Dimakis v Commissioner for Fair Trading

[2007] NSWADT 165

CITATION:	Dimakis v Commissioner for Fair Trading [2007] NSWADT 165
DIVISION:	General Division
PARTIES:	APPLICANT Elias Dimakis RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	073110
HEARING DATES:	29 June 2007
SUBMISSIONS CLOSED:	29 June 2007
DATE OF DECISION:	30 July 2007
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989 Home Building Regulation 2004 Interpretation Act 1987
CASES CITED:	Alderton v Commissioner of Fair Trading unreported ADT, 16 March 2007 Attorney-General v Quinn (1990) 170 CLR 1 Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59 Commonwealth v Verweyan (1990) 170 CLR 394 Director of Public Prosecutions v Fowler (1984) 154 CLR 627 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 12 FCR 193 Waltons Stores v Meagher (1988) 164 CLR 387
REPRESENTATION:	APPLICANT In person RESPONDENT B Burke, Solicitor
ORDERS:	The decision of the Commissioner to refuse Mr Dimakis’ application for a Restricted Electrical Licence is affirmed.

Background

1 Mr Dimakis holds a licence under the Home Building Act1989 as a carpenter and joiner. In that trade he works as an independent contractor. The majority of his work is done as a contractor for the Cascade Property Group (Cascade), for whom he does renovations and repairs.

2 According to Cascade, on average, he replaces one or two kitchens a month in properties owned by them. This involves the removal of the old kitchen (cupboards and drawers, etc), preparing the kitchen for tiling etc, and the installation of the new kitchen. This work requires the disconnection of electrical fittings commonly found in the kitchens (stove, oven and hot water service), their removal from the work area, and the reconnection of the existing fittings, or replacement electrical fittings, in the newly fitted kitchen.

3 The disconnection and reconnections of stoves, ovens and hot water services requires the presence of a licensed electrician to undertake that work. This involves, at times, Mr Dimakis or an electrician waiting on each other for this work to occur.

4 To avoid this duplication and inconvenience Mr Dimakis investigated the practicality of obtaining a restricted electrical licence under the Home Building Act1989 authorising him to connect and reconnect those appliances in the course of kitchen renovations. He downloaded from the Office of Fair Trading web site the standards established by the Commissioner under s.20 and s.25 of the Act for obtaining a “restricted electrical licence.” This is a three-page document that is not easy to understand.

5 Mr Dimakis attended the Office of Fair Trading in Sydney and sought clarification of the information provided in the standard in an effort to see if he was suitable to enrol in the National Restricted Electrical Licensing training course. He was told he, “could do the training course and after successful completion could apply for a variation” of his existing trade licence to include a restricted electrical licence –disconnect/reconnect.

6 In the first half of 2006 he enrolled in and completed the course. He received a statement of attainment form TAFE NSW in Restricted Electrical Work – Disconnect/Reconnect.

7 On 5 July 2006 he applied for a variation to his existing licence. He said that after speaking with head office at Parramatta the officer processing his application for the OFT confirmed that he could apply. With his application Mr Dimakis filed, among other things, a referee’s statement in the form required from Michael Koziwoda, a licensed electrician. This certified that Mr Dimakis has the required competencies and is competent to perform the work authorised by such a licence.

8 On 10 August 2006 Mr Dimakis’ application for a variation of his licence to include the category disconnect/reconnect fixed electrical equipment was refused. Mr Dimakis sought a review of that decision. By letter dated 19 March 2007 the Commissioner’s delegate affirmed the decision to refuse Mr Dimakis’ application, although on different grounds to those in the initial decision.

9 On 18 April 2007 Mr Dimakis filed an application seeking to have that decision reviewed in this Tribunal. The Tribunal’s task on review is to make the correct and preferable decision on the evidence before it: s.63 Administrative Decision Tribunal Act 1997.

The Licencing Requirements

10 An application for a grant of variation of a contractor licence is made under s.19 of the Act. The Commissioner’s power to issue contractor licences is found in s.20, which relevantly provides:

(1) The Director-General must reject an application for a contractor licence if:

(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or

(b) the applicant is a mentally incapacitated person, or

(c) the applicant is disqualified by this Act or the regulations from holding a contractor licence.

…

(2) The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.

(3) The Director-General must reject an application for a contractor licence if:

(a) the Director-General is not satisfied that any such requirement would be met were the contractor licence to be issued, or

(b) the Director-General is not satisfied with the applicant’s proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do, or

(c) the Director-General is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work, or the supplying of a kit home, of a kind proposed to be authorised by the contractor licence.

…

(5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act.

…

11 A contractor licence authorises its holder to do the work described in the licence: s.21.

12 Section 14 provides:

(1) An individual must not do any electrical wiring work (whether or not it is also residential building work), except:

(a) as a qualified supervisor (being the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work), or

(b) …

13 A licence authorising the disconnection and reconnection of fixed electrical equipment is a licence authorising the holder to do specialist work: s.21(1)((b) of the Act and Cl.46(2)(j) of the Home Building Regulation2004.

14 Where, as is the case here, the licence holder seeks endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, cl.26 (b)(i) says the applicant must comply with cl.28(1) which provides:

(1) Before a certificate is issued, the Director-General must be satisfied that the applicant:

(a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and

(b) has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and

(c) is capable of doing or supervising work for which the certificate is required.

15 The standards determined by the Commissioner are set out in the Restricted Electrical Licensing document (the standard) which Mr Dimakis downloaded from the Fair Trading web site. It is necessary to set out that document is some detail.

“RESTRICTED ELECTRICAL LICENSING

Qualifications CONTRACTOR LICENCE (Q)

QUALIFIED SUPERVISOR CERTICIFICATE

WHY HAVE RESTRICTED LICENCES/CERTIFICATES?

The broad character of the electrical licensing legislation is such that even minor electrical tasks can require the involvement of the holder of a full electrical licence or certificate.

This can mean that, if a job is primarily another trade (e.g. mechanical, plumbing etc.) and the work cannot be completed without the disconnection and reconnection of electrical wiring, then two workers are required for the job. It is necessary to have a fully qualified electrical tradesperson to carry out the task of disconnecting and reconnecting the electrical wiring at equipment and a non-electrical worker to carry out the non-electrical task.

The purpose of restricted electrical licensing is to provide a means of allowing appropriately trained and competent workers to undertake the straight forward disconnection/reconnection of electrical equipment where that electrical work is incidental to the person’s principal function in the workplace.

NB. ELECTRICAL EQUIPMENT DOES NOT INCLUDE ANY COMPONENT PART OF FIXED WIRING AND ASSOCIATED SWITCHGEAR, ACCESSORIES AND FITTINGS.*

* There is a definition of ‘equipment’ included in the Competency Standards for the National System of Restricted Electrical Licences.

LIMIT OF WORK PERMITTED

The type of work covered by the licence/certificate is limited to:

- Disconnection/reconnection of electrical wiring at the equipment itself and only to the extent necessary to permit the non-electrical work to be performed.

- Replacement of equipment on a ‘like for like’ basis.

- Testing necessary for the safe isolation of the equipment to be disconnected/reconnected.

- Testing necessary for the safe operation of equipment.

- Replacement of “blown” fuses and resetting of “tripped” circuit breakers.

- Restricted electrical work is confined to equipment operation at voltages up to 650V alternating current and direct current and is limited to the following areas of fixed wiring:

1. Domestic Equipment

2. Plumbing Equipment

3. Commercial/Industrial Equipment

4. Refrigeration/Air Conditioning Equipment

5. Instrumentation/Process Control Equipment

6. Laboratory/Scientific Equipment

7. Communication/Computing Equipment

The work does NOT include disconnection/reconnection at:
1. the switchboard;

2. lighting fittings;

3. switchgear;

4. switches;

5. power points;

6. other electrical accessories.

TRAINING

Training for restricted electrical licences/certificates involves on-the-job and off-the-job components.

Off-the-job - Consists of a National Restricted Electrical Licensing training course available through TAFE and other providers. The modules applicable in NSW are:

- Disconnect/Reconnect Equipment - Modules 1 & 2.

- Associated Electrical Work (for Refrigeration Trades) - Modules 1 & 2 + 3a & 4a.

On-the-job - Consists of supervised workplace experience and achievement of competencies verified by an approved assessor.

ENTRY CRITERIA FOR TRAINING

Important Note

The National Restricted Electrical Licensing course is NOT an entry level course

It is intended to build upon skills and training already held by participants.

Candidates for training must provide documentary evidence that they hold trade level qualifications related to maintaining, servicing and/or repairing relevant equipment.

Engineering, Plumbing, Electrotechnical and Refrigeration tradespersons can satisfy the above requirement by providing to the training provider at the time of enrolment, AND to the Department of Commerce on application for a licence/certificate, a certified copy of the relevant:

Craft Certificate; or

Certificate of Proficiency; or

Australian Recognised Trade Certificate;

as issued by a State or National Department of Employment and Training.

Enquiries regarding eligibility for a Craft Certificate or Certificate of Proficiency should be made to the Department of Technical Education and Co-Ordination.

Enquiries regarding eligibility for an Australian Recognised Trade Certificate should be made to the Local Trades Committee.

Persons who are not eligible for one of the above Certificates should contact the Department of Commerce regarding their qualifications before undertaking off-the-job training.

QUALIFICATIONS REQUIREMENTS FOR RESTRICTED

ELECTRICAL LICENSING

Endorsement of Restricted Electrical work will only be made on a Contractor Licence where the applicant already holds an existing Contractor Licence. All other applicants must apply for a Qualified Supervisor Certificate. The purpose of Restricted Electrical licensing is to allow straight forward disconnection/reconnection of electrical equipment where that electrical work is incidental to a person’s principle function in the workplace. Restricted Electrical licensing is NOT intended to allow persons to contract the carrying out of disconnection/reconnection work as a principal activity.

Qualified Supervisor Certificate

Applicants not holding an authority with Fair Trading may be granted a Qualified Supervisor Certificate in this category. As stated above, a Contractor Licence will not be granted. New applicants must pay the application fee for a Certificate while existing holders of a Certificate need to pay the fee for a variation as shown in the fee schedule.

In order to qualify for a Qualified Supervisor Certificate for restricted electrical work, the applicant must submit the following:

a completed application form together with the appropriate fee (see schedule);

evidence of completion of the relevant components of an approved Restricted Electrical Licensing Course;

evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment (see entry criteria for training);

a completed Workplace Assessment Report form; and

a letter from the applicant’s employer outlining the reasons the Restricted Electrical certificate is required and the circumstances under which the certificate will be used if issued.

Contractor Licence (Q)

The qualification requirements for issue of a Contractor Licence for restricted electrical work are as detailed above for a Qualified Supervisor Certificate. However, where the applicant is self-employed, he/she must submit a letter outlining the reasons the Restricted Electrical Licence is required and the circumstances under which the licence will be used if issued. The applicant will need to pay a fee for a licence variation.

…”

16 The last section of the standard contains contact details for the Home Building Serves and lists the 23 areas at which Fair Trading Centres can be found.

Issues

17 The Commissioner conceded that at the time of the hearing Mr Dimakis had provided evidence of completion of the relevant components of an approved Restricted Electrical Licensing Course, and a completed workplace assessment report from (the referee’s statement from Michael Koziwoda) which satisfied the requirements of the standard. It was also conceded that, because he is self-employed, Mr Dimakis could himself provide evidence outlining the reasons why the Restricted Electrical Licence is required, and the circumstances under which the licence will be used. These matters had been the subject of adverse finding on the internal review.

18 What was in issue was whether:

Generally, as the holder of contractor licence in the categories carpentry and joinery Mr Dimakis is eligible to apply for a Restricted Electrical Licence.

Mr Dimakis had provided documentary evidence that he held trade qualifications related to maintaining servicing or repairing relevant electrical equipment, or had other wise satisfied that requirement.

19 The Commissioner submitted that the standard does not allow a person such as Mr Dimakis, whose licence authorises him to do carpentry and joining work, to apply for a restricted electrical licence. The standard applies to a restricted number of trades (engineering, mechanical, plumbing and refrigeration) who may commonly in the course of their work require that equipment they work on be disconnected and subsequently reconnected. Carpentry and joinery, it was submitted, is not such a trade. Holders of carpentry and joinery licences or qualifications, it was submitted, are therefore ineligible for a restricted electrical licence.

20 The standard is, in reality, delegated legislation which the Commissioner is empowered to make by virtue of the Act and the Regulation. As delegated legislation the standard is an instrument within the meaning of the Interpretation Act 1987 and is to be interpreted in accordance with the rules of statutory construction: Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59 at 65 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ.

21 The standard does not state what trade qualifications are required to meet the general eligibility requirements for a Restricted Electrical Licence. In the explanation of why restricted electrical licences are necessary, plumbing and mechanical trades are used as examples of trades in which work cannot be completed without the disconnection and reconnection of electrical wiring. There is nothing to indicate that the examples there given are intended to restrict the trades eligible. Rather, the clear words of that explanation point to the eligibility requirements being that applicants be appropriately trained and competent workers to undertake the straight forward disconnection/reconnection of electrical equipment, where that electrical work is incidental to the person’s principal function in the workplace.

22 Engineering, mechanical, plumbing and refrigeration trade qualifications are specifically mentioned under the heading “Entry Criteria for Training.” That is in the context of those trades being able to satisfy the requirement that they hold “trade level qualifications related to maintaining, servicing and/or repairing relevant equipment,” by production of their relevant trade qualifications. The passage provides advice as to how those trades might prove their qualifications and cannot be read as limiting eligible applicants to those trades only.

23 The passage under the heading “Qualification Requirements for Restricted Electrical Licences” says that endorsements will only be made on existing contractor licences to allow straight forward disconnection/reconnection of electrical equipment where that electrical work is incidental to a person’s principle function in the workplace. There is no restriction set as to they types of contractor licence which may be so endorsed, so long as applicants satisfy the incidental purpose requirements, and otherwise meet the requirements of the standard.

24 The Macquarie Dictionary defines the phrase “incidental to” as “liable to happen in connection with.” The standard therefore requires that an applicant satisfy the Commissioner that straight forward disconnection/reconnection of electrical equipment is liable to happen in connection with that persons “principle function.” I have italicised the word principle when quoting the standard because its use appears anomalous and out of context. Principle is a noun referring to a doctrine, tenet, rule or method. Principal is the word used in the opening explanatory paragraphs of the standard. Confusion between and misspelling of the words principle and principal is a relatively common thing. Principle function has no discernable or obvious meaning, whereas principal function can be read in the context as referring to the licensee’s main or primary function. I think the writer of the standard intended to spell the word principal and that principle is a mere misspelling. To read the words “principle function” strictly would mean that they have no discernable meaning. In Director of Public Prosecutions v Fowler (1984) 154 CLR 627, the High Court (Gibbs CJ, Murphy, Wilson, Dawson and Deane JJ) when considering a section of the Nauru High Court Appeals Act 1976 (Cth) said:

“It is however apparent that a simple grammatical mistake was made in the drafting of the subsection, and that if the strict grammatical sense of the words is adhered to it would lead to an absurdity. In these circumstances the Court is entitled to attribute to the provision the meaning which it was obviously intended to have.”

25 Reading the word principle as if it was principal gives meaning to it, and promotes “the purpose or object underlying” the standard, when compared to a strictly literal reading. In reaching that conclusion I have cautioned myself that this Tribunal does not have power to review the standards determined by the Commissioner (s.20(5)) and that the Tribunal’s role is to read and apply the standard. I have concluded that there is an obvious mistake in the standard and that by regarding principle function as a misspelling, and instead reading it as principal function, the true intent of the standard can be implemented: s.33 Interpretation Act 1987.

26 This in turn brings one to consider the meaning of the word function. Should one consider “function” in the sense of looking at the actual work performed by the licensee concerned in order to determine what his or her principal function is, or should one adopt a more general approach of looking at the general nature of the type of work performed by the licensee to determine the principal function? This case provides a good illustration of the differences to which these alternate methods of analysis lead. Looking at what Mr Dimakis actually does as a carpenter and joiner, who spends most of his time renovating kitchens for Cascade, it can be said that the straight forward disconnection/reconnection of electrical equipment is incidental to his primary function. The need to disconnect and reconnect kitchen equipment is liable to happen with every kitchen he renovates. If, however, one regards Mr Dimakis as a carpenter and joiner in the sense of the trade he works in, without looking at the work he actually does, the disconnection and reconnection of electrical equipment is far less liable to happen and is not incidental to his primary function.

27 The standard, in its explanation of why there are restrictive electrical licences, provides some guidance as to what is intended. In leading to a statement of the eligibility criteria a situation is posited in which “a job is primarily another trade and the work cannot be completed without the disconnection and reconnection of electrical wiring, then two workers are required for the job.” This indicates that the drafter envisaged a licensee’s principal function being assessed in the context of the jobs they actually perform. This is reinforced by the formulation of the test in those explanatory paragraphs as being “incidental to the person’s principal function in the workplace.” While the words “in the workplace” are not used in the statement of qualification requirements, these earlier explanatory words are sufficient to persuade me that a licensee’s primary function is intended to be ascertained by reference to work actually done, rather than by reference the type of trade or general work they undertake. If that had been the intention the result would have been readily achieved by use of the words “principal trade” or “trade,” rather than “principal function.”

28 Applying that understanding of the standard I am satisfied that the disconnection and reconnection of electrical equipment is incidental to Mr Dimakis’ principal function. If he can satisfy the other criteria in the standard he meets the requirements for a restricted electrical licence.

Does Mr Dimakis satisfy the Repair and Maintenance Qualification Requirements?

29 The Commissioner submits that Mr Dimakis has not provided evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment. As a consequence the Commissioner says that Mr Dimakis is ineligible for a restricted electrical licence.

30 In answer to this Mr Dimakis pointed out that the statement of qualification requirement refers to the criteria for training. The training criterion, in turn, warns that the National Restricted Electrical Licensing is not an entry level course. It states a requirement that candidates, “must provide documentary evidence that they hold trade level qualifications related to maintaining, servicing and/or repairing relevant equipment.” It then makes reference to certain acceptable trade certificates which will satisfy those requirements. It advises people who are not eligible for those certificates to “contact the Department of Commerce regarding their qualifications before undertaking off-the-job training.”

31 Mr Dimakis’ evidence is that he did exactly that. He attended the Sydney Fair Trading Centre to enquire about his “suitability” to enrol in the course. He was advised that he could do the course and that, if he successfully completed it, he could apply for a variation of his licence. On the basis of that advice he enrolled in and completed the course. The statement of competencies he achieved issued by the Sydney Institute of TAFE shows him as competent in “Disconnect & reconnect fixed wire electrical equipment 1,000 Vac/1,500Vdc” with respect to pre-assembled neon signs, composite equipment, control devices, electrical heaters and motors. His academic record shows, among other things, that he received a distinction in electrical safety/principles and cable connect.

32 Having completed the course Mr Dimakis attended the Sydney Fair Trading Centre on 5 July 2006 and applied for the variation to his contractor licence. The person processing his application made inquiries with head office at Parramatta and confirmed he could apply.

33 Mr Dimakis said that he had relied on advice from the Fair Trading Centre that he was eligible for the national training course before enrolling in it and successfully completing it. He pointed to his result as evidence of his competency. In those circumstances he argued he was entitled to an endorsed licence.

34 In reply Ms Burke for the Commissioner made a number of points.

35 First, she noted that Mr Dimakis had sought advice from the Sydney Fair Trading Centre. She was not in a position to contradict his evidence about that advice, but was instructed that the Home Building Service is based at Parramatta. I indicated to Ms Burke that I was not impressed by this point. If the Commissioner considers that inquiries about the suitability of qualifications should only be made to the Home Building Service, then the standard should say so. By putting the locations of Fair Trading Centres on the standard the Commissioner represents to applicants that reliable advice can be obtained from those venues.

36 Secondly, she submitted that the standard required that Mr Dimakis provide documentary evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment, but he had not done so. This led to a discussion of what were appropriate trade level skills with Mr Dimakis maintaining that his completion of the course satisfied this requirement. Ms Burke was unable to point me to specific skills which she said those trades that the Commissioner contends the restricted electrical licence is intended for have, other than that they appear in their trade qualifications. She submitted that plumbers are qualified to maintain service and repair electrical hot water services. Mr Dimakis disputed this, saying that they receive no electrical training. The reality is that there was no persuasive evidence on these issues either way, simply assertions.

37 Ms Burke did make the point that in exercising powers with respect to the licencing of electrical trades the Commissioner is overseeing a regulatory regime which has been put in place to protect the public and ensure a standard of safety. Ms Burke referred me to an ex tempore decision of Grant JM in Alderton v Commissioner of Fair Trading delivered on 16 March 2007. There Ms Grant considered an application for a Qualified Supervisor Certificate, rather than a variation to a contractor licence. She found that the Mr Alderton did not satisfy the requirement that he provide evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment; that he had not presented a completed Workplace Assessment Report form; and that there was not an acceptable letter from his employer outlining the reasons the restricted electrical certificate is required and the circumstances under which the certificate will be used. In this case, by contrast, Mr Dimakis’ only difficulty is with evidence of appropriate trade level skills, and he is arguing that he relied on advice from the Office of Fair Trading that he had sufficient qualifications. I do not think the circumstances are analogous.

38 At the heart of Mr Dimakis’ case was the fact that because the standard is so poorly drafted he could not tell from reading it whether or not he was eligible for a Restricted Electrical Licence. He therefore sought advice from a Fair Trading Centre. Relying on that advice he undertook the National Training Course, spending time and money in doing so, in the reasonably held expectation that when he had successfully completed the course he would be eligible for the licence. He successfully completed the course. Upon applying for the licence he was told he did not satisfy the qualification requirements and could not do so as a carpenter and joiner. I accept that this is an accurate summary of the situation in which Mr Dimakis finds himself.

39 Were this a case in contract, Mr Dimakis may well be able to successfully argue that the Commissioner is precluded from resiling form the advice he was given by staff at the Fair Trading Centre, by operation of the doctrine of promissory estoppel: Waltons Stores v Meagher (1988) 164 CLR 387; Commonwealth v Verweyan (1990) 170 CLR 394. Promissory estoppel, however, has no application is situations such as the present, where one is dealing with the exercise of a statutory discretion. In Attorney-General v Quinn (1990) 170 CLR 1 Mason CJ said at 17:

“The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercise in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or the exercise of the power.”
See also Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 12 FCR 193 per Gummow J at 207-208.

40 As a consequence Mr Dimakis cannot rely on promissory estoppel to prevent the Commissioner resiling from the original advice given to him. The Commissioner is not bound by the advice that Mr Dimakis would satisfy the requirements of the standard, when he completed the training course.

41 The Commissioner, however, (and the Tribunal on review) is duty bound to require compliance with the standard. The standard required that Mr Dimakis provide evidence of appropriate trade level skills related to maintaining, servicing and/or repairing relevant equipment. He cannot do so.

42 As a result, I reluctantly conclude that the correct and preferable decision in this case is to refuse Mr Dimakis’ application for a Restricted Electrical Licence.

43 In doing so I note that the standard is itself poorly drafted and unclear. The standard should be written with a degree of clarity and precision befitting its character, with due regard to the fact that it should be understandable by those to whom it applies. It should plainly indicate what it is and the powers pursuant to which it is made. I urge the Commissioner to revise it.

Conclusion

44 The decision of the Commissioner to refuse Mr Dimakis’ application for a Restricted Electrical Licence is affirmed.