CATACOUZINOS and VICTORIAN BUILDING AUTHORITY

[2020] AATA 4553

CATACOUZINOS and VICTORIAN BUILDING AUTHORITY [2020] AATA 4553 (12 November 2020)

Division:GENERAL DIVISION

File Number:          2019/4822

Re:CONSTANTINE CATACOUZINOS

APPLICANT

AndVICTORIAN BUILDING AUTHORITY

RESPONDENT

DECISION

Tribunal:R. Cameron, Senior Member

Date:12 November 2020

Place:Melbourne

The Tribunal affirms the reviewable decision.

................[sgd].............................

R. Cameron, Senior Member

Catchwords

MUTUAL RECOGNITION – application of Mutual Recognition Act 1992 (Cth) – Queensland registration not equivalent to the Victorian registration – Commercial Builder (Limited to Structural fit out work) refused – Commercial Builder (Limited to non- Structural fit out work) granted – activities carried out under each registration in Queensland and Victoria are substantially not the same – decision under review affirmed

Legislation
Building Act 1993 (Vic)
Mutual Recognition Act 1992 (Cth)

Mutual Recognition (Victoria) Act 1998

Cases

Yousefi and Victorian Building Authority [2018] AATA 3542

REASONS FOR DECISION

R CAMERON SENIOR MEMBER.

12 November 2020

INTRODUCTION

1. The Applicant has carried on the vocational occupation as a shopfitter for almost 25 years. The Tribunal has no doubt about his experience and dedication to that trade.

2. The Applicant is the current holder of a Trade Contractor licence issued by the Queensland Building and Construction Commission in the class or category, defined as “Shopfitting (Trade)”.

3. The Respondent, the Victorian Building Authority (“VBA”) is the regulatory agency in the State of Victoria tasked with the function of regulating building practitioners.

4. By notice lodged with the Respondent on 17 June 2019, the Applicant sought registration in the following categories of a building practitioner:

   (a)Commercial Builder (Limited to non-structural fit out work); and

   (b)Commercial Builder (Limited to structural fit out work).

5. The Application by the Applicant to the VBA for registration as a building practitioner in the classes concerned on 17 June 2019, was made under the provisions of section 19 of the Mutual Recognition Act1992 (Cth) (“MR Act”).

6. The Respondent considered the Application for registration made by the Applicant and the material lodged by him in support of it. After consideration of the Application and supporting material, on 16 July 2019, the Respondent granted an application for registration under the Mutual Recognition Scheme to the Applicant in the class of Commercial Builder (Limited to non-structural fit out work). However, it refused his application for registration under the Mutual Recognition Scheme (as the mutual recognition regime created by the MR Act is frequently called) as a building practitioner in the class or category of Commercial Builder (Limited to structural fit out work). Hereinafter referred to as “the reviewable decision”.[1]

   [1] The reviewable decision is at page 23 of the T documents.

7. The grounds relied upon by the Respondent to refuse the Application for registration as a Commercial Builder (Limited to structural fit out work) were that it found that the Applicant’s Queensland registration was not equivalent to the registration sought in the State of Victoria. It further concluded that equivalence could not be achieved, as is sometimes the case by the imposition of appropriate conditions, or restrictions on the registration of the Applicant in that class of builder.

8. Shortly after receipt of the reviewable decision on 25 July 2019, the Applicant wrote to the Registrar of the VBA seeking a reconsideration of the reviewable decision and then made this application to the Tribunal.[2]

   [2] The Applicant’s letter of that date was in evidence before the Tribunal.

   THE ISSUE FOR DETERMINATION BY THE TRIBUNAL.

9. The Tribunal considers, as the Respondent has identified in its Statement of Facts and Contentions, the issue for determination is whether the Applicant meets the requirements for registration in the prescribed class of Commercial Builder (Limited to structural fit out work) in the State of Victoria, pursuant to the Mutual Recognition Scheme created by the MR Act.

   THE HEARING.

10. The Applicant appeared on his own behalf. He did not lodge with the Tribunal any further material beyond a copy of his letter to the Registrar of the Respondent dated 25 July 2019.

11. The Tribunal had documentary evidence before it, consisting of the T documents. In addition, there was, as noted earlier, a Statement of Facts and Contentions. No one gave oral evidence of the hearing.  Mr Glyn Ayres of counsel appeared on behalf of the Respondent. Both parties made submissions.

    THE MUTUAL RECOGNITION SCHEME.

12. The Mutual Recognition Scheme is a creature of the MR Act whose principal purpose is articulated in section 3 of as being to enact legislation authorised by the Parliaments of States under paragraph (xxxvii) of section 51 of the Commonwealth Constitution. It is for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia. It really goes without saying that it has been applied to enable a variety of professions, vocations and occupations to become extremely portable throughout the Commonwealth. Its goal is to promote trade and commerce.

13. It is not necessary to reproduce specific sections of the MR Act. However, reference will be made to the substance of several sections for the purposes of these reasons.

14. The term “equivalent” is defined when used in relation to occupations as having a meaning affected by Division 4 of Part 3 of the MR Act. The term “occupation” is also defined. The definition includes occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification.

15. A prerequisite to becoming a building practitioner in any Australian State or Territory is registration under the relevant building control legislation.[3]

    [3] By way of example, and relevantly to this application in Victoria, it is the Building Act1993 and the Building Regulations2018. Both the Act and the Regulations were contained in the T documents in evidence before the Tribunal.

16. “Division 1-Preliminary of Part 3-Occupations” of the MR Act establishes the mutual recognition principle and the entitlement to carry on an occupation in another state. Section 17(1)(a) of the MR Act captures the notion, or perhaps more accurately, definition of equivalent occupation, which it will be recalled is defined in

    
    

    section 4. The Tribunal observes at this juncture, that the concept of “equivalent occupation” really is the fulcrum of this case. Put in layman’s terms, for the purposes of the Applicant, the question could perhaps be posed in the following terms: “Is the Queensland licence held by the Applicant the equivalent of the Victorian licence he applied for?”. (Within the meaning of Division 4 of Part 3 of the MR Act).

17. “Division 2-Entitlement to registration” enables a person who is registered in one state for an occupation to lodge a written notice with the local registration authority of another state, for the equivalent occupation (in this case the VBA), seeking registration for such equivalent occupation in accordance with the mutual recognition principle. The entitlement is contained in section 19 which specifies a series of eight requirements that a notice given under that section must comply with.[4]

    [4] The requirements are specified in section 19 (2) of the MR Act.

18. Section 20 of the MR Act confers on a person who has lodged a notice under section 19, with a local registration authority of a second state (in this case the VBA), with an entitlement to be registered in the equivalent occupation, provided the registration in the first state is a sufficient ground of entitlement to registration.

19. As the Respondent correctly contended, the entitlement to registration and continued registration conferred by section 20 of the MR Act is subject to a power to postpone such registration under section 22 and to refuse to register the Applicant under section 23.

20. Section 23(1)(c) of the MR Act provides that a local registration authority such as the Respondent may refuse to grant registration if it decides that the occupation for which registration is sought is not an equivalent occupation, and equivalence cannot be achieved by the imposition of conditions.

21. As noted earlier, the question of what is an equivalent occupation within the meaning of the MR Act assumes primacy for the purposes of this application. The question being formulated of course is, whether the Trade Contractor licence held by the Applicant issued by the Queensland Building and Construction Commission is the equivalent to the class of registration as a building practitioner Commercial Builder (Limited to structural fit out work) that the Respondent can issue.

    EQUIVALENT OCCUPATION WITHIN THE MEANING OF DIVISION 4 OF THE MR ACT.

22. Division 4 of the MR Act provides that the equivalence of occupations carried on in different states is to be determined in accordance with that Part.

23. There are two ways that equivalence of occupations carried on in different states can be established.

24. The first way equivalence of occupations can be established is prescribed in section 29, “General principles” of the MR Act. This section prescribes that the test to be satisfied in establishing that an occupation is taken to be equivalent is, if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions) (Emphasis added).

25. Another means of establishing an equivalency is by a Ministerial Declaration made pursuant to section 32 “Declarations by Ministers” of the MR Act. This section provides that a Minister from each of 2 or more States may jointly declare, by notice in the Gazette, that specified occupations are equivalent, and may specify, or describe conditions that will achieve equivalence. Unfortunately for the Applicant, this section has no application because there is no Ministerial Declaration covering the Queensland Trade Contractor Licence in the class of Shopfitting (Trade) held by the Applicant for registration in Victoria.[5]

    [5] The Respondent referred to Schedule 19 of the Mutual Recognition (Equivalence of Gaming and Other Occupations) Declaration 2009. (Pages 109-111 of the T documents.) Schedule 19 identifies the list or categories of occupations in the first State and its equivalence in a second State. An examination of that Declaration reveals that the Queensland registration of the Applicant is not identified therein.

26. Therefore, the question is to be resolved by making a determination as to whether the activities authorised to be carried out under each registration in Queensland and Victoria are substantially the same.

    Are the activities authorised to be carried out under registration in Queensland in the class, Shopfitting (Trade) and Victoria in the class, Commercial Builder (Limited to structural fit out work) substantially the same?

27. Answering this question requires a consideration of what meaning is to be applied to the term “substantially the same” when comparing a Queensland “Shopfitting (Trade)” class of registration and a Victorian class of registration namely “Commercial Builder (Limited to structural fit out work)”.

28. Counsel for the Respondent helpfully referred the Tribunal in submissions to the decision of this Tribunal in Yousefi and Victorian Building Authority.[6] The learned Senior Member in that case provided a useful analysis of the approach to be adopted when answering this question. The following passages are largely taken from that decision as there is no reason to depart from them. There is no requirement that the activities be identical. The section directs attention to the activities to be carried on, not to the legal system of registration. In mutually recognising the equivalence of occupations, it is appropriate to consider whether the activities of the relevant occupations are ‘in the main’ or ‘as to the greater part’ the same. Whether the relevant activities are substantially the same is a question of fact.

    [6] [2018] AATA 3542 at [34]-[36].

29. Bearing in mind this approach to determining whether the activities are substantially the same, it is necessary to examine the scope of the work that attaches to the “Shopfitting (Trade)” registration in Queensland and the category of builder class “Commercial Builder (Limited to structural fit out work)” in Victoria.

30. The Scope of Work covered by the Queensland registration of “Shopfitting (Trade) is found in the T documents.[7] For the purposes of these reasons, they need not be reproduced. The essential characteristics of the works enumerated in the document represent what one would expect in the customary definition of a shopfitter’s work. They are the works finally required to finish off or the completion of building works for commercial premises, usually retail or office, involving fairly regular interaction with the members of the public, prior to the issue of an Occupancy Certificate under the applicable building legislation.

    [7] Page 25 of the T Documents.

31. Similarly, the Scope of Work and qualifications required for registration as a builder class Commercial Builder (Limited to structural fit out work) are also found in the T documents.[8] As accurately noted in the Respondent Authority’s “Practitioner Guide”, which is in evidence before the Tribunal, this class of building work is limited to the fit out of newly constructed or existing commercial buildings/structures of unlimited height and floor area, which affects:

    (a)The existing load-bearing or structural elements and fixtures of the building/structure; or

    (b)how the building/structure complies with the National Construction Code, particularly essential safety measures.

    [8] Commencing at page 31 of the T documents.

32. Another important factor to observe concerning this class of Victorian registration of Commercial Builder (Limited to structural fit out work), is that the building work it permits the registered building practitioner to undertake also includes the installation of external cladding to newly constructed or existing commercial buildings.

33. When a comparison is made between the scope of the work permitted by reason of registration in Queensland, in the class of “Shopfitting (Trade)” and the Victorian “Commercial Builder (Limited to structural fit out work)”,  it is apparent that they are substantially different. The differences are not difficult to identify, they are demonstrably obvious. The Queensland registration does not permit construction and erection of load-bearing walls and ceiling framing, constructing mezzanine floors and altering floor penetrations, installing external cladding to structural and non-structural applications, installing glazing, floorcoverings and finishes as well as floor and wall tiling. These may be and were often in the material before the Tribunal referred to as, works which may affect the existing load or structural elements and fixtures of the building structures such as structural remediation work.

34. Further, when one examines the Scope of Works applicable to the Queensland Shopfitting (Trade) registration, it can be seen that it almost completely fits “hand in glove” and conforms with the scope of works for the Victorian registration granted to the Applicant in the reviewable decision for “Commercial Builder (Limited to non-structural fit out work)”; not the Commercial Builder (Limited to structural fit out work).

35. Another matter that should not be overlooked in distinguishing the two classes of activity or registration is the class of building work covered by the Commercial Builder (Limited to structural fit out work). It also includes a class of building work to commercial buildings of unlimited height and floor area.

36. Finally, in this consideration another matter that is a significant reason for finding that the activities authorised to be carried out under the Queensland registration are not substantially the same as the Victorian equivalent, concerns the qualifications required to have been completed by a successful applicant for registration as a Commercial Builder (Limited to non-structural fit out work) in Victoria.

37. As counsel for the VBA contended in his submissions, several units of competency are required to have been satisfactorily completed by a successful applicant for registration for that class of building work. It includes the unit described by the identifier “CPCCBC5001B” “Apply building codes and standards to the construction process for medium rise building projects.” Apparently, the Applicant has not completed this unit of competency which is a requirement for registration in Victoria for the class of builder Commercial Builder (Limited to structural fit-out work). Therefore, without having completed this qualification, he has simply not achieved equivalency with the applicable Victorian requirements.

    OBSERVATIONS ON OTHER MATTERS RAISED BY THE APPLICANT.

38. In fairness to the Applicant, some observations should be made about the way he submitted his case to the Tribunal during the hearing. He presented as a likeable individual dedicated to his occupation as a shopfitter who has followed that occupation for many years. While following his long career in his chosen industry, he obviously has acquired a store of knowledge and skill that should be recognised. He professes to be, and the Tribunal has no reason to doubt it, a builder dedicated to excellence and hard work. He presented as a very reasonable decent person.

39. Throughout the Applicant’s substantial submissions, his history in the building industry was outlined to the Tribunal, which is acknowledged. He described his interest in structural works as his “passion”. He stated that he had during his career “built amazing structures”.

40. One of the matters he sought to rely upon to justify a decision permitting him to be registered in the class of builder he seeks, in addition to his experience, was the fact that any works he undertook of a structural, or like nature would be subject to supervision by a licensed building surveyor and a qualified engineer.

41. One can appreciate why the Applicant would make such a submission. However, it does not otherwise entitle him to registration under the Mutual Recognition Scheme created by the MR Act. Regrettably, for him it is an irrelevant consideration. Ultimately, the Tribunal is bound to apply the law as it is contained in the MR Act. Also, it should be recorded that such a specification is not incorporated as a requirement of registration for the equivalent class of building practitioner in Queensland (let alone Victoria). The requirement for certification by a Licenced Building Surveyor or Engineer (as necessary) is part of the requirements in any event of the applicable building legislation that must be followed upon completion of building works by the holder of the relevant class of licence. (For instance, as part of the process to obtain an Occupancy Permit.) It is not a mechanism to enable registration by a person who does not otherwise qualify for such registration. Such an approach as advocated for by the Applicant is not provided for. It must be rejected.

42. A further contention advanced by the Applicant with some force and effect, was that another practitioner from interstate (presumably Queensland) who had the same registration as him had made a successful application for registration as a Commercial Builder (Limited to structural fit out work) with the VBA. To his credit, Counsel for the VBA, as one would expect from a model litigant, conceded this had in fact been the case. It was explained to the Tribunal that it was true that such a registration had been granted. Additionally, to his credit, counsel stated that it was only after that individual case that the VBA properly undertook to subject such future applications to much closer scrutiny. Subsequently, in the course of undertaking that examination when the Applicant lodged his application under section 19 of the MR Act, the obvious differences between the two forms of registration in Queensland and Victoria were revealed.

1. The Tribunal explained to the Applicant that a previous decision of the VBA, whilst unfortunate, could not bind the Tribunal in this Application. The Tribunal acknowledges that to people such as the Applicant, this could be disappointing, if not difficult to understand. However, it must be repeated that the Tribunal is obliged to apply the law properly. It is not the forum for the ventilation of complaints about inappropriate administrative action by an agency, as appealing as that may seem. There are other forums where that can be undertaken. It will not be canvassed further in these reasons.

2. One final matter should be referred to by way of conclusion. The Applicant, when the full force and effect of the relevant sections of the MR Act and the Mutual Recognition Scheme were explained to him, largely conceded that the reviewable decision was correct. He then really fell back on the fact that there had been a previous applicant who had in effect been to use his words “waived through”. This admission largely can be relied upon by the Tribunal in any event to reach the conclusion that it does.

3. It should also be observed that it is open to the Applicant to apply in Victoria in the usual way under the provisions of the Victorian Building Act 1993, if he otherwise possesses the prescribed qualifications under Schedule 9 of the Victorian Building Regulations 2018, rather than applying under the MR Act.

   CONCLUSION AND DECISION.

4. By reason of the foregoing matters the Tribunal concludes that the reviewable decision was the correct and preferable one. It will therefore be affirmed.

47.     I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member.

...............[sgd]..................................

Associate

Dated: 12 November 2020

Date of hearing:	22 October 2020
Applicant:	Self-represented
Solicitor for the Respondent:	Victorian Building Authority Phey Goh
Counsel for the Respondent:	Glyn Ayres