or job for which he may apply or tender for.
Consideration
23 There is no dispute that Mr Carulli has the requisite TAFE Trade Course Certificate for a BISC Building Licence Assessment. Nor is it disputed that more is required. As explained above, Mr Carrulli accepts that he must show that he has 10 years of relevant post trade experience. However, on the proper construction of the qualification requirements as set out in Form L20, I agree with the contentions of the Commissioner, that satisfying these requirements only entitle Mr Carulli to being accepted for the BISC Building Licence Assessment and it is not until that Assessment has been completed that Mr Carulli satisfies the qualification standards for a builder contractor licence and supervisor certificate. Accordingly, Mr Carulli having failed to meet these qualification standards is a sufficient basis to dispose of Mr Carulli’s application. However, as there was considerable argument about whether Mr Carulli had the requisite relevant 10 years post trade experience and the evidence necessary to establish that experience I will briefly deal with these issues. In dealing with these issues I have only considered the proper construction of the qualification standards and experience as set out by the Commissioner in Form L20 so far as they relate to this application.
24 In respect to the relevant post trade experience in Form L20, as it applies to Mr Carulli, what is required is ‘10 years relevant post trade experience in carrying out or supervising a wide range of building construction works’. This requirement can be broken down as follows:
25 The 10 year work experience relied on by Mr Carulli was the work he had undertaken after he obtained his trade certificate in 1992. If the history provided by Mr Carulli in his application is accepted as being evidence of his building experience, this would satisfy the 10 year requirement. Accordingly, on this basis he would satisfy (a) above. Furthermore, his work experience, as described in his work history, was such that he carried out the work in question or supervised the work of others. Accordingly, he would satisfy (b) above. This leaves (c), namely the work he carried out or supervised was ‘building construction work’ and it was in a ‘wide range’ of construction works.
(a) 10 years relevant post trade experience;
(b) in carrying out or supervising;
(c) a wide range of building construction works.
26 Clarification was sought from the Commissioner as to what constituted ‘building construction works’. Mr Maynard, on behalf of the Commissioner, pointed the Tribunal to the decision of Mohammed v Director General, Department of Fair Trading [2003] NSWADT 62, which considered the term ‘overall building experience’ at [31].
27 Mr Maynard went on to say that as a matter of practise the Commissioner assess applications on the basis of the applicant’s ‘experience in supervising the different stages of residential building construction (similar to the test in Mohammed’s case above) and, at each stage, coordinating other tradespeople to carry out their tasks. Some consideration is also given to demonstration of experience in the construction of different kinds of residential accommodation such as houses, units and town houses.’ In my opinion, for the reasons set out below the practise adopted by the Commissioner is not consistent with the terms of the qualifications and standards as set out in Form L20. The practise is such that it places a very narrow construction of what is set out in Form L20.
“‘overall building experience’ in this context means experience in the area of the relevant qualifications as well as experience in other areas of building such as carpentry, foundations, reinforcement, formwork and plastering.”
28 In my opinion the decision in Mohammed, is not directly relevant and the phrase ‘carrying out or supervising a wide range of building construction works’ should be construed in the usual way. That is, by giving it its ordinary meaning, having regard to the context in which it appears. In this regard it is noted that reference is made to ‘building construction works’ and not ‘residential building works’. This is understandable as the person applying for a builder contractor licence may not have previously worked in residential building work but has experience in the unregulated building construction work area. That area of work includes carpentry, foundations, reinforcement, formwork and other aspects of what constitutes residential building work as described in cl.46 of the HB Regulation: see [4] above. The difference being that it is not work carried out on a ‘dwelling’ (i.e. residential building). Accordingly, the work undertaken by Mr Carulli since 1992 would fall into the description of ‘building construction work’. The question is whether the work he has undertaken is sufficient to satisfy the requirement of ‘a wide range’. It is not clear what this means, whether it is wide range of different types of building construction works, or a wide range of work in the differing trades that make up building construction works, or both. In the case of Mr Carulli, in my opinion, he would satisfy a requirement of a wide range of different types of building construction works but his experience in the differing trades that make up building construction works is more limited. However, if both are to be considered, he may satisfy the requirement. It is unnecessary for the Tribunal to make a finding in this regard as the decision before the Tribunal is not a decision to refuse Mr Carulli the ability to undertake the BISC Building Licence Assessment, and even if it were it is arguably not a decision that is reviewable by the Tribunal. In any event the Tribunal notes that when Mr Carulli made his first application for an endorsement for a builder contractor licence in October 2002, he was assessed in December 2003 as having the requisite post trade experienced to undertake the Assessment, however when he failed to undertake the Assessment within the requisite time his application was refused. It would appear that the delay in Mr Carulli completing the Assessment was due to delays by the assessor and Mr Carulli becoming ill.
29 In respect to the evidence necessary to establish 10 years relevant post-trade experience for the purpose of being eligible for the BISC Building Licence Assessment, it would appear that the Commissioner contends that applicants are required to submit two statements verifying the applicants ‘practical experience’ from holders of a contractor licence or qualified supervisor certificate, or a building surveyor, or building inspector, architect or relevant engineer as set out in Form L20 and repeated in [15] above. The Commissioner also contends that the person making the statement must be aware of the work that the person has undertaken in the previous 10 years or part thereof. In a practical sense it is difficult to see how a person with 10 years experience in the construction industry will be able to satisfy the requirement particularly for work that he/she did many years previously.
30 It is noted that the term ‘practical experience’ is only used in the context of those applicants who have one or more of the acceptable qualifications listed under the first means by which a person satisfies the qualification standards for a builder contractor licence or supervisor certificate. As mentioned above, in such cases there is the additional requirement of two years ‘practical experience’. That is, it is primarily directed at those persons who have obtained qualifications in architecture, engineering (structural), building etc from a university or TAFE and who have had no or limited post qualification practical experience. In those circumstances, a verified statement from the person’s supervisor may not be difficult to obtain.
31 On the other hand, for the purpose of the BISC Building Licence Assessment the requirement is stated to be ‘post-trade experience’ and special mention is made of what is required for those who wish to undertake the Assessment under the heading “Evidence of Practical Experience”. The express requirement is ‘a detailed resume’, which would normally include referees or references.
32 Accordingly, on a literal construction of this portion of Form L20, the requirement of verifying statements does not apply to those whose application is based on 10 years post-trade experience. However, I do not believe the requirement of a verifying statement should be given such a narrow construction when the requirement is considered in the context of the document, Form L20 as a whole. To limit a requirement that the Commission to be presented with independent verification from a suitably qualified person about an applicant’s work experience to those who have one or more of the qualifications listed, would mean that the Commissioner is provided with verification of experience for one class of applicants and not the other. This in my opinion cannot have been the Commissioner’s intention. In my opinion, the intention was for the Commissioner to be provided with verification of experience in both classes of applicant and where the applicant is a person such as Mr Carulli, the person verifying the applicant’s experience need only have ‘knowledge’ of the applicant’s work history. That is, the need for the person making the verifying statement to have supervised the applicant in his/her work is not essential. However, the person making the statement must be satisfied that the applicant has done the work he/she asserts he/she has done. It will then be a matter for the Commissioner as to what weight is to be given to the statement and whether it satisfies the required post trade work experience.
33 In this application it is unnecessary to make any findings on the material Mr Carulli provided to the Commissioner in support of his application other than to find that the material provided, including the references, were relevant to the matters for consideration by the Commissioner.
34 As mentioned above, the Commissioner has previously determined that Mr Carulli was eligible for the BISC Building Licence Assessment, presumably that determination was made on the basis of the same work history that is currently before the Tribunal. If the requirements have remained the same it is difficult to see how Mr Carulli does not continue to be eligible. If he is, then it is entirely a matter for him. However, at this point in time, he does not have the necessary qualifications to be eligible for a builder contractor licence. It is the Tribunal’s understanding that he is however eligible for a contractor licence to do carpentry and joinery work should he seek to reapply for such a licence. At the time of the hearing of this application no such application had been made.
35 For the reasons set out above, in my opinion the decision of the Commissioner is the correct and preferred decision and the Tribunal orders that the decision of the Commissioner is confirmed.
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