HOWE and PLUMBERS LICENSING BOARD - [2022] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLUMBERS LICENSING AND PLUMBING STANDARDS REGULATIONS 2000 (WA)
CITATION:   HOWE and PLUMBERS LICENSING BOARD [2022] WASAT 91
MEMBER:   MS R PETRUCCI, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   12 SEPTEMBER 2022 (LAST SUBMISSIONS FILED ON 28 SEPTEMBER 2022)
DELIVERED          :   11 OCTOBER 2022
FILE NO/S:   CC 287 of 2022
BETWEEN:   GREGORY WILLIAM HOWE
Applicant
AND
PLUMBERS LICENSING BOARD
Respondent

Catchwords:

Plumbers Licensing and Plumbing Standards Regulations 2000 (WA) - Review of decision refusing to issue plumbing tradesperson's licence - Application of policy - Proper construction of Sch 3, Div 2, cl 3(a) - Turns on own facts

Legislation:

Plumbers Licensing Act 1995 (WA)
Plumbers Licensing and Plumbing Standards Regulations 2000 (WA), reg 3, reg 9(1), reg 9(2), reg 9(3), reg 11, reg 13, reg 17(1), reg 17(1)(a), reg 17(1)(b), reg 100(2), Sch 3, Div 2, cl 3(a), cl 3(a)(i), cl 3(a)(ii), cl 3(b)
State Administrative Tribunal Act 2004 (WA), s 11, s 17(1), s 17(3), s 27, s 29(1), s 29(3)
State Administrative Tribunal Regulations 2004 (WA), Sch 1
Vocational Education and Training Act 1996 (WA), s 60A, s 60C, s 60C(3)(a), s 60E, s 60I, Pt 7, Div 1

Result:

Application unsuccessful
Decision under review affirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr E Homan

Solicitors:

Applicant	:	N/A
Respondent	:	Department Of Mines, Industry Regulation And Safety - Legal Services Division

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Gregory William Howe, is a registered building practitioner (individual) and has worked in the building industry for many years. Mr Howe would like to work as a plumber in Western Australia. To do so, he needs to be licensed under the Plumbers Licensing and Plumbing Standards Regulations 2000 (WA) (Regulations).
Mr Howe applied to the respondent, the Plumbers Licensing Board (Board) for a tradesperson's licence (licence). This is commonly referred to as a 'plumbing tradesperson' licence.[1] However, the Board refused to issue Mr Howe the licence on the basis that he had 'not provided evidence to show that [he] [has] fulfilled the obligations of an apprentice under a training contract' (decision).[2]
[1] Mr Howe's application to the Board in Exhibit 1 at pages 70-74.
[2] Exhibit 1 at page 4.
For the reasons which follow, in our view, the correct and preferable decision is that the licence is not to be issued to Mr Howe. This means Mr Howe's application is unsuccessful, and the decision of the Board is affirmed.

Review jurisdiction

Regulation 100(2) of the Regulations provides that a person who is aggrieved by the Board's decision to refuse to issue a licence may apply to the State Administrative Tribunal (Tribunal) for a review. The application for review must be made within 28 days after the date when the person received notice of the decision in issue.
Mr Howe was notified of the decision by a letter from the Board dated 24 January 2022, although not received by him until 18 February 2022.[3] Mr Howe made his application to the Tribunal on 8 March 2022. We accept that Mr Howe made his application to the Tribunal within the 28 day period referred to in reg 100(2) of the Regulations.
[3] Exhibit 1 at page 273.
Mr Howe's application falls within the Tribunal's review jurisdiction (s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). This means that the Board's decision to refuse to issue the licence to Mr Howe is a reviewable decision for the purposes of the SAT Act (s 17(3)).[4] As provided in s 27 of the SAT Act, the review is by way of a hearing de novo with the purpose of arriving at the correct and preferable decision.
[4] The Tribunal was constituted pursuant to s 11 of the SAT Act read with Sch 1 of the State Administrative Tribunal Regulations 2004 (WA).
By reasons of s 29(1) of the SAT Act, the same functions and discretions of the original decision-maker are conferred on the Tribunal, and s 29(3) of the SAT Act confers power on the Tribunal to give effect to the Tribunal's conclusions on the review of the reviewable decision.
The Tribunal is not limited to a consideration of the material that was before the original decision-maker and may take into account additional material not before the original decision-maker.

Relevant procedural history

The matter was referred to mediation on 5 May 2022 but was not resolved.
On 30 June 2022, the Tribunal made orders to facilitate the filing and serving of a Statement of Issues Facts and Contentions (SIFC) and bundle of documents in support of the Board's position and which are relevant to the Tribunal's review of the decision. In Mr Howe's case, he was ordered to file a statement setting out whether he accepts or rejects each of the issues, facts and contentions identified by the Board in its SIFC and to set out any other issues, facts or contentions he says arises in this proceeding. The parties were also ordered to file a witness statement for each witness they proposed to call. The proceeding was listed for a final hearing on 12 September 2022. The final hearing took place on that day and at the conclusion of the hearing, the Tribunal made orders requiring the Board to file its policy document(s) that were in place when Mr Howe made his application to the Board for the licence and for both parties to file any further written submissions.
Following receipt of the final written submission from Mr Howe on 28 September 2022, we reserved our decision.
At the final hearing on 12 September 2022, the Tribunal marked the following documents, which the parties identified as the documents that they intended to rely on, and to which we have had regard for the purpose of our determination in this proceeding, as an exhibit:
Exhibit 1:Hearing Book prepared by the Tribunal on 14 July 2022 which includes Mr Howe's application dated 8 March 2022 (pages 1 to 3); the decision dated 24 January 2022 (pages 4 to 5); the Board's SIFC (pages 306 to 311), Mr Howe's response to the Board's SIFC (pages 39 to 40), Mr Howe's bundle of documents (pages 6 to 30) and the Board's bundle of documents (pages 61 to 305).[5]
[5]Although forming part of 'evidence', each of the parties' contentions and submissions are taken to be submissions, rather than evidence.
The Tribunal marked the following policy document filed by the Board in response to the Tribunal's orders of 12 September 2022 as an exhibit. It was the Board's policy at the time Mr Howe made his application to the Board for the licence on 26 May 2021.
Exhibit 2:Plumber Licensing Board Policy Qualifications required to obtain a Tradesperson's Licence or a Tradesperson's Licence (Drainage Plumbing) dated 24 August 2020.
Finally, at the final hearing we had the benefit of receiving oral evidence and submissions from Mr Howe and oral submissions from Mr Homan, Assistant General Counsel, Legal Services Division, Department of Mines, Industry Regulation and Safety for the Board.

Issue

In considering this matter, the parties agree that the Tribunal must determine the following issue:
1)Whether, under reg 17(1)(b) of the Regulations, Mr Howe has complied with the requirements set out in Sch 3 of the Regulations in respect of a tradespersons licence, in particular whether, Mr Howe holds a qualification as set out in Sch 3, Div 2, cl 3(a) of the Regulations as follows:
i)a Certificate III in Plumbing attained by fulfilling the obligations of an apprentice under a training contract, as those terms are defined in s 60A of the Vocational Education and Training Act 1996 (WA) (VET Act); or
ii)an equivalent Western Australian qualification as determined by the Board.
Mr Howe contends that due to the current lack of skilled trades available in Australia, the Board needs to cater for this through the recognition of his recognised prior learning (RPL) and proven skills.[6]
[6] Exhibit 1 at page 39.
We will now set out the legal framework relevant to this proceeding by reference to the Regulations and the VET Act. We will then make relevant findings of fact. Finally, we will address the issue for determination.

Legal framework

The objective of the Regulations is to manage the risk to public health. In managing that risk, the Board is authorised to issue licences under the Regulations where specific requirements are satisfied.
The term 'licence' is defined in reg 3 of the Regulations as a 'plumber's contracting licence, tradesperson's licence, tradesperson's licence (drainage plumbing), provisional tradesperson's licence or provisional tradesperson's licence (drainage plumbing)'.
Reg 11 of the Regulations provides that the only classes of licence that may be issued by the Board under the Regulations are:
…
(a)a plumbing contractor's licence;
(b)a tradesperson's licence;
(c)a tradesperson's licence (drainage plumbing);
(da)a provisional tradesperson's licence;
(db)a provisional tradesperson's licence (drainage plumbing); and
(d)a restricted plumbing permit.
As stated earlier, Mr Howe applied for a plumbing tradesperson's licence. A plumbing tradesperson's licence authorises the holder to carry out plumbing work and to supervise the carrying out of plumbing work by an apprentice, pre-apprentice, the holder of a provisional tradesperson's licence or the holder of a provisional tradesperson's licence (draining plumbing) under the general direction and control of a licensed plumbing contractor. This is provided for in reg 13 of the Regulations.
Importantly reg 9(1) of the Regulations provides that a person must not carry out plumbing work of any kind or in any circumstances except in accordance with a licence or permit that authorises that person to carry out plumbing work. However, this requirement does not apply to an apprentice or pre-apprentice who carries out plumbing work under the supervision of a licenced plumbing contractor or the holder of a tradesperson's licence working under the general direction and control of a licensed plumbing contractor (see reg 9(2) of the Regulations). This requirement also does not apply to authorised workers who carry out work in accordance with Part 4A of the Regulations (which concerns basic plumbing work in remote Aboriginal communities). This is provided for in reg 9(3) of the Regulations.
Regulation 17(1) of the Regulations deals with the issue of a licence by the Board. It provides:
…
(1)The Board may issue a licence or permit if the licence fee has been paid and the Board is satisfied that the applicant -
(a)is a fit and proper person to hold a licence or permit; and
(b)has complied with the requirements set out in Schedule 3 in respect of the licence or permit.
The Board accepts that Mr Howe meets the criteria set out in reg 17(1)(a) of the Regulations. However, what is in contest is whether Mr Howe satisfies the requirements of reg 17(1)(b) of the Regulations. That is, whether Mr Howe has complied with the requirements of Sch 3 in respect of the licence.
It is common ground that Mr Howe does not hold a provisional tradesperson's licence and therefore Sch 3, cl 3(b) of the Regulations is not relevant to this proceeding. The result is that the only issue for the Tribunal to determine is whether Mr Howe meets the qualification requirements for a tradesperson's licence as set out in Sch 3, Div 2 cl 3(a) of the Regulations which provides:
3.Tradesperson's licence
The requirements for a tradesperson's licence are that -
(a)the applicant holds -
(i)a Certificate III in Plumbing attained by fulfilling the obligations of an apprentice under a training contract, as those terms are defined in the Vocational Education and Training Act 1996 section 60A; or
(ii)an equivalent Western Australian qualification as determined by the Board;
or
(b)the applicant holds, or has within the preceding 6 months held, a provisional tradesperson's licence and also holds -
(i)a Certificate III in Plumbing (Migrant Gap Training); or
(ii)an equivalent Western Australian qualification as determined by the Board.
Section 60A of the VET Act sets out the following definitions:
60A.Terms used
In this Part -
apprentice means the person who is named in a training contract as the person who will be trained under the contract, whether the person is termed an apprentice, a trainee, a cadet, an intern or some other term;
class, in relation to a qualification, means the class into which a prescribed VET qualification is classified under section 60C;
training contract means a contract that complies with section 60E.
Section 60A of the VET Act is referred to in Sch 3 cl 3(a)(i) of the Regulations (see [25] above). The provision sets out the classification of prescribed VET qualifications as follows.
60C.Classification of prescribed VET qualifications
(1)The Minister must not act under this section without having received and considered the Board's advice and recommendation given after it has consulted in accordance with the regulations.
(2)Any act done by the Minister under this section must be done in writing and be published in the Gazette.
(3)The Minister must classify each prescribed VET qualification that it is possible to confer in respect of occupations, businesses, employments or trades into one of these 3 classes -
(a)class A qualifications, being qualifications that a person cannot obtain except by fulfilling the obligations of an apprentice under a training contract;
(b)class B qualifications, being qualifications that a person may, but need not, obtain by fulfilling the obligations of an apprentice under a training contract;
(c)class C qualifications, being qualifications that a person cannot obtain by fulfilling the obligations of an apprentice under a training contract.
(4)The classification of a prescribed VET qualification does not limit the operation of Division 3.
(5)The Minister may -
(a)classify a prescribed VET qualification on any condition the Minister decides; and
(b)in relation to a class A or class B qualification, impose any requirement for training contracts for the qualification the Minister decides, including but not limited to -
(i)pre‑conditions to be satisfied before training contracts for the qualification can be entered into; and
(ii)the period and terms of the contracts.
(6)The Minister may vary the classification of a prescribed VET qualification and vary or cancel any condition or requirement imposed under subsection (5).
(7)The chief executive must keep and make available to the public a register of this information -
(a)class A and class B qualifications;
(b)any conditions applicable to those qualifications;
(c)any requirements applicable to training contracts for those qualifications.
The Minister for Education and Training classified the following prescribed vocational education and training qualifications as 'Class A' for the purpose of delivery under a training contract in Western Australia under s 60C of the VET Act:[7]
•CPC32413 - Certificate III in Plumbing (superseded - in transition); and
•CPC32420 - Certificate III in Plumbing.
[7] Table of classification of prescribed vocational education and training qualifications at page 9 (attached to Board's submission dated 20 September 2022).
Section 60E of the VET Act sets out the requirements for a training contract as follows:
60E.Training contracts
(1)A training contract is a contract under which -
(a)a person who is or will be an employer agrees the following -
(i)that a person who is or will be an employee will be employed while he or she fulfils the requirements of the contract in order to obtain a class A or class B qualification;
(ii)to train the employee in accordance with the contract;
(iii)to permit the employee to fulfil his or her obligations under the contract and to be trained and assessed in accordance with the contract;
(iv)that any time spent by the employee in performing his or her obligations under the contract and in being trained and assessed under the contract, whether at the employer's workplace or not, is to be taken for all purposes (including the payment of remuneration) to be time spent working for the employer;
and
(b)the employee agrees to fulfil his or her obligations under the contract and to be trained and assessed in accordance with the contract.
(2)With the approval of the chief executive, 2 or more employers may enter into a training contract with one apprentice.
(3)A training contract must do the following -
(a)state the class A or class B qualification to which the contract relates;
(b)comply with the regulations and with any requirements imposed under the regulations.
(4)Subject to the regulations, a training contract -
(a)may be varied by the parties; and
(b)may be suspended by a party; and
(c)may be assigned by the employer to another person who employs the apprentice.
Section 60I of the VET Act concerns the conferring of prescribed VET qualifications to competent persons as follows:
60I.Conferring prescribed VET qualifications to competent persons
(1)Subject to the regulations, a registered training provider may confer a class A qualification on a person who -
(a)has not entered into a training contract under Division 2 in respect of the qualification; or
(b)has entered into such a contract as an apprentice but has only partly fulfilled the apprentice's obligations under it,
if, after assessing the person, the provider is satisfied the person nevertheless has, as a result of training received from an employer and other learning, the skills and competency required for the qualification.
(2)Subject to the regulations, a registered training provider may confer a class B qualification on a person who -
(a)has not entered into a training contract under Division 2 in respect of the qualification; or
(b)has entered into such a contract as an apprentice but has only partly fulfilled the apprentice's obligations under it; or
(c)has not undertaken or successfully completed an approved VET course in respect of the qualification,
if, after assessing the person, the provider is satisfied the person nevertheless has the skills and competency required for the qualification.
(3)Subject to the regulations, a registered training provider may confer a class C qualification on a person who has not undertaken or successfully completed an approved VET course in respect of the qualification if, after assessing the person, the provider is satisfied the person nevertheless has the skills and competency required for the qualification.
(4)Subject to the regulations, a registered training provider may confer an approved VET qualification on a person who has not undertaken or successfully completed an approved VET course in respect of the qualification if, after assessing the person, the provider is satisfied the person nevertheless has the skills and competency required for the qualification.

Material facts

We make the following findings of fact, which are agreed by the parties and are uncontroversial.
1)On 26 May 2021, Mr Howe applied for the licence. In support of his application, Mr Howe attached his Certificate III in Plumbing with a course code of CPC32413 dated on or about 3 June 2020 (qualification) issued by Avante Education Pty Ltd (Avante).
2)Avante is a recognised training organisation.
3)Mr Howe gained his qualification through RPL and not as an apprentice under a training contract or otherwise.
4)The Board had determined, at the time of Mr Howe's application to the Board for the licence, that a Certificate III in General Plumbing and Gas Fitting with a course code of 51543 is an equivalent Western Australian qualification for the purposes of Sch 3 cl 3(a)(ii) of the Regulations. That course was offered in Western Australia from 2005 to 2009.
5)Mr Howe does not hold a Certificate III in General Plumbing and Gas Fitting with a course code of 51543.

We now turn to consider the issue before us.

Consideration of the issue

The only issue for us to determine is whether, Mr Howe meets the qualification requirements for the licence as set out in Sch 3, Div 2, cl 3(a) of the Regulations. It is useful to restate here what those requirements are:
3.Tradesperson's licence
The requirements for a tradesperson's licence are that -
(a)the applicant holds -
(i)a Certificate III in Plumbing attained by fulfilling the obligations of an apprentice under a training contract, as those terms are defined in the Vocational Education and Training Act 1996 section 60A; or
(ii)an equivalent Western Australian qualification as determined by the Board[.]
Mr Howe concedes that he did not obtain his qualification by completing an apprenticeship under a training contract. However, it is Mr Howe's submission that his many years of trade experience along with recommendations from licensed tradespersons are factors the Board should have taken into account when considering his application for the licence. It is Mr Howe's view that his extensive experience, as evidenced by his RPL as certified by Avante, makes up for not having completed an apprenticeship under a training contract. Mr Howe contends that:
The … Board does not have in place a process to consider all avenues of an equivalent qualification therefore another process to consider all aspects needs to be put in place in order for [his] application to be fairly considered with the RPL and Certificate III [in Plumbing] obtained however the qualification required is a Cert[ificate] III in [P]lumbing regardless of how is (sic) was attained[.][8]
[8] Mr Howe's submission dated 28 September 2022 at page 1.
While we understand Mr Howe's position, we cannot accept it as a basis for the Board issuing a licence to him under the Regulations. The reasons for this are as follows.
First, the requirements in Sch 3, Div 2, cl 3(a) of the Regulations are alternatives. In other words, a person seeking a tradesperson's licence is only required to satisfy one of the two alternative requirements. However, if neither of the two alternative requirements is satisfied, then the person applying for a plumbing tradesperson's licence cannot be issued that licence under reg 17(1) of the Regulations.
We will start by considering the first alternative, that is whether Mr Howe obtained his Certificate III in Plumbing by fulfilling the obligations of an apprentice under a training contract.
The Board contends that the apprenticeship referred to in Sch 3, Div 2, cl 3(a)(i) of the Regulations is to be properly construed as an apprenticeship in plumbing otherwise the reference to the Certificate III in Plumbing would make no sense.
In its policy,[9] the Board sets out that a person applying for a plumbing tradesperson's licence must provide to the Board:
(a)a Certificate III in Plumbing with a course code of CPC32413, CPC32412, CPC32411, CPC32408 or BCP30103 issued by a registered training provider; and
(b)evidence that the Certificate III in Plumbing was attained by successfully completing a plumbing apprenticeship under a training contract.
[9] Exhibit 2 at page 3.
We do not understand Mr Howe to contend that he completed an apprenticeship which the Board has failed to consider for the purposes of Sch 3, Div 2, cl 3(a)(i) of the Regulations. Rather, we understand Mr Howe's position to be that he completed the Certificate III in Plumbing through RPL.
It is Mr Howe's submission that how he achieved his Certificate III in Plumbing should have no bearing on whether he can be issued the licence by the Board.[10] We do accept this. This is because in the context of the Regulations which concern the 'Plumbers Licensing and Plumbing Standards', the term 'apprenticeship under a training contract' in Sch 3, Div 2, cl 3(a)(i) of the Regulations is, in our view, properly construed to mean an apprenticeship in plumbing which is done under a training contract. In other words, in our view, how the Certificate III in Plumbing is achieved does have a bearing under the current Regulations when the Board is considering an application for a plumbing tradesperson's licence. Schedule 3, Div 2, cl 3(a)(i) of the Regulations as currently worded does not recognise RPL.
[10] Mr Howe's submission dated 28 September 2022 at page 1.
We find that Mr Howe conceded (correctly) that he does not hold a Certificate III in Plumbing attained by fulfilling the obligations of an apprentice under a training contract as those terms are defined in s 60A of the VET Act (see above at [26]). This means that in order for Mr Howe to be issued the licence he must satisfy the second alternative, that is Sch 3, Div 2, cl 3(a)(ii) of the Regulations. In other words, in order for us to set aside the decision of the Board, we must find that Mr Howe holds an equivalent Western Australian qualification as determined by the Board.
It is the Board's contention that Sch 3, Div 2, cl 3(a)(ii) of the Regulations does not allow for a case by case assessment of varying criteria and the ad hoc acceptance of experience, no matter how extensive or long that experience is, as an appropriate qualification. Rather, the Board's position is that criteria in cl 3(a)(ii) requires:
a)the equivalent qualification must be a Western Australian qualification; and
b)equivalency must be determined by the Board.
Mr Howe can only be granted the licence if he 'holds an equivalent Western Australian qualification as determined by the Board' as provided for in Sch 3, Div 2, cl 3(a)(ii) of the Regulations. If Mr Howe does not satisfy this requirement, he will have failed to meet both of the alternative requirements set out in Sch 3, Div 2, cl 3(a) of the Regulations with the result that he cannot be issued the licence.
Schedule 3, Div 2, cl 3(a) of the Regulations requires the person applying for a plumbing tradesperson's licence to 'hold' an equivalent Western Australian 'qualification' as determined by the Board.
Neither the Regulations nor the Plumbers Licensing Act 1995 (WA) define the terms 'hold' and 'qualification'.
Ordinarily the verb to 'hold' means the action or fact of having, keeping, possessing; to have ownership of, to keep as one's own.[11]
[11] Macquarie Online Dictionary and Oxford English Dictionary Online.
The noun 'qualification' ordinarily means a quality or accomplishment which qualifies or fits a person for a certain position, function or office; the completion of a course or training programme which confers the status of a recognised practitioner of a profession or activity; a required circumstance or condition imposed by law or custom, which must be satisfied before holding an office, or the like.[12]
[12] Ibid.
It is useful to reflect on what Sch 3, Div 2, cl 3 of the Regulations provided prior to the amendments on 19 December 2014. It provided as follows:
3.Tradesperson's licence
The requirements for a tradesperson's licence are that -
(a)the applicant holds -
(i)a Trade Certificate in Plumbing and Gas fitting issued by the Director of Industrial Training; or
(ii)a qualification in plumbing or gas fitting that has been classified under the Vocational Education and Training Act 1996 section 60C(3) as a class A qualification; or
(iii)a Western Australian qualification determined by the Board as equivalent to a qualification referred to in subparagraph (i) or (ii);
or
(b)the applicant -
(i)holds a recognised qualification in plumbing work at registration level; and
(ii)provides evidence to the satisfaction of the Board of at least 4 years' practical experience in plumbing work;
or
(c)the applicant -
(i)has passed a test in plumbing work, involving both theoretical and practical components, conducted by an approved person or body; and
ii)provides evidence to the satisfaction of the Board of at least 4 years' practical experience in plumbing work.
In our view the previous requirements (that is prior to the amendments on 19 December 2014), as set out in the immediately preceding paragraph, were much broader, allowing the Board to accept applications for a plumbers tradesperson's licence based on RPL. By way of observation, we note that if Mr Howe had applied for the licence prior to 19 December 2014 the Board may have reached a different decision. However, as Mr Howe applied for a licence on 26 May 2021, we must apply the law in force as at that date, which as we have already discussed, is that set out in Sch 3 cl 3(a) of the Regulations as set out above at [33].
It is clear that the amendments to Sch 3, Div 2, cl 3(a) on 19 December 2014 narrowed the requirements to obtain a licence under the Regulations whilst still allowing the Board to determine equivalent Western Australian qualifications.
The Board submits that Mr Howe, at the time he made his application to the Board could not hold a qualification as determined by the Board to be an equivalent Western Australian qualification as required by Sch 3, Div 2, cl 3(a)(ii) of the Regulations if Mr Howe was effectively asking the Board to approve his qualification as being an equivalent as part of the process of assessing his application for the licence. This is because, according to the Board, the proper construction of Sch 3, Div 2, cl 3(a)(ii) of the Regulations requires qualifications to have been determined as a Western Australian equivalent by the Board prior to, and separate from, the application for a licence process. In other words, the Board's position is that Mr Howe's qualification was required to be identified (and be a Western Australian equivalent as determined by the Board) by Mr Howe in his application to the Board.
Further, the Board submits that reg 17(1)(b) read with Sch 3, Div 2, cl 3(a) of the Regulations does not establish a process under which the Board is empowered or obliged to assess each application for the plumbers tradesperson's licence that does not disclose the person's primary qualification or a previously determined equivalent qualification in order to decide whether the person can be issued a licence on some other basis, for example where the person is competent without having completed a plumbing apprenticeship.
The Board states that the conferral of the qualification required by Sch 3, Div 2, cl 3(a)(i) of the Regulations, by demonstrating competence outside of an apprenticeship, has not been determined by it as an equivalent qualification for the purposes of Sch 3, Div 2, cl 3(a)(ii) of the Regulations. Because of this, the Board contends that Mr Howe's qualification obtained by demonstrating competence outside of an apprenticeship cannot be the basis for the Board (or the Tribunal on review) to issue the licence to him.
In our view, Sch 3, Div 2, cl 3(a) of the Regulations properly construed requires the person at the time when applying for a plumbers tradesperson's licence must hold either:
a)a Certificate III in Plumbing under a plumbing apprenticeship; or
b)an equivalent Western Australian qualification that has been determined by the Board.
The only qualification the Board had determined at the time Mr Howe applied for the licence that it would accept, as being a Western Australian equivalent qualification for the purposes of Sch 3 cl 3(a)(ii) of the Regulations is the Certificate III in General Plumbing and Gas Fitting with a course code of 51543. That course is no longer offered in Western Australia, but it was available from 2005 to 2009. The Board's policy reflects this. That is, there is only one equivalent qualification for the purposes of Sch 3, Div 2, cl 3(a)(ii) of the Regulations.
The Board states that no other qualifications have been determined by it to be equivalent Western Australian qualifications for the purposes of Sch 3, Div 2, cl 3(a)(ii) of the Regulations. It is the Board's position, that qualifications obtained through RPL are not an equivalent qualification for the purposes of Sch 3, Div 2, cl 3(a)(ii) of the Regulations.
We note that in the application form completed by Mr Howe under the heading 'Qualifications'[13] the following is provided:
The Board may accept an alternative qualification that it determines is equivalent to a scheduled qualification. An applicant with an alternative qualification must explain why the Board should accept that qualification. Phone the department on 1300 489 099 if your qualification is not listed above.
[13] Exhibit 1 at page 74.
There is only one qualification listed in the application form in the section under the heading 'Qualifications'. It is the 'Certificate III in Plumbing attained by completing a relevant apprenticeship'. Mr Howe did not answer 'yes' or 'no' to the question on the application form as to whether he had completed an apprenticeship in plumbing and had achieved the Certificate III in Plumbing. There is no evidence before the Tribunal that Mr Howe telephoned the Board to discuss his qualification by RPL and to explain why the Board should accept that qualification prior to him making his application to the Board for the licence.
In any event, in our view, at the time Mr Howe made his application for the licence, the Board had determined that only the Certificate III in General Plumbing and Gas Fitting with a course code of 51543, which Mr Howe does not have, is the only equivalent qualification for the purposes of Sch 3, Div 2, cl 3(a)(ii) of the Regulations. Because of this it was not open to the Board (or the Tribunal on review) to issue the licence to Mr Howe because he did not hold an equivalent qualification when he made his application for the licence. Further, and in the alternative, in our view as the conferral of the qualification by demonstrating competence outside of an apprenticeship had not been determined by the Board to be an equivalent qualification for the purposes of Sch 3, Div 2, cl 3(a)(ii) of the Regulations the Board (or the Tribunal on review) could not issue the licence to Mr Howe.
Finally, the Board accepts that s 60I of the VET Act contemplates 'class A' qualifications may be determined by demonstrating competence. However, the Board submits that s 60I is inconsistent with the definition of a 'class A' qualification in s 60C(3)(a) of the VET Act which provides that the qualification can only be obtained by fulfilling the obligations of an apprentice under a training contract. Having said that, the Board accepts that plumbing and gas fitting is a 'class A' qualification that can be conferred to a person who has demonstrated competence and that this was the basis upon which Mr Howe was conferred his qualification by Avante, and that, but for the lack of a plumbing apprenticeship, Mr Howe would have satisfied the requirements of Sch 3, Div 2, cl 3(a)(i) of the Regulations.
In conclusion, in our view, Mr Howe has not obtained his qualification by fulfilling the obligations of an apprentice under a training contract, and therefore he has not satisfied the requirements of Sch 3, Div 2, cl 3(a)(i). Further, we are of the view that Mr Howe does not hold an equivalent Western Australian qualification as determined by the Board and therefore does not satisfy the requirements of Sch 3, Div 2, cl 3(a)(ii) of the Regulations. The result is Mr Howe cannot be issued the licence.

Conclusion

For the above reasons, Mr Howe's application is unsuccessful. The result is that we affirm the decision of the Board dated 24 January 2022.

Orders

The Tribunal orders:
1.The decision of the respondent dated 24 January 2022 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
11 OCTOBER 2022