Ivanovski v Commissioner for NSW Fair Trading, Department of Finance and Services

[2013] NSWADT 274

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Ivanovski v Commissioner for NSW Fair Trading, Department of Finance and Services [2013] NSWADT 274
Hearing dates:	7 November 2013
Decision date:	02 December 2013
Jurisdiction:	General Division
Before:	A Scahill, Judicial Member
Decision:	The decision of the Respondent to refuse the Applicant's application for a contractor's licence in the category of "general building work" is affirmed.
Legislation Cited:	Home Building Act 1989 Home Building Regulation 2004 Licensing and Registration (Uniform Procedures) Act 2002
Cases Cited:	Locking v Department of Finance and Services [2013] NSWADT 239
Category:	Principal judgment
Parties:	Borce Ivanovski (Applicant) Department of Finance and Services (Respondent)
File Number(s):	No 133228

reasons for decision

Introduction

1. Mr Ivanovski has applied for a review of a decision to refuse his application to vary his current Roof Plumbing licence to a contractor's licence in the category of "general building work." The Department of Finance and Services refused that application because Mr Ivanovski had not demonstrated that he has a minimum of two years relevant industry experience in a wide range of building construction work.

1. Mr Ivanovski told the Tribunal that his father had been a builder and that as a result he had spent much of his life on building sites. He was a licensed roof plumber, a director in his business Crown Roofing Pty Ltd. He produced letters in support from both licensed and lay people which spoke highly of the quality of his work. He had been an Owner/ Builder constructing a garage at his home.

Legislative Scheme

1. The Home Building Act 1989, Home Building Regulation 2004 and an Instrument effective 3rd July 2013 in the NSW Government Gazette No. 90, 12 July 2013 together set out the requirements of qualifications and experience necessary for an applicant to be issued a contractor licence in the category of general building work. These are set out below.

1. Section 20(2) of the Home Building Act 1989 (the Act) provides that the regulations may fix or provide for the respondent to determine standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.

1. Section 20(5) of the Act provides that a decision of the respondent relating to the determining of qualifications or other requirements under sub-section (2) cannot be reviewed by the Tribunal in an application for review made under this or any other Act.

1. Clause 28(1) of the Home Building Regulation 2004 provides:

(1) Before a certificate is issued, the Director-General must be satisfied that the applicant:

(a) has such qualifications or has passed such examinations or practical tests, or both, as the Director-General determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and

(b) has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and

(c) is capable of doing or supervising work for which the certificate is required.

1. The current standards and other requirements determined by the Director- General in relation to the qualifications, examinations and experience required for an endorsed licence or supervisor certificate to do or to supervise building work are set out in an Instrument effective 3rd July 2013 (see: NSW Government Gazette No. 90, 12 July 2013). This post-dates the Instrument applying at the time of the Internal Review decision. This is set out below at paragraph 31.

Brief Background

1. On 27 February 2013 the Applicant lodged an application for a variation to his roof plumbing licence no.1280910 in the category of general building work. He wished to obtain a builder's licence. In support of his application, the Applicant submitted the following:

(1) Capital Training Institute Certificate IV in Building and Construction (Building) CPC40110 and Record of Results dated 13 February 2013;

(2) Capital Training Institute Diploma in Building and Construction (Building) CPC50210 and Record of Results dated 13 February 2013;

(3) Referee's Statement building work from Simon Leigh Wilson Licence no. 38304 - category of builder dated 26 February 2013; and

(4) Referee's Statement building work from Nicholas Solar Licence no. 97128C - category of builder dated 26 February 2013

1. On 4 April 2013, the Respondent issued a Notice under section 14 Licensing and Registration (Uniform Procedures) Act 2002 (the LRUPA) to the Applicant requesting further information to allow the application to be further considered.

1. On 18 April 2013 the Applicant provided a letter to the Respondent setting out further aspects of his experience as well as letters from his referees Simon Wilson dated 12 April 2013 and Nicholas Solar dated 11 April 2013.

1. On 14 May 2013 the Respondent advised the Applicant that his application to vary his individual contractor licence to the category of building was refused on the basis he failed to satisfy the practical experience requirements. That is, he did not have a minimum of at least two years relevant industry experience in a wide range of building construction work.

1. On 3rd June 2013, the Applicant's solicitors wrote to the Respondent seeking internal review of the decision. The letter provided submissions on the Respondent's decision and included a TAFE Certificate not previously provided dated October 2001 in relation to Recognising Skills in the Construction Industry. The letter also referred to further examples of building construction work undertaken by the Applicant in addition to the work undertaken with the Applicant's 2 referees Mr Solar and Mr Wilson. The submission did not provide referees' reports in relation to this additional work.

1. On 21st June 2013 the Respondent's officer responsible for internal review Ms Wright, contacted both of the Applicant's referees Mr Solar and Mr Wilson seeking further information about the Applicant's work with them.

Reference from Builder Mr Solar

1. Mr Solar's Referee's Statement dated 26 February 2013 set out that the Applicant had worked with Mr Solar as a sub-contractor between 1st February 2000 to 1st June 2005 to aid the builder in general operations during construction - maintaining the building site; ordering materials; scheduling works and generally helping the builder.

1. Ms Wright's file note of her conversation with Mr Solar records that the Referee spoke positively of the Applicant's work and personal qualities. Specific comments from Mr Solar included:

Site manager does not qualify as a builder. Managed sites on occasions - developed his skills - used him as a roofer - a young lad when he started working with (him)....

Long time ago since he worked with him.

...with any young person - I would not sort of straight away give them a licence- limited to $2000,000 to $300,000."

1. Mr Solar also observed that the Applicant had spent 50/50 percentage of time working generally on site as against specific trade work.

1. Ms Wright's file note concludes her opinion of the outcome from the check as:

Not satisfied that applicant performed a wide range of building work or took on the responsibilities to be a builder.

Reference from Builder Mr Wilson

1. Mr Wilson's referee statement dated 26 February 2013 set out that the Applicant had worked for him as a sub-contractor "for general duties in organising and carrying out work on our projects" from 20 January 2006 to 30 January 2008. He listed the Applicant's roles and responsibilities as having been supervising site, organising labour, ordering materials and carrying out general duties on site.

1. Ms Wright's file note of her conversation with Mr Wilson on 21 June 2013

noted that the Applicant had undertaken roofing and carpentry work and had related to plumbers. The file note set out that the Applicant had:

"(been) held responsible for different subbies.....

(been) foreman on site-leading hand foreman- overseeing other people

He would have talked to the Council...

Architects as well

No large scale estimating

Not really sub-contractors-still have to pay workers comp/super contributions......"

1. Ms Wright concluded "that the applicant had accrued some experience with Mr Wilson as a builder but I am not convinced that it is wide ranging and cannot give him 2 years' experience."

Outcome of Internal Review

1. On 3rd July 2013 the Respondent advised the Applicant that the internal review had confirmed the original decision to refuse the application for a Builder licence. The Respondent's Statement of Reasons stated that the internal reviewer was satisfied that the Applicant had appropriate qualifications, but was not satisfied that the Applicant had the necessary 2 years' experience in a wide range of building work.

The Application for Review by ADT

1. The Applicant filed an Application for Review of this decision with the Tribunal on 30 July 2013. The role of the ADT in these matters is to review the previous decision and to make the correct and preferable decision.

1. The Applicant subsequently provided to the Tribunal further material on 24 September 2013. This included letters from

• G. Mihajlov Civil and Structural Engineer;
• Nick O'Brien, Builder;
• Ivan Juric Manager of Projects and Maintenance Greenway and Banks Realty Pty Ltd;
• Nikolaj Georgievski licensed concreting contractor;
• Raphael Akelian of Raphael Jewellers; and
• Matt Datto, Owner Builder.

1. All attested to having worked with the Applicant on building projects over a period of time and to the quality of the Applicant's work.

1. Of these, only Mr O'Brien was a licensed builder. The definition of "experience" set out in the gazetted instrument of 3rd July 2013 requires that the applicant was

(c) supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work.

1. As a result of this requirement, the Respondent submitted that in respect of all the material provided in support of his application by Mr Ivanovski only the reports of Mr Solar, Mr Wilson and Mr O'Brien were relevant to establishing that Mr Ivanovski had the requisite experience for the granting of a builders licence.

Evidence of builder Mr O'Brien

1. Mr O'Brien's undated letter stated that the Applicant had helped him on site "under my supervision" on a project over a period of 4 months. The letter stated

"He was responsible to manage the site, organising the trades, estimating and ordering materials from suppliers, dealing with architects and engineers etc....

Borce has my highest recommendation as a builder with his site management and excellent building experiences he can undertake any building work."

1. The internal reviewer, Ms Wright contacted Mr O'Brien on 1 November 2013 and made a file note of the discussion. Mr O'Brien confirmed that Mr Ivanovski had worked as a sub-contractor on site with him for a total of 4 months - with some part of that as a roofing plumber and the balance looking after the site. Mr O'Brien considered that the Applicant "is more of a co-ordinator and is good with architects and good co-ordinating the trades and good with people."

1. Ms Wright notes that Mr O'Brien recommended the Applicant for a building licence. Ms Wright also notes that Mr Ivanovski did not have a licence that enabled him to sub-contract with Mr O'Brien and therefore Mr Ivanovski had not been lawfully engaged as required by the gazetted definition of "experience". Mr O'Brien did not subsequently provide a Referee's report in the format required by the Respondent. Nor did he give evidence at the hearing.

Qualifications and Experience

1. The required qualifications and experience for the grant of a builder's licence are set out Clause 28(1) of the Home Building Regulation and the gazetted definitions of qualifications and experience. I am satisfied that Mr Ivanovski has the relevant qualifications. He obtained a Diploma and a Certificate IV in Building and Construction (Building) from Capital Training Institute. The issue in this matter is that of Mr Ivanovski's experience.

Definition of Experience and Analysis of Applicant's Experience

1. The definition of experience is set out in the NSW Government Gazette 12 July 2013 OFFICIAL NOTICES HOME BUILDING REGULATION 2004 as follows

"Experience" means experience gained by the applicant as:

(a) an employee of; or

(b) a person otherwise lawfully engaged by, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where during the relevant period, the applicant was:

(c) supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work; and

(d) financially remunerated for the Work;

1. The Tribunal notes that "experience" for these purposes does not include Owner/Builder experience. The Tribunal also accepts the Respondent's submission that the only relevant references are those provided by licensed builders - Mr Solar, Mr Wilson and Mr O'Brien. The Applicant's referee Mr Solar attests to him as having worked as

• A sub-contractor (not as an employee);
• for some short period responsible to me;
• a site manager - does not qualify as a builder; and
• suggests a limited licence as appropriate.

1. The Tribunal considers that this reference meets neither paragraph a) or b) of the gazetted experience requirements. Further - there is no facility in New South Wales for a limited licence.

1. Mr Wilson ticked the box sub-contractor on the Referee form but Ms Wright's file note states "not really sub-contractor". However the Referee did not specify what percentage of the Applicant's time was spent taking on the responsibilities of a builder. Even if the Tribunal accepted that the Applicant's experience in building work with Mr Wilson was as an employee or as lawfully engaged, there is no indication as to what proportion of the necessary 2 year requirement this provides.

1. The Respondent submitted that the 4 months work with Mr O'Brien could not be taken in to account as the Applicant had worked as a sub-contractor when he was not licensed to do so and therefore was not lawfully engaged as required in paragraph (b) of the definition of "experience". In the absence of further explanation from Mr O'Brien, the Tribunal accepts this submission.

1. Much of Mr Ivanovski's experience has been gained as a sub-contract roofing plumber, as a site manager and by being self-employed. It has not been gained as an "employee".

1. This experience in roof plumbing work and as a site manager is not the equivalent of "a wide range of building construction work" as required by the Instrument. Roof plumbing work is a sub-category of building. It is only one aspect of the work required to be done in order to complete the construction of a residential dwelling.

1. In the matter of Locking v Department of Finance and Services[2013] NSWADT 239 at paragraphs 18-19, Deputy President Hennessy summarised the multiple roles of a builder:

18. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing.

19. A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate.

Conclusion

1. Based on all the evidence, I am not satisfied that Mr Ivanovski has produced evidence from relevant sources that he has a minimum of two years relevant industry experience in a wide range of building construction work as described above by Deputy President Hennessy in the matter of Locking. Accordingly, the correct and preferable decision is to affirm the Department's decision.

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Decision last updated: 02 December 2013