Den Hertog v Construction Occupations Registrar (Occupational Discipline)
[2014] ACAT 33
•30 May 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DEN HERTOG v CONSTRUCTION OCCUPATIONS REGISTRAR (Occupational Discipline) [2014] ACAT 33
OR 44 of 2013
Catchwords: OCCUPATIONAL DISCIPLINE – CONSTRUCTION OCCUPATION – eligibility to apply for Class A Builder’s licence – whether applicant’s work activities are activities involving the actual carrying out of building work – relevant practical building work experience – interpretation of exception in definition of building work experience – whether there is verification of the extent, quality, relevance and recency of applicant’s building work experience
Legislation: Building Act 2004, ss 6, 9, 10, 11 and 37
Construction Occupations (Licensing) Act 2004, ss 7, 8, 18 and 19
Legislation Act 2001, s 148
Subordinate
Legislation:Construction Occupations (Licensing) Regulation 2004, ss 5, 11, 12, and 13 and Schedule 1
Construction Occupations (Licensing) (Mandatory Qualifications) Declaration 2012 (No 3) (NI 2012-303), Schedule
Texts/Papers: ACT Planning and Land Authority, Review of the Construction Occupations (Licensing) Act 2004, Prepared in accordance with section 131 of the Construction Occupations (Licensing) Act 2004, August 2007
D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, 2011)
Tribunal: Ms E. Symons – Presidential Member
Mr G. Trickett – Senior Member
Date of Orders: 30 May 2014
Date of Reasons for Decision: 30 May 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/44
BETWEEN:BERNARD DEN HERTOG
Applicant
AND: CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
Mr G. Trickett – Senior Member
DATE:30 May 2014
ORDER
The Tribunal Orders that:
1.The decision under review is confirmed.
………………………………..
Ms. E. Symons – Presidential Member
For and on behalf of the Tribunal
REASONS FOR DECISION
Background
Mr Bernard den Hertog (the applicant) applied to the Construction Occupations Registrar (the respondent) for a licence as a Class A Builder on 22 July 2013.
On 7 November 2013, pursuant to section 19 of the Construction Occupations (Licensing) Act 2004 (the COLA), Mr Benjamin Green, delegate of the respondent, refused to issue the construction occupation licence applied for (the decision).
The applicant filed an application for review of the decision in the ACT Civil and Administrative Tribunal (the Tribunal) on 4 December 2013.
At a directions hearing held on 8 January 2014, a timetable was made for the applicant to provide witness statements from each witness (including himself), on whose evidence he relied in support of his application and any other material relied on. The application was referred for mediation on 21 February 2014.
On 21 February 2014, after the mediation, further orders were made requiring both parties to file a statement of facts and contentions, any witness statements and any other material to be relied on, and the matter was set down for hearing on 14 May 2014.
The hearing
At the hearing on 14 May 2014, the applicant represented himself. Dr Jarvis, instructed by Ms Law-Jamieson from the ACT Government Solicitor’s Office, represented the respondent.
The applicant gave evidence and was cross-examined. His witness statement, dated 28 February 2014 (received in the tribunal on 27 March 2014), is exhibit A1. The witness statement of Mark Azzopardi, a Class A Builder, dated 21 March 2014, is exhibit A2; the witness statement of Ian Anlezark, a Certifier, dated 7 February 2014, is exhibit A3; and the witness statement of Atul Kumar, a Class A Builder, dated 21 March 2014, is exhibit A4. The respondent called evidence from Mr Benjamin Green, Deputy Construction Occupations Registrar. Mr Green’s witness statement, dated 9 April 2014, is exhibit R1.
The applicant made oral submissions and Dr Jarvis made both oral and written submissions. At the conclusion of the hearing, the Tribunal reserved its decision.
The Legislative Framework
The COLA regulates construction occupations. Pursuant to section 7(c) of the COLA, a builder’s occupation is a ‘construction occupation’. Section 17(1) permits a person to apply to the Registrar to become licensed in a ‘construction occupation’. Section 17(3) provides that regulations may prescribe the requirements for applications. Section 18 provides that regulations may also prescribe when an entity is or is not eligible to be licensed in a construction occupation, as well as prescribing how an applicant may or must demonstrate that eligibility.
Section 5 of the Construction Occupations (Licensing) Regulation 2004 (the COLRegulation) states the information that a licence application must contain. For a construction occupation licence, section 5(i) of the COL Regulation states that this information must include evidence that the applicant is eligible to be licensed in the construction occupation (or, if applicable, the class of construction occupation) applied for.
Section 11 of the COL Regulation states that an entity is not eligible to be licensed if the entity is licensed in another occupation or class of occupation, and the licence is suspended on grounds that satisfy the Registrar that it is not appropriate for the person to be licensed.
Section 12 of the COL Regulation states that an individual is not eligible to be licensed if the individual, inter alia, has been found guilty of an offence that involves fraud or dishonesty and which is punishable by imprisonment for 1 year or more.
Section 13 of the COL Regulation permits the Registrar to declare the qualifications necessary for an individual to be eligible to be licensed in a construction occupation or occupation class.
In the Schedule to the Construction Occupations (Licensing) (Mandatory Qualifications) Declaration 2012 (No 3) (NI 2012-303) (the Declaration), the Registrar has set out the necessary qualifications for an individual to be eligible to be licensed in specified construction occupation classes (including as a Builder, Construction Occupation Class A). In the Schedule to the Declaration, the qualifications for a Builder, Class A, as they relate to this matter, are as follows (the Builder Class A qualifications):
1. The applicant holds:
(a)a tertiary qualification in architecture, civil engineering, structural engineering or building that the Australian Qualifications Framework Advisory Board has determined is a bachelor degree, graduate certificate, graduate diploma, masters degree or doctoral degree in the Australian Qualifications Framework system; and
(b)not less than 2 years of full time relevant practical building work experience, carried out by the applicant, other than:
(i) building work of the kind that an unconditional builder’s licence class C authorises; and
(ii) specialist building work; and
(iii) basic building work; or
...
‘Building work’, for paragraph 1(b)(i) of the Builder Class A qualifications, is not defined in the Declaration or in the COLA. It is defined in section 6 of the Building Act2004 (the Building Act), a related operational act, as follows:
6Meaning of building work
(1) In this Act:
building work means—
(a) work in relation to the erection, alteration or demolition of a building, and includes disposal of waste materials generated—
(i)by the alteration of a building other than a building excluded under the regulations; or
(ii) by the demolition of a building (but not part of the building); or
(b) work in relation to repairs of a structural nature to a building.
…
‘Specialist building work’, for paragraph 1(b)(ii) of the Builder Class A qualifications, is not defined in the Declaration or in the COLA. It is defined in section 9 of the Building Act as follows:
9Meaning of specialist building work
In this Act:
specialist building work—
(a)means—
(i)the installation of a swimming pool; or
(ii)the demolition of a building; and
(b)includes building work prescribed under the regulations as specialist building work.
‘Basic building work’, for paragraph 1(b)(iii) of the Builder Class A qualifications, is not defined in the Declaration or in the COLA. It is defined in section 10 of the Building Act as follows:
10Meaning of basic building work
(1)In this Act:
basic building work—
(a)means the following building work:
(i)erecting a prefabricated class 10a building;
(ii)erecting a class 10a outbuilding;
(iii)installing fireplaces or solid-fuel heaters;
(iv)non-structural work; but
(b)does not include specialist building work.
‘Non-structural work’, for paragraph (1)(a)(iv) of the definition of ‘basic building work’ in section 10 of the Building Act, is defined in section 11 of the Building Act as follows:
non-structural work—
(a) means work on a part of a building that does not, or is not intended to, carry a structural load imposed or transmitted by another part of a building; and
(b)includes work on non-load bearing walls, doors, partitioning, reticulated pipework, ventilation ductwork and building fit-out items; but
(c)does not include the following work:
(i)work that may affect the structural integrity of a structural element of a building, or weaken or remove, completely or partly, the structural element, if the element is installed in a way that it carries, or can carry, a load of part of a building;
(ii)work that involves the use of a structural element to carry, or to possibly carry, a structural load of part of a building.
The functions that a Builder, Construction Occupation Class C, is authorised to perform (which are relevant to the practical experience requirement for the Builder Class A qualifications) are set out in are set out in Part 1.3 of Schedule 1 of the COL Regulation as follows:
(a) building work (other than specialist building work or handling asbestos) in relation to a building that is 2 storeys or lower and is a class 1, class 2 or class 10a building; and
(b) building work (other than specialist building work or handling asbestos) in relation to a building that is a class 10b structure (other than a swimming pool or swimming pool fence) and is ancillary to a building mentioned in paragraph (a); and
(c) basic building work
In the ‘Notes, Terms and Definitions’ section of the Schedule to the Declaration, the following relevant words and phrases are defined:
Notes, Terms and Definitions
Reference to building work experience does not include—
quantity surveying, administering contracts, designing, drafting, and off-site fabricating, except for any periods where the activity involved the actual carrying out of building work by the person independently or under supervision; or
building work experience that is not verified to the satisfaction of the registrar, in that it is not independently verified by a person or people who are competent in making a verification of the extent, quality, relevance and recency of the applicant’s experience doing similar work to, or work that is equally complex as, the work relevant t o the application.
Examples of a competent person—
1.a person who holds a builders licence or building surveyor’s licence authorising supervision or certification of similar kinds of building work to that which is the subject of the application; or
2.a structural engineer or architect acceptable to the registrar.
…
Full time means, in respect of a period of time, the approximate total number of normal working hours that a person employed full time in the construction industry would be reasonably expected to work during that period.
…
Relevant Practical means within the last 5 years
Section 19 of the COLA refers to decisions that either must or may be made by the Registrar. A copy of the section is attached to this decision.
Issue
The issue for determination is whether the applicant has demonstrated that he has the “relevant practical building work experience” necessary for a Class A builder’s licence pursuant to the Declaration[1](the primary issue).
[1] Respondent’s Summary of Submissions, dated May 2014, at [2]
This issue raises a preliminary issue (the preliminary issue) of how to interpret the exception to the list in the Declaration of activities that do not constitute ‘building work experience’ (excluded activities), namely:
...building work experience does not include -
quantity surveying, administering contracts, designing, drafting, and one off fabricating, except for any period where the activity involved the actual carrying out of building work by the person independently or under supervision;...[Tribunal’s emphasis added]The Tribunal will consider the preliminary issue first.
CONSIDERATION
The preliminary issue
The applicant contends that the exception should be interpreted beneficially, as ‘designing’ and ‘drafting’ are listed as excluded activities, yet “[the] design and documentation component of building is intrinsic, indeed a fundamental component of building”[2]. He further contends, because of the exception (also referred to by the applicant as a double negative), designing and drafting may be ‘building work experience’ for the purposes of the Declaration.
[2] Applicant’s Witness Statement, dated 28 February 2014, at [5]
The respondent contends that there are difficulties with the drafting as the effect of the phrase ‘except for any periods...’ in the definition of ‘building work experience’ appears to be that if one of the foregoing excluded activities “involves the actual carrying out of building work”, the period of that activity may constitute relevant building work experience. [3] Dr Jarvis submits that ordinarily one would think of these activities as quite separate. [4]
[3] Respondent’s Summary of Submissions, dated May 2014, at [20]
[4] Respondent’s Summary of Submissions, dated May 2014, at [21]
Dr Jarvis posed the question – in what sense can one say that an excluded activity (for example, designing) involves the actual carrying out of ‘building work’, which is defined in section 6 of the Building Act as ‘work in relation to the erection, alteration or demolition of a building’. [5] He provided the following example of the difficulty with interpreting the exception as drafted: [6]
...conceivably, an architect could attend on site in order to supervise[] the actual construction of an aspect of a building, for example, to ensure it complied with the design, or to resolve a design problem that had been encountered by the builder.
...this activity would be “in relation to” the erection or alteration of a building.
Section 8(2) COLA provides to the effect that merely supervising building work is building work.
[5] Respondent’s Summary of Submissions, dated May 2014, at [21]
[6] Respondent’s Summary of Submissions, dated May 2014, at [21] and [22]
Dr Jarvis contends that this meaning of ‘building work’ cannot have been intended in the exception as it introduces a circularity into the definition of ‘building work experience’ in the Declaration, and would tend to defeat the exclusion of non-construction activities.[7] Rather, the intention is that ‘building work’, as used in the exception, to building work other than the foregoing list of excluded non-construction activities. Thus, “[t]he activity of design, for example, would constitute relevant [building] experience if, in the relevant period, it involved actually carrying out other building work, i.e. construction work”.[8]
[7] Respondent’s Summary of Submissions, dated May 2014, at [21] and [22]
[8] Respondent’s Summary of Submissions, dated May 2014, at [23]
The Tribunal notes the respective contentions of the parties.
The Tribunal has considered the following passage from the text Statutory Interpretation in Australia (7th ed) by Pearce and Geddes, which discusses the form of drafting whereby exceptions (or provisos) are introduced: [9]
The leading Australian statement of the effect of a proviso is that of Latham CJ in Minister of State for the Army v Dalziel (1944) CLR 261 at 274-5:
As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is ‘dependent on the main enactment’ and not an ‘independent enacting clause’:... But though a provision framed as a proviso ought to be drafted and generally should be construed only as such, a consideration of both the main and subsidiary provisions of an enactment may show that the proviso contains matter which is really ‘in substance a fresh enactment, adding to and not merely qualifying that which goes before’ (Rhondda Urban District Council v Taff Vale Railway Co (1909) AC 253 at 258).
[9] Paragraph [4.53], at p 161
The Declaration is a subordinate instrument. Pursuant to section 148 of the Legislation Act 2001, words in subordinate instruments are to be interpreted consistently with the parent Act.
In 2004, the Government introduced the COLA which brought with it significant improvements to the way the construction sector was administered in the ACT. It established a framework which provides for effective regulation of the construction industry in the ACT and established a qualifications framework which enables labour market mobility and high levels of competence and training in the industry.[10] The COLA sets out requirements for obtaining licences, and through related operational Acts, set out the procedures and standards which must be followed when undertaking construction work. It established the statutory position of Construction Occupations Registrar who is responsible for administering the Act and its operational Acts. The Act established the responsibilities and powers of the Registrar in administering the Act and allowed for the delegation of these functions. The COLA provides, inter alia, administrative procedures and requirements for the licensing of construction occupations.[11]
[10] ACT Planning and Land Authority, Review of the Construction Occupations (Licensing) Act 2004, Prepared in accordance with section 131 of the Construction Occupations (Licensing) Act 2004, August 2007, p 1
[11] ACT Planning and Land Authority, Review of the Construction Occupations (Licensing) Act 2004, Prepared in accordance with section 131 of the Construction Occupations (Licensing) Act 2004, August 2007, p 3
The COLA regulates construction occupations directly engaged in the construction of buildings. The Building Act concerns licensed builders in connection with activities commencing with construction.[12] Builders must construct buildings in accordance with the Building Code of Australia (the BCA). Construction work carries significant health and safety risks to not only construction workers, but to occupants and users of buildings and the general public. The BCA makes provision in relation to the construction of buildings for purposes of safety, hygiene and structural integrity.
[12] Section 37 Building Act
The Tribunal has considered the matters set out above and the parties’ contentions and is satisfied that, in interpreting the exception, the phrase “the activity involved the actual carrying out of building work by the person” is significant. The Tribunal interprets the exception to mean that the excluded activities are allowed as long as the person doing them also follows up with the building work directly flowing from these activities: that is, that the person engages in the physical activity of doing the building work, or takes on the position of organising trades, materials etc to have the building work done. This recognises that the person, in this case the applicant, who is seeking a builder’s licence Class A has the understanding gained from work experience that a builder’s work is to build or to organise the processes necessary for building.
It follows that if any of the excluded activities are conducted during the construction phase and are not followed up by the applicant personally carrying out the building work flowing from the excluded activity, or taking on the position of organising trades and materials for the building work, the excluded activities are not included in building work experience. In this regard, the Tribunal concurs with Dr Jarvis’ submission that it would be inconsistent with the COLA if the relevant building work experience could be constituted by non‑construction work. [13] It is not readily apparent to the Tribunal why the term ‘building work experience’ is not also defined in the Declaration as this may overcome the difficulties with interpreting the exception as presently drafted.
The Primary Issue
[13] Respondent’s Summary of Submissions, dated May 2014, at [25]
There is no dispute, and the Tribunal finds, that the applicant has demonstrated that he holds a relevant tertiary qualification, namely a Bachelor of Architecture from the University of Canberra. He thereby complies with paragraph 1(a) of the Builder Class A qualifications.
There is also no dispute, and the Tribunal finds, that the applicant is not ineligible for a Class A builder’s licence for any of the reasons set out in sections 11 and 12 of the COL Regulation.[14]
Applicant’s work activities relied upon
[14] See paragraphs 11 and 12 above
The applicant contends that design and documentation of a building is an “intrinsic, indeed a fundamental component of building” and “cannot be dismissed based on the ‘intent of the Building Act’”. [15] The applicant acknowledged the respondent’s differing view. The applicant said that he had provided evidence in his witness statement of his relevant practical building work experience with three suitable projects (namely Domain, Nexus and Rosedale at St Ives), where he states, in most instances, that his “role was that of Architect”[16], without relying on the design and documentation work he had undertaken. The respondent acknowledged that each of these projects was a relevant Class A building project. The applicant confirmed to the Tribunal that he was not an architect as he was not registered. Registration is required by the Architects Act 2004, where the term ‘architect’ means a registered person.
[15] Applicant’s Witness Statement, dated 28 February 2014, at [5]
[16] Applicant’s Witness Statement, dated 28 February 2014, at [18] to [20]
The applicant also relied on his having executed the Environmental Protection Agreement for Village Housing Pty Limited on 4 April 2013 as evidence of his having undertaken relevant practical building work experience which resulted in that agreement. [17] (The applicant refers to Village Housing Pty Limited as the Village Building Company (VBC).)
[17] Applicant’s Witness Statement, dated 28 February 2014, at paragraph 15 and Appendix E
As relevant practical building work experience, the applicant further relied on additional work he had undertaken at BDHprojects, i.e. extensive BA level documentation for construction and site liaison/supervision he said he had undertaken at 181 Flemington Road, Mitchell; at Aspect Apartments and Ardent Apartments, Lyneham; at Calibrate Apartments, Braddon; and at Forbes Street, Turner, apartments.[18]. The applicant also listed his experience with two other projects: Motif Apartments Dickson; and Block 67 Section 3 Mitchell.
[18] Applicant’s Witness Statement, dated 28 February 2014, at [14]
In his witness statement (exhibit A1) the applicant states that he “work[s] with the Village Building Company in a management role”, describing it as a full time role. He states that he is also a sole practitioner, having his own design practice since 2008 called BDHprojects which he works on after hours.[19] He told the Tribunal that he works with Mr Mark Azzopardi who holds a Class A builders licence and who also works full time for VBC. The applicant said that Mr Azzopardi delegated work to him; that he was not specifically working under Mr Azzopardi; and that rather he was working alongside him as they were both managers.
[19] Applicant’s Witness Statement, dated 28 February 2014, at [2] and [3]
It was apparent from the applicant’s evidence and his witness statement that the activities he undertook for the projects identified above were variously referred to as, or could be categorised as, that of a building designer; predominantly designing and drafting which includes determining the requirements of the authorities, and design advice and clarification during the construction phase. The Tribunal considers the last activity is normally associated with administering contracts.
The Tribunal is satisfied, and finds, that this work, in the absence of any credible evidence verifying that the applicant remained on the building site or sites personally carrying out the flow-on building work, or that he took on the position, after his activity, of organising trades and material to have the work done, is not ‘building work’.
As a result of this finding, the Application must fail.
Other matters
While it is strictly not necessary for the Tribunal to consider the evidence from the applicant in relation to the two years’ full time relevant practical building work and the verification by a competent person, the Tribunal makes the following observations.
Applicant’s two years’ full time relevant practical building work experience relied upon verified by a competent person.
In the applicant’s witness statement (exhibit A1), he stated that to meet the standard 2 years full time equation he needed to demonstrate over 3,650 hours of relevant practical building work experience in a five year period. He based this calculation on working 38 hours a week for 48 weeks a year for 2 years.
He nominated three buildings he had worked on for VBC, namely Domain, Nexus and Rosedale at St Ives, as constituting the relevant practical building work experience. The applicant listed the activities he relied on for relevant experience and the total time he claimed for each project. For Domain, he listed 25 activities as relevant experience totalling 1,215 hours between August 2010 and November 2011. For Stage 1 Nexus, he listed 29 activities as relevant experience totalling 1,360 hours between November 2011 and January 2013. For Stage 2 Nexus, he listed 36 activities as relevant experience totalling 610 hours between February 2013 and 28 February 2014. For Rosedale at St Ives he listed 11 activities as relevant experience totalling 2,150 hours from January 2012 to 28 February 2014.
The applicant did not break down the time periods in which each activity was performed or the actual duration of time spent on each activity. Given the Tribunal’s findings that a number of relevant work experience activities relied on by the applicant were not ‘building work’, the Tribunal is, as the evidence presently stands, not assisted by the global amounts of time set out by the applicant.
The Tribunal concurs with the respondent, that the activities relied on for relevant experience must be calculated up to the date of the application for a construction occupation licence, in this matter 22 July 2013. Section 5(i) of the COL Regulation mandates that the licence application must contain evidence that the applicant is eligible to be licensed in the construction occupation or class of construction occupation applied for. Therefore, any work relied on by the applicant as relevant work experience which took place on or after he lodged his application on 22 July 2013 cannot be considered.
The applicant filed witness statements, which are also exhibits, by Atul Kumar, Ian Anlezark and Mark Azzopardi, all ‘competent persons’ under the Declaration to independently verify the extent, quality, relevance and recency of the applicant’s experience doing similar work to, or work that is equally complex as, the work relevant to the application. However, each of their witness statements fell well short of the independent verification the Tribunal would expect. None of these witnesses gave evidence at the hearing so their witness statements were not able to be tested.
While Mr Kumar states that he can affirm that the applicant was involved in all three projects and undertook an extensive amount of work for each, this evidence is insufficient to satisfy the Tribunal that Mr Kumar had independently verified the extent, quality, relevance and recency of the applicant’s experience doing similar work to, or work that is equally complex as, the work relevant to the application. Instead, Mr Kumar’s witness statement did no more than refer to the applicant’s witness statement and “affirm that the tasks as spelt out relevant to these three projects [Domain, Nexus and Rosedale at St Ives] is an accurate statement of work undertaken”.[20]
[20] Witness Statement of Atul Kumar, dated 21 March 2014, at [11]
Mr Anlezark’s witness statement stated:[21]
…
4. I have personally worked with Mr den Hertog on various projects including 2 of the Class A projects noted above where he acted as the project architect. I have found that he has a detailed knowledge of multi-unit Class 2 buildings as defined under the National Construction Code of Australia.
5. I can confirm that Bernard was involved in all 3 projects noted above constituting Class A developments.
[21] Witness Statement of Ian Anlezark, dated 7 February 2014, at [4] and [5]
Mr Azzopardi’s witness statement stated that he works with the applicant on a daily basis “in his role as Design Manager to facilitate the design and documentation of all our housing product”.[22] In paragraphs 8 and 10 of his witness statement he stated:
8. I confirm that Bernard would have well in excess of the required 2 years full time relevant experience relating directly to building.
...
10. I have read Bernard’s statement and affirm that the tasks as spelt out relevant to Nexus 2, Village housing work and EPA agreements are true.
[22] Witness Statement of Mark Azzopardi, dated 21 March 2014, at [6]
While no doubt each of these persons, in executing and providing their witness statements, wished to assist the applicant in his application and were competent persons to verify the applicant’s experience relied upon in his application, the Tribunal was concerned about the significant lack of detail in each of the witness statements. It is unhelpful for a witness who has the responsibility to independently verify the extent, quality, relevance and recency of the applicant’s experience to simply confirm or affirm what has been written in another’s statement. The Tribunal could not be satisfied, given the paucity of this evidence, that each of the witnesses had independently verified the extent, quality, relevance and recency of the applicant’s experience doing similar work to, or work that is equally complex as, the work relevant to the application.
........................................................
Ms. E. Symons – Presidential Member
For and on behalf of the Tribunal
LEGISLATION
Construction Occupations (Licensing) Act 2004
Decision on licence application
(1)If an entity applies for a licence for a construction occupation or occupation class, the registrar must issue, or refuse to issue, the licence.
(2)However, the registrar may issue a licence other than the licence applied for if—
(a)the applicant is not eligible for the licence applied for; and
(b)the applicant is eligible for the other licence; and
(c)the licence issued is in the same construction occupation as, but a different occupation class from, the licence applied for; and
(d)the applicant agrees to the issue of the licence.
(3)The registrar must refuse to issue a licence for a construction occupation or occupation class to an applicant if—
(a)the registrar is not satisfied that the applicant is eligible to be licensed in the occupation or class; or
(b)the applicant is disqualified from holding a licence under section 98 (Licence disqualification).
(4)The registrar may refuse to issue a licence for a construction occupation or occupation class to an applicant if—
(a)the applicant, a director or nominee of an applicant that is a corporation, or a partner or nominee of an applicant that is a partnership, is a licensee or former licensee (however described) under this Act or a corresponding law who—
(i)is prohibited from providing a construction service (however described) under this Act or a corresponding law; or
(ii)is subject to occupational discipline (however described) under this Act or a corresponding law; or
(iii)the registrar believes on reasonable grounds surrendered a licence (however described) in circumstances that related to a ground for occupational discipline (however described) under this Act or a corresponding law; and
(b)the registrar believes on reasonable grounds that the refusal is necessary or desirable to protect the public.
(5)The registrar may issue a licence to an applicant for less than the maximum period for which the licence may be issued if the registrar believes on reasonable grounds that it is necessary or desirable to protect the public.
(6)If an application for occupational discipline in relation to an applicant or nominee of an applicant has been made by the registrar under division 5.2 (Occupational discipline—licensees), the registrar need not decide whether to licence the applicant until the application has been dealt with by the ACAT, and any appeal or review arising from the occupational discipline, is finished.