GENOVESE and BUILDING SERVICES BOARD
[2012] WASAT 244
•18 DECEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011
CITATION: GENOVESE and BUILDING SERVICES BOARD [2012] WASAT 244
MEMBER: MR T CAREY (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR R MACHELL (SESSIONAL MEMBER)
HEARD: 28 NOVEMBER 2012
DELIVERED : 18 DECEMBER 2012
FILE NO/S: VR 153 of 2012
BETWEEN: CARMELO GENOVESE
Applicant
AND
BUILDING SERVICES BOARD
Respondent
Catchwords:
Registration as a building service practitioner and a building service contractor - Review of decisions refusing applications for registration - Claim within Set 1 of reg 16 of Building Services (Registration) Regulations 2011 (WA) - 'Carrying out or supervising building work for ... 7 years ...' - 'Building work' defined - Fit and proper person - Applicant's experience considered - 'Supervisor' discussed
Legislation:
Builders Registration Act 1939 (WA), s 11(1)(b)(iv)
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 3, s 17(1)
Building Services (Registration) Regulations 2011 (WA), reg 12, reg 13, reg 16, reg 16(1), Pt 2
Result:
Application unsuccessful
Summary of Tribunal's decision:
The applicant sought review of the respondent's refusal of his applications for registration as a building service practitioner and building service contractor.
The principal issue for debate on the review was whether or not the applicant fulfilled the requirement, in addition to his acknowledged academic qualification, of seven years' experience in carrying out or supervising building work. Save for some limited personal experience in construction for which the applicant received credit, his experience comprised exclusively supervision of electrical installation work.
After considering the statutory framework and concepts critical to its proper application to the facts of the case, including 'building work' and 'supervising', the Tribunal analysed all claims of experience upon which the applicant relied. It found the total periods for which the applicant had carried out or supervised building work to be approximately 20 months, well shy of the experience required. The Tribunal accordingly dismissed the application and affirmed the decisions refusing registration.
The Tribunal commented on a separate requirement for registration, that the registration applicant be a 'fit and proper person', which was not the subject of dispute between the parties, and which was unnecessary for it to determined, but which the Tribunal observed may, on the facts, have presented the applicant with an additional obstacle.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr E Homer (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Building Commission
Case(s) referred to in decision(s):
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127
Minniti v Motor Vehicle Industry Board [2011] WASCA 275
Monastra and Builders' Registration Board of Western Australia [2011] WASAT 7
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
REASONS FOR DECISION OF THE TRIBUNAL:
Overview
The applicant, Carmelo Genovese (Mr Genovese), applied to the Building Services Board (Board) on 8 June 2012 for registration as a building service practitioner and building service contractor. If successful, this would have bestowed Mr Genovese with the right to carry out building work within Western Australia.
It is necessary for Mr Genovese, as an individual, to be registered as a building service practitioner in order for him to be considered for registration as a building service contractor.
By a letter from the Registrations Manager of the Building Commission dated 17 August 2012, Mr Genovese was informed that his application for registration as a building service practitioner had been refused. The letter indicated, as the ground for refusal, that Mr Genovese had not accumulated sufficient relevant experience in carrying out or supervising building work. Under the relevant criteria, seven years' experience is required, and the Board considered Mr Genovese to have accumulated some 12.9 months' experience.
Although the Board's letter was expressed as not to be taken as the Board's formal reasons for decision, both the result, and the ground based on lack of relevant experience, were replicated in the Board's formal statement of reasons for the decision dated 19 October 2012.
Mr Genovese, who maintains that his accumulated experience in carrying out or supervising work is well in excess of the minimum seven years, seeks review of the Board's decision.
It will be necessary, in our consideration on the review, to assess the various periods and types of Mr Genovese's claimed experience against the relevant statutory framework, having regard to a number of concepts critical to its operation. That framework and some of those concepts are discussed in the next section of these reasons. We will then make some general comments relating to Mr Genovese's experience, before dissecting it in greater detail in order to arrive at our findings as to allowability.
Statutory framework and critical concepts
The criteria for registration as a building service practitioner are laid out in s 17(1) of the Building Services (Registration) Act 2011 (WA) (BS(R) Act), which provides:
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
(a)has complied with sections 13 and 14; and
(b)has the qualifications and experience prescribed by the regulations for that class of building service practitioner; and
(c)is a fit and proper person to be registered; and
(d)has complied with any other requirements prescribed by the regulations for registration as a building service practitioner in that class.
In this case, the Board takes no issue in relation to parts (a), (c) or (d) of the criteria. Although we have no problem with the concession as it extends to parts (a) and (d), we will make some observations in relation to part (c) shortly.
Turning to part (b), the prescribed qualifications and experience are contained in reg 16 of the Building Services (Registration) Regulations 2011 (WA) (BS(R) Regulations), identified by reference to five different 'sets'. Three of the sets prescribe both a qualification and experience as being necessary, and the other two are limited to experience.
The qualifications and experience upon which Mr Genovese relies are referable to Set 1. The Board accepts that the prescribed qualification for Set 1 (Diploma of Building and Construction (Building)) is met.
The experience prescribed for Set 1 is:
carrying out or supervising building work for periods totalling at least the equivalent of 7 years fulltime.
Mr Genovese claims that his qualifying experience contains elements of both carrying out building work and supervising building work, with the preponderance of the claim being for supervision.
Although, in its oral submissions before us, the Board argued that 'building work', for the purposes of reg 16 of the BS(R) Regulations, imported the meaning of 'builder work', a term defined by reg 13 of the BS(R) Regulations as being building work (amongst other things) for which a building permit is required, we think it sufficient to refer to reg 12 of the BS(R) Regulations, which defines 'building work' for the purposes of Pt 2 of the BS(R) Regulations (which includes reg 16) as follows:
Building work has the meaning given in the Building Act 2011 section 3.
The definition of 'building work' appearing in s 3 of the Building Act 2011 (WA) (Building Act) is:
(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[.]
'Incidental structure' is defined in the same section as:
incidental structure means a structure attached to or incidental to a building and includes
(a)a chimney, mast, swimming pool, fence, free‑standing wall, retaining wall or permanent protection structure; and
(b)a part of a structure[.]
The definition of 'demolition work' in s 3 of the Building Act is:
(a)the demolition, dismantling or removal of a building or an incidental structure; or
(b)the changing of ground levels for the purposes of work of a kind mentioned in paragraph (a) to an extent that could adversely affect land owned by a person other than an owner of the land on which the building or incidental structure that is the subject of the demolition work is located; or
(c)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being demolition work[.]
Flowing from these definitions, in our view, it is clear that an applicant for registration will, to the extent that he or she has carried out, or supervised, building work as defined by s 3 of the Building Act, be entitled to a credit for any period for which he or she has been so engaged.
We expressly reject what we apprehended was a premise of the original reasons of the Board in refusing Mr Genovese's registration application that his supervision experience was limited to electrical work, on the basis that this is only one of many building trades. The representative of the Board at the hearing adopted a position of not pressing the argument. We believe that the point is disposed of sufficiently by our reference to and adoption of the following passage from Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 (Danze) at [33]:
… it is selfevident from the submissions made by the parties that item (I) is the vehicle through which a particular tradesperson would apply for registration as a builder. The experience gained in any one trade is not sufficient to guarantee competency in the carrying out of all of the work of a builder, but it can reasonably be expected, with the benefit of seven years' practical experience in a particular trade which is within the scope of work carried out by a builder, that the prescribed course of training and examination should be wide enough to ensure competency in building generally.
We will consider the meaning of 'supervising', as that term relates to 'building work' for the purposes of the experiential requirement, when we analyse the individual claims.
We refer to the requirement under s 17(1)(c) of the BS(R) Act that a registration applicant be a fit and proper person to be registered. Although the Board presented a case in its statement of issue facts and contentions for Mr Genovese to be denied registration because he could not satisfy the fit and proper requirement as well as the experiential requirement, no reliance was placed on the former requirement at the hearing. We believe this may have been somewhat short-sighted.
Our impression of the Board's ultimate position is that it was guided by an appreciation of the notion of a 'fit and proper person' as being concerned solely with issues of moral integrity and good character. If so, it was misguided. In a well known and often cited passage from Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127 at [156] [157], Dixon CJ and McTiernan and Webb JJ said:
The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty[,] knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it …
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at [76], Walters J said:
The issue whether an appellant has shown himself to be 'a fit and proper person, within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails …
Both these passages, which were cited with approval by the Court of Appeal in Minniti v Motor Vehicle Industry Board [2011] WASCA 275, reflect a meaning of 'fit' within the 'fit and proper person' expression to include requisite knowledge of the duties and functions of the office or vocation concerned. And in a case such as this, where the registration applicant relies substantially upon supervision of a limited area of building work, it appears to us that the fit and proper person test fulfils the role of screening from acceptance persons who, despite meeting the academic and experiential requirements, for whatever reason, fall short of 'competence in building generally', which satisfaction of those requirements is, consistent with the passage we quoted from Danze, expected to ensure.
A similar point, albeit in the context of item (V) in the former s 11(1)(b)(iv) of the Builders' Registration Act 1939 (WA) with its experiential requirement of '5 years' experience in the work of building construction as a manager or supervisor', was made by the Tribunal in Monastra and Builders' Registration Board of Western Australia [2011] WASAT 7 at [40], when it said:
As we have already observed, the 'fit and competent' limitation under item (V) requires a qualitative assessment of competency gained through experience … or … this qualitative assessment requires further consideration of that experience, consistent with the duty undertaken by the Board, and the Tribunal on review, to ensure, in the public interest, that only appropriate people are charged with the privileges and responsibilities bestowed by registration as a builder.
It is accordingly our opinion that an argument might have been made out on the facts of this case that, taken together with his having attained the prescribed academic qualification, Mr Genovese's limited direct experience, being largely, but not exclusively, the supervision of electrical works, might have rendered him an unfit, although proper, person to become registered. Mr Genovese countered any such argument by referring to the fact that the electrical trade is one of very few which is utilised at all stages of the building process and which involved him as supervisor in interacting and liaising with all other trades, gaining for him a good knowledge of the whole construction process.
Ultimately, because of our clear conclusion on the experiential requirement and the parties' agreement about the fit and proper person requirement, it is unnecessary for us to say anything further on the issue.
Mr Genovese's experience generally
Mr Genovese, upon completing his secondary education in January 1996, commenced working for an electrical contracting company as trainee project manager, including duties involving supervision and administration. Mr Genovese's period of training was approximately 18 months, after which he project managed and supervised projects and works contracted by his employer, without supervision or assistance. This continued until July 2001, when he left that employment.
The next relevant experience upon which Mr Genovese has relied comprised renovation and property development works commencing in 2005. Although his resumé indicates the period of this work as between July 2005 and April 2008, the true position appears to be that the work spanned February 2005 to April 2008 with a gap of three months within that period for which no relevant experience is claimed.
Mr Genovese then commenced working for an electrical and instrumentation contracting company in May 2008 and concluded that work in December 2010. Mr Genovese conceded during the hearing that claims for experience in this period, and identified at projects 7, 12, 13, 15, 16, 17 and 18, were works not carried out in Australia, carried out in other States of Australia, or carried out on vessels offshore from Australia, and are to be excluded from our consideration.
During the same period, Mr Genovese constructed a dwelling for himself as an ownerbuilder (between September 2008 and July 2010) and also assisted another owner builder in the construction of another dwelling (between October 2009 to October 2010).
Upon leaving the first electrical and instrumentation company in December 2010, Mr Genovese commenced working for another electrical and instrumentation company in January 2011, and of which he is a director. Mr Genovese informed us that he remains in the role of working director in this company.
All of Mr Genovese's claimed periods of relevant experience submitted to the Board were included in two schedules, in the Building Commission's then standard forms C1.2a and C1.2b, being the applicable forms for the listing of experience when a claim reliant upon former Set 2 was relied upon. For historical reasons, neither the forms nor the set remain current, but the identification in the schedules of periods of experience and individual projects to which the claimed experience relates are still relevant. The form C1.2a schedule, which contains the essential features of individual projects (project schedule), appears at pages 20 23 of the respondent's bundle of documents (Exhibit 2), and the form C1.2b schedule, providing particulars of the applicant's role in projects and percentage of time claimed to have been spent carrying out building works and supervising building works (participation schedule), appears at pages 24 39 of Exhibit 2. In addition, Mr Genovose provided further details of his claims in his statement of issues, facts and contentions in the current proceeding (Exhibit 3) and in oral evidence at the hearing.
We will now consider Mr Genovese's claims in more detail, in chronological order.
June 1996 May 2001
Mr Genovese claims a full five years' credit in respect of this period. The claim is exclusively for supervision of work at three refinery sites and a cement plant, by alternate reference to nine specific projects (the 'period of involvement' of each project, varying from two to 12 months) and 'various other [projects]' (with a five year period of involvement). The participation schedule allocates 85% of Mr Genovese's time for each period of involvement in respect of both the individual projects and the other projects, indicating a degree of doublecounting. We will return to this.
Mr Genovese described his role (or accepted the Board's description thereof) as 'to project manage the installation of infrastructures for electrical services and maintenance programs'. His listed duties were to:
•manage personnel;
•manage sub-contractors;
•manage construction schedule and program works;
•review drawings;
•arrange materials;
•manage contractual documents; and
•compile monthly progress claims.
The Board, in its statement of reasons, allowed no credit for this period, based on its views that the duties undertaken by Mr Genovese were of an administrative nature, and that the supervision of his employer's subcontractors was not the supervision of 'building work'. Its arguments as reflected in its statement of issues, facts and contentions and submissions at the hearing reflected a change of emphasis so as not to press the contention that the electrical installation work forming the basis of most of Mr Genovese's claims is not 'building work' and to focus, rather, on the question of 'supervision'.
A noteworthy aspect of this part of Mr Genovese's claim is that the works he contends to have supervised were in respect of both buildings forming part of the infrastructure of the refineries involved and the refineries' (nonbuilding) plant and equipment, including high voltage lighting and power. That infrastructure might be outside of or within 'buildings'. In response to our question, he estimated 50% of the total works performed by his employer to concern electrical work on 'buildings'. Even accepting the 50% estimate, which we do not, Mr Genovese's claim for a full five years' involvement during this period makes no allowance for it.
A useful description of the role of a supervisor of building work, which we adopt, appears in the following passage from Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 at [28]:
A supervisor would be expected to attend site to meet trades at the commencement of the 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. In the cottage residential building industry, a supervisor will supervise many sites at the same time. It may only be in large complex developments, that there may be sufficient supervision required to justify a supervisor being on a single site for the duration of the job.
We do consider that supervision of electrical works constituting building work, for the purposes of the sets described in the table to reg 16(1) of the BS(R) Regulations and, in particular, Set 1, must include supervision of electrical works forming part of 'building work' within the definition of that expression in s 3 of the Building Act. The definitions of 'building work' and 'incidental structure' (which the first category of building work includes) are reproduced above.
These definitions indicate the paramount nature of a 'building' which either itself has been built, an incidental structure to which has been built, or renovated or improved, as the case may be. We do not regard any experience gained in the supervision of electrical works on a refinery site that are of a general nature, or comprise maintenance works, or may be characterised as supply works external to the supply point for the building, or do not concern the whole or part of a building, as being supervision of building works.
We consider Mr Genovese's estimate that 50% of his time in supervising electrical works was referable to buildings, as distinct from the oil refinery infrastructure, to be excessive. The buildings concerned, such as processing buildings and substation/control buildings, do not typically have a large electrical component. The control equipment and transformers do not form part of the building itself, but are installed within it. Mr Genovese failed to adduce evidence to demonstrate that, excluding installed plant, either the buildings themselves, or the construction program, was so complex as to warrant the presence of electricians or associated trades on site for 50% of the time (let alone a supervisor for such a period). In the absence of any such evidence, we consider that 20% is a more accurate estimate.
The extent to which licensed electricians, or other subcontractors answerable to Mr Genovese, were supervised would depend upon the scope of the works and the complexity of the tasks or reporting requirements associated with that work. We were unimpressed by Mr Genovese's attempt to justify being on site for the entirety of the time he was supervising, merely by reference to the size of the contracts (which had a significant nonconstruction element) and the need to ensure that licensed electricians had satisfied their statutory reporting obligations.
Doing the best we can on the evidence adduced, we assess that 25% of Mr Genovese's time on site might have entailed supervision in the literal sense, while a further 25% spent on relevant and associated management and administrative functions might properly be regarded as the supervision of building works.
In his statement of issues, facts and contentions, Mr Genovese described the buildings for which lighting, power, communications and security installation had occurred under his supervision as being 11 substation/control buildings, four office buildings, five warehouses and sheds ranging in size from 100 square metres to 2,000 square metres, and four processing buildings. With reference to the project schedule, they fall within projects 34, 35, 38, 39 and 42. Apart from the substation/control buildings, which he stated took four weeks to construct, Mr Genovese did not identify the construction periods of each building.
For the purposes of our assessment, we have assumed, in favour of Mr Genovese, that licensed electricians and subcontractors were engaged on electrical work in the construction or installation of buildings for the whole of the period from September 1998 to May 2001, or 33 months. In our assessment, this period must be discounted by the percentages referred to above for the time they were required on site referable to any building, and for the extent of necessary supervision.
We assess Mr Genovese to be entitled to 33 months by 20% by 50%, or 3.3 months, which includes the control rooms referred to above.
Items 36, 37 and 40 in the project schedule were carried out from June 1998 to September 1998 and from June 1999 to October 2000, and involved the installation of yard and cable ladders and associated safety lines and fall arrestor systems.
Mr Genovese said that the cable ladders are fixed to buildings on those sites and are also used as access platforms for personnel. As such, they are, according to Mr Genovese, 'incidental structures' within part (a) or 'improvement' within part (b) of the definition of 'building work' in s 3 of the Building Act. He also explained that the cable ladders run for many kilometres throughout the entire sites on multiple levels. It is apparent that the cable ladders and associated fall arrest systems are part of the infrastructure of the site servicing the plant and equipment within the site or, alternatively, providing power to a point of supply to the building. As such, work involved in their installation falls outside the defined meaning of 'building work'.
Similarly, item 33 ('Emergency Lighting High Voltage Installation') is not referable to building work, and therefore is not work for which experience in the supervision of building work may be credited to Mr Genovese.
Experience claimed and identified at item 42 of the project schedule as 'Various Other Project[s]' is not allowed in our assessment for two reasons. The item was described by Mr Genovese at the hearing as covering 'several hundred projects' without providing any further detail. And, as we alluded to earlier, the claim spans the entire period of approximately five years, on the basis that 85% of Mr Genovese's time was spent on those projects, at the same time that he claimed also to be involved, to the same (85%) extent, on the individual projects we have dealt with. Although we have modified the 85% ratio significantly, in terms of claims made, it is clear that Mr Genovese has overstated his case, and we do not consider that he should be given the benefit of the serious doubts we have regarding his omnibus claim.
The total credit for experience gained during the earliest period is 3.3 months.
February 2005 April 2008
Mr Genovese claims 35 months' credit for both the supervision and the carrying out of building work on five residential properties purchased by a trust of which Mr Genovese is a trustee. Four of the five properties were subdivided, providing a vacant lot at the rear of an existing dwelling which was made available for sale, and the existing house was renovated.
As a part of the subdivisional process, Mr Genovese arranged for surveying to be carried out, the removal or demolition of elements of the existing building, where required, importation of a small amount of fill, the construction or modification of retaining walls and fences, the construction of a new crossover and associated driveway modifications and the installation of services to those sites.
In support of his claim for time spent in supervising the subdivisions, Mr Genovese invokes parts (d) and (e) of the Building Act definition of 'building work' changing ground levels of land for the purposes of work described in other parts of the definition, and site work for the purposes of, or required because of, work described in those parts or part (d) (or two parts of the definition of 'demolition work'). However, his argument relies upon an ability to import the intentions of a putative purchaser of the vacant blocks into a consideration of whether the definition applies. In our opinion, the ordinary and natural meaning of the words used in the definition in its various parts and, in particular, parts (d) and (e), confines 'building work' to work carried out on a cognate project. It does not extend, for example, to changing ground levels or site work with the intention of preparing the site in a saleable and well presented condition.
Similarly, construction of retaining walls and provision of utility services cannot come within the 'incidental structure' extension of part (a) of the 'building work' definition where they are not properly to be regarded as incidental to, or an improvement of, a 'building'.
Nor are we satisfied that the descriptions provided by Mr Genovese of demolition work that took place on two of the properties come within the limited scope provided by the 'building work' definition for site work associated with demolition work to be included.
Mr Genovese claims to have personally carried out the renovations listed in the project schedule as eight separate items (21 25 and 29 31). With reference to the five properties, three items in the project schedule related to a property in Hollett Road, Morley, two related to a property in Crimea Street, Morley, and one related to each of two other properties.
The renovation works included installation of new bathroom linings, some plastering, removal of an internal wall, installation of new doors and modifications to brickwork, electrical and plumbing works, painting, polishing of floorboards, replacement of kitchen cupboards and the construction of a carport at two of the properties.
The values of the renovation works carried out as attributed by Mr Genovese were between $35,000 and $42,000 for each of four of the houses and $18,000 for the fifth. Mr Genovese did not apply for a building licence for the renovation works, although licences were obtained for the two carports. Given the Board's contention that Mr Genovese should not be given credit for work which was unlawful, the question of whether any of the renovation works were unlawful because they proceeded in circumstances that a building licence was required for them and none was obtained attains some importance.
Mr Genovese contends that the works did not require a building licence because they were broken up into small discrete sections of works, which were carried out independently of each other, and none of which exceeded the then threshold value of $12,000 for which a licence was required. He indicated that it was only when he had got to the end of one discrete section that he decided to embark on the next.
We are unable to accept Mr Genovese's contention regarding his failure to obtain building licences. Although we may have been prepared to do so if only one house had been renovated, it is not plausible, in our view, for the state of genuine naivety upon which it is predicated to enure for a period of some three years and five renovation projects. It also contradicts Mr Genovese's own description of his function on behalf of the trust appearing in his resumé of 'property development', entailing the associated roles of project management, managing and scheduling subcontractors, job costing and job scheduling.
We are satisfied, on the basis of the evidence before us, that all of the renovation works carried out by Mr Genovese were building works for which a building licence was required but was not obtained.
The Board submitted, quite apart from its argument that only building work for which a building licence (or permit) was required and obtained could be considered, that it is contrary to public policy that a person should benefit from works which were not lawfully carried out. Mr Genovese did not seek to challenge this view, and we accept it. We therefore make no allowance in our assessment for the experience gained during this period in carrying out renovation works.
May 2008 December 2010
Mr Genovese claims 19 months' credit by reference to eight items in the project schedule (6, 8 11, 14, 19 and 20), comprising project management of the construction of two homes, electrical and other installations at a third home, a school and a large utility plant. He did not pursue claims for other items listed for the period.
Of the 19 months, 12 months is accounted for by the period upon which the parties are agreed as the appropriate allowance for Mr Genovese's construction, as ownerbuilder, of his own home (item 6). We see no reason to disturb this agreed credit.
Mr Genovese indicated in the project schedule for item 6 an involvement of 15 months during the period September 2008 to July 2010, and claimed, in the participation schedule, to have spent 100% of those 15 months on the project. According to the schedules, he was also highly involved in other work during the same period, again raising the spectre of doublecounting.
Mr Genovese claims (item 8) credit for the supervision of electrical installation works (electrical, communications, security) to transportable classrooms between May 2009 and November 2009. In our view, the time that electrical workers would be engaged on site carrying out these works over a six month contract period would be no greater than one month in total. For reasons already given, supervision of no more than 50% of that time would be justified. We allow Mr Genovese a credit of two weeks for this item.
Mr Genovese claims (item 9) credit for electrical works carried out to a single storey dwelling under construction between January and July 2009. For reasons already given in relation to earlier claims, we are not persuaded that such works would require the presence on site of electrical workers for more than one month, nor that an electrical supervisor would be required to supervise for more than 50% of that time. Accordingly, in respect of item 9, we assess Mr Genovese to be entitled to a credit of two weeks.
Item 10 describes the works carried out as electrical and instrumentation works associated with a wastewater treatment plant. Mr Genovese informed us that this work included installation works to a number of buildings associated with the wastewater treatment plant including offices and laboratories, together with other works associated with the treatment plant itself.
Although Mr Genovese contended that 'the majority of' the works related to the buildings, the detail and extent of the works in question have not been provided. Absent necessary details, it is not possible for us to speculate about the appropriateness of any particular credit to be given. In these circumstances, we make no allowance for item 10.
Item 11 concerns the project management of a dwelling carried out under an ownerbuilder building licence issued to another person, in the period October 2009 until October 2010. Mr Genovese claimed credit for supervising building work for 60% of a period of 12 months.
In response to the observation that this project ran concurrently with item 6, Mr Genovese referred to his norm of a 70 90 hour working week, entitling him to a credit for both projects. We disagree. The experiential requirements of the BS(R) Regulations are timebased, and we do not see how it is possible to gain a credit for any particular time period in excess of the period itself. We are also concerned about a claim for extensive supervision in respect of an owner-builder project of someone else, whom would generally be expected to undertake the supervision role.
The Board credited Mr Genovese with 0.9 months for works item 11 based on their being carried out for 3 months outside the time for which credit was allowed for item 6 and Mr Genovese's advice that he spent 30% of his time carrying out and supervising the works. We are prepared to allow the same credit, and an additional credit of 0.6 months for the period within the 15 month period of item 6 which has not been subject of any other credit. The total allowance we make in relation to item 11 is therefore 1.5 months.
Item 14 describes electrical and instrumentation works associated with a pipeline, carried out between March and November 2009. Mr Genovese contends that the work included electrical and associated works to a number of buildings associated with the pipeline. He gave the example of eight substation/control buildings. Given that the works were carried out in a period for which credit has been wholly provided under other items, no credit for this item is allowed.
Item 19 concerns supervision of electrical work carried out at a site in Henderson on an offshore platform under construction from October to December 2008. We do not consider an offshore platform that either floats, or that is anchored to the seabed to be a 'building', and therefore that an allowance can be given for this item.
Item 20 describes electrical and instrumentation works associated with a further wastewater treatment plant between June 2008 and August 2009. Mr Genovese stated that this work included installation works to a number of buildings associated with the wastewater treatment plant, together with other works associated with the treatment plant itself. Mr Genovese submitted that the works included electrical and associated works to a number of buildings, including offices, laboratories and other buildings.
For reasons previously given, any credit for this item will be limited to work carried out to buildings. Mr Genovese has provided no detail of work supervised by him which fits into this category. It would be essential for him to differentiate any such work from the installation of plant and equipment within those buildings, but he has not done so. We are therefore unable to allow any credit for this item.
The total credit for experience gained during the third period is 15.9 months.
January 2011 to present
Mr Genovese claims 19 months' credit in respect of this period. The claim is for supervision of work on five separate projects (items 1 5).
Item 1 is for the electrical installation of a 650 man camp and associated buildings, wastewater treatment plant and airport at a remote mine site in Western Australia, from November 2011 to the present day. It is apparent that a significant element of this project involves the installation of electrical infrastructure to supply all of the buildings, the buildings themselves having been constructed off site and transported to the mine site. The buildings included 170 accommodation units, kitchen and dining room, tavern, clinic and ambulance bay, control room, two maintenance sheds, eight offices and two gazebos.
Mr Genovese's explanations of his involvement with this project failed to demonstrate that the scope of the electrical works included electrical works that formed part of the buildings, as opposed to electrical works enabling the connection of power to the buildings. As previously discussed, we consider electrical infrastructure works fall outside the Building Act definition of 'building works'. Accordingly, we allow Mr Genovese no experiential credit for this item.
Item 2 is for the electrical installation of 19 classrooms, carried out at 10 sites from March 2011 until at least June 2012. Again, the evidence suggests these works to have been carried out on site in connection of the buildings to electrical and other services, rather than electrical works that formed part of the building. No credit is allowed for this item.
Claims made for items 3 and 4 concern electrical work at new buildings in Moora and Midland carried out between August 2011 and April 2012. Although we are satisfied that Mr Genovese supervised the electrical works to the buildings which constitutes building work, the situation is clouded because it is clear that he was performing other duties during the same period, including those claimed at items 1 and 2. However, we consider that an allowance should be made for items 3 and 4 on the assumption that electrical workers were on site for a period of two months during the eight month construction period and required supervising and associated administrative works for 50% of that time. We have therefore allowed Mr Genovese a credit of one month.
Item 5 describes an electrical and communications installation of a 45 man camp at a remote mine site in Western Australia between July and November 2011, comprising 11 accommodation units, kitchen and dining room, clinic and two offices. For the same reasons that we rejected Mr Genovese's claim for item 1, we find these works as falling outside the definition of building works. No credit for the item is allowed.
The total credit for experience gained during the most recent period is one month.
Conclusion
On the basis of the credits we consider to be allowable to Mr Genovese as his periods of carrying out or supervising building work, his experience totals 20.2 months. This is well shy of the seven years' experience required for qualification for registration as a building service practitioner under the set in the BS(R) Regulations upon which his application is to be assessed. In those circumstances, the correct and preferable decision is to affirm the Board's refusal to register Mr Genovese as a building service practitioner, and also as a building service contractor, the case for which depended upon his successful registration as a building service practitioner.
Orders
The Tribunal shall issue the following order:
1.The review application is dismissed.
2.The respondent's decision to refuse the applicant's applications for registration as a building service practitioner and a building service contractor is affirmed.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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