Cooper and Queensland Building and Construction Commission
[2021] AATA 3926
•27 October 2021
Cooper and Queensland Building and Construction Commission [2021] AATA 3926 (27 October 2021)
Division:GENERAL DIVISON
File Number:2021/2891
Re:Darren Cooper
APPLICANT
Queensland Building and Construction CommissionAnd
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:27 October 2021
Place:Brisbane
The Tribunal affirms the decision under review.
..................[SGD].............................................
Member D Mitchell
CATCHWORDS
MUTUAL RECOGNITION – application of mutual recognition principles where - mutual recognition of occupations between States – Accredited Practitioner (Fire Safety) and Nominee Supervisor’s Licence in the class of hydraulic services design - restricted between New South Wales and Queensland – the equivalence of occupations – equivalence by condition – entitlement to licence – decision under review affirmed
LEGISLATION
Building and Development Certifiers Act 2018 (NSW)
Design and Building Practitioners Act 2020 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Mutual Recognition Act 1992 (Cth)
Mutual Recognition (Queensland) Act 1992 (Qld)
Queensland Building and Construction Commission Act (Qld)
Building and Development Certifiers Regulations 2020 (NSW)
Environmental Planning & Assessment Regulation 2000 (NSW)Queensland Building and Construction Commission Regulation 2018 (Qld)
CASES
Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Laurence (2000) 100 FRC 255
Board of Professional Engineers of Queensland v Gardener [2021] FCA 564
Medical Board of Queensland and Renton [2006] FCA 947
Sande v Registrar Supreme Court of Queensland and Anor (1996) 134 ALR 560Turner and Registrar Supreme Court Queensland and Ors [2003] AATA 887
REASONS FOR DECISION
Member D Mitchell
27 October 2021
INTRODUCTION
Mr Darren Cooper (the Applicant) applied to the Queensland Building and Construction Commission (the Respondent) for a Nominee Supervisor’s Licence in the class of hydraulic services design – restricted[1] in accordance with the provisions of the Mutual Recognition Act1992 (Cth) (Mutual Recognition Act).[2] The Applicant sought to rely upon his accreditation as an Accredited Practitioner (Fire Safety) – Fire System Design in the sub-category of Fire Sprinkler System Design Specialist, Level 4 (to be referred to as APFS) provided under the Building and Development Certifiers Act 2018 (NSW).[3]
[1] The Applicant has requested that the licence being sought be restricted to fire hydrant and hose reel services, with or without pumps and commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers) as seen at Exhibit 1, T Documents, T5, page 139, Licence Application; T12, page 161, Internal Email of Respondent and Exhibit 5, Applicant’s Submissions provided to the Tribunal on 19 September 2021.
[2] Exhibit 1, T Documents, T5, pages 137-147, Licence Application.
[3] Exhibit 1, T Documents, T5, page 144, Certificate of Transitional Accreditation – Fire System Design, Fire Sprinkler System Design Specialist (Level 4) issued by Fire Protection Association Australia.
On 7 April 2021, the Respondent refused to grant the Applicant a licence under the Mutual Recognition Act,[4] on the basis that it formed the view that the Applicant’s accredited occupation as an APFS was, on the information before it, not equivalent to the occupation of a holder of a hydraulic services design licence.[5]
[4] Exhibit 1, T Documents, T10, page 157, Respondent’s letter to the Applicant incorporating refusal decision.
[5] Exhibit 2, T Documents, T2, pages 7-21, Statement of Findings and Reasons.
The Applicant sought review of that decision by way of an application made to this Tribunal on 3 May 2021.[6]
[6] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
A Hearing was held on 23 September 2021. The Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
THE LAW
Mutual Recognition
The purpose of the mutual recognition legislation of the Commonwealth States and Territories is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. This has been established by enactment of the Mutual Recognition Act and equivalent legislation enacted by participating jurisdictions, of which include New South Wales and Queensland.[7]
[7] Queensland enacted its participation via the implementation of the Mutual Recognition (Queensland) Act 1992 (Qld). New South Wales enacted its participation via the implementation of the Mutual Recognition (New South Wales) Act 1992 No 62 (NSW).
The mutual recognition legislation establishes a scheme for mutual recognition of regulatory standards for goods and occupations throughout the country.
Relevantly, the intention of the mutual recognition scheme in relation to service providers is set out in Sande v Registrar Supreme Court of Queensland and Anor (1996) 134 ALR 560 at 580:
The Act is intended to remove artificial barriers to mobility of services and labour caused by regulatory differences among the States and Territories of Australia. If a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and to carry on the equivalent occupation in any other State or Territory, without undergoing examinations or other assessments with respect to education qualifications and experience. Nevertheless, the Act preserves the right of the State or Territory in which the applying person seeks to practice (described in the Act as the second State) to regulate the manner of carrying on an occupation in that State, so long as the laws of that State apply equally to persons carrying on or seeking to carry on the occupation under the law of the second State: ss 17 and 20 of the Act.
The matter before the Tribunal relates to the application for mutual recognition of an occupation which is dealt with by Part 3 of the Mutual Recognition Act.[8] Part 3 relevantly provides:
[8] The Tribunal notes that amendments to the Mutual Recognition Act came into effect on 1 July 2021, however as the Applicant submitted his application for mutual recognition in March 2021, these amendments do not apply in this matter. The Tribunal has considered the law as in place at the time of the Applicant’s licence application.
Division 1—Preliminary
16 Mutual recognition
(1) The mutual recognition principle as applying to occupations is as set out in this Part.
(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
(3) In this Part, the first‑mentioned State is called the first State, and the other State is called the second State.
17 Entitlement to carry on occupation
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State.
……
Division 2—Entitlement to registration
19 Notification to local registration authority
(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
……
20 Entitlement to registration and continued registration
(1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
……
23 Refusal of registration
(1) A local registration authority may refuse the grant of registration if:
(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
……
Division 4—Equivalent occupations
28 Equivalent occupations
The equivalence of occupations carried on in different States is to be determined in accordance with this Part.
29 General principles
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State 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).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
…
Section 4 of the Mutual Recognition Act provides that unless the contrary intention appears:
conditions, when used in relation to occupations, means conditions, limitations or restrictions.
…
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
…
occupation means an 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 (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.
There are a number of principles set out in case law that assist in determining whether the mutual recognition principles apply and if so whether occupational equivalence exists between the two occupations, or whether it can be achieved with the imposition of conditions.
Of particular relevance to this matter it is noted that in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Laurence (2000) 100 FRC 255, at [64], French J (as his Honour then was) posed and answered these questions as follows:
[W]hat is the occupation for which the person is registered in the “first state”? That however is a question to be answered by reference to the terms of the “registration” in the first State informed by or read with the statutory provisions under which such registration is effected.
The approach of French J was adopted in Medical Board of Queensland v Renton [2006] FCA 947 (Renton) by Kiefel J (as she then was), who further provided:[9]
[9] Noting that the decision in Renton was followed and approved by Logan J in Board of Professional Engineers of Queensland v Gardener [2021] FCA 564.
…..
As French J pointed out in Board of Examiners v Lawrence at [64] - [65], it is registration for an occupation in the State of original qualification that is the subject of recognition under the Mutual Recognition Act. The question which must be asked when a person invokes the provisions of that Act is - what is the occupation for which that person is registered in the first State? That question is to be answered by reference to the terms of the registration in the first State informed by, or read with, the statutory provisions under which registration is effected. The objective of mutual recognition is to allow the legal entitlement to carry on an occupation in one State to be recognised and the like legal entitlement for an equivalent occupation conferred in the second State.[10]
The objective of the mutual recognition principle does not prevent a conclusion that there is no equivalent occupation, as French J recognises (at [67]). Sande v Registrar was a case in which there was no equivalent occupation in the second State. The applicant had been registered in South Australia as a conveyancer but the law of Queensland had ceased to recognise it as a profession, one for which registration could be obtained. In the present case it may be said that the registration of a medical practitioner in either New South Wales or Queensland would entitle a person to registration in that occupation in the other State. The question which here arises is whether the occupation the subject of registration under the New South Wales Act is equivalent to the profession of intensivist for which registration may be obtained under the Queensland Act. Equivalence is tested, pursuant to s 29(1), by determining whether the activities authorised to be carried out under each registration are substantially the same, or may be so with the imposition of conditions. That question is to be determined by reference to the terms and statutory context of the registration in each State, as French J observed (at [68]).[11]
…….
…… In my respectful view the requirements of equivalence of occupation under the Mutual Recognition Act are not met by considering whether a person may carry out in the first State activities associated with the profession for which registration is sought in the second State. The enquiry is as to whether the statute under which registration is granted in the first State itself authorises the activities of the profession in the second State. For the mutual recognition principle to operate, an affirmative answer is required. In the present case the answer must be negative.[12]
…….
…… The construction which I consider the Mutual Recognition Act requires has the effect that a person who is not registered as an intensivist in another State cannot achieve registration in that profession in Queensland. This may apply to other professions. Persons who may be carrying on the profession of intensivist elsewhere, but not registered under a statutory scheme which includes the registration of that specialist profession, would need to fulfil the requirements of the Queensland Act. I do not consider this result to be inconsistent with the objectives of mutual recognition. It follows from the requirement of equivalence of occupation the subject of registration. The mutual recognition principle has no operation where one State does not provide for the registration of an occupation or profession.[13]
…..
[Emphasis added]
[10] Medical Board of Queensland v Renton [2006] FCA 947 at [27].
[11] Medical Board of Queensland v Renton [2006] FCA 947 at [28].
[12] Medical Board of Queensland v Renton [2006] FCA 947 at [31].
[13] Medical Board of Queensland v Renton [2006] FCA 947 at [33].
In determining equivalence of occupations, the Tribunal must take a common-sense approach and look at the requirements, authorisations and limitations placed on the first occupation to then see if there is an equivalent occupation in the second state.[14]
[14] Gardener v Board of Professional Engineers of Queensland [2021] AATA 93 at [75]; Sande v Registrar, Supreme Court of Queensland and Another (1996) 134 ALR 560 at page 565.
Registration
In this matter the Applicant is seeking mutual recognition of his accreditation as an APFS in New South Wales to provide him with a Nominee Supervisor’s Licence in the class of hydraulic services design – restricted in Queensland. The main issue before the Tribunal is whether occupational equivalence exists between the two occupations, or whether it can be achieved with the imposition of conditions.
Accordingly, the Tribunal must have regard to the licencing and accreditation requirements that relate to the occupation in question.
Queensland Licencing Scheme
The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act)[15] governs the regulation of the building industry in Queensland. The objects of the QBCC Act are outlined in section 3 as follows:
[15] The Tribunal notes that amendments to the QBCC Act came into effect on 1 May 2021, however as the Applicant submitted his application for mutual recognition in March 2021, these amendments do not apply in this matter. The Tribunal has considered the law as in place at the time of the Applicant’s licence application.
The objects of this Act are—
(a) to regulate the building industry—
(i) to ensure the maintenance of proper standards in the industry; and
(ii) to achieve a reasonable balance between the interests of building contractors and consumers; and
(b) to provide remedies for defective building work; and
(c) to provide support, education and advice for those who undertake building work and consumers; and
(d) to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners; and
(e) to regulate building products to ensure—
(i) the safety of consumers and the public generally; and
(ii) persons involved in the production, supply or installation of building products are held responsible for the safety of the products and their use; and
(f) to provide for the proper, efficient and effective management of the commission in the performance of its functions.
Sections 30A and 32 of the QBCC Act authorises the Respondent to issue Nominee Supervisors’ Licences to persons who have the qualifications and experience required by regulation for a licence of the relevant class as a nominee or employee of a licence holder, so that they can supervise building work carried out under their licence or perform the functions required of a nominee. Relevantly, sections 30A and 32 of the QBCC Act provide:
30A Nominee supervisor’s licence
(1)A licence (a nominee supervisor’s licence) may be issued authorising an individual—
(a) if the individual is the nominee for a licensed contractor that is a company, to—
(i) provide supervisory services for building work carried out under the company’s licence; and
(ii) perform the functions required of a nominee under this Act; or
(b) if the individual is an officer or employee of a company, other than the company’s nominee—to personally supervise building work carried out under the company’s licence.
(2)An individual who holds a nominee supervisor’s licence and who is the employee of a licensed contractor that is an individual may personally supervise building work carried out under the contractor’s licence.
(3) Nominee supervisors’ licences are to be divided into classes by regulation—
(a) according to whether the licence relates to all classes of building work or is limited to a specified class or specified classes of building work; and
(b) if the licence is limited to a specified class, or specified classes, of building work—according to the class or classes of building work to which it relates.
(4) A nominee supervisor’s licence may be issued for any class of licence.
32 Entitlement to a nominee supervisor’s licence
(1) An individual is entitled to a nominee supervisor’s licence if the commission is, on application by the individual, satisfied that—
(a) the applicant has the qualifications and experience required by regulation for a licence of the relevant class; and
(b) the applicant can lawfully work in Queensland; and
(c) the applicant is not an excluded individual for a relevant event or a permanently excluded individual; and
(d) the applicant is not a banned individual; and
(e) the applicant is not a disqualified individual; and
(f) the applicant does not have an unpaid judgment debt for an amount the commission may recover under section 71; and
(g) the applicant is a fit and proper person to hold the licence.
……
Relevantly, Schedule 2 of the QBCC Act provides the following definitions:
building work services means—
(a)The erection or construction of a building; or
(b)The renovation, alteration, extension improvement or repair of a building; or
(c)The provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or
….
(f) the preparation of plans or specifications for the performance of building work; or
…
(g) fire protection work; or
(ga)mechanical services work; or
…
(i)carrying out a completed building inspection; or
…
nominee, in relation to a company, means an officer or employee of the company nominated by the company to have the general supervision of building work to be carried out under a licence.
supervisory services, for building work or tribunal work, includes—
(a) the development, implementation and management of a system for the supervision of the work; and
(b) the coordination or management of persons undertaking the supervision of the work; and
(c) the personal supervision of the work; and (d) any other supervision of building work under this Act.
Division 7 of Part 3 of the QBCC Act deals with the requirement to be licensed to carry out building work or where the licensee is a company to have a nominee who holds a Contractor’s Licence or a Nominee Supervisor’s Licence in relation to building work.
In particular section 42 of the QBCC Act provides that unless an exemption applies a person must not carry out, or undertake to carry out, building work unless the person holds a Contractor’s Licence of the appropriate class under the QBCC Act. Section 42B of the QBCC Act provides that a licensee that is a company must not carry out, or undertake to carry out, building work unless the licensee has a nominee who holds a Contractor’s Licence or a Nominee Supervisor’s Licence, under the company’s class of licence or the period in which they have not had a nominee is not more than 28 days. Carrying out unlawful building work may attract a penalty of up to 350 penalty units or 1 year’s imprisonment and may constitute a crime.[16]
[16] Sections 42(1) and 42A(3) of the QBCC Act.
Pursuant to section and 9 of the Queensland Building and Construction Commission Regulation 2018 (Qld)[17] (QBCC Regulation) for the purposes of section 30A of the QBCC Act licences are divided into the classes stated in Schedule 2 of the QBCC Regulation.
[17] As authorised by section 116 of the QBCC Act.
Part 38 of Schedule 2 of the QBCC Regulation provides for classes of licences relating to hydraulic services design and provides as follows:[18]
[18] The Tribunal notes that amendments to Schedule 2 of the QBCC Regulation came into effect on 1 May 2021 which amended Part 38 of Schedule 2 and also created new classes of licence. As the Applicant submitted his application for a hydraulic services design – restricted licence in March 2021, these amendments do not apply in this matter. The Tribunal has considered the law as in place at the time of the Applicant’s licence application.
Part 38 Hydraulic services design licences
1 Licence classes
(1) Hydraulic services design.
(2) Hydraulic services design excluding design of on-site domestic waste water management.
2 Scope of work
(1) For the licence class mentioned in section 1(1), prepare plans, specifications and documents associated with the following building services—
(a) sanitary drainage, soil waste and venting;
(b) trade waste drainage, plumbing and venting;
(c) cold and hot water;
(d) rainwater and stormwater drainage;
(e) gas services;
(f) fire hydrant and hose reel services, with or without pumps;
(g) commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers);
(h) on-site domestic waste water management.
(2) For the licence class mentioned in section 1(2), prepare plans, specifications and documents associated with the building services mentioned in subsection (1)(a) to (g).
......
3 Technical qualifications
The technical qualifications stated in the technical qualifications document for the licence class applied for.
4 Experience requirements
Two years experience, that may include experience gained during an apprenticeship or other training, in—
(a) the scope of work for the class; or
(b) other work, if the commission considers experience in the other work is at least equivalent to experience in the scope of work for the class
New South Wales Accreditation Scheme
The Building and Development Certifiers Act 2018 (NSW) (B&DC Act) governs the registration and accreditation of persons to carry out certification and regulated work. The objects of the B&DC Act are set out in section 3 as follows:
3 Objects of Act
The objects of this Act are as follows—
(a) to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work,
(b) to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest,
(c) to provide for the approval of certain bodies corporate as accreditation authorities to exercise accreditation functions under this Act,
(d) to ensure appropriate scrutiny and review of actions taken by persons exercising functions under this Act and the certification legislation,
(e) to provide a framework to permit the continuous improvement of the carrying out of certification work.
Part 6 of the B&DC Act provides a framework for the accreditation of a person to carry out regulated work. Sections 56 and 57 of the B&DC Act authorises the approval of accreditation authorities and outlines such an authority’s functions. An accredited authority’s function is to accredit persons to carry out regulated work in accordance with its approved accreditation scheme.
Section 59 of the B&DC Act provides:
59 Approval of accreditation authority to exercise functions
(1)The Secretary may, by instrument in writing, approve any of the following bodies corporate to exercise the functions of an accreditation authority with respect to the accreditation of persons for the purposes of this Act—
(a) a company registered under the Corporations Act 2001 of the Commonwealth,
(b) an association within the meaning of the Associations Incorporation Act 2009 or an incorporated association created under the legislation of another Australian jurisdiction.
(2) Approval may be unconditional, or subject to conditions or limitations.
(3) In particular, an approval may be limited to issuing a specified class of accreditation.
Relevant to this matter the Fire Protection Association Australia (FPAA) was accredited from 1 July 2020 as an accreditation authority pursuant to section 59 of the B&DC Act. The FPAA’s functions were limited to, amongst other things to:[19]
[O]nly accredit persons as an accredited practitioner (fire safety) in accordance with the “Fire Protection Accreditation Scheme NSW Accredited Practitioner (Fire Safety) for Fire Systems Design (clause 136AA and 146B of the EP&A Regulation) Fire Safety Assessment (Part 9 Division 5 and 7 of the EP&A Regulation)” as submitted to the NSW Fair Trading by email on 28 June 2020.
[19] Exhibit 1, T Documents, T14, page 178, FPAA Accreditation Letter.
The way in which an accredited authority may approve a person to carry out regulated work is set out in section 54 of the B&DC Act which provides:
54 Accreditation of persons to carry out regulated work
(1) An accreditation authority may, by granting accreditation under this Part, authorise a person to carry out regulated work.
(2) An accreditation authorises only the class of regulated work authorised by the class of accreditation granted.
(3) An accreditation is subject to any conditions of the accreditation.
(4) An accreditation is suspended during any period where—
(a) there is no regulating accreditation authority with respect to the accreditation, or
(b) there is a regulating accreditation authority with respect to the accreditation but the approval of the regulating accreditation authority is suspended.
(5) The regulations may prescribe different classes of accreditation that authorise the carrying out of different classes of regulated work.
Pursuant to section 53 of the B&DC Act a person must not carry out regulated work unless the person holds an accreditation that authorises the person to carry out the regulated work or the person is otherwise lawfully authorised to carry out the regulated work. Carrying out regulated work without accreditation may attract a penalty of up to 1000 penalty units.[20]
[20] Section 53 of the B&DC Act.
Section 52 of the B&DC Act defines regulated work as follows:
In this Act, regulated work means the following—
(a) the carrying out of work as an accredited practitioner under the
Environmental Planning and Assessment Act 1979,(b) any other work declared by this or any other Act to be regulated work.
There is no other work which is declared as or defined as regulated work within the B&DC Act.
Relevantly, section 10.13 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) provides that regulations may be made by the Governor of New South Wales as follows:
10.13 Regulations…
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to—
….
(d) obligations on persons regarding fire and building safety, including the functions to be exercised only by a holder of an accreditation under the Building and Development Certifiers Act 2018…
Consequently, the Environmental Planning and Assessment Regulation 2000 (NSW) (EP&A Regulation) is authorised to set out what constitutes regulated work for which an accreditation in accordance with section 53 of the B&DC Act is required.
Clause 3(1) of the EP&A Regulation provides the following definitions:
accredited practitioner means the holder of an accreditation under the Building and Development Certifiers Act 2018 that authorises the holder to exercise the functions of an accredited practitioner.
accredited practitioner (fire safety) means an accredited practitioner whose class of accreditation authorises the holder to exercise the functions of an accredited practitioner (fire safety) who is acting in respect of matters to which the accreditation applies.
The EP&A Regulation does not define “the functions of an accredited practitioner.” Clauses 136AA and 146B of the EP&A Regulation set out the legislative functions which an APFS can be authorised to perform, as follows:
136AA Condition relating to fire safety systems in class 2–9 buildings
(1) A complying development certificate for building work involving the installation, extension or modification of any relevant fire safety system in a class 2, 3, 4, 5, 6, 7, 8 or 9 building, as defined in the Building Code of Australia, must be issued subject to the condition required by this clause.
(2) The condition required by this clause is that the building work involving the installation, modification or extension of the relevant fire safety system cannot commence unless—
(a) plans have been submitted to the principal certifier that show—
(i) in the case of building work involving the installation of the relevant fire safety system—the layout, extent and location of key components of the relevant fire safety system, or
(ii) in the case of building work involving the modification or extension of the relevant fire safety system—the layout, extent and location of any new or modified components of the relevant fire safety system, and
(b) specifications have been submitted to the principal certifier that—
(i) describe the basis for design, installation and construction of the relevant fire safety system, and
(ii) identify the provisions of the Building Code of Australia upon which the design of the system is based, and
(c) those plans and specifications—
(i) have been certified by a compliance certificate referred to in section 6.4(e) of the Act as complying with the relevant provisions of the Building Code of Australia, or
(ii) unless they are subject to an exemption under clause 164B, have been endorsed by an accredited practitioner (fire safety) as complying with the relevant provisions of the Building Code of Australia, and
(d) if those plans and specifications were submitted before the complying development certificate was issued—each of them was endorsed by the certifier with a statement that the certifier is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia, and
(e) if those plans and specifications were not submitted before the complying development certificate was issued—each of them was endorsed by the principal certifier with a statement that the principal certifier is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia.
(3) In this clause—
relevant fire safety system means any of the following—
(a) a hydraulic fire safety system within the meaning of clause 165,
(b) a fire detection and alarm system,
(c) a mechanical ducted smoke control system.
….
146B Condition relating to fire safety systems in class 2–9 buildings
(1) A construction certificate for building work involving the installation, extension or modification of any relevant fire safety system in a class 2, 3, 4, 5, 6, 7, 8 or 9 building, as defined in the Building Code of Australia, must be issued subject to the conditions required by this clause.
(2) The condition required by this clause is that the building work involving the installation, modification or extension of the relevant fire safety system cannot commence unless—
(a) plans have been submitted to the principal certifier that show—
(i) in the case of building work involving the installation of the relevant fire safety system—the layout, extent and location of key components of the relevant fire safety system, or
(ii) in the case of building work involving the modification or extension of the relevant fire safety system—the layout, extent and location of any new or modified components of the relevant fire safety system, and
(b) specifications have been submitted to the principal certifier that—
(i) describe the basis for design, installation and construction of the relevant fire safety system, and
(ii) identify the provisions of the Building Code of Australia upon which the design of the system is based, and
(c) those plans and specifications—
(i) have been certified by a compliance certificate referred to in section 6.4(e) of the Act as complying with the relevant provisions of the Building Code of Australia, or
(ii) unless they are subject to an exemption under clause 164B, have been endorsed by an accredited practitioner (fire safety) as complying with the relevant provisions of the Building Code of Australia, and
(d) if those plans and specifications were submitted before the construction certificate was issued—each of them was endorsed by the certifier with a statement that the certifier is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia, and
(e) if those plans and specifications were not submitted before the construction certificate was issued—each of them was endorsed by the principal certifier with a statement that the principal certifier is satisfied that it correctly identifies both the performance requirements and the deemed-to-satisfy provisions of the Building Code of Australia
(3) In this clause—
relevant fire safety system means any of the following—
(a) a hydraulic fire safety system within the meaning of clause 165,
(b) a fire detection and alarm system,
(c) a mechanical ducted smoke control system.
[Emphasis added]
The accreditation by the FPAA of an APFS in fire system design is done in accordance with the FPAA Fire Protection Accreditation Scheme NSW Accredited Practitioner (Fire Safety) for Fire Systems Design (clause 136AA and 146B of the EP&A Regulation) Fire Safety Assessment (Part 9 Division 5 and 7 of the EP&A Regulation) (FPAA Accreditation Scheme Document). The FPAA Accreditation Scheme Document among other things, sets out the class of accreditation, the scope of the role and the work activities of an APFS as follows:[21]
[21] Exhibit 3, Fire Protection Accreditation Scheme, pages 10-12 and 147-149.
Section 3.0 Accredited Practitioner (Fire Safety): Fire Systems Design
3.1 Fire Systems Design class
3.1.1 The Fire Systems Design (FSD) class of accreditation allows an individual to act as an Accredited Practitioner (Fire Safety) to endorse plans and specifications for relevant fire safety systems (fire sprinkler systems, fire hydrant and hose reel systems, fire detection and alarm systems) under Clause 136AA and 146B of the EP&A Regulation.
3.2 Categories in the Fire Systems Design class
3.2.1 The Scheme specifies that the Fire Systems Design class of accreditation has three (3) categories:
• Fire Sprinkler Systems
• Fire Hydrant and Hose Reel Systems
• Fire Detection and Alarm Systems.
For each fire safety system listed above, applicants can select the appropriate level of work that best suits their individual needs and circumstances. Each level specifies the system types, configurations and the nature of work an individual at that level is accredited to undertake, as well as any conditions that relate to the defined level.
Attachment 9 - FPA Australia Practice Note FSD01 Fire Systems Design Accreditation Levels and Restrictions details the scope of works for each level of accreditation relevant to each fire safety system.
3.3 Scope of the role
3.3.1 Table 2 specifies the scope of the role in the Fire Systems Design class of accreditation.
Table 2. Scope of the role for Fire Systems Design
Fire Systems Design
General requirements applicable to all categories for the role:
· Define scope, system requirements and extent of fire system design projects.
· Plan sketch layouts of fire system design.
· Prepare detailed technical design documentation including plans and specifications for systems and equipment (including material, installation requirements, testing and commissioning, operations and maintenance manuals).
· Assess and determine that plans and specifications for relevant fire safety systems comply with the relevant provisions of the BCA.
· Endorse or refuse to endorse the plans and specifications as complying with the relevant provisions of the BCA as an Accredited Practitioner (Fire Safety) under clauses 133AA(2)(C) (ii) or 146B (2)(C)(ii) of the EP&A Regulation.
· Fire Sprinkler Systems
As listed above in so far as the design role relates to fire sprinkler systems, in particular designs compliant with:
· EP&A Act and Regulation
· BCA
· AS 2118 series
· AS 2941
….
3.4 Work activities
3.4.1 Table 3 species the work activities of Fire System Design.
Table 3. Work activities of Fire Systems Design
Fire Systems Design
The work activities associated with fire system designs for all categories include:
· Develop design brief.
· Assess and interpret design requirements,
legislation and codes.· Research products and design solutions.
· Specify requirements of design solution
and products to meet design requirements,
legislation and codes.· Conceptualise and document design
solutions.· Validate that design solution meets
required design criteria.· Finalise documentation for tender
procurement, manufacture, construction,
installation, commissioning and
maintenance of equipment for system
designed, to ensure system meets all
relevant codes and standards. Such
documentation would consist of:- system design calculations
- system required reference data such
as schematics, details of pressure
gauge schedules, interface diagrams,
cause and effect diagrams- technical specifications and
- tender and/or construction drawings.
· Assess and determine that plans and
specifications for relevant fire safety
systems comply with the relevant
provisions of the BCA.· Identify if the design of the relevant fire
safety system incorporates an alternative
solution and if so, obtain a report or
certification from the APFS who prepared
the alternative solution report relied upon
by the certifying authority for this work and
ensure that their design incorporates these
elements prior to endorsing it under
clauses 133AA(2)(C)(ii) or 146B(2)(C)(ii)
of the EP&A Regulation.· Endorse or refuse to endorse the plans
and specifications as complying with the
relevant provisions of the BCA as an
Accredited Practitioner (Fire Safety) under
clauses 133AA (2)(C)(ii) or 146B(2)(C)(ii)
of the EP&A Regulation.· Endorse or refuse to endorse the plans
and specifications as above, prepared by
another APFS.
……
Attachment 9 – Practice Note FSD01 – Fire System Design Accreditation Levels and Restrictions
Fire Systems Design Accreditation Levels and Restrictions
The Fire Systems Design class of accreditation under the FPAS Scheme accredits practitioners to undertake design of the following fire safety systems:
·Fire Sprinkler Systems
·Fire Hydrant and Fire Hose Reel Systems
·Fire Detection and Alarm Systems
For each fire safety system, practitioners can select the appropriate level of work that best suits their individual needs and circumstances. Each Level specifies the system types, configurations and the nature of work a practitioner at that level is accredited to undertake, as well as any conditions that relate to the defined level.
For each fire safety system covered by the FPAS Scheme, Accredited Practitioners are only accredited to undertake the work described in this document applicable to the level for which they hold accreditation. Undertaking non accredited work could be assessed as being a breach of the Code of Professional Conduct, particularly where such work is governed by legislation and this may result in a practitioner’s accreditation being suspended or cancelled.
This Practice Note defines the design work that a practitioner is accredited to undertake for each available level of accreditation within the Fire Systems Design class of accreditation.
…..
Fire Sprinkler System Design
Level 4 (Specialist)
Practitioners at this level are accredited to undertake design of any fire sprinkler system subject to specific conditions
4.1. Accredited to undertake design on any fire sprinkler system other than combined sprinkler and hydrant systems unless:
4.1.1. the practitioner also holds Level 3 (Advanced) Fire Hydrant and Fire Hose Reel System Design accreditation in order to undertake design of AS 2118.6 Combined sprinkler and hydrant systems; and / or
4.1.2. the practitioner also holds Level 2 (Intermediate) or Level 3 (Advanced) Fire Hydrant and Fire Hose Reel System Design accreditation in order to undertake design of FPAA101H Automatic fire sprinkler system design and installation – hydrant water supply applications
Note: Practitioners at this level will be required to demonstrate competency and experience in the design of sprinkler systems for High Hazard Occupancies, Commodities Requiring Special Consideration and Flammable and Combustible Liquids Storage in accordance with AS2118.1 Automatic Fire Sprinkler Systems – General Systems.
ISSUES
As the Applicant has applied for a Nominee Supervisor’s Licence in the class of hydraulic services design relying on the application of the Mutual Recognition Act and his accreditation as an APFS, the issues before the Tribunal are:
(a)whether the occupation, of a hydraulic services design licensee is an equivalent occupation to that of an Accredited Practitioner (fire safety) – fire system design for the purposes of section 17 of the Mutual Recognition Act; and if not;
(b)whether equivalence can be achieved by the imposition of conditions; and
(c)whether the Applicant should be granted a Nominee Supervisor’s Licence in the class of hydraulic services design in Queensland.
EVIDENCE AND CONTENTIONS
Applicant’s Evidence and Contentions
On or around 28 October 2020, the Applicant was accredited by the FPAA as an Accredited Practitioner (fire safety) – fire system design as a Fire Sprinkler System Design Specialist Level 4 for the period 1 November 2020 to 31 October 2021.[22]
[22] Exhibit 1, T Documents, T7, pages 150-151, Applicant’s Accreditation. The Tribunal notes the Applicant has subsequently renewed his accreditation as an APFS until 31 October 2022.
The Applicant contended that for the purposes of section 17(1) of the Mutual Recognition Act he is registered in New South Wales (as an Accredited Practitioner) to perform the occupation of a Fire System Designer and is therefore seeking that, that registration be recognised by the Respondent in relation to his licence application.[23]
[23] Exhibit 1, T Documents, T14, page 179, Applicant’s emails to/from QBCC attaching FPAA Accreditation Letter.
The Applicant sought to rely on the role and work activities outlined in the FPAA’s Accreditation Scheme Document[24] as being the reason he contends that the APFS and hydraulic services design licensee occupations can be equivalent if restrictions are applied.[25] At Hearing the Applicant said the FPAA’s Accreditation Scheme is important as it has been endorsed into the B&DC Act which ties to the EP&A Regulation.
[24] Exhibit 3, Fire Protection Association Australia Accreditation Scheme, pages 11-12, Table 2 and Table 3.
[25] Exhibit 1, T Documents, T15, pages 185-186, Email exchange between the Applicant and Respondent.
At Hearing the Applicant told the Tribunal that he was unfamiliar with the Tribunal process and that something he thought was a simple application to the Respondent had turned into something that was anything but simple. The Applicant said he was not across all the legal matters involved but felt that his accreditation in New South Wales should allow him to be granted the licence (with the specified restrictions) he applied for under the Mutual Recognition Act.
The Applicant told the Tribunal that his New South Wales accreditation allowed him to design plans and specifications for fire system design projects in accordance with all of the legislative requirements and industry standards and to then also endorse those plans and specifications as complying with the relevant provisions of the Building Code of Australia (BCA) as an APFS under clauses 136AA(2)(c)(ii) and 146B(2)(c)(ii) of the EP&A Regulation.
The Applicant told the Tribunal that as an APFS he could also endorse or refuse the plans and specifications that were designed by someone else as complying with the relevant provisions of the BCA as an APFS under clauses 136AA(2)(c)(ii) or 146B(2)(c)(ii) of the EP&A Regulations. The Applicant said that in doing so he would be required to review all documents in accordance with the legislative requirements and industry standards. The Applicant said he was not aware whether a person was required to hold an accreditation or registration in New South Wales to provide such design plans and specifications for endorsement.
The Applicant told the Tribunal that he has been undertaking fire system design work in Queensland for 15 years as an employee, meaning that he was not required to hold a licence to undertake the work as it was signed off by someone who was a licence holder. The Applicant told the Tribunal he was now seeking a licence as his employment situation was changing.
CONSIDERATION
It is not in contention that the Applicant has sought a Nominee Supervisor’s Licence in the class of hydraulic services design restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers).[26] As such to be granted that licence the Applicant is required to meet the eligibility requirements set out in section 32 of the QBCC Act which includes holding the qualifications and experience required by the QBCC Regulation in relation to the relevant class of licence. The Applicant has sought to meet the eligibility requirements by applying the Mutual Recognition Act relying on his APFS accreditation. As such the Applicant did not put any evidence before the Tribunal in regard to his relevant qualifications and experience.
[26] Exhibit 1, T Documents, T5, page 139, Licence Application; T12, page 161, Internal Email of Respondent; Exhibit 5, Applicant’s Submissions provided to the Tribunal on 19 September 2021; Exhibit 7, Respondent’s Outline of Submissions, page 18, paragraph 48.
Consequently, the Tribunal is required to consider whether the Applicant’s occupation as an APFS is equivalent to that of a holder of a licence in the class of hydraulic services design restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers) for the purposes of section 17 of the Mutual Recognition Act. Such consideration must then be applied to determine whether the Applicant is eligible to be granted the relevant licence under the QBCC Act.
In considering whether the occupation, of a hydraulic services design licensee, is an equivalent occupation to that of an APFS for the purposes of section 17 of the Mutual Recognition Act, the Respondent referred the Tribunal to the decision in Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462 (Turner).[27] In Turner, Deputy President Hon R N J Purvis QC set out the following methodology by which equivalency, for the purposes of section 29 of the Mutual Recognition Act may be ascertained:[28]
[27] Exhibit 7, Respondent’s Outline of Submissions, page 13, paragraph 34.
[28] Re Turner and Registrar, Supreme Court of Queensland and Others (No 2) (2003) 76 ALD 462 at [27]-[28]
(27)As has been earlier noted in these reasons the provisions of the Act dealing with equivalence place emphasis upon the activities which are authorised or able to be carried out in the respective occupations. Occupation is defined in s 4 of the Act and on the basis of evidence before the tribunal licensed conveyancers and solicitors each fall within the definition.
(28)In order that the relevant “substantial equivalence of occupation” (see Sande (No 2), above, at FCR 128; ALD 4; ALR 565) may be ascertained a number of distinct steps of inquiry have to be undertaken namely:
(1)identify the occupation for which the person is registered in the first state or territory;
(2)identify the activities authorised to be carried out under that registration;
(3)identify an occupation in the second state or territory for which a person may be registered;
(4)ascertain the activities authorised to be carried out under that registration;
(5)a comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same and recognise whether conditions should be imposed on registration to achieve equivalence between those occupations.
The Tribunal considers that the methodology set out in Turner in light of the discussion above in paragraphs 14 to 35 is a useful approach to determining this issue.
Step 1 – What is the first occupation
It is not in contention that the occupation in which the Applicant is registered in the first state or territory (being New South Wales) is Accredited Practitioner (fire safety) – Fire System Design in the sub-category of Fire Sprinkler Systems Level 4.[29]
Step 2 - What are the activities authorised to be carried out under the first occupation
[29] Exhibit 1, T Documents, T5, page 144, Certificate of Transitional Accreditation – Fire System Design, Fire Sprinkler System Design Specialist (Level 4) issued by Fire Protection Association Australia and Exhibit 7, Respondent’s Outline of Submissions, page 16, paragraph 42.
The key issue to be considered in this step goes to what constitutes the “activities authorised” to be carried out under the Applicant’s APFS accreditation.
The FPAA Accreditation Scheme Document that is applied by the FPAA in granting accreditation sets out the scope of the role and work activities of an APFS - Fire System Design in each category, including that for fire sprinkler systems. The Applicant contended that it is those activities which are outlined in the FPAA Accreditation Scheme Document that are the activities that he is authorised to carry out under his accreditation.
The Respondent set out its contentions in its Outline of Submissions[30] as follows:[31]
[30] Exhibit 7, Respondent’s Outline of Submissions, pages 1-20.
[31] Exhibit 7, Respondent’s Outline of Submissions, pages 16-18, paragraphs 43-47.
·The question of whether the activities authorised under the APFS accreditation includes design of fire sprinkler systems is critical.
·While a plain reading of sections 3.3 and 3.4 of the FPAA Accreditation Scheme Document incorporate design (including design of fire sprinkler systems) into the anticipated scope of work for an APFS, it is not clear that the FPAA Accreditation Scheme Document may be used for delineating the activities which are authorised under the registration.
·The activities which are authorised under the accreditation are not activities set out in the FPAA Accreditation Scheme Document, but rather are the activities that are set out in sections 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation. Those sections empower an APFS to endorse plans and specifications relating to complying development certificates and construction certificates, respectively, involving building work for the installation, extension or modification of a relevant fire safety system in buildings of classes 2-9. This is on the basis that:
oThe legislative purpose of the FPAA Accreditation Scheme Document is to provide the guidelines under which the FPAA is authorised as an accreditation authority, and the basis upon which it may issue accreditation.
oThe functions of an APFS as noted in section 3(1) of the EP&A Regulation, properly construed are those established pursuant to the EP&A Act and are independent of the functions of an accreditation authority as provided by section 57 of the B&DC Act.
oIf it were interpreted that the FPAA Accreditation Scheme Document is the document which delineates the activities that an APFS is authorised to perform, that interpretation would deprive clauses 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation of meaning. Those sections are referenced in the FPAA Scheme Document as the operative provisions from which the legislative authority of an APFS is derived. Those provisions must have statutory work to do.
oThe mere fact that the FPAA Accreditation Scheme Document mentions activities does not mean those activities require registration or accreditation. For example, section 3.4 of the FPAA Scheme Document sets out the work activities for a Fire Systems Design APFS as including “Research products and design solutions”. Section 53(1) of the B&DC Act provides that it is an offence for an unaccredited person to carry out regulated work that may only be carried on by an accredited practitioner.
oIt would not be a contravention of section 53 of the B&DC Act to research products and design solutions without an accreditation, however it would be such a contravention if an unaccredited person purported to do that which is authorised by clauses 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation.
oA finding that the activities authorised by an APFS included all the activities set out in the FPAA Accreditation Scheme Document would be an expansion of the offence provision provided in section 53(1) of the B&DC Act to an extent, it was submitted by the Respondent, not intended by the New South Wales legislature.
oTo the extent that the FPAA Accreditation Scheme Document mentions activities that are surplus or ancillary to the activities set out in clauses 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation, there is no reason to conclude that those surplus activities were regulated in New South Wales. As per the decision of Kiefel J in Renton.
oThere was no corresponding requirement in New South Wales at the time of the Applicant’s application for a licence under the Mutual Recognition Act that related to the design of fire safety systems.
oAlthough not in force until 1 July 2021, the Design and Building Practitioners Act 2020 (NSW) provides for classes of registration of practitioners which includes the class of design practitioner – fire system, setting out the distinction between design and endorsement or certification of plans and specifications.
·The activities authorised by the APFS accreditation are not delineated by the content of the FPAA Accreditation Scheme Document, instead are those set out in clauses 136AA(2)(c) and 146(B)(2)(c) of the EP&A Regulation. As set out in the Respondent’s Statement of Reasons:[32]
52.Sections 136AA(2)(c) and 146B(2)(c) of the EP & A Regulation empower the Applicant, as an APFS with a “Fire Systems Design” accreditation to endorse plans and specifications relating to complying development certificates and construction certificates, respectively, involving building work for the installation, extension or modification of a relevant fire safety system in buildings of classes 2-9.
53.The word “endorse” is not defined and therefore must adopt its ordinary usage. The Oxford English online dictionary defines the term as:
“declare one's public approval or support of… [or] recommend (a product) in an advertisement.”
54.In the Commission’s view, ‘endorse’ as it is used in the EP & A Regulation, does not include ‘design’ or ‘prepare’, but rather envisages the approval of plans or specifications prepared by others.
…
56. The Commission considers that, for the purposes of the MR Act, the Applicant’s “occupation’’ is limited to endorsing plans and specifications for fire protection systems necessary for obtaining construction certificates or complying development certificates in relation to proposed building work, but does not extend to preparation or design of such plans and specifications.
[32] Exhibit T1, T Documents, T2, pages 20-21, Statement of Findings and Reasons.
Consistent with the principles outlined in Renton, the Tribunal must have regard to the activities actually authorised by the accreditation and not get lost in all of the activities that may be undertaken as a result of such accreditation.
In this instance the Applicant contended that the activities authorised by the accreditation are those outlined in the FPAA Accreditation Scheme Document. However, it must be noted that while the FPAA Accreditation Scheme Document forms the basis of the FPAA’s Fire Protection Accreditation Scheme being administered for the purposes of providing accreditation under the B&DC Act, the accreditations issued by the FPAA, by virtue of sections 54 and 57 of the B&DC Act authorise a person to carry out regulated work.
Regulated work is defined by section 52 of the B&DC Act as the carrying out of work as an accredited practitioner under the EP&A Act.
Section 3 of the EP&A Regulation[33] provides that:
accredited practitioner means the holder of an accreditation under the Building and Development Certifiers Act 2018 that authorises the holder to exercise the functions of an accredited practitioner.
accredited practitioner (fire safety) means an accredited practitioner whose class of accreditation authorises the holder to exercise the functions of an accredited practitioner (fire safety) who is acting in respect of matters to which the accreditation applies.
[33] As authorised by section 10.13 of the Environmental Planning and Assessment Act 1979 (NSW).
The EP&A Act and EP&A Regulation do not define what the functions of an accredited practitioner are. However, in considering what such functions include the Tribunal must have regard to what the accredited practitioner is empowered or required to do in their role under the EP&A Regulation.
As set out above in full, clauses 136AA(2)(c)(ii) and 146B(2)(c)(ii) of the EP&A Regulation outline the powers of an APFS. Consequently, a regulated activity for the purposes of an APFS is expressed in a manner that is limited to endorsing plans and specifications for fire protection systems necessary for obtaining construction certificates or complying development certificates in relation to proposed building work.
The other work activities set out in the FPAA Accreditation Scheme Document are no doubt undertaken by the APFS and are necessary skills to be able to endorse plans and specifications for fire protection systems. They are however, not activities that may only be carried out by accredited people pursuant to the B&DC Act and B&DC Regulation or EP&A Act and EP&A Regulation.
The circumstances in the Applicant’s case are akin to those in Renton, in that while there are a number of ancillary activities being undertaken as part of his role, they are not for the purposes of the Mutual Recognition Act required to be undertaken by an accredited person and are therefore not authorised activities pursuant to the accreditation. There is no evidence before the Tribunal to suggest that the design of plans and specifications for the purposes of the B&DC Act and B&DC Regulation or EP&A Act and EP&A Regulation was required to be done by someone who was accredited pursuant to the B&DC Act.
For these reasons the Tribunal accepts the contentions of the Respondent as outlined in paragraph 51 above.
As such the Tribunal finds that the activities authorised by the Applicant’s APFS accreditation are confined to the endorsing of plans and specifications of fire protection systems necessary for obtaining construction certificates or complying development certificates in relation to proposed building work pursuant to clauses 136AA(2)(c)(ii) and 146B(2)(c)(ii) of the EP&A Regulation.
It is open to the Tribunal at this point, when considering the principles outlined by Kiefel J (as she then was), in Renton as set out above to find that the Mutual Recognition Act principles do not apply, as New South Wales did not provide for the registration of an occupation or profession of designing plans and specifications for fire systems as part of regulated work. The Tribunal notes that the Respondent did not clearly articulate a contention that such a finding should be made.
While the Tribunal considers such a finding would be appropriate in this matter, in an abundance of caution the Tribunal will continue to consider the remaining considerations relevant to determining whether the Applicant’s application for a Nominee Supervisor’s Licence in the class of hydraulic services design pursuant to the Mutual Recognition Act should be granted.
Step 3 – What is the second occupation
The second occupation to be considered is that undertaken by the holder of a licence in the class of hydraulic services design restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers).
The Respondent contended that should a licence be issued to the Applicant it should be restricted to “commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers)” to be consistent with the Applicant’s APFS accreditation being in the sub-category of Fire Sprinkler Systems, and not in the sub-category of Fire Hydrant and Hose Reel Services.[34]
Step 4 – What are the activities authorised under second occupation
[34] Exhibit 7, Respondent’s Outline of Submissions. pages 18-19, paragraphs 49-50.
The activities authorised for the occupation undertaken by the holder of a licence in the class of hydraulic services design, restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers) are set out in Part 38 of Schedule 2 of the QBCC Regulation to include preparing plans, specifications and documents.
The Respondent contended that should the restrictions outlined in paragraph 65 above be placed on the Applicant’s sought licence be accepted, the activities authorised under the scope of works for the hydraulic services design licence are to “prepare plans, specifications and documents associated with … commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers).”[35]
Step 5 - Comparison of activities
[35] Exhibit 7, Respondent’s Outline of Submissions. Page 19, paragraph 51.
At Step 2 the Tribunal found that the activities authorised for the Applicant’s occupation under the FPAA accreditation were limited to those set out in clauses 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation. As such the activities authorised by the FPAA accreditation are confined to the endorsing of plans and specifications of fire protection systems necessary for obtaining construction certificates or complying development certificates in relation to proposed building work pursuant to clauses 136AA(2)(c)(ii) and 146B(2)(c)(ii) of the EP&A Regulation.
At Step 4 the Tribunal had a much easier task of identifying the activities authorised by the occupation undertaken by the holder of a licence in the class of hydraulic services design, restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers). The activities authorised by the QBCC Act and QBCC Regulation for that occupation include the preparation of plans, specifications and documents.
The Respondent contended that:[36]
·The activities authorised under the APFS accreditation are limited to those set out in clauses 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation and are therefore irreconcilable with those authorised under the hydraulic services design licence.
·A distinction must be made between design and endorsement. Endorsement is synonymous with certification. Notably Schedule 8 of the QBCC Regulation provides the following definition of certify:
certify, for schedule 2, other than part 6, and schedule 3, means to give advice or a report, including a certificate, stating that a fire protection system complies with Australian and international standards, Building Code of Australia requirements and manufacturer’s specifications after conducting a survey of the system.
·This is similar to the endorsement activities provided by clauses 136AA(2)(c) and 146B(2)(c) of the EP&A Regulation, which are concerned with confirming that plans and specifications comply with the relevant provisions of the BCA. The hydraulic services design class of licence expressly does not incorporate ‘certify’ functions.
·Design of a plan or specification must necessarily precede endorsement (or certification) of that plan or specification if such endorsement is required.
·The correlated conclusion must be that the activities authorised by the respective occupations are, although related, materially different such that equivalency cannot be achieved, even with the imposition of conditions.
[36] Exhibit 7, Respondent’s Outline of Submissions, pages 19-20, paragraphs 52-59.
The Tribunal accepts and agrees with the Respondent’s contention that there is a clear difference between the activity of endorsing or certifying plans and the design of such plans. As set out above, while the FPAA Accreditation Scheme Document makes reference to APFS accreditation holders designing plans and specifications, such activities are not required of nor do they form part of the authorisation being provided by the FPAA pursuant to the B&DC Act.
Consequently, the Tribunal finds that the occupation of Fire System Design APFS in the sub-category of Fire Sprinkler Systems accredited in New South Wales is not equivalent to the occupation undertaken by the holder of a licence in the class of hydraulic services design, restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers) issued in Queensland. The activities authorised to be carried out under each registration are not substantially the same. Further, given the difference in the scope of authorised activities between the two occupations the Tribunal finds that such equivalency cannot be achieved by the imposition of conditions.
Conclusion
For the reasons set out above, the Tribunal finds that pursuant to the principles of the Mutual Recognition Act, the role of Fire System Design APFS in the sub-category of Fire Sprinkler Systems cannot be taken to be an equivalent occupation to that undertaken by the holder of a licence in the class of hydraulic services design restricted to fire hydrants and hose reel services, with or without pumps, commercial, residential and domestic fire sprinklers, deluge and wall wetting sprinklers (drenchers).
Accordingly, the Tribunal finds that the Applicant was not entitled to be granted a Nominee Supervisor’s Licence in the class of hydraulic services design under the QBCC Act by virtue of the operation of the Mutual Recognition Act.
The Tribunal notes that there is nothing preventing the Applicant from testing his eligibility to be granted a Nominee Supervisor’s Licence in the class of hydraulic services design in relation to the requirements set out in section 32 of the QBCC Act.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.........................[SGD]..........................................
Associate
Dated: 27 October 2021
Date of hearing: 23 September 2021 Applicant:
Solicitors for the Applicant:
By Phone
Mr Garry Andrews
Queensland Building and Construction Commission
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