Fulker and Building Services Board
[2018] WASAT 97
•2 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011 (WA)
CITATION: FULKER and BUILDING SERVICES BOARD [2018] WASAT 97
MEMBER: MS R PETRUCCI (MEMBER)
MR P MARSHALL (SESSIONAL MEMBER)
MR S WALLACE (SESSIONAL MEMBER)
HEARD: 23 AUGUST 2018
DELIVERED : 2 OCTOBER 2018
FILE NO/S: VR 111 of 2018
BETWEEN: MARCUS FULKER
Applicant
AND
BUILDING SERVICES BOARD
Respondent
Catchwords:
Building Services (Registration) Act 2011 (WA) Review of decision refusing registration as a building service practitioner Whether applicant has requisite experience in carrying out or supervising building work Whether that experience is to be verified by an independent and credible person Building Services Board policy Application of policy
Legislation:
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 9(1), s 17, s 17(1), s 17(1)(a), s 17(1)(b), s 64
Building Services (Registration) Regulations 2011 (WA), reg 6, reg 12, reg 16
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Application is refused
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms S Watts |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Building Services Board |
Case(s) referred to in decision(s):
Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rendell v Release on Licence Board [1987] 10 NSWLR 499
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
REASONS FOR DECISION OF THE TRIBUNAL:
Issue
The only issue to be resolved in this case, as agreed by the parties, is whether Marcus Fulker (the applicant) has sufficient experience to be granted registration under the Building Services (Registration) Act 2011 (WA) (Registration Act) as a building service practitioner under set 1 (building service practitioner) when:
(a)the applicant's experience has not been verified by an independent and credible person; and
(b)the Building Services Board's (Board or the respondent) policy is not to grant registration in such circumstances.
Facts/background
The applicant commenced working in the building industry in the 1990s, first as a labourer and then as a trade assistant in his uncle's patio business before setting up his own business, Great Aussie Patio Pty Ltd (GAP) in 2000 to design and construct outdoor facilities for alfresco entertaining, games activities and carports.
GAP employs 18 people who build approximately 500 patios per annum at an average cost of $7,500 per patio resulting in a turnover of in excess of $4 million per annum.
The applicant's work involves him reviewing contracts and associated documents; supervising all trades from demolition and site works to final handover to the customer. About 60% of the applicant's time is spent on site and the balance completing administrative tasks. His achievements won the applicant the '40under40' Business Award in 2011.
The applicant's dream is to be a registered builder. He started the process for registration as a building service practitioner back in 2009 when he enrolled in the Diploma of Building and Construction (Building). He completed that qualification on 28 September 2017. Following that, on 15 December 2017 the applicant applied to the Board for registration as a building service practitioner pursuant to s 17 of the Registration Act. On 12 June 2018 the Board refused the applicant's application because the applicant's experience had not been verified by an independent and credible person.
Review by this Tribunal
On 21 June 2018, the applicant applied to this Tribunal for a review of the Board's decision and if successful, the applicant will be entitled to registration. In his application, the applicant stated that it is not possible for him to obtain the independent verification sought by the Board because most of the jobs he has carried out or supervised only last about two or three days which means he would need to have many thousands of jobs verified for each year. Further, the applicant explained that without registration as building service practitioner, he will not able to grow his business but will be limited to building patios costing no more than $20,000.
The decision of the Board is reviewable by this Tribunal pursuant to s 64 of the Registration Act. As provided in s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the review is by way of a hearing de novo with the purpose of arriving at the correct and preferable decision.
The statutory regime
Section 17(1) of the Registration Act sets out the requirement for necessary qualifications and experience for registration of building service practitioners including:
(1)The Board must register, or renew the registration of, an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied that the applicant
…
(b)has the qualifications and experience prescribed by the regulations for that class of building service practitioner[.]
Section 17(1)(a) of the Registration Act deals with the formalities of applying for registration as a building service practitioner in a class of building service practitioner. Section 9(1) of the Registration Act provides that 'an individual may be registered under section 17 as a building service practitioner in a class of building service practitioner prescribed by the regulations'.
Regulation 6 of the Building Services (Registration) Regulations 2011 (WA) (Regulations) prescribes five classes of building service practitioner, being a building practitioner, a building surveying practitioner level 1 and level 2, a building surveying practitioner technician, and a painting practitioner. Regulation 16 of the Regulations sets out the qualifications and experience required for registration as a building practitioner by way of five different sets of pathways. In this case, the applicant applied under set 1. The relevant part of reg 16 of the Regulations provides as follows:
Qualifications and experience: building practitioners
(1)For the purposes of section 17(1)(b) a qualification (if any) listed in a set in the Table, together with the experience listed in the same set, are prescribed as qualifications and experience for building practitioners.
Qualifications
Experience
Set 1
…
carrying out or supervising building work for periods totalling at least the equivalent of 7 years full-time[.]
'Building work' (used in set 1) is defined by reg 12 of the Regulations as having the meaning given to that phrase in s 3 of the Building Act 2011 (WA), where 'building work' is defined as follows:
building work means
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in –
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work; or
(f)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]
Consideration by the Tribunal
Evidence of carrying out or supervising building work
The applicant said at hearing (ts 18; 23 August 2018):
… the reality, is that we tried to get some kind of credible references, because that's the process, and we understand that's the process or it's that we just struggled to get two letters, obviously.
Evidence submitted by the applicant to the Board comprised a letter from Trendsetter Homes dated 13 November 2017. It stated in part:
I engaged the services of Great Aussie Patios for carports and patios on unit developments from Sep 2014 Oct 2017 and was extremely happy with their work.
They arrived as scheduled and completed their work to the specified standard on time.
They undertook the following projects during this time:
11 Clifton Rd, Maddington, Patio and carport - $9,250
249 Spearwood Ave, Spearwood, Carport and patio additions, $34,400
I still have a current relationship with the company and will be engaging their services again in the New Year.
I have sighted Marcus Fulker's work history and can confirm the Trendsetter component is true and correct.
Further, the applicant submitted a letter from Mr Shane Harris, Managing Director of Norvic Homes Pty Ltd dated 14 November 2017. It stated:
Since 2015 I have worked as a project manager with Great Aussie Patios to oversee their patios and carports
They undertook the following projects during this time:
11 Elwood Loop, OAKFORD - $52,000 patio and shed additions
309 Harborne St, Glendalough - $73900 carport additions
3 Catrina Crt, Ellenbrook - $25,990 Gable patio additions
They are a quality company to work with and unlike some other builders always paid on time.
I still have a current relationship with the company and will be engaging their services again in the New Year.
I have sighted Marcus Fulker's work history and can confirm the reference to me Shane Harris is true and correct.
The applicant also provided a statutory declaration to support his application. He declared as follows:
I commenced working in the Building Industry in the 1990's as a labourer and later as a Trade Assistant in my uncle's Patio Business which I enjoyed and it gave me the enthusiasm to start my own business in January 2000. I registered the business as Great Aussie Patios Pty Ltd and commenced trading straight away. I received many referrals, so I have to engage [a] fellow tradesman to assist me who in return also taught me a lot. In those days I used to personally supervise building work in excess of $1 million dollars. The current turnover exceeds $4 million p.a.
My duties as a building supervisor include, but are not limited to the following:
Scrutinise the contract documents and building license. Attend on all the trades from demolition and siteworks to final handover with the client. This includes purchase orders to the trades and ongoing inspections. I do not authorise payments for unsatisfactory or incomplete work. Complete all contract administration, items like variations, extensions of time and final accounts.
On projects that require a building license Great Aussie Patios Pty Ltd engage Shane Harris to oversee the works to meet statutory requirements.
During my years in the building industry I would assess the time I have spent on site at approximately 60% of my time with Great Aussie Patios Pty Ltd. As I have always worked a 55 hour week this is about 1580 hours per year. Over a 17 year period this equates to 26,860 hours or more than twice the requisite amount for registration in accordance with the Building Act 2011.
I have appended my registration requirement labelled Appendix 1 as it is to be read as part of the statutory declaration[.]
The applicant said he was advised by the All Trades College, whom he stated understood his individual circumstances, to submit a statutory declaration with his application for registration. Further, the applicant provided to the Board a copy of GAP's financial statements listing the names of customers and illustrating that 500 jobs had been completed for the 2016/17 financial year.
Finally, the applicant provided 11 letters or statements from various persons attesting to his integrity and credibility and that the success of GAP is a result of the applicant's ability to manage all aspects of the business, from the sales right through to installation.
The respondent explained it requires applicants to complete an Attachment 1 Building practitioner set 1 'Statement of building works experience gained while employed' or Attachment 2 Building practitioner set 1 'Statement of building works experience as a contractor or sub-contractor' for each period of experience and to obtain independent verification for each claim. In regards to the applicant's Attachment 1 and Attachment 2, the respondent said it did not accept them on the basis they had not been independently verified by a third party. The respondent stated that each of the Attachment 1 and Attachment 2 and the application form (Form 5) stipulate that the applicant must ensure all experience claimed is independently verified. Further, the respondent said the application form (Form 5) states that Building Commission staff will verify the applicant's experience.
The respondent did not accept any of the letters presented by the applicant (referred to above) in regards to work completed by GAP because they did not verify that the applicant had performed or supervised the work claimed. Similarly, the respondent did not accept GAP's financial statements as those statement did not verify that the applicant had performed or supervised the work claimed.
Whilst the Tribunal acknowledges the applicant's frustration when he stated at hearing (ts 19, 23 August 2018):
It seems like that it's almost impossible as opposed to difficulty, like, I don't see how I can possibly who can be credible if, for example, the Norvic one is deemed not suitable? I worked for my uncle for three years at the start of my journey. He's not relevant because he's a relative. I do jobs for customers who may not be home, who may not see what I do. I also fail to see how a customer is anyone credible who can verify my skills, like the patio might be up, but it doesn't mean it's a good patio. It doesn't mean it's going to be up in a year. It doesn't mean it's going to last, so I fail also to see how a customer is credible independent suitable person.
So, I honestly think it's impossible as opposed to difficult, because if the other only points I can sort of make around this challenge is that if I were if one of my contractors was sitting here today and I wrote a letter telling how he has worked for me for 15 years, and I can say, "Yes, he has worked for me for 15 years. He has worked built patios. I've seen him build", then he would be in a better position than me[.]
the Tribunal concludes that the Registration Act read with the Regulations clearly requires all persons wanting to be registered as a building service practitioner to demonstrate to the Board (and on review to the Tribunal) that they have the necessary experience in carrying out or supervising building work for periods totalling at least the equivalent of seven years full-time.
However, nothing in the Registration Act nor the Regulations requires the applicant to provide evidence of his experience which is independently verified by a third party. The requirement of submitting evidence that is independently verified is part of the Board's policy. The Tribunal will return to consider the Board's policy in the next section.
The Tribunal accepts that the applicant is genuine and that he has tried to meet the legislative requirements. However, the evidence provided by the applicant was simply inadequate. This is because the letters from Trendsetter Homes and Norvic Homes did not stipulate that he carried out or supervised the building work. Further, while the applicant's statutory declaration set out his work history generally, it did not stipulate what building work he had carried out or supervised and when that work had been undertaken. Finally, the various letters and statements from 11 people who attested to the applicant's integrity and character did not attest that the applicant carried out or supervised any building work.
In short, the applicant failed to demonstrate by the evidence he submitted the Board and subsequently to the Tribunal that he has carried out or supervised building work for periods totalling at least the equivalent of seven years full-time. The consequence is that his application must be dismissed.
Although it is not necessary in this case, as the application is dismissed, it is still useful to consider the application by the Board of its policy.
Application by the Board of its policy
The applicant asserted that the respondent failed to exercise its discretion when considering his application because the Board failed to consider his individual circumstances. Further, the applicant contends that the respondent's requirement for all building work to be independently verified is unjust and that there are better tests and measures to assess whether he and other self-employed persons meet the experience requirements for registration as a building service practitioner. The applicant invited the respondent to grant him registration with various conditions but that was rejected.
The respondent submitted that the Board's policy is relevant to the Tribunal's consideration of the decision on review, however acknowledged that the Tribunal is not bound to follow policy but it may, and it should, apply it in exercising its discretion unless it is unlawful or 'tends to produce an unjust decision': Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J. In support of this, the respondent submitted that in the context of an occupational licensing statute, the purpose of which is the protection of the public through the proper accreditation of building service practitioners, the weight to be attributed to an applicant's own evidence as to that person's satisfaction of the experience requirement should be afforded substantially less weight in circumstances where it is unverified by a third party or inadequately verified.
In the Tribunal's view, a policy or practice is just what it says - a policy or a practice, and not a law or a regulation. In Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 the Tribunal stated that policy at [23]:
… provides a guideline of the principles that the [relevant authority] can be expected to apply when making decisions … it does not provide a binding set of principles that must be applied in all cases[.]
In a different context, although equally applicable to matters such as in the present case, Simmonds J in Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 reminded decision-makers that they will fall into error if they regard themselves as bound by a policy and inflexibly apply that policy. That decision follows the Court of Appeal of New South Wales' decision in Rendell v Release on Licence Board [1987] 10 NSWLR 499 where the Court (Kirby P, Priestley and Clarke JJA) stated at 503-504:
A body upon whom Parliament has conferred a discretion must exercise that discretion in accordance with the legislation. The decision maker must not, for the purpose of the exercise of discretion, take into account extraneous or irrelevant considerations. Nor must the discretion be exercised by reference to general and inflexible rules which pay no regard to the particular circumstances of the case. This is so whether such rules are laid down by the decision maker or an external body. It is of course often useful and sometimes necessary for administrators to adopt guidelines. These may provide guidance to officers in the scattered agencies of the administration. They may ensure that decisions are made in an evenhanded and consistent way. But such guidelines must be compatible with the legislation conferring the discretion. They must not purport to usurp the discretion or substitute administrative convenience for the individualised decision if that is what the legislation has provided for … Most especially, the administrator must not permit the decisions of third persons or their actions and attitudes, to control the way in which such discretion is exercised.
At hearing, the respondent explained that the Board's policy is to require applicants to obtain third party verification of the experience claimed for registration as a building service practitioner. The respondent said this view is the same as that of the previous Builders' Registration Board and stated that the Board has never granted registration without any third party verification. According to the respondent, such verification by third party may include:
(a)contacting the third party directly by telephone or email and asking further questions about the claim;
(b)contacting the registered builder to confirm that both the third party and the applicant were actually employed by the registered building contractor where the third party claims to be an employee of a registered building contractor; and
(c)performing online searches and obtaining ASIC records to confirm the existence of the businesses.
The respondent accepted that obtaining third party verification does not guarantee the truthfulness of an applicant's information. However, the respondent submitted that such third party verification provides another layer of protection that it considers crucial to maintain public confidence in the building industry.
Finally, the respondent stated that evidence given under oath, such as by statutory declaration, can be given slightly more weight due to the applicant's acknowledgement that they are liable to criminal prosecution for providing false information, however where no independent third party verification has been provided (as in this case), the respondent submitted that it is appropriate for the Board to require such verification before granting registration.
If the Board requires all applicants to satisfy a fixed, determinative rule such that all evidence of experience must be independently verified, that would, in the Tribunal's view, be tantamount to applying policy inflexibly and therefore will result in an error of law (see NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; Gleeson CJ at 24).
The Tribunal accepts that the applicant's circumstances are different from the majority of applications received by the Board. That accords with the respondent's evidence that one to two applications per month are received where the person seeking registration as a building service practitioner, for example a sole trader, has difficulty in obtaining sufficient evidence to demonstrate their experience in building work.
The Registration Act provides, among other things, for the registration of building service practitioners. Therefore, as an occupational licensing statute, one of the aims of that Act is to protect the public through the proper registration of building service practitioners. The registration process is stipulated in s 17(1)(b) and reg 16 by requiring applicants to demonstrate experience in carrying out or supervising building work for period totalling at least the equivalent of seven years full-time. As noted above, the respondent's policy stipulates that third party verification of the applicant's experience is required before registration can be granted. On the other hand, the applicant contends he is not able to provide such third party verification because most of his jobs were for only a few days which would mean he would require many thousands of letters to satisfy the equivalent of seven-year full-time work requirement. Importantly, according to the applicant, his customers have no idea if he was on site carrying out the work or supervising it and, in any event, would not be able to assess his work. Because of this, the applicant was adamant that the Board failed to exercise its discretion because it did not consider his individual circumstances. In reply the respondent acknowledged the applicant's difficulty and noted that the Board's 'current credible and independent person policy' [1] is under review but that no new policy has been endorsed as yet.
[1] See >
The respondent presented a working paper comparing the approaches used to verify experience in the other Australian States dealing with the registration of builders. The Tribunal observed there to be a wide divergence across the Australian States of what experience is needed to be demonstrated by applicants seeking registration and who could verify that experience. For example, in some States there was no requirement for the experience to be verified by an independent party but in other States the verification had to be undertaken by a person with stipulated qualifications. There was also differences in the number of years' experience and the type of experience required. Finally, the Tribunal noted that in some States the applicant was also required to attend an interview before the registration authority.
It is clear there is no consistent policy across Australia for the registration of builders. Because of this, the Tribunal supports a process where the Board undertakes a qualitative assessment of the work undertaken and the time taken to do that building work by the applicant seeking registration as a building service practitioner. Such a qualitative assessment was undertaken in Farano and Builders' Registration Board of Western Australia [2006] WASAT 4. In that case, the Tribunal accepted that the applicant had achieved the requisite experience even though the applicant had not obtained independent third party verification of his building work.
In considering the individual circumstances of an application for registration, the Tribunal is of the view that this may require the Board to consider a combination of different types of evidence before a conclusion can be reached as to whether or not registration is to be granted. For example, in a case of a sole trader, it may be appropriate for the Board to seek a statutory declaration from that person supported by various examples of the applicant carrying out or supervising building work. The various examples could then be referred by the Board to a person who holds a licence or qualification at the same or greater level than that being applied for, for an independent review. An interview may also be required in addition to receiving other forms of evidence if the particular circumstances of the case require it.
Conclusion
It is common ground that the crux of this case was whether the applicant demonstrated experience by carrying out or supervising building work for periods totalling the equivalent of at least seven years' full-time. Even though it is not disputed that the applicant has worked in the building industry through his business, GAP, and previously in his uncles' business for a long time, the evidence submitted by the applicant failed to demonstrate that he had carried out or supervised building works for periods totalling the equivalent of at least seven years' full-time. Because of this, the Tribunal must affirm the decision of the respondent and refuse the application for review by the applicant.
Finally, while it may make good sense to adhere to a policy or a practice, the Board in considering applications for registration as a building service practitioner must not regard itself as bound by that policy or practice.
Orders
1.The decision of the Builders Registration Board made on 12 June 2018 is affirmed.
2.The applicant's application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
2 OCTOBER 2018
0
4
4