Cheng v Construction Occupations Registrar
[2015] ACAT 60
•4 September 2015
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 (7th 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 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 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 Legislative Framework
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.
Section 15 of the COLA provides that the regulations may divide a construction occupation into classes. Pursuant to this section, regulation 37 and schedule 1 of the COLR establish five ‘builder’ occupation classes. The five classes are set out in Table 1.3 of Schedule 1:
Schedule 1Classes of construction occupation licence and functions
(see pt 6)
Part 1.3Builder
column 1
item
column 2
construction occupation class
column 3
construction work
1 class A building work other than specialist building work 2 class B (a) building work (other than specialist building work) in relation to a building that is 3 storeys or lower; and
(b) basic building work
3 class C (a) building work (other than specialist building work) in relation to a building that is 2 storeys or lower and is a class 1, class 2 or class 10a building; and
(b) building work (other than specialist building work) in relation to a building that is a class 10b structure (other than a swimming pool or swimming pool fence) and is ancillary to a building mentioned in paragraph (a); and
(c) basic building work
4 class D non-structural basic building work, other than specialist building work 5 owner-builder building work, other than specialist building work, in relation to a class 1, class 2 or class 10 building that is, or is to be, the licensee’s main home or ancillary to it
Subsection 18(2) of the COLA provides that the regulations may prescribe how an applicant may, or must, demonstrate that the applicant satisfies a requirement.
Regulation 5 of the COLR sets out the information the licence application must contain. For a construction occupation licence, regulation 5(i) states that this information must include evidence that the applicant is eligible to be licensed in the construction occupation or class of construction occupation applied for.
Regulation 13 of the COLR provides for the Registrar to declare the qualifications necessary for an individual to be eligible to be licensed in a construction occupation or class. A declaration must be made by way of a notifiable instrument.
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
1.(sic)The applicant previously held a builders licence class A or class B 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); or
3.The applicant is eligible for the grant of an unconditional builders licence class
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; or
2.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); or
3.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 load
Examples for par (c) (ii)
1 the installation of a new storey on a building
2 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.
In the ‘Notes, Terms and Definitions’ section of the schedule to the Declaration, the following relevant words and phrases are defined –
Reference to building work experience does not include—
quantity surveying, administering contracts, designing, drafting, and off‐site fabricating, except for any periods where the activity involved the actual carrying out of building work by the person independently or under supervision; or
building work experience that is not verified to the satisfaction of the registrar, in that it is not independently verified by a person or people who are competent in making a verification of the extent, quality, relevance and recency of the applicant’s experience doing similar work to, or work that is equally complex as, the work relevant to the application.
Examples of a competent person—
1. a person who holds a builders licence or building surveyor’s licence authorising supervision or certification of similar kinds of
building work to that which is the subject of the application; or2. a structural engineer or architect acceptable to the registrar.
….
Full time means, in respect of a period of time, the approximate total number of normal working hours that a person employed full time in the construction industry would be reasonably expected to work during that period.
Relevant Practical means within the last 5 years
Unconditional means not subject to a condition or endorsement imposed by the registrar.
Of the five builder occupation classes established by regulation 37 and schedule 1, part 1.3 of the COLR only Classes A to D are relevant to professional builders. The work that may be performed by, for example, Occupation Class C is described by reference to ‘classes’ of building and the different classes of building are set out in the Building Code of Australia (BCA). The BCA comprises Volumes One and Two of the National Construction Code (NCC), which is produced and maintained by the Australian Building Codes Board (ABCB) on behalf of the Australian Government and State and Territory Governments. The ABCB is given effect to in the Territory by Part 8.1 of the Building Act.[1]
[1] Respondent’s Statement of Facts and Contentions at [16] – [20]
The relevant building classes for a Class C licence (a low rise residential building licence) are building classes 1, 2 and 10(a) which are defined in the BCA as follows:
Class 1 — one or more buildings, which in association constitute—
(a)Class 1a — a single dwelling being—
(i) a detached house; or
(ii)one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or
(b)Class 1b —
(i)a boarding house, guest house, hostel or the like—
(A)with a total area of all floors not exceeding 300 m2 enclosing walls of the Class 1b building; and measured over the
(B)in which not more than 12 persons would ordinarily be resident; or
(ii)4 or more single dwellings located on one allotment and used for short-term holiday accommodation,
Which are not located above or below another dwelling or another Class of building other than a private garage
Class 2 – a building containing 2 or more sole-occupancy units in each being a separate dwelling.
Class 10 – a non-inhabitable building or structure –
Class 10a – a non-inhabitable building being a private garage, carport, shed or the like; …
The relevant building classes for a Class B licence (a medium rise building licence) are building classes 3, 4, 5, 6, 7, 8 and 9 which are defined in the BCA as follows:
Class 3 - A residential building, other than a building of Class 1 or 2 which is of a common place of long term or transient living for a number of unrelated persons, including -
(a) A boarding house, guest house, hostel, lodging house or backpackers accommodation; or
(b) A residential part of a hotel or motel; or
(c) A residential part of a school; or
(d) Accommodation for the aged, children or people with disabilities; or
(e) A residential part of a health care building which accommodates members of staff; or
(f) A residential part of a detention centre.
Class 4 - A dwelling in a building that is Class 5,6,7,8 or 9 if it is the only dwelling in the building.
Class 5 - An office building used for professional or commercial purposes, excluding buildings of Class 6,7, 8 or 9.
Class 6 - A shop or other building for the sale of goods by retail or the supply of services direct to the public, including -(a) - an eating room, café, restaurant, milk or soft-drink bar; or
(b) - a dining room, bar area that is not an assembly building, shop or kiosk part of a hotel or motel; or
(c) - a hairdresser’s or barber’s shop, public laundry, or undertaker’s establishment; or
(d) - market or sale room, show room, or service station.
Class 7 - a building which is -
(a) Class 7a - a carpark; or
(b) Class 7b - for storage, or display of good or produce for sale by wholesale.
Class 8 - a laboratory, or a building in which a handicraft or process for the production, assembling, altering, repairing, packing, finishing, or cleaning of goods or produce is carried on for trade, sale or gain.
Class 9 - a building of a public nature -(a) Class 9a - a health-care building, including those parts of the building set aside as a laboratory; or
(b) Class 9b - an assembly building, including a trade workshop, laboratory or the like in a primary or secondary school, but excluding any other parts of the building that are of another Class; or
(c) Class 9c -an aged care building.
Section 19 of the COLA refers to decisions that either must or may be made by the Registrar.
Legislation empowering the review of the Registrar’s decision by the Tribunal
Sections 68 and 69 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) set out the power of the tribunal to review decisions:
68Review of decisions
(1)This section applies if the tribunal reviews a decision by an entity.
(2)The tribunal may exercise any function given by an Act to the entity for making the decision.
(3)The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
69Effect of orders for administrative review
(1)This section applies if the tribunal makes an order under section 68 (3) in relation to a decision.
(2)The order—
(a)is taken to be the decision of the decision-maker; and
(b)takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.
Statutory Interpretation
Sections 136, 138, 139 and 140 of the Legislation Act 2001 provide how to work out the meaning of an Act and state:
136Meaning of Act—ch 14
In this chapter:
Act includes a statutory instrument.
138Meaning of working out the meaning of an Act—pt 14.2
In this part:
working out the meaning of an Act means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
139Interpretation best achieving Act’s purpose
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.
NoteThe Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
140Legislative context
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
The Declaration is a subordinate instrument. Section 148 of the Legislation Act 2001 provides:
148. Terms used in instruments have same meanings as in authorising laws
Terms used in a statutory instrument have the same meanings as they have, from time to time, in the Act or statutory instrument (the authorising law ), or the relevant provisions of the authorising law, under which the instrument is made or in force.
Applicant’s Contentions
The applicant contends that[2]:
(a) the primary issue is whether he has demonstrated that he has the relevant practical building work experience necessary for a Class B builder’s licence required by the schedule to the Declaration;
(b) this raises a secondary issue of how to interpret the exception (the exception) to the list in the Declaration of activities that do not constitute ‘building work experience’; and
(c) this raises a preliminary issue of whether the applicant’s experience is gained from doing work that is relevant to the application.
Respondent’s Contentions
[2] Applicant’s submissions dated 15 June 2015, page 7
The respondent contends that the combined effect of regulation 5(i) of the COLR and the eligibility criteria in the Declaration is that for the applicant to be eligible for a Class B licence, he must produce evidence that he is eligible for a B Class licence; namely evidence that he has experience that is relevant and practical to a Class B licence as distinct from a Class C licence. The applicant has not produced this evidence.[3]
Issues
[3] Respondent’s Statement of Facts and Contentions at [35]
The main issue for determination is whether the applicant has demonstrated that he has the relevant practical building work experience necessary for a Class B builder’s licence pursuant to the Declaration. In considering this issue the Tribunal will also be considering the matters identified by the applicant as primary and preliminary issues.
As stated in [4] above in determining this issue it is necessary to consider the interpretation of regulation 5(i) of the COLR and the Declaration (statutory interpretation). In considering this issue the Tribunal will also consider the secondary issue identified by the applicant. The Tribunal will consider the statutory interpretation issues first.
Consideration of Contested Issues
Statutory Interpretation
It is a fundamental principle of statutory interpretation that “….every passage … must read, not as if it were entirely divorced from its context, but as part of the whole instrument”.[4] The Tribunal has set out sections 136, 138, 139 and 140 of the Legislation Act 2001 above. Where an interpretation of legislation sought by a party is not congruent with the intention, in this case of the licensing scheme pursuant to sections 138(c) and 139 of the Legislation Act2001, it is incumbent on the Tribunal to determine if there is an alternative interpretation to that sought by the applicant that is more consistent with the intended purpose of the Act.
[4] Metropolitan Gas Co v Federated Gas Employees Industrial Union (1924) CLR 449, 455 per Isaacs and Rich JJ
In Minotaur Constructions (ACT) Pty Ltd v Constructions Occupations Registrar[5] (Minotaur) a differently constituted tribunal considered the COLA and referred to the decision of the High Court in Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross[6] (Certain Lloyd’s) in which French CJ and Hayne J (with Kiefel J agreeing) reviewed some of the basic principles of statutory interpretation. That tribunal stated:
In particular the [High] Court noted the importance of the legislative ‘context’ being determined from the text and scope of the legislation as a whole when determining the construction of a particular provision in the legislation
[and then referred to the following parts of Certain Lloyd’s]:24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”. That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. [footnotes omitted]
[5] [2014] ACAT 43
[6] [2012] HCA 56
In relation to the intent of the COLA the tribunal in Minotaur stated[7]:
In the present instance the legislative context and interpretation is to provide a measure of protection for consumers of services provided by builders. The intent of the COLA is essentially one of balancing the protection of the consumer against the right of builders to engage in their chosen trade.
[7] At [46]
In Den Hertog v Construction Occupations Registrar[8] (Den Hertog) that tribunal briefly set out the background to the COLA and its general purpose in the following paragraphs:
32.In 2004, the Government introduced the COLA which brought with it significant improvements to the way the construction sector was administered in the ACT. It established a framework which provides for effective regulation of the construction industry in the ACT and established a qualifications framework which enables labour market mobility and high levels of competence and training in the industry. The COLA sets out requirements for obtaining licences, and through operational Acts, sets out the procedures and standards which must be followed when undertaking construction work. It established the statutory position of Construction Occupations Registrar who is responsible for administering the Act and operational Acts. The Act established the responsibilities and powers of the Registrar in administering the Act and allowed for delegation of these functions. The COLA provides, inter alia, administrative procedures and requirements for the licensing of construction occupations.
33.The COLA regulates construction occupations directly engaged in the construction of buildings. The Building Act concerns licensed builders in connection with activities commencing with construction. Builders must construct buildings in accordance with the Building Code of Australia (the BCA). Construction work carries significant health and safety risks to not only construction workers, but to occupants and users of buildings and the general public. The BCA makes provision in relation to the construction of buildings for purposes of safety, hygiene and structural integrity.
[8] [2014] ACAT 33
The Tribunal is satisfied that, in interpreting the legal meaning of regulation 5(i) of the COLR and the Declaration in the present matter, the Tribunal must look at the word or words of the provisions in the context of the instrument as a whole including its general purpose and policy.
The applicant’s interpretation of regulation 5(i)[9] of the COLR and the mandatory licence qualifications in the Declaration appears to be based on the premise that clause 1(b) in the Class B licence criteria is identical to clause 1(b) in the Class C licence criteria. He submitted that the fact that there was no statement in the criteria for a Class B licence that “experience on buildings authorised only by a Class C licence is not sufficient” or words to a similar effect[10] as is included in the criteria for a Class A licence, should be construed beneficially for him by the Tribunal finding that an applicant for both a Class B licence and for a Class C licence can rely on the same relevant and practical work experience.
[9] The licence application must contain...(i) evidence that the applicant is eligible to be licensed in the construction occupation or class of construction occupation applied for.
[10] “other than building work of the kind that an unconditional builder’s licence Class C authorises”
The Tribunal finds that applicant’s interpretation ignores the regulations provided by section 15 of the COLA which permit the division of a construction occupation into classes. The fact is that regulation 37 and schedule 1 of the COLR establish five builder occupation classes and column 3 of Table 1.3 in schedule 1 very clearly sets out the construction work for each of the classes.
For a Class B licence the construction work that is permitted to be undertaken is (a) building work (other than specialist building work) in relation to a building that is 3 storeys or lower (Tribunal’s emphasis); and (b) basic building work.
For a Class C licence the construction work that is permitted to be undertaken is (a) building work (other than specialist building work) in relation to a building that is 2 storeys or lower (Tribunal’s emphasis) and is a class 1, class 2 or class 10a building; and (b) building work (other than specialist building work) in relation to a building that is a class 10b structure (other than a swimming pool or swimming pool fence) and is ancillary to a building mentioned in paragraph (a) and (c) basic building work.
The interpretation called for by the applicant ignores the critical difference between the number of storeys that a Class B builder is permitted to build and that a Class C builder is permitted to build, namely 3 storeys for Class B and 2 or less for Class C.
The applicant’s interpretation also ignores that the intent of the COLA is essentially one of balancing the protection of the consumer against the right of builders to engage in their chosen trade.[11] The Tribunal will return to ‘the right of builders to engage in their chosen trade’ later in this decision.
[11] Minotaur, see [32] above
For these reasons the Tribunal rejects the interpretation sought by the applicant.
The Tribunal concurs with the respondent’s contention that the applicant must produce evidence that he has experience that is relevant and practical to a Class B licence. This means that the applicant must produce appropriately verified evidence that for a period of two years full time he has relevant practical building work experience in relation to buildings that are 3 storeys or lower and is included in work that is covered by a Class B licence. This interpretation protects public safety. Unless the Registrar has this verified evidence, the Registrar could have no confidence that the applicant for a Class B licence would be able to work unsupervised on buildings covered by a Class B licence.
The secondary issue - the interpretation of the exception
In Den Hertog the tribunal considered the interpretation of ‘the exception’ and referred to the following passage from the text Statutory Interpretation in Australia (7th ed) by Pearce and Geddes, which discusses the form of drafting whereby exceptions (or provisos) are introduced:[12]
The leading Australian statement of the effect of a proviso is that of Latham CJ in Minister of State for the Army v Dalziel (1944) CLR 261 at 274-5:
As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is ‘dependent on the main enactment’ and not an ‘independent enacting clause’ … But though a provision framed as a proviso ought to be drafted and generally should be construed only as such, a consideration of both the main and subsidiary provisions of an enactment may show that the proviso contains matter which is really ‘in substance a fresh enactment adding to and not merely qualifying that which goes before’(Rhondda Urban District Council v Taff Vale Railway Co (1909) AC 253 at 258).
[12] At [30]
That tribunal then said:
34.The Tribunal … is satisfied that, in interpreting the exception, the phrase “the activity involved the actual carrying out of building work by the person” is significant. The Tribunal interprets the exception to mean that the excluded activities are allowed as long as the person doing them also follows up with the building work directly flowing from these activities: that is, that the person engages in the physical activity of doing the building work, or takes on the position of organizing trades, materials etc to have the building work done. This recognizes that the person, in this case the applicant, who is seeking a builder’s licence Class A has the understanding gained from work experience that a builder’s work is to build or organize the processes necessary for building.
35.It follows that if any of the excluded activities are conducted during the construction phrase and are not followed up by the applicant personally carrying out the building work flowing from the excluded activity, or taking on the position of organising trades and materials for the building work, the excluded activities are not included in building experience. In this regard the Tribunal concurs with Dr Jarvis’ submission that it would be inconsistent with the COLA if the relevant building work experience could by constituted by non-construction work. It is not readily apparent to the Tribunal why the term ‘building work experience’ is not also defined in the Declaration as this may overcome the difficulties with interpreting the exception as presently drafted.
In the present matter the Tribunal agrees with the statements in the preceding two paragraphs.
The applicant submitted that his building work experience did not fall under the excluded condition list in the declaration. He did not give evidence at the hearing. The only evidence the Tribunal had in relation to the applicant’s work came from Mr Green’s Witness Statement and his evidence and the applicant’s schedules of Relevant Building Work Experience[13] in which, on Class 2 and Class 7a buildings[14] his role is described as ‘site administrator’. Mr Green stated[15] that the work as a site administrator does not constitute relevant practical building work experience.
[13] T-Documents pages 60-64, T-Documents pages 68-72 and T-Documents pages 76-80
[14] T-Documents page 79
[15] At [20]
Without further evidence it would appear that the applicant’s work as ‘site administrator’ would be included in the excluded activity of ‘administering contracts’. There was no evidence that the applicant personally carried out the building work flowing from the excluded activity, or of him taking on the position of organising trades and materials for the building work. In these circumstances the Tribunal finds that the excluded activity is not work that the applicant can rely on for building experience.
In any event, the Tribunal noted that the applicant conceded at the hearing that the verified building work experience he had included in his application for a Class B licence did not include two years full time relevant practical building work experience in relation to buildings that are authorised under a Class B builder’s licence.
The preliminary issue - work relevant to the application
The applicant submitted that ‘work relevant to the application’ was intended to be defined as ‘building work’ that the class of the construction occupation sought in the application is authorised to perform, in his case a Class B builder. He said that the schedules of relevant building work experience he produced with his application[16] showed that the building work he had performed was within his interpretation of the scope of the work/functions that a Class B licensee is authorised to perform.[17]
[16] T-Documents pages 43-45 and T-Documents pages 68–80
[17] Applicant’s Submissions dated 15 June 2015 at [32]
The applicant also submitted that the respondent’s interpretation of ‘relevant’ in the Declaration was inconsistent with the licensing regime and that it interfered with a builder’s proprietary rights and the right to work in a chosen trade under common law. The Tribunal will consider this issue under ‘right to work’ later in the decision.
The respondent’s contention[18] was that the applicant must produce evidence that he has experience that is relevant and practical to a Class B licence, as distinct from a Class C licence.
[18] Respondent’s Facts and Contentions at [37]
The Tribunal accepts the definition of ‘relevant’ from the Macquarie Dictionary, relied upon by the respondent – bearing upon or connected with the matter in hand; to the purpose; pertinent: a relevant remark.[19]
[19] Respondent’s Statement of Facts and Contentions at [42]
It follows then, that the relevant experience for a Class B licence must be experience that is ‘bearing upon’ or ‘connected with’ a Class B licence.
It is not disputed that the applicant’s practical experience is on one and two storey buildings. A Class B licence allows the licence holder to undertake building and construction work on any class of building of up to three storeys in height.
The applicant asks the Tribunal to find that his experience is ‘relevant’ because it is the kind of work that is authorised by a Class B licence. In his submissions[20] he wrote - (after stating that his experience is on buildings lower than 3 storeys) “Therefore, (my experiences) are within the scope of work for Class B licence and are relevant to the Class B licence”. He acknowledged, in response to a Tribunal question, that he did not have two years’ practical building work experience on buildings of three storeys in height.
[20] Dated 13 July 2015, at [48]
The respondent submits[21] that the interpretation sought by the applicant is not congruent with the intention of the licensing scheme.
[21] Respondent’s Statement of Facts and Contentions at [48]
In considering what is ‘relevant’ for a Class B licence the Tribunal must consider the COLR as well as the COLA and the Declaration. As stated above, part 1.3 of the COLR divides the four professional building licences into classes; A, B, C and D.
The respondent submitted[22], and the Tribunal concurs, that the four classes are intended to be hierarchical with Class A being the broadest class containing “all building work” other than specialist building work, and Class D being the narrowest in scope, containing only basic building work.
[22] Respondent’s Statement of Facts and Contentions at [49]
The eligibility criteria for the four classes are also hierarchical. Class A authorises the widest range of work and the criteria for granting a Class A licence is the strictest. The applicant for a Class A licence must hold a degree in a relevant discipline and have 2 years of experience in work that is clearly stated to be work other than that which is authorised by an unconditional Class C licence, or specialist or basic building work. Class D, which allows the narrowest range of work, has the least restrictive criteria.
The respondent submitted[23] because the ‘higher’ classes include the kind of work that is done under the lower classes, a person need only obtain a single licence, that licence being either the ‘highest’ licence relevant to their work or the highest licence they are eligible to obtain by reference to the eligibility criteria. The Tribunal concurs.
[23] Respondent’s Statement of Facts and Contentions at [51]
The eligibility criteria expressly provide that a person who is eligible for a higher class of licence is automatically eligible for a lower class of licence. For example – once a person obtains a Class A licence, that person is automatically eligible for a Class B and Class C licence; and a person who has obtained a Class B licence is automatically eligible to hold a Class C licence.
While the Tribunal notes, as is relevant in this matter, a Class B licence includes the kind of work that is included in Classes C and D and a Class C licence includes the kind of work that is included in Class D, the Tribunal does not agree with the Applicant’s contention that his Class C relevant practical building work experience is, without more, relevant to consideration of his eligibility for a Class B licence. The Tribunal agrees with the respondent, that to adopt this contention is to reverse the hierarchy established by the legislation.
The applicant agreed at the hearing that his practical building work experience which he relied on in his application for a Class B Builder’s licence was on buildings authorised only by a C Class licence. In his most recent submissions the applicant stated:
48. Applicant’s building work experience comprised Class 1 and 10 building that is lower than 3 storeys.
He told the Tribunal that he also had some two to three months of practical building work experience on buildings authorised by a Class B licence and acknowledged that this was well short of the two years full time practical building work experience required.
The Tribunal does not agree with the applicant’s submission that his experience working on buildings lower than 3 storeys is, on its own, work relevant to the application for a Class B licence. The applicant must provide verified evidence of his experience of working for the relevant period on the full range of Building work that would be authorised by a Class B licence.
Mr Green stated[24]:
Mr Cheng has not demonstrated any experience at all in relation to class 2 to 9 buildings. Additionally Mr Cheng has not demonstrated any experience on 3 storey buildings.
Because of the broad scope of work authorised under a class B builder licence, the applicant needs to demonstrate, and have verified by a competent person, relevant practical building work experience of the full range of building work that would be authorised by the licence. The entirety of Mr Cheng’s experience relates to work governed by a class C builder licence, but with no experience distinctly relevant to a class B licence. There is no basis upon which I could conclude that he has the relevant, practical building work experience and therefore his application does not meet the requirements of the 2015 Declaration.
[24] Witness Statement at [23]-[24]
The applicant submitted that his building work experience had been verified by a competent person, Adré de Waal, in his Referee Statement dated 28 January 2015.[25] This is not in dispute.
[25] T-Documents page 46
However, the Tribunal has already found above[26] that the relevant practical building work experience for a Class B licence must relate to buildings that are 3 storeys or lower and otherwise included in work authorised under Class B buildings.
The primary issue
[26] At paragraph [44]
The applicant pointed out to the Tribunal that the respondent is satisfied that he holds the relevant tertiary qualification that complies with 1(a) of the schedule. This was never in dispute.
The applicant submitted that he has shown that he has not less than 2 years of full time relevant practical building work experience that complies with 1(b)(i) and (ii) of the schedule and he has, therefore, met the necessary qualifications for a Class B builder as set out in the schedule.
The respondent contended that it is not sufficient for the applicant to rely primarily on ‘time’ working on licensable work in the building industry generally, and under a Class C licence in particular, when applying for a Class B licence. The practical relevant experience required to be verified was not determined by the ‘time’ worked but by the nature of the work undertaken during that time. The Tribunal concurs.
The Tribunal has already found, above, that the verified practical relevant building work experience relied on by the applicant did not relate to building work authorised under a Class B licence.
Right to work
While the applicant agreed that the clear intention of the COLA was to establish a hierarchical regulatory framework to provide protection for consumers, he contended it also intended to establish a hierarchical regulatory framework as protection for the builder’s right to engage in their chosen trade.
In support of this he submitted[27] that a builder can move up the hierarchy from a Class C builder once they have gained the necessary academic qualification and become a class B builder relying on the experience gained as a Class C builder, contending that such experience was ‘relevant’ to the Class B licence application. Likewise the applicant submitted that a Class B builder, upon obtaining the necessary academic qualification, can qualify for a Class A licence “as the practical experience gained while a class B builder are(sic) relevant to the Class A licence application”.[28]
[27] Submissions dated 13 July 2015 at [54]
[28] Submissions dated 13 July 2015 at [54]
In paragraph 52 above the Tribunal referred to the applicant’s submission that the respondent’s interpretation of ‘relevant’ in the Declaration was inconsistent with the licensing regime and that it interfered with a builder’s proprietary rights and the right to work in a chosen trade under common law. He referred the Tribunal to the statements by the tribunal in Minotaur in relation to the right to participate in trade and commerce, which the Tribunal has set out in paragraph 33 above.
The applicant further submitted that if the respondent’s interpretation of ‘relevant’ was adopted it would result in a builder’s rights to advance in the hierarchy diminishing given that subsection 84(1) of the COLA states:
84Certain entities not to provide construction services
(1) A person commits an offence if the person—
(a) provides a service (whether as an employee or otherwise) in a construction occupation or occupation class; and
(b) either—
(i)is not licensed in the occupation or class; or
(ii) if an endorsement on the licence is required for the person to be authorised to provide the service provided and the licence does not have that endorsement.
The respondent submitted the licensing scheme is not a training program that offers opportunities to move from one level to another. Nor is it the case, as described by the applicant, that a Class B licence is a bridge from a Class C licence to a Class A licence. It is a scheme that enables a licensed builder whose licence authorises the provision of the service, to supervise an individual’s work if that individual is not licensed in the occupation or class to do that work. Subsection 84(3) of the COLA relevantly provides:
(3)This section does not apply if—
(a)an individual provides the service, whether directly or for an entity; and
(b)the individual is working under the supervision of a licensee whose licence authorises the provision of the service; and
(c)the licensee is not required by a condition or endorsement on the licence to provide the service as an employee or under supervision; and
(d)a regulation allows the service to be provided by an individual without a licence if provided under the supervision of a licensee.
The applicant appeared troubled at the hearing by the respondent’s submissions to this effect. He told the Tribunal that, using the respondent’s submissions, he could never get the 2 years full time relevant practical building experience on buildings that are within the work authorised by a Class B building licence while he was licensed as a Class C Builder. This statement appeared to be based on the fact that Mr de Waal, who had validated his work for his Class C and Class B licence applications, did not work on buildings that are within the work authorised by a Class B builder’s licence.
In 2013 the ACT Supreme Court considered a challenge to the power of the Registrar to place conditions on the licenses of building surveyors under the COLA in Ruckschloss v Simmons and Middlemiss (No 2)[29]. The challenge was based on the right of an individual to carry out his business within the law. The plaintiff submitted:
.. it is a long accepted principle of statutory construction that every citizen is at liberty, prima facie, to carry out his business in his own way within the law and it will not be held that the legislature has intended by any statute to impair that liberty unless it has expressed that intention by plain words or by necessary implication from the language used: Commonwealth v Progress Advertising& Press Agency Co Pty Ltd [1910] HCA 28; (1910) 10 CLR 457 at 464; Ex parte Walsh and Johnson: In re Yates [1925] HCA 53; (1925) 37 CLR 36 at 93.
[29] [2013] ACTSC 133
Master Mossop said:
50. In the present case the purpose, text and structure of the COL Act and the Building Act are sufficient, in my view, to disclose a power to impose conditions which affect persons in the position of the plaintiff, notwithstanding that such an affect may be substantial and adverse.
In the present matter the Tribunal does not accept the applicant’s submission that interpretation of ‘relevant’ sought by the respondent interfered with a builder’s proprietary rights and the right to work in a chosen trade. While the respondent’s interpretation of ‘relevant’ may cause some detriment to the applicant, that detriment is not insurmountable. Mr Green, in his Witness Statement, stated:
25. Mr Cheng asked how he could gain such experience. The answer is that he must work on a range of relevant building work that would be authorised under a Class B builder licence under the supervision of a person who already holds a Class B or a Class A builder Licence.
In his evidence Mr Green said that the applicant could employ a Class B licensed builder in his business and work under him, as provided by section 84(3). Noting Mr Cheng’s Class C construction work was verified by Mr de Waal who is a Class A builder, Mr Green said if Mr de Waal was working on a building or buildings authorised under a Class B builder licence he could supervise the applicant undertaking relevant practical building work experience for a Class B licence. If Mr de Waal did not want to undertake building work authorised under the Class B licence then the applicant would have to employ a Class A or Class B licensed builder to work in his business on buildings authorised under a Class B licence who could supervise the applicant undertaking that work or seek employment elsewhere with a Class A or Class B builder who would be able to supervise him undertaking Class B construction work for the required two year full time period.
The Tribunal accepted Mr Green’s evidence. It was credible and not successfully challenged. The examples given by Mr Green allow the applicant to obtain appropriate experience while ensuring the protection of the public. The respondent contends[30], and the Tribunal agrees, that this interpretation is consistent with the clear intention of the legislative scheme.
[30] Respondent’s Statement of Facts and Contentions at [57]
The Tribunal finds that the applicant’s contention that his Class C licence experience is relevant to the consideration of his eligibility for a Class B licence reverses the hierarchy established by the legislation. Such an interpretation would create an absurd result that is clearly not congruent with the intention of the licensing scheme. In such a situation, pursuant to section 138(c) of the Legislation Act, it is incumbent on the Tribunal in this matter to work out the meaning of the Act and in doing so, pursuant to section 139(1), prefer the interpretation that would best achieve the Act’s purpose.
In this case the Tribunal finds that the preferred interpretation is that ‘relevant experience’ for a higher grade of licence means experience in relation to the type of work covered by that licence. An applicant wishing to upgrade a licence Class C to a Class B must show something more than mere experience under a Class C licence - they must show that they have relevant practical building work experience in relation to that kind of work authorised by a Class B licence such that they should be authorised to perform that work without supervision as well.
The applicant did not demonstrate any experience in relation to Class 3 through Class 6 and Class 8 - 9 buildings.
Conclusion
Having considered all of the evidence and the submissions before the Tribunal, for the reasons set out above, the Tribunal is satisfied that the Applicant has not provided evidence that he meets the eligibility criteria for a Class B licence. His application for review is not successful.
The decision under review is confirmed.
………………………………..
Ms E. Symons
Presidential Member
HEARING DETAILS
FILE NUMBER: | OR 15/12 |
PARTIES, APPLICANT: | Zhi Cheng |
PARTIES, RESPONDENT: | The Construction Occupations Registrar |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | Ms H. Robinson |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms E. Symons |
DATES OF HEARING: | 22 July 2015 |
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