Frost and Builders' Registration Board Of Western Australia
[2008] WASAT 272
•20 NOVEMBER 2008
FROST and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2008] WASAT 272
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 272 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:145/2008 | 20 OCTOBER 2008 | |
| Coram: | DR B DE VILLIERS (MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER) MR P MITTONETTE (SESSIONAL MEMBER) | 19/11/08 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed The decision of the Builders' Registration Board of Western Australia is affirmed | ||
| B | |||
| PDF Version |
| Parties: | DARREN FROST BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Registration as builder Practical experience in the work of a builder Experience as supervisor of building work Does the experience of a draftsman comply with the statutory requirements of 'practical experience in the work of a builder' or as 'supervisor of building work' to be registered as a builder If the experience of draftsman is 'practical', how much should be accredited |
Legislation: | Builders' Registration Act 1939 (WA), s 9, s 10, s 10(1)(b)(iv)(I) Builders' Regulations 1989 (WA) Home Building Contracts Act 1991 (WA) State Administrative Tribunal Act 2004 (WA), s 10(4), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5) |
Case References: | Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 Lam and Builders' Registration Board of Western Australia [2006] WASAT 227 SJ Smith v Builders' Registration Board of Western Australia (unreported, WASAT, 5 May 2006) Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 |
Orders | 1. The decision of the Builders' Registration Board of Western Australia not to recognise for purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) the experience of Mr Frost as draftsman as being 'practical experience in the work of a builder' is set aside and is substituted with a decision to recognise a period of six months as being 'practical experience in the work of a builder'.,2. The decision of the Builders' Registration Board of Western Australia not to recognise for purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) the experience of Mr Frost as 'supervisor of building work' while in the employment of Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects is affirmed.,3. The decision of the Builders' Registration Board of Western Australia not to register Mr Frost as a builder pursuant to s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) is affirmed since the total period of credit amounts to less than the seven years required for registration. |
Summary | Mr Frost sought review of a decision of the Builders' Registration Board of Western Australia to refuse to recognise all or part of his 13 years' experience as draftsman as 'practical experience in the work of a builder' or as 'supervisor of building work' for purposes of registration as a builder pursuant to s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). ,Mr Frost contended that he has 13 years' experience as a draftsman and in this capacity he has supervised many construction projects, and he also has sufficient practical experience in the work of a builder due to his knowledge as a draftsman. He should, due to his practical and supervisory experience, be accredited with sufficient time to comply with the statutory requirements which amounts to at least seven years' practical experience.,The Builders' Registration Board of Western Australia opposed the application on grounds that Mr Frost's work as a draftsman did not constitute practical experience in the work of a builder or supervisor of building work as required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Builders' Registration Board of Western Australia did not dispute the knowledge Mr Frost has of the building process but that did not, according to the Builders' Registration Board of Western Australia, equate to 'practical experience in the work of a builder' or 'supervisor of building work' as envisaged for the registration as a builder.,The Tribunal found that Mr Frost's knowledge and experience as draftsman does constitute limited 'practical experience … in the work of a builder'. The Tribunal concluded that, as a draftsman, Mr Frost has not had the level of practical experience in the work done by a builder for the entire 13 years as draftsman to be recognised. The Tribunal found, however, that a period of six months ought to be accredited to Mr Frost in recognition of the practical experience he, as a draftsman, had in the work done by a builder.,The Tribunal further found that Mr Frost's knowledge and experience with the firms Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects does not qualify him for credit as a 'supervisor of building work' as required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Tribunal was of the view that as contract administrator Mr Frost did not have the level of involvement, control or management over projects that would qualify his involvement in site work as 'supervision of building work' for purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).,The application for review was therefore successful in part in that an additional six months of practical experience in the work of a builder is recognised. The decision of the Builders' Registration Board of Western Australia to refuse Mr Frost's registration was, however, affirmed since the total years of experience credited amounts to less than the seven years required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : FROST and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2008] WASAT 272 MEMBER : DR B DE VILLIERS (MEMBER)
- MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
- Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Registration as builder - Practical experience in the work of a builder - Experience as supervisor of building work - Does the experience of a draftsman comply with the statutory requirements of 'practical experience in the work of a builder' or as 'supervisor of building work' to be registered as a builder - If the experience of draftsman is 'practical', how much should be accredited
(Page 2)
Legislation:
Builders' Registration Act 1939 (WA), s 9, s 10, s 10(1)(b)(iv)(I)
Builders' Regulations 1989 (WA)
Home Building Contracts Act 1991 (WA)
State Administrative Tribunal Act 2004 (WA), s 10(4), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
The application is dismissed
The decision of the Builders' Registration Board of Western Australia is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr Mannes
Solicitors:
Applicant : Self-represented
Respondent : Builders' Registration Board of Western Australia
Case(s) referred to in decision(s):
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
Lam and Builders' Registration Board of Western Australia [2006] WASAT 227
SJ Smith v Builders' Registration Board of Western Australia (unreported, WASAT, 5 May 2006)
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
(Page 3)
Summary of Tribunal's decision
1 Mr Frost sought review of a decision of the Builders' Registration Board of Western Australia to refuse to recognise all or part of his 13 years' experience as draftsman as 'practical experience in the work of a builder' or as 'supervisor of building work' for purposes of registration as a builder pursuant to s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).
2 Mr Frost contended that he has 13 years' experience as a draftsman and in this capacity he has supervised many construction projects, and he also has sufficient practical experience in the work of a builder due to his knowledge as a draftsman. He should, due to his practical and supervisory experience, be accredited with sufficient time to comply with the statutory requirements which amounts to at least seven years' practical experience.
3 The Builders' Registration Board of Western Australia opposed the application on grounds that Mr Frost's work as a draftsman did not constitute practical experience in the work of a builder or supervisor of building work as required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Builders' Registration Board of Western Australia did not dispute the knowledge Mr Frost has of the building process but that did not, according to the Builders' Registration Board of Western Australia, equate to 'practical experience in the work of a builder' or 'supervisor of building work' as envisaged for the registration as a builder.
4 The Tribunal found that Mr Frost's knowledge and experience as draftsman does constitute limited 'practical experience … in the work of a builder'. The Tribunal concluded that, as a draftsman, Mr Frost has not had the level of practical experience in the work done by a builder for the entire 13 years as draftsman to be recognised. The Tribunal found, however, that a period of six months ought to be accredited to Mr Frost in recognition of the practical experience he, as a draftsman, had in the work done by a builder.
5 The Tribunal further found that Mr Frost's knowledge and experience with the firms Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects does not qualify him for credit as a 'supervisor of building work' as required by s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA). The Tribunal was of the view that as contract administrator Mr Frost did not have the level of involvement, control
(Page 4)
- or management over projects that would qualify his involvement in site work as 'supervision of building work' for purposes of s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA).
6 The application for review was therefore successful in part in that an additional six months of practical experience in the work of a builder is recognised. The decision of the Builders' Registration Board of Western Australia to refuse Mr Frost's registration was, however, affirmed since the total years of experience credited amounts to less than the seven years required by s 10(1)(b)(iv)(I) of the Builders' Registration Act1939 (WA).
Background
7 Mr Frost, on 22 July 2008, lodged an application for review of a decision of the Builders' Registration Board of Western Australia (BRB) to refuse his registration as a builder. The first directions hearing was held on 14 August 2008 at which the Tribunal made orders for the matter to be heard. A hearing date was set for 17 September 2008 but that was adjourned to 20 October 2008.
8 The parties were in agreement that the main question to be determined by the Tribunal was if the practical experience of Mr Frost as a draftsman is in the work of a 'builder' or 'supervisor' as contemplated in s 10(1)(b)(iv)(I) of the Builders' Registration Act 1939 (WA) (BR Act).
9 In accordance with s 10(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal was constituted of a legally qualified member (Member de Villiers), a person who has special experience in the building industry (Sessional Member Mittonette) and a person who is familiar with the interests of persons engaged in the building industry (Sessional Member Affleck). Both Mr Mittonette and Mr Affleck are registered builders and bring to the Tribunal extensive experience in regard to the question at hand.
10 The hearing took place on 20 October 2008 and the decision was reserved.
11 Mr Frost was self-represented. He gave evidence and also made written and oral submissions. Mr Mannes, for the BRB, also made written and oral submissions and cross-examined Mr Frost on his evidence. The Tribunal put questions to both Mr Frost and Mr Mannes.
(Page 5)
12 The Tribunal took all of the evidence and submissions into account in coming to its decision.
Powers of the Tribunal on review
13 The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the BRB.
14 The Tribunal is not limited to the statement of reasons given by the BRB (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the BRB at the time when the decision was made (s 27(1) of the SAT Act).
15 The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the BRB at the time of the decision.
16 The powers of Tribunal, according to s 29(3) of the SAT Act, are to:
(a) Affirm the decision; or
(b) Vary the decision; or
(c) Set aside the decision,
and to make appropriate orders.
17 The decision of the Tribunal is regarded as a decision of the BRB (s 29(5) of the SAT Act).
Issue in dispute
18 The issue is whether the experience Mr Frost gained as draftsman is sufficient to be recognised as 'practical experience … in the work of a builder' and whether the supervisory experience he gained while in the employment of Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects qualifies as 'supervisor of building work' as contemplated by s 10(1)(b)(iv)(I) of the BR Act.
19 It is undisputed that Mr Frost has approximately 13 years' experience as an architectural draftsman. The BRB recognised the experienced he gained in supervision of building work with previous employers Mulberry Homes, JCorp Pty Ltd and as owner/builder. The total time accredited by the BRB, for purposes of s 10(1)(b)(iv)(I) of the BR Act, is 41 months. No credit was given for the period Mr Frost worked as 'draftsman and contract administrator'
(Page 6)
- with the firms Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects.
20 The BRB formed the view that Mr Frost's experience does not come within the framework of s 10(1)(b)(iv)(I) of the BR Act.
21 Mr Frost is of the view that the experience in total, or at least part thereof, falls within the framework of the BR Act and should therefore be accredited to him for purposes of registration as a builder.
22 Section 10(1)(b)(iv)(I) of the BR Act 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) …
(b) …
(i) …
[(ii) deleted]
(iii) …
(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 (emphasis added).
23 The facts giving rise to the application can be summarised as follows.
24 Mr Frost applied on 12 February 2008 to the BRB to be registered as a builder pursuant to s 10(1)(b)(iv)(I) of the BR Act. He submitted to the BRB extensive documentation of his theoretical and practical experience in the building industry. The same information was available to the Tribunal in consideration of the review application. It is common cause that if Mr Frost meets the practical experience as required by s 10(1)(b)(iv)(I) of the BR Act, he would be eligible to be registered as a 'builder'.
(Page 7)
25 The BRB recognised a period of 41 months as relevant experience in supervising building work. The experience gained in the service of Mulberry Homes and JCorp Pty Ltd and as owner/builder was, according to the BRB, in compliance with supervision of building work as required by s 10(1)(b)(iv)(I) of the BR Act.
26 The experience gained with Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects was described by the BRB as that of a 'draftsman and contract administrator' and therefore not recognised as being practical experience in the work of a builder or a supervisor of building work.
27 As a result, Mr Frost fell short of approximately 43 months appropriate experience under s 10(1)(b)(iv)(I) of the BR Act.
28 The BRB therefore decided on 28 May 2008 to refuse Mr Frost's application on grounds that he does not 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.
29 Mr Frost lodged the application for review of the decision on 22 July 2008.
30 The parties agreed during the directions hearing that the core issue for the Tribunal to determine is whether Mr Frost's experience as a draftsman falls within the scope of 'practical experience in the work of a builder' or as a 'supervisor of building work' as required by s 10(1)(b)(iv)(I) of the BR Act. If it does, then he ought to be registered as a builder. If it does not, the decision of the BRB should be affirmed.
Contentions
31 The contentions of the parties can be summarised as follows.
32 The BRB contends that the experience of Mr Frost as a draftsman is not of a practical nature as contemplated by s 10(1)(b)(iv)(I) of the BR Act.
33 According to the BRB, the type of work that falls within the requirements of the BR Act must be typical of the activities in which a builder engages and that includes supervision of building work. Work that is ancillary to the building process, such as the duties of a draftsman, does not come within the 'practical' experience envisaged by the BR Act.
(Page 8)
34 The inclusion of the word 'practical' in the statute is, according to the BRB, indicative of the intention of Parliament and the industry that not all work or experience related to the building process should qualify a person for registration as a builder. There must be a direct relationship between the type of work done by Mr Frost and the practical experience in the work of a builder that the BR Act requires.
35 That does not necessarily mean that relevant 'experience' is limited to physical work on site, but that whatever work is done it must qualify as practical experience 'in the work of a builder'.
36 The conclusion of the BRB is therefore that Mr Frost's experience as a draftsman 'is not experience in the work of a builder and in any event not practical experience in the work of a builder.' The BRB further observed that Mr Frost 'has had limited relevant experience, notwithstanding that the category of experience in this section is comparatively wide'.
37 Mr Frost rejects the findings and contentions of the BRB. His contentions essentially rest on two legs. The first is that his work and experience as draftsman is practical enough for purposes of s 10(1)(b)(iv)(I) of the BR Act. The second is that while he was draftsman he also engaged with persons in charge of building projects in a manner that would constitute 'supervision of building work' as required by s 10(1)(b)(iv)(I) of the BR Act.
38 Mr Frost raises several arguments in favour of his contentions:
• The BRB recognises the work of an 'estimator and scheduler' as appropriate for registration as a builder pursuant to s10(1)(b)(iv)(I) of theBR Act. The BRB's refusal to recognise the work as a draftsman is therefore inconsistent with its own existing policies as made available on its web page. The BRB cannot recognise the one (estimator and scheduler) while refusing to recognise the other (draftsman).
• It is 'absurd' for the BRB to argue that the work of a draftsman is as ancillary to the building process in the same way as the work of a bookkeeper or site cleaner. A draftsman is intimately involved in the building process with design and oversight and the same cannot be said of a bookkeeper or site cleaner.
- • The Building Regulations 1989 (WA) require that proper plans must be submitted to a local council before building work may commence. Such plans are the responsibility of a draftsman. The draftsman must provide detailed instructions regarding the construction of a building and the drawings are used to instruct the respective trades in their work. The draftsman cannot discharge itself properly of its functions unless it has a very practical understanding of what is required in the actual building process.
• The practical experience of a draftsman is also recognised in the fact that once a person has completed the Diploma of Architecture (Drafting), he is entitled to an automatic exemption from 42% of the Diploma of Builders Registration.
• At least 10% of his time at Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects included that of a supervisor of building works in a manner provided for in s 10(1)(b)(iv)(I) of the BR Act.
• In conclusion, Mr Frost contends that a draftsman 'is obviously not involved in the laying of the bricks or the plastering of the walls, but he has told those people what to do through the drawing of the plans and has in fact 'constructed the plans from the beginning'.
Consideration
39 The parties are in agreement that the work of a draftsman is essential to the building industry. They disagree as to whether the work is so practical in the context of the actual building process that Mr Frost's practical experience as draftsman in the work of a builder or as supervisor of building work with Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects could be taken into account for purposes of registration as a builder under s 10(1)(b)(iv)(I) of the BR Act.
(Page 10)
40 The BR Act requires that a person must 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 supervisor of building work … ' in order to be registered as a builder.
41 Mr Frost contends firstly that with 13 years' experience as draftsman he has enough practical experience to meet the seven years requirement or at least that 43 months should be recognised. He contends, secondly, that even if some of the work of a draftsman was not 'practical' as envisaged by the BR Act, part of his time as draftsman was spent as a supervisor on sites while in the employment of Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects and at least that portion should be recognised as 'practical' experience to make up for the 43 months he needs in addition to the 41 months that have been accredited.
42 The Tribunal will reflect separately on Mr Frost's experience as a 'draftsman' and as 'supervisor'.
Work as draftsman
43 Mr Frost says that his experience as draftsman is so essential to the building process that it must be regarded as 'practical experience in the work of a builder' as defined by s 10(1)(b)(iv)(I) of the BR Act.
44 The BRB, by the words of Mr Mannes, acknowledges that a draftsman renders an essential service to the building process, but says it is not 'practical experience in the work of a builder' as required by s 10(1)(b)(iv)(I) of the BR Act.
45 Section 10 of the BR Act sets out the minimum requirements that a person must meet in order to be registered as a builder. Section 10(1)(b)(iv)(I) of the BR Act specifically refers to the minimum required period of seven years' practical experience Mr Frost must have in the work of a builder or as a supervisor of building works.
46 The intention of the subsection is obvious - it attempts to ensure that those persons who are registered as 'builders' must have sufficient practical experience to undertake the tasks required of them, be it in experience in the work of a builder or as a supervisor of building work.
47 It is generally acknowledged that it is virtually impossible for a person who seeks to be registered as a builder pursuant to s 10(1)(b)(iv)(I) of the BR Act to have practical experience in all the possible areas of work in which a
(Page 11)
- builder engages. It is acceptable if a candidate only has practical experience in some of the area/s of work in which a builder engages.
48 It is trite to recognise that theoretical knowledge does not equate to practical experience. That explains why Parliament considered 'practical experience in the work of a builder' such an important prerequisite that those specific words are used in s 10(1)(b)(iv)(I) of the BR Act. Ensuring adequate practical experience in the work of a builder is in the interest of the profession, the general public and the person who requires the building work.
49 Mr Frost summarised the work of a draftsman as 'to consider and design the way in which all parts of a building must be constructed'. The Macquarie Concise Dictionary(3rd ed, 2004) (Collins) defines 'draft' as 'to draw the outlines of a plan', and to 'draw, sketch or design'. The Collins Essential English Dictionary (2nd ed, 2005) defines 'construct' as including 'to draw to specified requirements'. Mr Frost relies on the Collins definition in support of his contentions since it recognises that the work of drawing plans form part of construction.
50 Neither of the parties was able to assist the Tribunal by reference to decisions regarding the classification of work of a draftsman in other jurisdictions that may assist in determining the question under consideration in these proceedings.
51 The Tribunal will refer for the sake of consistency to a number of decisions of the State Administrative Tribunal in regard to the BR Act.
52 In the recent matter of Danze and Builders' Registration Board of Western Australia [2008] WASAT 10, at [32], the Tribunal remarked as follows in regard to the importance of 'practical' experience required from a person who seeks to be registered as a builder:
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 addedby the Builders' Registration Act No 44 of 1953 (WA) and the Builders' Registration Act No 63 of 1965 (WA) … 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 or improving the walls and structural parts of buildings (emphasis added).
(Page 12)
53 Associated work as referred to is in accordance with the definition of that term in the Home Building Contracts Act 1991 (WA) (HBC Act). That definition is so wide as to include as work subject to the HBC Act the construction of swimming pools, paving, fencing and landscaping, which are activities outside the core activity of a person trading as builder who under the BR Act is a person engaged in constructing, altering, repairing, adding to or improving walls and structural parts of a buildings. The issue in that case was whether the work of a floor and wall tiler constituted the work of a builder and the Tribunal held that it did.
54 This analysis of the Tribunal is, as far as we are concerned, consistent with the Tribunal's decision in the matter of Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 in which it was emphasised that to properly construct the meaning of the phrases 'work of a builder' or 'supervisor of building work' the nature of the work done must be work in which a builder engages.
55 The list of functions referred to in Danze that must be 'demonstrated'; namely, constructing, altering, repairing, adding or improving the walls and structural parts of buildings, should not be seen as a closed list but rather as examples to illustrate the typical practical activities envisaged by the BR Act. That is illustrated in Thorp and Builders' Registration Board of Western Australia[2007] WASAT 157 (Thorp), at [27], in which the Tribunal stated:
Thus a manager will be involved in all of the activities of a builder, beyond the actual physical supervision or oversight of the execution or performance of building work. Those activities may extend from liaison with the client, assisting with planning approvals, design, pricing, the development of a program for the works and scheduling of trades, attending to manage receipt of payments and payment for materials and trades throughout the contract period to practical completion and delivery of possession to the client against final payment and making necessary arrangements for performance of the builder's maintenance obligations.
56 The Tribunal must therefore pose the question to what extent, if any, from the perspective of the work of a builder, the knowledge or experience of a draftsman is practical.
57 In support of his contention that the 13 years' experience as draftsman complies with s 10(1)(b)(iv)(I) of the BR Act, Mr Frost relies principally on three arguments:
• firstly, that the BRB accepts on its web page experience of 'estimating and scheduling' as practical experience in the work of a builder for purposes of s 10(1)(b)(iv)(I) of theBR Act;
- • secondly, that the proper discharge of the responsibilities of a draftsman 'requires an excellent knowledge of construction methods'; and
• thirdly, that credit is given in the Diploma for Builders Registration for a person who has completed a Diploma of Architecture (Building).
58 The Tribunal's consideration of these arguments is as follows.
59 The BR Act does not classify what type of experiences and functions ought to be regarded as practical experience in the work of a builder. It is left for the BRB and, on review, the Tribunal to consider all the evidence before it and make a determination as to what, if any, experience of Mr Frost falls within s 10(1)(b)(iv)(I) of the BR Act.
60 In the absence of a precise statutory list of practical experiences deemed to fall within s 10(1)(b)(iv)(I) of the BR Act, it can be expected that a grey area will exist as to the applicability of specific experiences. The BRB, and on review, the Tribunal are called upon to make a determination as to whether Mr Frost's experience is 'experience in the work of a builder'.
61 The Tribunal has the benefit of two sessional members on the panel who, due to their experience and standing in the building industry, could assist in assessing Mr Frost's experience to enable the Tribunal to make a determination if all or part of the experience is 'practical experience in the work of a builder'.
62 The Tribunal accepts that some knowledge of drafting and design may fall within practical experience in the work of a builder. Knowledge of drafting itself is not essential beyond knowledge of conventions necessary to properly interpret drawings but the application of design principles, in particular restrictions and conditions imposed by Planning Codes and Town Planning Schemes may be useful in the practical experiences in the work of a builder. It is not, in the opinion of the Tribunal, uncommon for a builder to be involved in aspects of design and drafting in order to give advice to its clients or to instruct a draftsman. A large building firm in the cottage industry would be expected to carry out all activities related to the design of a building including the actual drafting of plans. Smaller builders in this
(Page 14)
- sector of the industry would generally subcontract that work to a drafting firm.
63 Mr Frost submitted that the work of a draftsman constitutes practical experience in the work of a builder and that this was demonstrated by the fact that, he submitted, a person who passed the academic requirements for the Diploma in Architecture and Drafting was entitled to a credit of 40% of the prescribed examination for a builder. That, if correct, is not necessarily surprising given that a designer has to design what a builder builds. But academic knowledge acquired in the respective course must be distinguished from practical experience. Even if the academic component of the courses was identical, it is necessary to examine the work undertaken by a draftsman to assess whether it constitutes practical experience in the work of a builder.
64 It is the Tribunal's view that as far as practical experience in the work of a builder is concerned, a builder would only benefit to a limited extent by the continued and increasing knowledge of the design conventions, conditions and restraints to which we have referred. That view is supported by s 9 of the BR Act which requires that an architect, who is academically more highly qualified than a draftsman, must in addition have 5 years' experience in the supervision of building construction. Clearly the legislature did not consider that the design component of the work of an architect was in itself sufficient to qualify for registration as a builder.
65 However, the Tribunal is satisfied that some of the experience of Mr Frost ought to be recognised as 'practical experience in the work of a builder'.
66 The Tribunal is therefore of the view that the BRB erred by not giving any recognition to Mr Frost as draftsman for his practical experience in the work of a builder. Credit should be given to the extent that his experience as draftsman constitutes practical experience in the work of a builder.
67 Although the BRB in its web-based table entitled 'What is practical experience in the work of a builder' recognises the functions of 'estimating and scheduling' as being practical for purposes of registration, the BRB also explicitly qualifies the table by emphasising that the information contained therein 'is for guidance only and is subject to the Board's discretion'.
(Page 15)
68 It appears that all the activities listed by the BRB in the table are very practical to the building process; for example, bricklaying, carpentry, supervising building work, wall and roof framing and owner/builder work. But it must also be acknowledged that practical experience in the work of a builder may go wider than it being limited to a person who does the physical work on site. The work of a builder involves far too many activities to interpret 'practical experience in the work of a builder' as only such experience that can be associated with physical labour. Practical experience is to be contrasted with academic or theoretical experience, it does not mean only physical work: see Danze at [28].
69 There are elements of design, estimating and scheduling that may be so related to the practical experience of a builder that it ought to be recognised as 'practical experience in the work of a builder'.
70 'Estimating and scheduling' may seem to be somewhat at odds with the other practical tasks listed in the BRB table, but at the same time there may be aspects of 'estimating and scheduling' that qualify for recognition in the practical experience in the work of a builder. That explains why the BRB in the first place included 'estimating and scheduling' in its list.
71 Mr Mannes indicated in oral submissions during the hearing that the category 'estimating and scheduling' sits somewhat uncomfortably with the other (practical) functions and he indicated that it may be reviewed by the BRB in due course. He did not offer any evidence from the BRB that it is reviewing the schedule with the intention to exclude from it from the list 'estimating and scheduling'. His submission merely confirmed the grey area on which a determination has to be made on the basis of the available evidence.
72 Although it may appear as if the BRB's table presents an inconsistency and although the BRB may, according to Mr Mannes, intend to rectify it, the Tribunal is not bound by the BRB's classification of different categories of experiences on its web page.
73 It is the view of the Tribunal that a limited period of practical experience in the work of a builder should be recognised as a result of Mr Frost's work and knowledge as a draftsman. Such an approach is consistent with the Danze decision.
74 There is no doubt that a draftsman must, as has been pointed out by Mr Frost, have an excellent knowledge of construction and building methods. The BRB does not dispute it. The Tribunal also acknowledges the important role of a draftsman in the overall work of a builder. But that does not mean all of the draftsman's experience could be
(Page 16)
- regarded as practical in the work of a builder in accordance with s 10(1)(b)(iv)(I) of the BR Act. From the perspective of a builder, he would require only very limited practical knowledge of the functions of a draftsman for purposes of the work of a builder.
75 The Tribunal accepts that credits are given to draftsmen when they undertake the theoretical course for the completion of the Diploma of Builders Registration. That in itself, however, does not signify that the theoretical knowledge of a draftsman falls within the ambit of 'practical experience' as envisaged by s 10(1)(b)(iv)(I) of the BR Act. It merely means that a theoretical part of the study is taken to have been completed. In fact, it may be that the theoretical element is all that a builder needs to know of the work of a draftsman for purposes of the work of a builder. Repetition of drafting work will add little to the knowledge required by a builder. On the other hand, the acquisition of knowledge of design conventions, Planning Codes and Town Planning Scheme requirements which would assist in dealing with clients and advising on what can and cannot be built as a consequence, also equates to knowledge acquired by a builder over time.
76 A similar question arose before the Tribunal in SJ Smith v Builders' Registration Board of Western Australia (unreported, WASAT, 5 May 2006) (SJ Smith) in regard to the compliance of a building surveyor with the 'practical' test entailed in s 10(1)(b)(iv)(I) of the BR Act.The Tribunal found as follows:
The applicant as a building surveyor attends site at particular strategic times in order to check building work.
It is true that he would have power under the statutory regime to cause steps to be taken in the event that some default was observed, including if necessary the issue of a stop work notice. But there is no control over the ordinary day to day activities of the builder and there is nothing done which constitutes any step in the completion of the building work itself.
For those short reasons therefore we conclude that the applicant does not come within the requirement of having practical experience in the work of a builder [emphasis added].
77 Mr Frost failed to convince the Tribunal that the entirety of his experience as draftsman is experience in the work of a builder. On the other hand, the Tribunal also does not accept the contention of the BRB that none of Mr Frost's
(Page 17)
- experience as draftsman should be recognised as experience in the work of a builder.
78 This interpretation by the Tribunal is consistent with the Danze matter where the Tribunal concluded that the type of activities that ought to be taken into account must be those that are 'ordinary activities' undertaken by a builder. Only limited aspects of the work as draftsman can be regarded as practical 'ordinary activities' that are undertaken in the work of a builder.
79 The Tribunal is, on proper reflection of all the submissions and evidence, satisfied that a period of six months' experience should be accredited for purposes of Mr Frost's practical experience in the work of a builder in accordance with s 10(1)(b)(iv)(I) of the BR Act. Any further experience in the work of a draftsman would be valuable for purposes of professional development as draftsman but not required for purposes as practical experience in the work of a builder.
80 In summary:
• The Tribunal is not satisfied that Mr Frost has demonstrated that the entirety of his work as a draftsman is such that he complied with the required level of practical experience in the work of a builder as envisaged by s 10(1)(b)(iv)(I) of the BR Act.
• The Tribunal accepts that Mr Frost has extensive experience in the general building process as a draftsman and that he has worked on several major projects as a designer, but that in itself does not bring his experience within the requirements of s 10(1)(b)(iv)(I) of theBR Act as 'practical experience in the work of a builder'.
• The Tribunal rejects the contentions by the BRB that none of the draftsman's experience ought to be recognised as practical experience in the work of a builder.
• The Tribunal finds that the correct and preferable decision is to recognise six months of Mr Frost's experience as draftsman as practical experience in the work of a builder.
(Page 18)
Work as supervisor
81 Mr Frost also refers to his work as 'supervisor' of building projects on which he was the draftsman. In this regard, he relies on his experience at Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects to make up the 43 months needed to comply with the minimum of seven years' experience required by s 10(1)(b)(iv)(I) of the BR Act.
82 According to Mr Frost, during the 13 years he often visited construction sites, undertook supervisory functions, directed activities, made alterations to plans and instructed those in charge of the sites to do certain things.
83 Mr Frost did not provide detailed evidence as to what he regards as the 'supervision of building work' he did on sites pursuant to the requirements of s 10(1)(b)(iv)(I) of the BR Act.
84 'Supervisor' is defined by the BR Act as 'a person, not being a builder, who oversees the execution or performance of building work, but does not include the foreman, leading hand or other person employed in a like or less responsible capacity in the building industry'.
85 The Tribunal invited Mr Frost more than once to seek an adjournment of proceedings in order to provide to the Tribunal more detailed evidence of his actual supervisory activities, but he declined the invitation. He could also, for example, have used an adjournment to submit evidence of the persons whom he had purportedly supervised, so as to explain the relationship between them. Mr Frost indicated however that he was satisfied with the information before the Tribunal and that, on proper reflection, his activities as supervisor of building work were apparent from the information that was before the BRB and that is now before the Tribunal.
86 In response to questions by the Tribunal, Mr Frost indicated that over the period of 13 years as draftsman about 10% of his time was spent on 'supervision of building work' as intended by s 10(1)(b)(iv)(I) of the BR Act. He did not provide the Tribunal with evidence as to how he calculated the 10%. Mr Frost made available to the Tribunal letters of reference he received but he failed to call such persons to have them explain in detail what his role as 'supervisor' entailed. The letters were vague and general in nature and did not offer any practical information to explain Mr Frost's supervising of building work. The letters in fact, highlighted the absence of practical experience in supervising building work. Mr Frost's evidence in support of the estimation of time spent as supervisor was also
(Page 19)
- generally vague, unspecific and unsubstantiated. The Tribunal cannot accept his estimate as accurate in the absence of corroborating evidence.
87 Even if the Tribunal were to have accepted his evidence that he spent 10% of the 13 years on 'supervising building work', it would still give him approximately 16 months' of additional 'experience' as supervisor but leave him substantially short of the required minimum of seven years. The BRB already recognised 41 months of his experience as applicable to s 10(1)(b)(iv)(I) of the BR Act. If the contention of Mr Frost was accepted that he spent 10% of the 13 years as supervisor, it would at best give him an additional 16 months credit. If added to the 41 months that would bring him, in a best case scenario, to a total of 57 months - substantially short of the 84 months required under s 10(1)(b)(iv)(I) of the BR Act.
88 In support of his contention that he has been conducting 'supervision of building work', Mr Frost referred the Tribunal to various items in the Statement of Building Work (Part Two) which had been filed for the BRB and is available to the Tribunal. He referred the Tribunal illustratively to various building projects numbered in the Statement as 110132.
89 Mr Frost pointed out that he regularly visited sites, that he met with other trades and specialists on site, that he had scheduled and unscheduled meetings on site, that the meetings often lasted several hours, that he often directed work on site and that he supervised compliance by builders to the plans, specifications and building standards.
90 The Tribunal gave Mr Frost opportunity to explain in detail and in practical terms what exactly he did while he was on site that would bring the activity within the meaning of 'supervision' as provided for in s 10(1)(b)(iv)(I) of the BR Act.
91 Mr Frost gave one example where in the construction of the Northbridge Tunnel certain alterations to specifications had to be made, but he failed to provide practical evidence to support his contention that he was in fact 'supervising building work'. He also did not provide evidence to demonstrate his supervisory activities, such as confirmation from his employer to the effect that he was supervising building work; the duration of the purported supervision; the relationship between him and those whom he supervised; if he was the resident draftsman on site and if there were tradesmen awaiting his instructions. He also did not submit the evidence of other persons to support his
(Page 20)
- contention that he had actively supervised them. Mr Frost also failed to provide evidence from the companies that employed him to the effect that he was acting as a supervisor on projects.
92 The Tribunal accepts that Mr Frost had visited building sites and that as part of such meetings alternations may have been made to plans and specifications. The Tribunal also accepts that Mr Frost had to ensure compliance with building standards by those responsible for the building process, that his advice would be taken seriously and he could make adjustments to plans to satisfy practical requirements. All of these fall short of being a 'supervisor of building works' as envisaged by s 10(1)(b)(iv)(I) of the BR Act.
93 The BR Act does not define what is meant by 'supervision of building work' but it must be read within the context in which the word is used in the BR Act and also in accordance to the ordinary meaning of the word.
94 The word 'supervision' is used in s 10(1)(b)(iv)(I) of the BR Act in relation to the 'practical experience … in the work of a builder' that a person should have in order to be registered as a builder. Inspection does not equate to supervision. Supervision is a much wider concept which includes inspection but also refers to the ability to direct, instruct, control and influence the building process.
95 The supervising activity should therefore be practical and hands-on and entail supervision of work done by a builder and/or trades. That means in essence the ability to direct, control, manage and influence building work. The Macquarie Concise Dictionarydefines 'supervise' as 'to oversee (a process, work, workers, etc.) during execution or performance'. In the context of construction and the work of a builder, 'supervision' entails oversight and direction of the building process - thus meaning management and control over the practical work that is being done.
96 In the matter of Thorp, at [28], the Tribunal observed as follows in regard to the work of a supervisor:
A supervisor would be expected to attend site to meet trades at the commencement of activity in which they might be involved, to ensure that they properly understand the work to be undertaken but will not remain any longer on site than is necessary. At each site visit, the supervisor should inspect whatever work has been undertaken to ensure that it complies with the contract and to give directions in regard thereto.
(Page 21)
97 The Tribunal is, for the following reasons, not satisfied that the work Mr Frost did when he visited the sites qualifies as 'supervision of building work' as envisaged by s 10(1)(b)(iv)(I) of the BR Act.
98 We accept that he attended building sites, that he had meetings with other trades, that he did inspections, that he was involved in compliance control and that he gave advice and took instructions from foremen or builders, and that he adjusted plans. These functions fall short of 'supervising of building work'. The Tribunal is not satisfied that the functions as described by Mr Frost are of a 'supervisory' nature as per s 10(1)(b)(iv)(I) of the BR Act.
99 Mr Frost describes the work he classifies as 'supervision' as follows:
• Monthly site meetings of average four hours a time for the duration of the project as requested by client. The visits incorporated checking the project for quality of workmanship at various stages of construction, compliance with the documentation specification and relevant Australian Standards and BCA regulations. (Ref No 116)
• Fortnightly site meetings of average four hours a trip for the duration of the project with Merym Construction. The site visits incorporated checking the project for compliance with Tender documents, specifications and relevant Australian Standards and BCA Regulations. (Ref No 119)
• Monthly site meetings of average four hours a time X 10 visits to site as requested by client to ensure the following: quality of workmanship at various stages of construction, compliance with the document specification and relevant Australian and BCA regulations. (Ref No 121)
• Headed numerous meetings with project team (including client and engineers) prior to construction documents issue. Fortnightly site meetings of average four hours a visit for duration of project with Psaros Construction. The site visits incorporated checking the project for quality of
- workmanship at various stages of construction, compliance with documentation, specification and relevant Australian and BCA regulations. Issued instructions for change of scope or rectification work. Issued Variation Orders as required. (Ref No 123).
100 The above excerpts are samples of a range of activities undertaken by Mr Frost.
101 The Tribunal gave Mr Frost the opportunity to expand on the activities to demonstrate what he would regard as 'supervision' under the BCA. It would have assisted his application if he had given evidence of the degree to which he managed and controlled building activities, the interaction between him and those on site, and evidence from others to confirm that he had been supervising them. His description of his involvement is not, as far as the Tribunal is concerned, supervising or controlling in nature, as required by s 10(1)(b)(iv)(I) of the BR Act.
102 In the SJ Smith,matter the Tribunal found that the work of a building surveyor' … in no way, in our view, constitutes the overseeing of the execution or performance on the work'. In the same matter, the Tribunal further accepted the evidence of an expert witness who commented as follows on the work of a supervisor:
I consider that the role of building surveyor and the work of a builder or supervision of building work differ considerably. As identified above, a building surveyor lacks the ability to control and direct the works. The site inspections which a building surveyor undertakes are to ensure compliance with the relevant standards and the approved plans. It is not to supervise the works or those individuals undertaking it' (T:[38][39], emphasis added).
103 The Tribunal comes to a similar conclusion in regard to Mr Frost's work as a draftsman. The site visits undertaken by Mr Frost were not to supervise the works or those individuals undertaking it. This finding is consistent with the decision of the Tribunal in the matter of Lam and Builders' Registration Board of Western Australia [2006] WASAT 227, at [42], where it found that the question of whether or not a person supervises comes down to the facts; namely, his ability to direct the work and/or the workers in the way a supervisor would.
104 In summary, the Tribunal is not satisfied that Mr Frost has demonstrated that his work by visiting sites on behalf of the firms Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects was such that it can be described as 'supervisor of building works' as envisaged by s 10(1)(b)(iv)(I) of the
(Page 23)
- BR Act. The Tribunal accepts that Mr Frost has been active by visiting sites and that he engaged in a wide range of activities, but his actions were not that of a 'supervisor of building works'.
105 The BRB was correct when it refused to acknowledge any of the work with Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects as 'supervising building work'.
Conclusion
106 The Tribunal is satisfied that the BRB came to the correct and preferable decision by refusing to recognise the work done by Mr Frost while in the employment of Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects, as practical experience in the work of a builder or as a supervisor of building work. Mr Frost is without doubt a very experienced and capable draftsman, but the work on which he relied to be classified as 'practical' or 'supervisory' cannot be regarded as such under s 10(1)(b)(iv)(I) of the BR Act.
107 The decision of the BRB should therefore be affirmed.
Orders
1. The decision of the Builders' Registration Board of Western Australia not to recognise for purposes of s10(1)(b)(iv)(I) of the Builders' Registration Act1939 (WA) the experience of Mr Frost as draftsman as being 'practical experience in the work of a builder' is set aside and is substituted with a decision to recognise a period of sixmonths as being 'practical experience in the work of a builder'.
2. The decision of the Builders' Registration Board of Western Australia not to recognise for purposes of s10(1)(b)(iv)(I) of the Builders' Registration Act1939 (WA) the experience of Mr Frost as 'supervisor of building work' while in the employment of Bateman Grundmann Wilson, Taff Design and Drafting Service, Design Inc and Overman and Zuideveld Architects is affirmed.
(Page 24)
- 3. The decision of the Builders' Registration Board of Western Australia not to register MrFrost as a builder pursuant to s10(1)(b)(iv)(I) of the Builders' Registration Act1939 (WA) is affirmed since the total period of credit amounts to less than the sevenyears required for registration.
I certify that this and the preceding [107] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
1
4
4