Gerhardt v Queensland Building and Construction Commission
[2021] QCAT 67
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gerhardt v Queensland Building and Construction Commission [2021] QCAT 67
PARTIES:
TREVOR GERHARDT
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO/S:
OCR005-20
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
23 February 2021
HEARING DATE:
9 February 2021
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
The decision made on 3 December 2019 refusing Mr Gerhardt’s application for a plumbing and drainage contractor’s licence is confirmed.
CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – OTHER MATTERS – where the applicant believed he possessed both a occupational licence in plumbing and drainage and a contractor’s licence in the same class – where the applicant in fact did not possess a contractor’s licence and made an application for that – where that application was refused on the basis the applicant had not established a course of study undertaken had equivalence to the requisite Certificate qualification required – where there was no evidence that the applicant’s undergraduate degree covered the subject matter of the requisite Certificate qualification
Plumbing and Drainage Act 2018 (Qld) s 56
Queensland Building and Construction Commission Act 1991 (Qld) s 30, s 42, Schedule 2
Queensland Building and Construction Commission Regulation 2018 (Qld) s 3, s 12, Schedule 2 Part 18
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
A Tindall, Robinson Locke Litigation Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Mr Gerhardt holds a number of qualifications in the construction industry.
He understood he held both an occupational and contractor’s plumbing and drainage licence from about 1998 before he was advised in 2019 that he held only the former.
On 20 June 2019 he applied for the latter, a new plumbing and drainage contractor’s licence. That application was refused.
He sought internal review of that decision and his application was again refused on the basis that he had not provided evidence that he held the required qualifications for a contractor’s licence.
Mr Gerhardt has now sought external review of the decision to refuse him a contractor’s licence in the Tribunal.
The two licences scheme in Queensland
In Queensland a suitably qualified person is able to apply for an occupational licence which will permit them to perform regulated plumbing and drainage work. That licence does not allow the person to contract or tender for such work but entitles the person to work as an employee for a licensed contractor.
To be able to contract or tender for plumbing or drainage work independently of employment, a contractor’s licence in that trade is also necessary.
As at the date of Mr Gerhardt’s application for a contractor’s licence the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) defined in Schedule 2 of the Act an occupational licence as:
a licence or registration for an occupation that is—
(a) issued to a person by an entity other than the commission; and
(b) required by the person to carry out the occupation.[1]
[1]Schedule 2.
Section 30 of the QBCC Act separately provided in respect of a contractor’s licence:
Classes of contractors’ licences
(1) A licence (a contractor’s licence) may be issued authorising the licensee—
(a) to carry out all classes of building work; or
(b) to carry out building work of 1 or more classes specified in the licence.
…
(3) A contractor’s licence may be issued for any class of licence.
By s 42 of the QBCC Act it also provided:
Unlawful carrying out of building work
(1) Unless exempt under schedule 1A, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act.
A Note to s 56 of the Plumbing and Drainage Act 2018 (Qld) provides:
A person may be required to hold a contractor’s licence under the Queensland Building and Construction Commission Act 1991 in addition to a licence under this Act to lawfully carry out particular plumbing or drainage work. See section 42 of that Act.
It is not in issue that Mr Gerhardt held at all relevant times and currently holds a plumbing and drainage occupational licence. What is disputed is whether Mr Gerhardt ever held or is entitled to a contractor’s licence in plumbing and drainage.
Did Mr Gerhardt hold an existing contractor’s licence?
The following documentary evidence has been provided by Mr Gerhardt:
(a)A Certificate of Registration number 17549 as a plumber and drainer granted by the Plumbers and Drainers Examination and Licensing Board pursuant to the Sewerage and Water Supply Act 1949 (Qld), effective from 16 July 1998 to 1 July 1999.
(b)A Plumbing Industry Council Licence as Plumber and Drainer number 17549 expiring on 1 July 2016.
(c)A QBCC Plumbing Occupational Licence number 17549 expiring on 1 July 2019.
(d)A QBCC Contractor Licence number 80404 as an open class builder expiring 22 June 2021.
All the above are Queensland licences. Mr Gerhardt also offers some documentary evidence from New South Wales as follows.
(a)New South Wales Department of Technical and Further Education Certificate in the trade of Plumbing dated 31 December 1989.
(b)New South Wales Department of Technical and Further Education statement certifying that he has undertaken a course of instruction in “Journeyman Plumbers Licensing Course” dated 1991.
The relevant iteration of the QBCC Act as at 1998 was entitled the Queensland Building Services Authority Act 1991 (Qld) (‘QBSA Act’) which made provision for contractors’ licences in much the same terms as the current legislation.
A contractor’s licence was provided for and defined as a licence authorising the licensee to carry out, and to supervise, building work. Licence was defined as a licence under “this Act”.[2]
[2]QBSA Act, s 4(1).
By s 30:
Classes of licences.
(1) A licence may be issued authorising the licensee—
(a) to carry out, and to supervise, all classes of building work; or
(b) to supervise (but not to carry out) all classes of building work; or
(c) to carry out, and to supervise, building work of 1 or more classes specified in the licence; or
(d) to supervise (but not to carry out) building work of 1 or more classes specified in the licence.
Building work was defined in much the same terms as the current legislation as relevant:
(c) the provision of lighting, heating, ventilation, air-conditioning, water supply, sewerage or drainage in connection with a building;[3]
[3]QBSA Act, s 4(1).
Section 42 also then provided:
Unlawful carrying out of building work
(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act.
The Queensland Building Services Authority Regulation 1992 (Qld) then applied and made provision for the class of plumbing and drainage at Part 10 of Schedule 2. By
s 3 of that Part what was required was possession of a Plumbing and Drainage Licence issued by the Plumbers and Drainers Examination and Licensing Board.
It is clear that Mr Gerhardt possessed the latter at the relevant time. He believed the licence issued by the Board was both an occupational licence and a contractor’s licence, but he was wrong about that. The Board held no power to issue a contractor’s licence.
Under the former Sewerage and Water Supply Act 1949 (Qld) in force as at 1998 “licence” was defined as a licence (other than an interim licence) in force under Part 3.
Under Part 3 of that Act, s 9 provided:
Classes of licences
The board shall have power to grant licences of the following classes—
(a) a plumber’s licence;
(b) a country plumber’s licence;
(c) a water plumber’s licence;
(d) a drainer’s licence;
(e) a restricted plumber’s or restricted drainer’s licence.
The only licence ever held by Mr Gerhardt in Queensland for plumbing and drainage has been an occupational licence number 17549. He may have thought he was applying for both a contractor’s licence and an occupational licence when he applied to the Plumbers and Drainers Examination and Licensing Board for a licence in or about 1998, but that body only had power to grant an occupational licence and that was what was given him then.
Fresh application
As was therefore necessary, Mr Gerhardt made fresh application to QBCC for a contractor’s licence on 20 June 2019.
QBCC say he has not supplied evidence of his qualification in the class of plumbing and drainage entitling him to a contractor’s licence.
The legislation
Section 31(1) of the QBCC Act provides:
Entitlement to contractor’s licence
(1) A person (not being a company) is entitled to a contractor’s licence if the commission is, on application by that person, satisfied that—
(a) the applicant is a fit and proper person to hold the licence; and
(b) the applicant has the qualifications and experience required by regulation in relation to a licence of the relevant class;
The Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Reg’) is the relevant regulation setting out qualifications and experience. Schedule 2 to that regulation sets out particular qualifications and experience required for various classes of contractor licences. Part 18 of Schedule 2 applies to plumbing and drainage contractor licences as follows:
s 3 Technical qualifications
The technical qualifications stated in the technical qualifications document for the licence class applied for.
The technical qualifications document for the various classes of licence is published by the Department of Housing and Public Works. As at November 2018 when Mr Gerhardt made his application the document provided as relevant:
Part 18 – Plumbing and drainage licence
(a) Either—
(i) Successful completion of the following units of competency from the Certificate IV in Plumbing and Services CPC40912—
(A) Carry out work based risk control processes CPCPCM4011A
(B) Estimate and cost work CPCPCM4012A.
(C) Design and size sanitary drainage systems CPCPDR4011B.
(D) Design and size stormwater drainage systems CPCPRD4012B
(E) Design and size domestic treatment plant disposal systems CPCPDR4013B.
(F) Design and size sanitary plumbing systems CPCPSN4011B.
(G) Design and size heated and cold water services and systems CPCPWT4011B.
(H) Establish legal and risk management requirements of small business BSBSMB401; or
(ii) Successful completion of a course and units of competency of a course the commission considers is at least equivalent to the course and units of competency mentioned in paragraph (a)(i); and
(b) Possession of a plumbers licence and a drainers licence issued by the commissioner under the Plumbing and Drainage Act 2002, other than a provisional licence.
Mr Gerhardt possesses a plumbing licence and a drainage licence as required, but QBCC challenges that he has not shown successful completion of the requisite Certificate IV in Plumbing and Services CPC40912.
Mr Gerhardt does not claim to have that qualification. Instead he submits his tertiary qualification exceeds that of the Certificate IV: he already holds an open builder’s contractor’s licence so is well versed in the intricacies of contracting, and he has long industry experience.
He has a Bachelor of Building Surveying from the Central Queensland University. He has supplied the names of the course subjects completed there over four years.
There is potential for this qualification to represent a course and units of competency equivalent to that of the Certificate IV which is provided for under Part 18(a)(ii) of the technical criteria. Unfortunately there is no information available to make sensible decision about that.
The only information about the subjects completed in the Bachelor degree is to be gleaned from the course subject names, such as Bldg Materials 1, Bldg Sys & Services 1, Bldg Law & Regulations, Professional Practice and Bldg Industry Contracts.
In the internal review decision it was commented that the decision maker was unable to assess whether the Bachelor of Building Surveying was equivalent to the requisite units of competency for a plumber or drainer under Part 18 of the QBCC Reg. That was the basis on which the application was refused on internal review.
Nothing more in that regard has been put forward by Mr Gerhardt in the Tribunal proceedings. I suffer from similar ignorance as did the QBCC review officer.
At hearing Mr Gerhardt commented that he understood the requirement for the Certificate IV qualification was introduced Australia wide by agreement of all States.
Whilst in broad terms a certificate qualification may be accepted as providing both theoretical and practical knowledge and skills for a trade, and a Bachelor qualification considered a superior qualification and a common prerequisite for entry into professions, there is no material before me to permit me to conclude the Bachelor of Building Surveying addresses the matters covered by the Certificate course.
Mr Gerhardt points out that he already holds an open builder’s contractor’s licence and has experience in entering into contracts. I accept that.
However I note that there are some few contractor’s licences for which the technical requirements are best described as fixed, and plumbing and drainage is one such.
Section 12 of the QBCC Reg provides:
12 Qualifications and experience for contractor’s licence— Act, s 31
(1) For section 31(1)(b) of the Act, the qualifications and experience in relation to a licence are the qualifications and experience stated in schedule 2 for the relevant class of licence.
(2) Also, for a class of licence other than a class mentioned in schedule 2, any of parts 18, 19, 22 to 33, 36 and 56, a combination of 2 or more of the following is a qualification for the class if the commission is satisfied the combination is at least equivalent to the required competency for the class—
(a) successful completion of an apprenticeship;
(b) a recognition certificate;
(c) a qualification or statement of attainment of the required competency for any class of licence mentioned in schedule 2;
(d) a written statement issued by an approved authority that the individual has the required competency for the class of licence.
(Underlining added)
Competency in another class of licence such as an open building contractor licence is specifically excluded as a consideration for a plumbing and drainage contractor licence falling under Part 18. The only considerations for Part 18 are the qualifications and experience stated in Part 18, and that involves either completion of the Certificate IV in Plumbing and Services CPC40912 or an equivalent course of study.
It is notable that the exclusionary licences referred to in s 12(2) of the QBCC Reg involve trades shouldering significant safety or construction responsibilities, such as fire protection and detection, gas fitting, termite management – and of course plumbing and draining.
I recognise that Mr Gerhardt’s tertiary qualification may be of superior standing to that of any Certificate qualification in general terms, but without some evidence that the Bachelor of Building Surveying is a course equivalent to the Certificate IV stipulated I am unable to find that Mr Gerhardt has the requisite technical qualifications required for the contractor’s licence set by Part 18.
He would be well advised to obtain the course verification recommended by QBCC in its internal review decision showing his Bachelor of Building Surveying covered the requisite units of competency set by the Certificate IV in Plumbing and Services CPC40912, then make fresh application.
But on the evidence before me I am unable to conclude otherwise than the internal review decision must be confirmed.
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