DANZE and Builders' Registration Board Of Western Australia
[2008] WASAT 10
•24 JANUARY 2008
DANZE and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2008] WASAT 10
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 10 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:163/2007 | 2 NOVEMBER 2007 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR A MACRI (SESSIONAL MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER) | 23/01/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | FRANK DANZE BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Builders' Registration Act 1939 Review of decision refusing application for registration of a builder Whether work done as a wall tiler and as a supervisor of tiling work constitutes the work of a builder |
Legislation: | Builders' Registration Act 1939 (WA), s 2, s 4(1)A, s 4(2), s 9A, s 10, s 14(1) Builders' Registration Act No 44 of 1953 (WA) Builders' Registration Act No 63 of 1956 (WA) Builders' Registration Regulations (WA), r 18 Home Building Contracts Act 1991 (WA) Interpretation Act 1984 (WA), s 18 |
Case References: | Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272 Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 Rogers and Builders' Registration Board of Western Australia [2006] WASAT 299 Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : DANZE and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2008] WASAT 10 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR A MACRI (SESSIONAL MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
- Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Builders' Registration Act 1939 - Review of decision refusing application for registration of a builder - Whether work done as a wall tiler and as a supervisor of tiling work constitutes the work of a builder
Legislation:
Builders' Registration Act 1939 (WA), s 2, s 4(1)A, s 4(2), s 9A, s 10, s 14(1)
Builders' Registration Act No 44 of 1953 (WA)
(Page 2)
Builders' Registration Act No 63 of 1956 (WA)
Builders' Registration Regulations (WA), reg 18
Home Building Contracts Act 1991 (WA)
Interpretation Act 1984 (WA), s 18
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr S Pentony
Respondent : Mr M Mannes
Solicitors:
Applicant : Hotchkin Hanly
Respondent : Marc Mannes
Case(s) referred to in decision(s):
Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
Rogers and Builders' Registration Board of Western Australia [2006] WASAT 299
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273
(Page 3)
Summary of Tribunal's decision
1 The applicant applied to the Tribunal under s 14(1) of the Builders' Registration Act 1939 (WA) to review a decision of the Builders' Registration Board of Western Australia refusing to register the applicant as a registered builder. At the conclusion of the hearing, the Tribunal issued an order setting aside the decision under review and substituting a decision that the applicant be registered subject to payment of the prescribed fee. The Tribunal indicated that it would provide written reasons for decision at a later date because the application raised matters of general importance.
2 The Builders' Registration Board had essentially rejected the application because it considered that the applicant as a tiler, like all finishing trades, was not engaged in the core activities of a builder and therefore had not acquired practical experience in the work of a builder within the meaning of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Tribunal found that on a proper construction of the legislation, no distinction was made between trades engaged in constructing, altering, repairing, adding to or improving the walls and structural parts of buildings, and that it was intended that any deficiency in experience was to be made up by the prescribed course of training and examination. The Tribunal accepted that builders were also engaged in other associated work, within the meaning of that phrase as used in the Home Building Contracts Act 1991 (WA) and that a person solely engaged in carrying out "associated work" would not gain practical experience in the work of a builder, unless the particular work undertaken could be demonstrated to constitute constructing, altering, repairing, adding to or improving the walls and structural parts of buildings.
3 The Tribunal found that the tiling work undertaken by the applicant constituted the work of a builder within the meaning of the legislation and that, as the requirements for registration were therefore met, the application should be granted.
The application
4 The applicant applies to the Tribunal under s 14(1) of the Builders' Registration Act 1939 (WA) (BR Act) seeking a review of a decision of the Builders' Registration Board of Western Australia (Board). The decision was to refuse an application to be registered as a builder pursuant to and in accordance with the provisions of s 10(1)(b)(iv)(I) of
(Page 4)
- the BR Act. Hereinafter, for convenience, sub-subsections (I) to (V) of s 10(1)(b)(iv) of the BR Act will be referred to, respectively, as items (I) to (V).
5 The application was heard on 2 November 2007. At the conclusion of the hearing, the Tribunal granted the application and ordered that the decision of the Board refusing registration of the applicant as a builder be set aside, and that in substitution, there be a decision that the applicant be so registered, subject to payment of the prescribed fee. The Tribunal indicated that it would publish written reasons for its decision as the application raised issues of general importance, and these are the Tribunal's reasons for decision.
6 The Board has, by its statement of issues, facts and contentions (BSIFC), acknowledged that the applicant meets the requirements for registration as a builder as set out in s 10(1)(b)(i) and s 10(1)(b)(iii), namely, that the applicant has attained the age of 21 years and is a person of good character. The Board also acknowledges that the applicant has completed the course of training and has passed the prescribed examination referred to in item (I). However, the Board denies that the applicant has met the further requirements of item (I) that he have practical experience for a period of at least seven years, or for periods aggregating at least seven years, in the work of a builder, or as a supervisor of building work.
7 In the BSIFC, the Board sets out the experience upon which the applicant relies as constituting at least seven years' practical experience in the work of a builder ([4]). By [10] of the BSIFC, it acknowledges that the applicant is entitled to a credit for periods of work of one year 10 months for duties which included providing skilled assistance to a builder, monitoring compliance of various regulations, liaising with subcontractors and dealing with contract variations ([4.1]); a period of two years during which the applicant was employed as a bricklayer ([4.4]); and has credited the applicant for one-half of the period during which the applicant was employed as an estimator and scheduler by Odin Ceramics, a ceramic tile shop. During this period, the applicant's duties included document control, estimating, planning and scheduling, which equates to a credit of three months; so that, in total, the Board has credited the applicant with four years and one month's practical experience in the work of a builder. The Board has placed in issue the applicant's claim to an entitlement to a credit of two years during which he was employed as a tiler ([4.3]) and a period of six years and 11 months (between June 2000
(Page 5)
- to 23 April 2007 during which the applicant operated his own wall and floor tiling business.
8 We shall revert to comment upon whether or not the applicant is entitled to any credit for the period during which he was employed by Odin Ceramics, although the credit given is immaterial, because the success or failure of the application depends upon whether or not the applicant is entitled to a credit for the periods during which he was engaged in carrying out tiling work, either as an employee or in the conduct of his own business.
The issues for determination
9 The issues which will be determinative of the application are the following:
1. Whether experience gained as a wall and floor tiler constitutes practical experience in the work of a builder within the meaning of Item (I).
2. Whether the applicant has practical experience in the work of a builder for a period of seven years, or periods aggregating seven years, in the work of a builder.
The requirements for registration
10 The requirements for registration are set out in s 9A and s 10 of the BR Act. Section 9A is not relevant and relates to the requirements for registration by architects, engineers and members of the Australasian Institute of Mining and Metallurgy. Section 10(1) of the BR Act is directly relevant and provides as follows.
"(1) Any person, not being a company or any other body corporate, who applies to be registered under this section as a registered builder shall, subject to subsections (2a) and (2b), be entitled to be so registered if and when -
(a) he has paid the prescribed fees for such registration; and
(b) he has satisfied the Board that he -
(i) has attained the age of 21 years;and
[(ii) deleted]
- (iii) is a person of good character;and
(iv)(I) has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders;
(II) although not having complied with the requirements of item (I) has nevertheless had such experience in the work of a builder elsewhere than in the State, as to render him in the opinion of the Board, arrived at in such manner as the Board thinks fit, competent to carry out building;
(III) although not having complied with the requirements of item (I) or item (II) has nevertheless had such experience in the work of a builder within the State, but outside the area to which this Act applied at the time he gained such experience, as to render him in the opinion of the Board, arrived at in such manner as the Board thinks fit, competent to carry out building;
(IV) although not having complied with the requirements of item (I), (II) or (III) has nevertheless had at least 5 years' practical experience in the work of building construction and has obtained corporate membership of the Australian Institute of Building;or
(V) although not having complied with the requirements of item (I), (II), (III) or (IV) has nevertheless had 5 years' experience in the work of building construction as a manager or supervisor and satisfies the
- Board that he is fit and competent to carry out building work,
- but for the purpose of this subsection -
- (c) a person who relies in his application on the provisions of paragraph (b)(iv)(II) shall not be entitled to be so registered unless he satisfies the Board that he was not, on the date of the coming into operation of the Builders' Registration Act Amendment Act 1961, a resident of the State."
The parties' submissions
11 The parties' submissions are reflected within their respective statements of issues, facts and contentions which were supplemented by oral submissions made at the hearing. The Tribunal has considered all of the parties' written contentions and oral submissions, which the Tribunal considers are subsumed within the following main points.
12 The Board contends that the examination requirement of item (I) contains a significant theoretical component and, as such, the experience requirement under this item, being "practical experience in the work of a builder", is of a lesser nature than in other categories.
13 However, the Board contends that, while there are many facets to the practical work of a builder, it would be a result contrary to the intent of the BR Act to reach a conclusion that all types of work that a builder engages in may be considered relevant experience, that there are certain trades and jobs that do not provide experience relevant to the assessment of an application under item (I), despite the fact that they occur on a building site.
14 Consequently, the Board contends that the experience required is experience which constitutes the core functions of a builder's work and for which the involvement of a registered builder is required.
15 The Board contends that in any assessment of practical experience in the work of a builder, the context in which the work is being performed and the level of practical experience that is gained from work of that type must be assessed. On that basis, it is contended that the applicant's duties and activities in relation to the undertaking of tiling work includes the finishing and completion of various surfaces by attaching tiles, including the placement of tiles for aesthetic purposes. It is contended that tiling is
(Page 8)
- a finishing trade which is not a core function of a builder, nor is it work that requires the work of a registered builder. Further, and more importantly, so it is contended, such work provides no insight of or involvement in the core functions of a builder or in the key processes carried out on a construction site.
16 During oral submissions, the Tribunal pressed counsel for the Board to identify on what criteria or basis a distinction could be made between the various trades who might be engaged on a building site, in order to determine what work provided an insight into the operations of a builder and what did not. Whereas counsel initially adopted the position that as tiling was a finishing trade, no experience could be credited within the meaning of item (I), counsel later qualified that position. Counsel submitted:
"We say that finishing trades are not experience that is relevant. That doesn't mean that in a legal sense and at the end of the day it's impossible for someone to have gained experience in finishing trades to have some practical experience that is relevant.
What the Board is saying typically is that here are the trades which we say have very little, if any, relevant practical experience to the test.
So, it's drawing a theoretical line in the sand to say, look, if someone comes to us with seven years' tiling experience, the answer is that, yes, we may give some limited credit to that, but it's not going to be anywhere near sufficient to gain the seven years' practical experience. In terms of trying to formulate a test of that, I'd submit to you that that may be impossible in the sense that the legislature has seen fit to establish a Board with registered builders who have a particular grasp of the building industry and knowledge at which they exercise a discretion to say whether that experience is practical."
17 This question was the subject of some debate during oral submissions. Counsel for the Board submitted that, for instance, a bricklayer was sufficiently exposed to the activities of a builder, but on the other hand, a tiler was not. When tested, it is obvious to the Tribunal that a bricklayer is not exposed to a great many of the activities involved in the completion of a building. Accordingly, if the Board's approach to
(Page 9)
- the matter is correct, the Tribunal indicated that it had some difficulty in determining how one trade was to be distinguished from another if the trades concerned were involved in the work of a builder.
18 Counsel for the applicant referred to [4] of the applicant's statement of issues, facts and contentions (ASIFC) which summarised the work undertaken by the applicant in relation to doing work as a wall and floor tiler, both for himself and as an employee of others. That included laying wall and floor tiles, constituted of various materials, constructing small brick walls, including plastering and levelling, preparing bathrooms by bricking up spas, baths, under vanities, nib walls and hobs, using laser levels and spirit levels, carrying out measurements and calculations, set out to adjacent floor finishes, wall slabs and ceiling finishes and set outs for earlier trades as well as supervision of all of the above. It is not disputed that the applicant carried out all such work, and the applicant contends that the work constitutes "work of a builder" or constitutes the applicant as "a supervisor of building work" within the meaning of those phrases in item (I). Reference was made to the definitions of "builder" and "person trading as a builder" in the BR Act and to Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 at [2] and Rogers and Builders' Registration Board of Western Australia [2006] WASAT 299 at [17], [19] and [20] to support the contention that such work was the work of a builder.
19 Further reference was made to Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 at [20] as reflecting that an application for registration under item (I) might satisfy the requirements of that provision without having experienced all of the activities comprising the work of a builder, because any such deficiency in experience is made up by the requirement to pass the prescribed examination. Consequently, it was also contended that any attempt to categorise "work of a builder" as constituting only "core" works as opposed to "non-core" works is artificial.
20 In oral submissions, counsel for the applicant submitted that the Board was attempting to elevate the question of practical experience in the work of a builder "to the very thing that's dealt with in (V), which is work of building construction".
Consideration
21 In Thorp and Builders' Registration Board of Western Australia, above, the Tribunal had cause to consider the differences in expression between items (I) and (IV) and (V). The Tribunal stated at [18]:
(Page 10)
- "Contrary to the applicant's submissions we consider that there is a clear distinction in meaning between 'the work of a builder' as it is used in item (I) and 'the work of building construction' as it is used in items (IV) and (V). We do not consider the authorities cited stand as authority for the meaning of the phrase 'work of building construction'. In Farano, the Tribunal held that the phrases 'work of a builder' or as a supervisor 'of building work', as used in item (I) meant 'the nature of the work done must be work in which a builder engages, such as constructing, altering, repairing, adding to or improving the walls or structural parts of a building, as reflected in the definition of 'a person trading as a builder''. The Tribunal was not concerned in either Todorovic or Farano with the phrase 'work of building construction' which appears in item (V).
In Re Ryan; Ex Parte Travaglini [1979] WAR 23, the Full Court of the Supreme Court of Western Australia held that in construing the expression 'fit and competent to carry out building work' in item (V) it is necessary that an applicant be competent to carry out building work which would be associated with buildings to be built for the purposes mentioned within the definition of 'building'. Justice Wickham concurred with the above reasoning of Burt CJ and added 'the applicant must be qualified in the erection or structural alteration of all the classes of buildings mentioned in the definition'.
The effect of the above differences is that an applicant for registration under item (I) may not have experience of all of the activities comprising the work of a builder. The deficiency in experience is made up by the requirement to pass prescribed examinations. By contrast, as submitted by the Board, an applicant for registration under item (V) must demonstrate experience in the whole of the process of building from start to finish, but in our view not just of a building as was submitted, but of all of the classes of buildings referred to in the definition, in order to be able to satisfy the Board that he is fit and competent to carry out building work."
22 The applicant relied upon the above reasoning and nothing was submitted on behalf of the Board to suggest any contrary view; indeed, the Board's initial submission on the interpretation of the section is consistent with the above view. The point of departure is that the Board regards the practical experience requirement as applying to "the core
(Page 11)
- functions of a builder's work and for which the involvement of a registered builder is required" (BSIFC at [17]).
23 In Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273 and in Farano, the Tribunal discussed the interpretation of item (I) in the context of considering whether or not an owner/builder was entitled to a credit for time spent in the construction of a building. In that context, the Tribunal stated, at [32] of Farano that the requirement that an applicant have "practical experience" for a period of at least seven years or for periods aggregating at least seven years in the work of a builder, or as a supervisor of building work, provides the means by which to assess whether the experience relied upon, in total, equates to that which would be gained in seven continuous years of carrying out building work. The Tribunal further stated that it encompasses a consideration of the range of activities in which an applicant for registration would need experience in order to properly carry out the work of a builder. The Tribunal went on to state, at [34] of that decision, that in assessing the experience relied on by an owner builder, it is necessary to compare the time taken in a particular project - if necessary, broken down to particular activities - with the time which it is assessed a reasonably competent registered builder, or trade engaged by the builder, would take to do the same work. In that way, the Tribunal stated that the total time credited to an owner/builder would equate to that of someone engaged full-time, every day, carrying out the work of a builder or as a supervisor of building work.
24 Neither the Farano nor the Todorovic decision addressed specifically what activities constituted the work of a builder, for the purposes of item (I). Subject to that qualification, we adopt the reasoning of the Thorp, Farano and Todorovic decisions as referred to above.
25 In each of items (II), (III) and (V), the Board is required specifically to form an opinion that the applicant for registration is fit and competent to carry out building work. There is no such requirement in item (IV), or item (I), with which we are concerned. Under item (I), all that needs to be shown is that the applicant has completed the prescribed course of training, has passed the prescribed examination and has accrued the requisite practical experience in the work of a builder.
26 As found in Farano at [31], the work of a builder is that work in which a builder engages, such as constructing, altering, repairing, adding to or improving the walls or structural parts of a building, as reflected in the definition of "a person trading as a builder" (s 2 of the BR Act).
(Page 12)
27 The term "practical experience" is not defined by the BR Act. The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) provides the following definition:
"Practicaladjective 1 relating to practice or action: practical mathematics 2 consisting of, involving or resulting from practice or action: a practical application of a rule. 3 relating to or connected with the ordinary activities, business or work of the world: practical affairs ..."
28 The Shorter Oxford Dictionary (Oxford University Press, 5th Edition 2002) provides the following definition:
"Practical aadjective 1practicing art or craft; crafty, scheming.
2(a) of or pertaining to practice; consisting or shown in practice or action, as opp to theory or speculation."
29 Each of the other items (II), (III), (IV) and (V) refer only to experience, not to "practical experience". At least the phrase "practical experience" is, in our view, intended to convey a distinction between the theoretical experience gained by completion of the prescribed course of training on the one hand, and the experience of a practical nature which is required in the work of a builder. However, the purpose of s 10 of the BR Act, as held in Farano at [30], is obviously to ensure that those applying for registration as a registered builder must have the requisite qualifications and experience. The provisions are for the public benefit as part of the regulation and control of the building industry, with the obvious object of ensuring that members of the public have the comfort of knowing that registered builders are suitably qualified and competent to carry out building work to a satisfactory standard. The section should be construed in a way that would promote this purpose as required by s 18 of the Interpretation Act 1984 (WA).
30 It is clear from the submissions made on behalf of the parties and exchanges with the Tribunal that builders are engaged in a range of activities. On the face of it, any person who engages in any similar activity might be said to be engaged in the work of a builder. The definitions of "builder" and "person trading as a builder" set out in s 2 of the BR Act reflect that a builder is a person engaged in constructing, altering, repairing, adding to or improving the walls and structural part of buildings. A person engaged in those activities is therefore engaged in activities in which a builder is engaged. We reject the Board's submission that the only work to be taken into account is work in which a registered
(Page 13)
- builder is required to be involved. A registered builder is not required where, under the Act, an owner/builder is entitled to construct a building (s 4(1)A(aa) of the BR Act), nor when building work below the prescribed value of $20 000 is carried out (BR Act s 4(1)A(d) read with Builders' Registration Regulations (WA) reg 18), nor if a person is exempted from the need to be registered (s 4(2), BR Act).
31 But, builders are also engaged in other work as well. In this regard, it is relevant to have regard to the Home Building Contracts Act 1991 (WA) (HBC Act) which is cognate legislation and which reflects that builders are permitted to contract to carry out home building work, which includes associated work such as siteworks, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works. As the term "associated work" conveys, such work is connected with the ordinary activities or work of a builder. The purpose of s 10 of the BR Act, and relevantly item (I) in particular, is to ensure that members of the public have the comfort of knowing that registered builders are suitably qualified and competent to carry out building work. That comfort could only be provided if the prescribed course of training and examination are so wide reaching that completion would give a person who engaged solely in carrying out an aspect of the associated work referred to above a sufficient knowledge of building to ensure competency in carrying out the ordinary activities or work of a builder.
32 The requirement for an applicant to have practical experience in the work of a builder, in addition to undertaking the prescribed course of training and examination was added by the Builders' Registration Act No 44 of 1953 (WA) and the Builders' Registration Act No 63 of 1956 (WA) well prior to the enactment of the HBC Act. It could therefore never have been then intended that a person solely engaged in carrying out "associated work" could gain practical experience in the work of a builder, unless the work undertaken can be demonstrated to constitute constructing, altering, repairing, adding to or improving the walls and structural parts of buildings. In this context only, we accept that practical experience is required to be gained in what may be described as the core activities of a builder.
33 Nevertheless, there is nothing within the wording of item (I), read in its context of the BR Act as a whole, which suggests that "work of a builder" within the meaning of item (I) is to be read down in any way so as to exclude work which comes within the meaning of building work as reflected in the definition of "person trading as a builder" in s 2 of the
(Page 14)
- BR Act. There is nothing absurd in that conclusion. To the contrary, it is self-evident from the submissions made by the parties that item (I) is the vehicle through which a particular tradesperson would apply for registration as a builder. The experience gained in any one trade is not sufficient to guarantee competency in the carrying out of all of the work of a builder, but it can reasonably be expected, with the benefit of seven years' practical experience in a particular trade which is within the scope of work carried out by a builder, that the prescribed course of training and examination should be wide enough to ensure competency in building generally.
34 We are unable to accept, on the information provided to us, that a bricklayer on a building site has so much more exposure to the other activities of a builder, that he should be entitled to apply for registration under item (I), but that a person engaged in a finishing trade, provided that the work undertaken falls within the description of building work referred to under the definition of "person trading as a builder", is excluded from doing so. In any event, practical experience does not, in our view, mean the standing by and observation of other trades at work so as to acquire "insight or involvement" in the "core functions" of a builder as submitted for the Board. Practical experience refers to the practice or action undertaken by the applicant. While some knowledge will inevitably be accumulated through the observation of other trades, we do not consider that this constitutes practical experience within the meaning of item (I).
35 We also consider, on the information placed before the Tribunal, that tiling constitutes part of the ordinary activities of a builder engaged in residential construction. The Board's contention, at [21] of the BSIFC, referring to the work of a tiler, including the placement of tiles for aesthetic purposes, does not reflect a proper characterisation of the work for a tiler as a whole. There may be many features of a residence which are constructed solely for aesthetic purposes. While we will refer further below to the applicant's evidence given at the hearing, we observe that the work described in [4] of the ASIFC, reflects to a large extent the work undertaken generally by tilers, and we note that this includes set out to adjacent floor finishes and construction of hobs, which are essential to the usage and drainage of wet areas. Tiling, in itself, in such areas has a very practical purpose of providing an impervious surface which is not affected by water spillage and which can be kept clean easily. See the requirements of Pt F 1.7 of the Building Code of Australia - Waterproofing of wet areas in buildings. Tiling is therefore an important part of the construction of a residential dwelling, and it is not material that an owner may take considerable care in the selection of the product to be
(Page 15)
- used in order to achieve a result which is aesthetically pleasing to the owner.
36 We consider similar considerations would apply to tiling used in a commercial building, whether in wet areas, or because tiling might be selected for use in high traffic areas or for some other practical reason. Ultimately, the issue is one of statutory construction to determine what constitutes the work of a builder, and, as referred to above, that is constructing, altering, repairing, adding to or improving the walls and structural parts of buildings. We consider that the tiling work undertaken by the applicant, as referred to in ASIFC [4] and further below, falls within that description, in that it constitutes adding to or improving the walls and structural parts of buildings. In so concluding, for the reasons which follow, we consider that structural parts of buildings include the construction of the floor, whether the floor is constructed of concrete and forms part of a continuous concrete slab, or whether the floor is constructed of timber as part of a timber constructed building.
37 The BR Act contains no definition of "structure", "structural" or "structural parts of buildings". These are terms which are capable of a variety of meanings: see the discussion in relation to the meaning of "the structure" in Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272 (Carbure).
38 The Shorter Oxford Dictionary, referred to above, defines "structure" as:
"structurenoun1 mode of building, construction, or organisation; arrangement of parts, elements or constituents. 2 something built or constructed; a building, bridge, dam, framework etc",
- and "structural" is defined as:
"structural adjective 1 of or relating to structure; relating or essential to a structure."
(Page 16)
40 Tiling placed on concrete floors and walls therefore constitutes adding to or improving the walls and structural parts of a building within the meaning of the work of a builder as discussed above.
41 The Structural Provisions set out in Pt B1 of the Building Code of Australia requires that a building or structure must resist not only the dead load transferred from one part of the structure to another but also live loads imposed from occupancy and use (Pt BP 1.1). We consider that timber flooring, which must bear, and be able to transfer to supporting beams and joists, the load imposed by the occupants and furniture, is therefore also a structural part of a building constructed from timber, so that fixing tiling thereon is adding to or improving the structural parts of a timber constructed building.
42 It follows that both the issues raised for determination must be concluded in favour of the applicant. The carrying out of tiling work is the work of a builder within the meaning of item (I) and the applicant is entitled to a full credit for both the three-year period when he was employed as a tiler, and the period since June 2000 in which he has operated his own tiling business.
43 On an application of the principles which we have determined above, the applicant is not entitled to a credit for any of the time during which he was employed as an estimator and scheduler by Odin Ceramics. Odin Ceramics is a ceramic tile shop and is therefore engaged only in the sale of tiles, which is not the work of a builder. The fact that the applicant was engaged in activities which included document control, estimating, planning and scheduling, which are incidental activities undertaken by a builder, does not result in practical experience being gained in constructing, altering, repairing adding to or improving the walls and structural parts of buildings, which is the work of a builder, within the meaning of item (I), which must only be taken into account in assessing whether the requisite practical experience has been gained. As stated above, this is immaterial to the result because the deduction of the three month credit allowed by the Board for the period of employment with Odin Ceramics reduces the undisputed credit to which the applicant was entitled to a period of 46 months, which, when added to the periods of experience which we have found the applicant is entitled to have taken into account, well exceeds the prescribed seven-year period.
44 We were able to grant the application and substitute an order that the applicant be registered as a builder, subject to payment of the prescribed fee, immediately after the conclusion of the hearing because it was
(Page 17)
- obvious to the Tribunal that, even if the Board's general propositions in relation to finishing trades was correct (which we have found is not the case) based on the evidence that was adduced at the hearing from the applicant, we were satisfied that there was no basis to treat the applicant, as opposed to tilers generally, in a way any different to, say, a bricklayer.
45 The applicant gave sworn evidence describing, in greater detail than was presented to the Board, the nature of his activities. The applicant is not a tiler who simply attends site at a late stage in construction and lays tiles in accordance with the applicable contract provisions. The applicant is engaged in the upper end of the residential market involving the construction of very substantial residential dwellings. As such, he has a team of five tilers working under his supervision and he also carries out tiling work. All tilers are engaged on a single job. The applicant is involved in liaison with the builder from a very early stage. He meets the builder and discusses the plans with him before construction even commences. Details are obtained in relation to ceiling heights, and arrangements are agreed to ensure that the builder places the concrete floor to heights which will facilitate the tiling, particularly where the design requires a drop-down shower without a hob. Because of the size of the homes, tiling work will commence in some wet areas when brickwork is still being completed in other areas of the dwelling. Where a shower is to be provided in the upper level, the applicant assists the builder in providing a bulkhead design for the lower floor to accommodate plumbing requirements. The applicant also advises builders where to place floor wastes in bathrooms and balconies. The applicant and his team are often on site when the scaffolding is in place so that construction on the upper floors can proceed. Tiling work will be carried out as the building progresses to different levels, and during this time, outside structures such as pool houses or gymnasiums may also be under construction.
46 Counsel for the Board conceded that having heard the applicant's evidence, he accepted that the applicant should be entitled to a credit for the experience that he gained on the particular projects, given the size of the projects. The Tribunal considered that this concession had been rightly made, and during an adjournment shortly after the hearing, concluded that there was no basis upon which to differentiate between the applicant's particular experience and that which might be gained by a trade such as a bricklayer. Accordingly, the Tribunal considered that, on any basis, the application would have to be granted and it ordered accordingly, indicating that reasons for decision would be provided later.
(Page 18)
47 The Tribunal notes that if the interpretation placed by the Board had been correct, very real difficulties would arise in relation to the assessment of whether or not some trades, involved in constructing, altering, repairing, adding to or improving the walls and structural parts of buildings had gained practical experience in the work of a builder. While the Board might be in a position to make that judgment based on the experience of its members, it was evident that evidence would have to be provided on review. The Tribunal has concluded that practical experience does not have the meaning for which the Board contends, but refers to the ordinary activities undertaken by an applicant for registration, and that it must be determined whether or not those activities are the work of a builder; if they are, the applicant has accrued practical experience in the work of a builder.
48 As expressed in the Farano decision, the intent of s 10, which of course includes item (I), is to ensure that those applying for registration as a registered builder have the requisite qualifications and experience. However, item (I) contemplates that the experience gained need not relate to all of the activities of the builder, and that any deficiency in practical experience will be compensated for by the content of the prescribed training course and practical examination. There is a danger that the Board has endeavoured to apply the provisions of item (I) in a way which has reserved to the Board a discretion to determine whether an applicant is fit and competent to carry out building work. Item (I), unlike items (II), (III) and (V), does not reserve to the Board the right to determine whether it is satisfied that an applicant is fit and competent to carry out building work. Accordingly, if the Board is concerned that applicants with experience in finishing trades who undertake the prescribed course of training and examination are not adequately qualified, either the course of training and examination should be reviewed, or the legislation amended.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
(Page 19)
7
5
6