CONSTRUCTION OCCUPATIONS REGISTRAR v B & T CONSTRUCTIONS (No. 2) (Occupational Discipline)

[2015] ACAT 55

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CONSTRUCTION OCCUPATIONS REGISTRAR v B & T CONSTRUCTIONS (No. 2) (Occupational Discipline) [2015] ACAT 55

OR 1 of 2014

Catchwords:              OCCUPATIONAL DISCIPLINE – CONSTRUCTION OCCUPATION – Construction Occupations (Licensing) Act 2004- disciplinary proceedings - penalty

Legislation:ACT Civil and Administrative Tribunal Act 2000: ss 65, 66

Construction Occupations (Licensing) Act 2004 s 28(3)

Subordinate

Legislation:ACT Civil and Administrative Tribunal Regulations 2009 reg 4

Construction Occupations (Licensing) Regulation 2004 s 19

Cases:Construction Occupations Registrar v B&T Constructions (ACT) Pty Ltd & Ors [2015] ACAT 24

Tribunal:Mr A. Anforth – Senior Member (Presiding)

Mr G. Trickett – Senior Member

Date of Orders:  19 August 2015
Date of Reasons for Decision:         19 August 2015
Corrected Orders:  21 October 2015

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL                   OR 14/01

BETWEEN:

CONSTRUCTION OCCUPATIONS

REGISTRAR

Applicant

B & T CONSTRUCTIONS (ACT) PTY LTD

Respondent

TRIBUNAL:             Mr A. Anforth – Senior Member (Presiding)

Mr G Trickett - Senior Member

DATE:21 October 2015

CORRECTED ORDERS

The orders made on 19 August 2015 are corrected as follows and the corrected order is attached as ‘A’.

1.Order 3 is amended to delete the words “orders 1 or 2” and insert “order 1”.

2.Order 5(a) is amended by deleting “orders 1 and 2” and insert “order 1”.

3.Orders 7 and 8 are amended by inserting the words “within 28 days” after the words “the sum of $5000.00”.

4.These orders are made to correct clerical errors and omissions.

……………………..

Ms L. Crebbin – General President

For and on behalf of the Tribunal

‘A’

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL                   OR 14/01

BETWEEN:

CONSTRUCTION OCCUPATIONS

REGISTRAR

Applicant

B & T CONSTRUCTIONS (ACT) PTY LTD

Respondent

TRIBUNAL:             Mr A. Anforth – Senior Member (Presiding)

Mr G Trickett - Senior Member

DATE:19 August 2015

Corrected:21 October 2015

CORRECTED ORDERS

1. In accordance with the decision of 24 March 2015 in this same matter and by reference to the Schedule item numbers therein, the Construction Occupations Registrar (Registrar) is directed to place the following conditions on the licence of B&T Constructions (ACT) Pty Ltd pursuant to section 66(1)(g) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act):

(a)      The licensee comply with the following requirements in relation to items 16, 17, 24, 30 and 36 by 30 November 2015 or within such further reasonable time for compliance as stipulated in writing by the Registrar, provided that any application for further time is made prior to 30 November 2015:

(i)      The skillion roof and eaves gutter is to be replaced with the as designed hipped roof, box gutter and downpipe to the S-W roof above Townhouses 25 and 16 (Item 16 of the Schedule);

(ii)      The two large private storerooms constructed adjacent to the upper carpark are required to have the appropriate Development Approvals (DA) and Building Approvals (BA) (Item 17 of the Schedule);

(iii)     The necessary DA is to be obtained for the altered aluminium balustrade for unit 26 that was not built in accordance with approved plan (Item 24 of the Schedule);

(iv)     The following certifications of the completed fire safety system are required in accordance with the relevant Australian Standard:

·the treatment of penetrations as required by BCA part C3.15 and AS4072.1;

·sprinkler in accordance with AS2118.1;

·fire function matrices;

·All lift shafts, the smoke alarm systems, car park sprinkler system and manuals (Item 30 of the Schedule).

(v)     Ten percent (10%) of the units in the building are to be investigated to determine that all the penetrations through fire rated walls and slabs in these units as built comply with the requirements for the treatment of fire rated penetrations. Any required rectification work is to be completed in all units if 10% of those units investigated are found to be non-compliant. All fire rated penetrations associated with this work are to be certified.

(vi)     The sill outside Unit 24 and 30 is to be repaired and finished to match surrounding finishes (Item 36 of the Schedule).

2.       The licence is valid only for the purpose of building work at Block 13, Section 27, Forrest, for which building approval was issued prior to 28 April 2015 and such other building work that may be required under any order of this tribunal or order of the Registrar.

3.       In the event that the licensee breaches conditions set out in orders 1, the licence is suspended.

4.       In the event that the licensee performs building work contrary to order 2, the licence is cancelled.

5.       For the purposes of complying with the Tribunal’s order 1 and 2 above the respondent must:

(a)By 5pm on 30 September 2015 provide the Registrar with a program of works for compliance with the orders at order 1, such plan to include the name of the A class licence holder who will be the respondent’s nominee for the performance of the works or, in the alternative, the name of the A class licence holder who will be performing the works;

(b)Inform the Registrar and the Owners Corporation of Empire Apartments at least every 14 days by email of the progress of works; and

(c)Within 24 hours of proposed entry, provide the Owners Corporation of Empire Apartments with the names and occupations of each employee and sub-contractor who is to enter the site for the purposes of performing the works.

(d)In the event that the licensee has more than 1 nominee, the licensee provide the Registrar with a written record under section 28(3) of the Construction Occupations (Licensing) Act 2004, that details to the satisfaction of the Registrar the construction services that each nominee will be responsible for supervising, having regard to section 19 of the Construction Occupations (Licensing) Regulation 2004.

(e)The licensee maintain a written record that details to the satisfaction of the Registrar the nominee’s, or each nominee’s compliance with section 31(1) of the Construction Occupations (Licensing) Act 2004. This record is to be produced to the Registrar within 24 hours of a request from the Registrar for the record.

6.       The licensee is reprimanded. The reprimand is to be noted on the licensee’s licence for a period of 5 years.

7.       The licensee must pay the Territory the sum of $5,000 within 28 days in relation to the breach of the rectification order dated 18 October 2011, as varied by the Tribunal’s consent orders made on 11 July 2012 per Loftus SM.

8.The licensee must pay the Territory the sum of $5,000 within 28 days in relation to the breach of the emergency rectification order dated 20 September 2012.

9.The parties may request that the application be re-listed within 21 days of the date of these orders to seek clarification of the terms of the orders.

……………………..

Ms L. Crebbin – General President

For and on behalf of the Tribunal

REASONS FOR DECISION

1.The Tribunal has found various breaches of the Construction Occupations (Licensing) Act 2004 and the Building Act 2004 by the licensee (B&T Constructions). The nature of these findings and the reasons for the finding are set in the Tribunal decision delivered on 24 March 2015 (Construction Occupation Registrar v B&T Constructions (ACT) Pty Ltd [2015] ACAT 24). Those same reasons set out the circumstances, duration and significance of the breaches. None of this material is repeated in this decision.

2.The decision of 24 March 2015 addressed the issue of liability but not penalty, at the request of the parties. The proceedings were subsequently listed for directions concerning the issue of penalty and a timetable for evidence and submissions was provided to the parties. The Registrar filed submissions on penalty on or about 28 April 2015. The licensee has not done so despite the dates in the timetable have long since elapsed. Notwithstanding this, the Registry of the Tribunal has pursued the solicitors for the licensee for any submission they wished to file and was informed that the solicitors had no instructions to file anything. Accordingly, the Tribunal now proceeds in the absence of any submissions from the licensee.

3.The power of the Tribunal to impose a penalty on the licensee is found in sections 65 and 66 ACT Civil and Administrative Tribunal Act 2008 and regulation 4 of the ACT Civil and Administrative Tribunal Regulations 2009. Regulation 4 sets the maximum penalty that may be imposed on a corporation at $5,000 per breach.

4.The Tribunal has considered the material before it during the hearing on liability, the ambit of its findings on liability, the circumstances, duration and gravity of each breach and the submissions of the Registrar. The Tribunal has also had regard to the factors set out in sections 65 and 66 of the ACT Civil and Administrative Tribunal Act 2008 and section 57(2) of the Construction Occupations (Licensing) Act 2004 in arriving at the penalty set out above.

………………………………..

Ms L.Crebbin – General President

For and on behalf of the Tribunal