Cheng v Construction Occupations Registrar - [2015] ACAT 60

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHENG v CONSTRUCTION OCCUPATIONS REGISTRAR
(Occupational Discipline) [2015] ACAT 60

OR 15/12
Catchwords: OCCUPATIONAL DISCIPLINE – CONSTRUCTION OCCUPATION – eligibility to apply for Class B Builder’s licence – relevant practical building work experience –interpretation of exception in definition of building work experience - application for a Class B Builder’s licence relying on verified relevant practical building work experience for a Class C Builder’s licence

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 68, 69
Building Act 2004 ss 6, 9, 10
Construction Occupations (Licensing) Act 2004 ss 8, 15, 17
Legislation Act 2001 ss 136, 138, 139, 140, 148

Subordinate
Legislation:Construction Occupations (Licensing) (Mandatory Qualifications) Declaration 2015 (No. 3) Schedule 2
Construction Occupations (Licensing) Regulation 2004 5, 13, 37, Schedule 1

Cases cited:Den Hertog v Construction Occupations Registrar [2014] ACAT 33
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
Metropolitan Gas Company v Federated Gas Employees Industrial Union (1925) 35 CLR 449
Minotaur Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2014] ACAT 43
Ruckschloss v Simmons and Middlemiss (No 2) [2013] ACTSC 133

List of
Texts/Papers cited: Building Code of Australia

Pearce and Geddes, Statutory Interpretation in Australia (7^th ed, 2011)

Tribunal: Ms E. Symons - Presidential Member

Date of Orders: 4 September 2015

Date of Reasons for Decision: 4 September 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 15/12
BETWEEN: ZHI CHENG
Applicant

AND: CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent

TRIBUNAL: Ms E. Symons, Presidential Member

DATE:4 September 2015
ORDER

The Tribunal orders that:
1.The decision under review is confirmed.

………………………………..
Ms E. Symons
Presidential Member

REASONS FOR DECISION

Background

Mr Cheng (the applicant) applied to the Construction Occupations Registrar (the respondent) under section 17 of the Construction Occupations (Licensing) Act 2004 (the COLA) for a Class B Builder’s licence on 2 October 2014. On 12 January 2015, pursuant to section 19 of the COLA the respondent’s delegate decided not to grant the applicant a Class B licence but to grant him a Class C licence.
On 28 January 2015 the applicant submitted a further application for a Class B licence. On 27 March 2015 the Deputy Construction Occupations Registrar refused to issue the licence applied for (the decision).
The applicant filed an application for review of the decision in the ACT Civil and Administrative Tribunal on 24 April 2015.
In these reasons, a reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal and ‘Tribunal’ refers to the current member.
At a directions hearing on 18 May 2015 it was agreed that the issue for determination was the interpretation of regulation 5(i) of the Construction Occupations (Licensing) Regulation 2004 (the COLR) and the Construction Occupations (Licensing)(Mandatory Qualifications) Declaration 2015 (NI 2015-17) (the Declaration) in which the Registrar set out the necessary qualifications for an individual to be eligible to be licensed in a construction occupation and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACAT 60
Decision Date: 4 September 2015

CaseChat Overview and Summary

In the matter of Cheng v Construction Occupations Registrar, the applicant sought a review of the Registrar's decision to refuse the issuance of a Class B licence. The applicant, who had submitted an application on 28 January 2015, was informed on 27 March 2015 that his application had been declined. This decision was subsequently challenged in the ACT Civil and Administrative Tribunal on 24 April 2015. The tribunal's task was to interpret regulation 5(i) of the Construction Occupations (Licensing) Regulation 2004 and the Construction Occupations (Licensing)(Mandatory Qualifications) Declaration 2015. These regulations outline the qualifications necessary for an individual to obtain a licence for construction occupations and occupation classes.

The core legal issue was the interpretation of the relevant regulations and the Declaration in terms of the qualifications necessary for a Class B licence. Specifically, the tribunal needed to determine whether the applicant met the criteria set out in the Declaration, which includes holding a certain level of qualification and relevant practical building work experience. The tribunal had to clarify what constituted 'building work', 'specialist building work', and 'basic building work' as these terms were not defined in the COLA but were referenced in the Declaration.

The tribunal, after considering the evidence and submissions from both parties, concluded that the decision to refuse the licence was justified. The tribunal found that the applicant did not meet the mandatory qualifications for a Class B licence as outlined in the Declaration. The tribunal emphasized that the applicant's experience did not meet the specified requirements and that the qualifications held were not equivalent to those required. The tribunal also noted that the definitions of 'building work','specialist building work', and 'basic building work' from the Building Act were relevant to the interpretation of the regulatory requirements.

The tribunal confirmed the Registrar's decision, ruling that the applicant did not meet the mandatory qualifications for a Class B licence under the Construction Occupations (Licensing)(Mandatory Qualifications) Declaration 2015.

Orders

Orders of the court

The Tribunal orders that:

1. The decision under review is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 28 January 2015 the applicant submitted a further application for a Class B licence. On 27 March 2015 the Deputy Construction Occupations Registrar refused to issue the licence applied for (the decision). The applicant filed an application for review of the decision in the ACT Civil and Administrative Tribunal on 24 April 2015. In these reasons, a reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal and ‘Tribunal’ refers to the current member. At a directions hearing on 18 May 2015 it was agreed that the issue for determination was the interpretation of regulation 5(i) of the Construction Occupations (Licensing) Regulation 2004 (the COLR) and the Construction Occupations (Licensing)(Mandatory Qualifications) Declaration 2015 (NI 2015-17) (the Declaration) in which the Registrar set out the necessary qualifications for an individual to be eligible to be licensed in a construction occupation and occupation class. A timetable was made for the filing of material each party intended to rely on at the hearing, including witness statements and authorities, and the matter was set down for hearing. The application was heard on 22 July 2015. The applicant represented himself at the hearing. Ms H. Robinson, of Counsel, instructed by the ACT Government Solicitor’s Office, appeared for the respondent. The applicant had filed written submissions on 15 June 2015 and written submissions in reply to the respondent’s Statement of Facts and Contentions on 13 July 2015. On 6 July 2015 the respondent filed a Statement of Facts and Contentions and a witness statement by Benjamin Green dated 2 July 2015 (Exhibit R1). Mr Green gave evidence and was cross examined. The applicant and respondent each made oral submissions. At the conclusion of the hearing the Tribunal reserved the decision. The COLA regulates construction occupations. Pursuant to section 7(a) of the COLA, a builder’s occupation is a ‘construction occupation’ which is regulated by the COLA. The right of an individual to apply for a construction occupation licence is contained in section 17 of the COLA. Section 17(3) provides that regulations may prescribe the requirements for applications.17Licence applications(1)An individual, corporation or partnership may apply to the registrar to be licensed in a construction occupation or, for a construction occupation that is divided into classes, in an occupation class.(2)However, a corporation or partnership may apply under subsection (1) in relation to a construction occupation or occupation class only if the regulations allow a corporation or partnership to be licensed in the occupation or class.(3)The regulations may prescribe the requirements for applications.(4)If this Act or the regulations prescribe requirements for applications, the registrar need not consider an application that does not comply with the requirements. Section 8 of the COLA defines ‘builder’ and ‘building services’ as: 8What is a builder?(1)A builder is an entity that provides, has provided or proposes to provide a building service.(2)A building service is the doing or supervising of building work.

Ratio Decidendi

Legal Principle Established

The relevant declaration is the Construction Occupations (Licensing)(Mandatory Qualifications) Declaration 2015 (NI 2015-17) (the Declaration). The eligibility criteria for all classes of builder’s licence are set out in Schedule 2 of the Declaration. Relevantly, the mandatory licensing qualifications for Class B are: 1.The applicant holds: (a)a qualification in architecture, civil engineering, structural engineering or building that the Australian Qualifications Framework Advisory Board has determined is a diploma or an advanced diploma in the Australian Qualification Framework system, or that the registrar is satisfied is equivalent to such a diploma or advanced diploma; and (b)not less than 2 years of full time relevant practical building work experience, carried out by the applicant, other than: (i)specialist building work; and(ii)basic building work; or The mandatory licensing qualifications for Class C are: 1.The applicant holds:(a) a qualification in building that the Australian Qualifications Framework Advisory Board has determined is a certificate IV in the Australian Qualification Framework system or that the registrar is satisfied is equivalent to such a certificate; and(b) not less than 2 years of full time relevant practical building work experience, carried out by the applicant, other than:(i) specialist building work; and(ii) basic building work; or2.The applicant previously held a builder licence class A, class B or class C within a 5 year period prior to making the application ‐ (holding or previously holding, as the case requires, such a licence (an earlier licence) satisfies the qualification requirements for a licence that provides the same authority as the earlier licence, provided the earlier licence was not, or is not, the subject of cancellation or suspension); or3.The applicant is eligible for the grant of an unconditional builders licence class A or B. The COLA does not define ‘building work’, ‘specialist building work’ or ‘basic building work’ which are referred to in each of the mandatory qualifications for Classes A, B and C. Subsection 6(1) of the Building Act 2004 (ACT) (the Building Act) defines “building work” as:(1)In this Act:building work means—(a)work in relation to the erection, alteration or demolition of a building, and includes disposal of waste materials generated—(i)by the alteration of a building other than a building excluded under the regulations; or(ii)by the demolition of a building (but not part of the building); or(b)work in relation to repairs of a structural nature to a building.… Section 9 of the Building Act defines ‘specialist building work’ as:In this Act:specialist building work—(a)means—(i)the installation of a swimming pool; or(ii)the demolition of a building; and(b)includes building work prescribed under the regulations as specialist building work. Section 10 of the Building Act defines ‘basic building work’ as:10Meaning of basic building work(1)In this Act:basic building work—(a)means the following building work:(i)erecting a prefabricated class 10a building;(ii)erecting a class 10a outbuilding;(iii)installing fireplaces or solid-fuel heaters;(iv)non-structural work; but(b)does not include specialist building work.(2)In subsection (1):non-structural work—(a)means work on a part of a building that does not, or is not intended to, carry a structural load imposed or transmitted by another part of a building; and(b)includes work on non-load bearing walls, doors, partitioning, reticulated pipework, ventilation ductwork and building fit-out items; but(c)does not include the following work:(i)work that may affect the structural integrity of a structural element of a building, or weaken or remove, completely or partly, the structural element, if the element is installed in a way that it carries, or can carry, a load of part of a building;(ii)work that involves the use of a structural element to carry, or to possibly carry, a structural load of part of a building.Example for par (c) (i)work that affects the existing bracing beams on a multi-storey car park if the bracing beams are designed to bear wind load, even though most of the time they do not carry any loadExamples for par (c) (ii)1 the installation of a new storey on a building2 underpinning a subsiding building(3)The regulations may—(a)exempt a kind of work from the definition of basic building work; or(b)include a kind of work in the definition of basic building work.