MONASTRA and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
[2011] WASAT 7
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: MONASTRA and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2011] WASAT 7
MEMBER: MR T CAREY (MEMBER)
MR D MOUCHEMORE (SESSIONAL MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 17 NOVEMBER 2010
DELIVERED : 17 JANUARY 2011
FILE NO/S: VR 144 of 2010
BETWEEN: GIUSEPPE MONASTRA
Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Registration as a builder - Review of decision refusing application for registration - Ground in s 10(1)(iv)(V) relied upon - Whether requirement of experience in the work of building construction as a manager or supervisor met - Whether the applicant 'fit and competent to carry out building work' - Relevance of other grounds to s 10(1)(iv)(V) ground - Competence in respect of different types of buildings required - Applicant's experience considered
Legislation:
Builders' Registration Act 1939 (WA), s 2, s 10, s 10(1), s 10(1)(b)(iv), s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(V), s 14
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Application unsuccessful
Category: B
Representation:
Counsel:
Applicant: Ms A Dowely
Respondent: Mr M Mannes (Acting as Agent)
Solicitors:
Applicant: Contract Intelligence Pty Ltd
Respondent: Builders' Registration Board of Western Australia
Case(s) referred to in decision(s):
Re Ryan; Ex Parte Travaglini [1979] WAR 23
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought review of the respondent's rejection of his application to be registered as a builder.
Although the respondent's notification referred to a failure to accumulate the required five years' experience in the work of building construction as a manager or supervisor, it was made clear at the hearing that the respondent regarded the matter as turning on the question of whether the applicant is fit and competent to carry out building work, being the second of the two conditions for registration under the ground upon which the applicant relied (s 10(1)(b)(iv)(V) of the Builders' Registration Act 1939 (WA)).
The Tribunal was satisfied, in light of the respondent's failure to seriously contend the point, and based on the evidence, that the applicant had acquired the five years' experience required by the s 10(1)(b)(iv)(V) ground.
In considering the question of fit and competent, the Tribunal noted this required a qualitative examination of the experience credited for the purpose of the first condition, having regard to the other alternative grounds for seeking registration, in particular, s 10(1)(b)(iv)(I). The Tribunal also commented on the range of building types in respect of which competence must be demonstrated.
The Tribunal, having set out details of 13 building projects upon which the application relied, was not satisfied that the applicant should be regarded as fit and competent to carry out building work based on his experience. In reaching this conclusion, it found:
a)that the majority of the 13 projects comprised either owner-builder projects or projects where a familial or business relationship with the builder was involved;
b)that two projects comprising the first and third longest periods of claimed supervision were not conducive to providing the applicant with the support usually expected; and
c)the limited number of projects relied upon over an extended period fell well short of what would be the case of a fulltime supervisor in either residential housing or commercial building construction.
The Tribunal accordingly dismissed the review application and affirmed the decision of the respondent.
The application for review and nature of the review
On 7 April 2010, the applicant (Mr Monastra) applied to the Builders' Registration Board (Board) for registration as a registered builder pursuant to s 10(1)(b)(iv)(V) of the Builders' Registration Act 1939 (WA) (BR Act).
By a letter dated 29 July 2010, the Board informed Mr Monastra that his application had been refused. Although expressly disavowing its status as the Board's formal reasons for decision, the letter referred, as a ground of refusal, to Mr Monastra's alleged failure to accumulate sufficient relevant experience in the work of building construction as a manager or supervisor. Mr Monastra seeks to have the Board's decision set aside and an order made that he be granted registration as a builder.
The decision is reviewable by the Tribunal pursuant to s 14 of the BR Act. The review is by way of a hearing de novo with the purpose of arriving at the correct and preferable decision, and is not confined to the matters before, nor the reasons for decision provided by, the decisionmaker: s 27 of the State Administrative Tribunal Act 2004 (WA).
The constitution of the Tribunal is such that we are, in exercising our review jurisdiction, able to make use of the specialist knowledge and experience of the builder members relating to the building-related issues which are central to determining the application.
Statutory requirements for registration
Section 10 of the BR Act contains requirements for an individual to be registered as a registered builder. We set out the contents of s 10(1) to the extent that they are relevant to this matter here:
(1)Any person, not being a company or any other body corporate, who applies to be registered under this section as a registered builder shall, subject to subsections (2a) and (2b), be entitled to be so registered if and when -
(a)he has paid the prescribed fees for such registration; and
(b)he has satisfied the Board that he -
(i)has attained the age of 21 years; and
[(ii)deleted]
(iii)is a person of good character; and
(iv)(I)has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders;
(iv)(II)although not having complied with the requirements of item (I) has nevertheless had such experience in the work of a builder elsewhere than in the State, as to render him in the opinion of the Board, arrived at in such manner as the Board thinks fit, competent to carry out building;
(iv)(III)although not having complied with the requirements of item (I) or item (II) has nevertheless had such experience in the work of a builder within the State, but outside the area to which this Act applied at the time he gained such experience, as to render him in the opinion of the Board, arrived at in such manner as the Board thinks fit, competent to carry out building;
(iv)(IV)although not having complied with the requirements of item (I), (II) or (III) has nevertheless had at least 5 years' practical experience in the work of building construction and has obtained corporate membership of the Australian Institute of Building; or
(iv)(V)although not having complied with the requirements of item (I), (II), (III) or (IV) has nevertheless had 5 years' experience in the work of building construction as a manager or supervisor and satisfies the Board that he is fit and competent to carry out building work,
...
We will refer to each successive alternative within s 10(1)(b)(iv) as item (I), item (II), item (III), item (IV) and item (V) respectively.
Issues
Based on the filed documents and oral submissions of the parties, the principal issue we must determine is whether, standing in the shoes of the Board, we are satisfied that Mr Monastra is fit and competent to carry out work, as required by item (V).
We must also address the other requirement appearing in item (V), upon which the Board's letter of decision focussed, namely, whether or not Mr Monastra has had five years' experience in the work of building construction as a manager or supervisor.
For convenience we will deal with these issues in reverse order.
Has Mr Monastra the required five years' experience in the work of building construction as a manager or supervisor?
The parties have produced useful charts setting out and providing details in relation to 16 separate building projects upon which Mr Monastra bases his claims for registration under item (V). The last three of the 16 projects (both in time and where they appear in the charts) are no longer relied upon and we discount them from our consideration.
Going on the chart produced on Mr Monastra's behalf (exhibit D), consideration of the 13 remaining projects is said to disclose that Mr Monastra has been engaged in the relevant capacity (in the work of building construction as a manager or supervisor) for a total of nine years and 3.8 months going back to 1981. This total is well in excess of the five year requirement.
The Board itself has allowed a number of credits for Mr Monastra's experience in respect of the period 2004 to date. Some of its allowances are variable; that is, it agrees that some credit is appropriate, but not necessarily that claimed by Mr Monastra. In three instances, it contends either for a maximum credit in respect of which it is open to us to reduce the period credited, or for a credit to be determined by us which is less than that contended for. Assuming no such reduction, the resulting total credit supported by the Board is four years and 8.3 months, just shy of the five year requirement.
It was pointed out to counsel for the Board that its formal position that Mr Monastra's relevant experience was less than five years was susceptible, particularly having regard to the fact that much of the earlier asserted experience was rejected on the basis of a lack of verification. This lack of evidence has, at least to some extent, been the subject of fresh evidence adduced as part of the Tribunal's prehearing processes. Counsel's response was that adverted to above, that the preeminent issue for the Board is whether Mr Monastra's experience qualifies him as someone who is fit and competent to carry out building work. It was to this issue that all its oral submissions were directed, despite no formal concession having been made on the length of relevant experience for the purpose of item (V).
Assessing whether different periods of time should or should not be credited, with a view to determining whether a particular minimum standard of experience has been reached, can be difficult and time consuming. The Tribunal would never shy away from undertaking such a task where the issues joined by the parties required it to do so. However, where the Board exhibits the attitude it has in this matter of committing its energies entirely in making the case that the second of the requirements under item (V) cannot be satisfied, it is not for us to make good the alternative ground upon which the original decision might have been supported.
We find, based upon the evidence, including exhibit D, that, for the purposes of item (V), Mr Monastra has at least five years' experience in the work of building construction as a manager or supervisor.
Is Mr Monastra fit and competent to carry out building work?
(a) Meaning of 'fit and competent to carry out building work'
Item (V) is the final of five alternate conditions under s 10(1)(b)(iv) which must be satisfied in order to obtain registration. It is, we think, noteworthy that subsequent to item (I), each item commences with the formula:
... [the registration applicant] although not having complied with the requirements of item [all preceding items to that item] has nevertheless ...
We believe that this suggests a strong hierarchical relationship between all the items, in terms of the standard of knowledge and competency expected of the registration applicant, with the standard prescribed in item (I) sitting at the top of the hierarchy.
In addition, item (I) has the most objective criteria of the items. It is satisfied upon completion of a prescribed training course, practical experience of at least seven years of the types referred to, and passing a prescribed examination. With the exception of item (IV), which deals with the somewhat exceptional circumstance of attaining corporate membership of the Australian Institute of Building, all the other items include a requirement for the Board to form the opinion that the applicant is fit and competent to carry out building work. Logic demands that in undertaking an assessment whether such an opinion can be arrived at, regard must be had to the objective criteria of item (I). In the words of counsel for the Board, item (I) sets a 'gold standard' for the rest, a submission with which we agree. We might add that we did not understand Mr Monastra to argue to the contrary.
The consequence for the present application is that in order for Mr Monastra to be successful, he must persuade us that his experience has equipped him with knowledge and competence which are comparable with that which would have resulted had he undertaken the course and the experience, and passed the examination, in accordance with item (I). This requires us to examine, on a qualitative basis, the experience with which Mr Monastra is credited, under the first requirement of item (V), in the work of building construction as a manager or supervisor.
An issue arose at the hearing as to the range of buildings in respect of the construction of which it was necessary for Mr Monastra to demonstrate the required experience and competence. Guidance on that issue is provided by observations of the members of the Full Court of the Supreme Court in Re Ryan; Ex Parte Travaglini [1979] WAR 23 (Ryan).
Burt CJ said in Ryan (at 28):
So as it seems to me, the question comes down to this: is it enough for the purposes of item (V) that the applicant be competent to carry out building work of a particular class or description, or is it necessary that he be competent to carry out building work in a more general sense and so to be competent, as the magistrate held, to carry out the building work which would be associated with buildings to be built for the purposes mentioned with the definition 'building'.
I have concluded that the latter view is correct and that the magistrate was correct in so holding. ...
Wickham J agreed and added that '... the applicant must be qualified in the erection or structural alteration of all the classes of building mentioned in the definition'.
The definition of 'building' to which the above passages refer is that referred to in s 2 of the BR Act in the following terms:
building means any building of a permanent nature used or intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional, assemblage, or public purposes, but does not include a farm building, and the term used as an abstract noun means the erection or structural alteration of any such building;
In Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 (Thorp), a panel of the Tribunal including Senior Member Raymond indicated that the relevant requirements need to be applied in a 'practical commonsense way'. This was because building activities between buildings designed for manufacturing purposes may not alter significantly from those designed for trading or commercial purposes. The Tribunal went on (at [22]):
... Nevertheless, for registration under item (V), the BR Act clearly intends that there be a wide range of building experience, such that experience can be demonstrated in construction of the classes of buildings stated. Based on that experience, the Board must be satisfied that the applicant is fit and competent to carry out building work. It will consequently be no easy matter to satisfy the requirements of item (V). While we shall turn to deal in more detail with the contentions in relation to owner/builders, it is obvious that it will be extremely difficult for someone to gain the experience required under item (V) as an owner/builder or by assisting an owner/builder, if such experience is permitted.
We will return to the owner/builder issue later in these reasons.
(b) Relevant experience
In his application to the Board, Mr Monastra listed his experience in the building industry as follows (we have numbered each item consecutively, which numbers correspond with the 13 items in the parties' charts):
| Employer | Position Held | Date from | Date to | |
| 1) | Owner builder (Lic.No. 23-276-1) | Building Manager | October 1981 | May 1982 |
| 2) | Owner builder (Lic.No 23-276-1) | Building Manager | July 1982 | January 1983 |
| 3) | BR Phelan (Lic No. 89/13190) | Building Supervisor | October 1989 | November 1990 |
| 4) | Owner builder (Lic. No 9500-450) | Building Manager | March 1995 | July 1995 |
| 5) | RDA Construction (Lic. No. 9700554) | Building Supervisor | June 1997 | February 1998 |
| 6) | Owner builder (Lic No. 9901360) | Building Manager | July 1999 | September 1999 |
| 7) | RDA Construction (Lic. No. 9901141) | Building Supervisor | September 1999 | May 2000 |
| 8) | Fremantle Steel Fabrication | Building supervisor | March 2002 | December 2003 |
| 9) | M.Urbano (nee Monastra) | Building & Site | July 2004 | December 2006 |
| 10) | Owner Builder (Lic. No. 041117) | Manager & Outstore construction | January 2005 | June 2006 |
| 11) | F & E. Reale (owner builders) | Building & Site Manager & Outstore construction | July 2007 | January 2009 |
| 12) | A L Mitchell | Building supervisor | January 2006 | May 2008 |
| 13) | K F Bucat | Building supervisor | May 2007 | Current |
In Mr Monastra's chart of building work (exhibit D), and consistent with his oral submissions, Mr Monastra's role was described exclusively as that of supervisor in relation to each of the projects.
Below is a list of addresses, description of works and Mr Monastra's role and responsibilities on the project relating to each item as set out in exhibit D:
| Site Address | Description of Works | Applicant's Role and Responsibilities on Project | |
| 1) | 35 Cooper Road, Jandakot, WA | Stage 1 - office and warehouse | Calculated material quantities and undertook all outsourcings of work to subcontractors. Scheduled trades and supervised contractors on site for the duration of the job to ensure compliance with specifications |
| 2) | 35 Cooper Road, Jandakot, WA | Stage 2 - workshop | Calculated material quantities and enga[g]ed contractors and suppliers, scheduled trades and undertook all supervision of contractors on site for the duration of the job. |
| 3) | 35 Cooper Road, Jandakot, WA | Factory and office complex | Calculated material quantities, engaged suppliers and contractors for work and undertook all supervision of contractors on site for the duration of the job. |
| 4) | 35 Cooper Road, Jandakot, WA | Laboratory production building (wash down bay) | Calculated material and undertook all contracting and supervision of contractors on site for the duration of the job. Trade work included assistance in the erection of steel work, grano work and work involved in final internal fit out. |
| Site Address | Description of Works | Applicant's Role and Responsibilities on Project | |
| 5) | Fremantle Steel Fabrication Princep Road, Jandakot WA | Factory units | Supervised, instructed and engaged contractors on site on behalf of owner. Ensured time and cost compliance of job according to owner's budget. Liaised with builder on behalf of owner. |
| 6) | Unit 6 Cooper Road, Jandakot WA | Office - addition and abolition block renovations | Estimated and prepared material quantities, instructed contractors, reviewed quotes, scheduled trades and undertook all supervisor duties of trades on site. Trade work included in erection of concrete precast panels, tiling and final internal fit out of office building |
| 7) | Fremantle Steel Fabrication Princep Road, Jandakot WA | Factory and office complex | Supervised, instructed and engaged contractors on site on behalf of owner. Ensured time management of job and cost compliance of job according to owner's budget. Undertook material scheduling and liaised with builder on behalf of owner. |
| 8) | Lot 600 Princep Road, Jandakot | 2 storey office complex | Heavily involved in the decisions concerning the design management of the entire project for the owner. Undertook all supervision and instruction of trades on site. Undertook material scheduling and job scheduling of contractors on site. Ensured compliance with council and building specifications and maintained time and cost budgets. |
| 9) | Lot 124 Belladonna Drive, Yangebup WA | 2 storey home and outstore | Heavily involved in the decisions concerning the time management and running of the entire project for owner. Undertook material estimates and scheduling. Directed and controlled all building work. |
| 10) | Lot 600 Cutler Road, Jandakot WA | Workshop extension, carpark, storeroom and fire services station | Heavily involved in the decisions concerning the design management of the entire project for the owner. Under took all supervision and instruction of trades on site for builder to ensure compliance with plans and council specifications while maintaining time and cost budgets. |
| Site Address | Description of Works | Applicant's Role and Responsibilities on Project | |
| 11) | 8 Bingham Drive, Success WA | Construction of outs[t]ore | Heavily involved in the decisions concerning the time management and running of the entire project for owner. Undertook estimates for supplies. Instructed and controlled all building supervision on site. Ensured compliance with plans and council and building specifications. Construction of outstore included bricklaying, wall and floor tiling, roof plumbing, site surveying, steel fixing and grano work. |
| 12) | Lot 600 Cutler Road, Jandakot WA | Factory extensions | Supervised, instructed and engaged contractors on site on behalf of the builder. Undertook material quantities and ordered necessary materials as job required. Managed and controlled trades on site. Ensured time and cost compliance of job according to builder's budget. |
| 13) | Mayor Road, Coogee Lunago Terrace | Residential homes | Builder assisted Supervision of a number of residential projects including (those listed). Involved with liaising with trades and the builder, ensuring all building work done in accordance with approved plans, ensure timely coordination of subcontractors on site and that work completed to a satisfactory standard. Calculating material estimates for the purchase of stock and materials. |
Mr Monastra gave oral evidence expanding upon some of the projects and his involvement with them. He emphasised the handson nature of his supervision and the differences between the projects (commercial/residential), differences in materials and construction techniques. He made reference to his design work in relation to some of the projects. In particular, he said that he was heavily involved in the design work for project No 8, including the design of a large dome which he said was the first of its type to be installed in Western Australia. He produced drawings and photographs of the project with the dome, which we agree is an impressive structure, installed, which occurred under his supervision. One of the residential projects was effectively a triple story building, including an underground car park and cellar.
The crossexamination of Mr Monastra was focussed upon two of the projects, No 8 and No 13. In relation to the former, what was disclosed was that although Fremantle Steel Fabrication (a company which employed Mr Monastra in its steel fabrication business) was referred to in the application to the Board as the employer, Presidential Homes was the builder, which had its own supervisor. Mr Monastra described his relationship with the builder as ensuring, 'as the architect', that what the builder was doing was correct.
In relation to project No 13, comprising four completed residential homes and a number of new homes, Mr Monastra said that his remuneration was by way of a certain percentage once the houses were sold. He was thus not employed by the builder. He said that one of the houses built was for his daughter. In that case, his daughter paid directly for materials and services. The project was supervised on a weekly basis by the builder.
(c) Mr Monastra's case that he is fit and competent
Mr Monastra submitted that his experience was sufficiently broad to cover all types of buildings, construction techniques, trades and projects. The breadth of his experience related not only to the different uses to which the buildings for which he was responsible were to be put, but also to the varied methods of construction employed and involvement in design as well as construction.
Mr Monastra noted that a particular concern of the Board was about his alleged lack of experience with multistorey construction. Although relying upon the omission from the definition of 'building' of a reference to buildings of different heights, Mr Monastra referred to the use of suspended slabs in his two storey building projects as waylaying the Board's concerns.
(d) Our consideration
As we have already observed, the 'fit and competent' limitation under item (V) requires a qualitative assessment of competency gained through experience. Although, for the reasons we gave earlier, we have found Mr Monastra to have the required length of experience as a manager or supervisor, 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.
Having undertaken the required assessment, we are not satisfied that Mr Monastra is a person who is fit and proper to carry out building work.
Our principal concern about the experiences upon which Mr Monastra relies centres upon his claimed periods as supervisor of building works. These claims must, we believe, be treated with great circumspection for a number of reasons.
Given that the experience relied upon must be examined with an eye to a comparison with the objective requirements of item (I), the supervision relied upon must be effective supervision. The Tribunal, in Thorp, described the supervisor's role in the following terms (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.
From this passage, it will be apparent that the supervisor must possess greater knowledge of the building process as a whole than the trades being supervised. In particular, he (in this case) must be capable of providing, where required, instruction or guidance in the manner of carrying out building tasks in order that an acceptable result is achieved. Further, it is necessary that he have an awareness of the order of trades and of how they are to be coordinated. The supervisor directs the trades, rather than the other way around.
In addition, because item (V) lacks any theoretical training, it must assume acquisition of the theory through practical experience, in this case as supervisor. The theory for acquisition in this way includes that relating to the administration of building contracts and legislative requirements. The supervisor must himself be adequately supervised or mentored to allow this to occur.
In considering the 13 projects, the majority comprised either ownerbuilder projects or ones with which Mr Monastra had a familial or business-based relationship with the builder (or both). The matters raised on behalf of the Board referred to above indicate, in the main, a relationship with the builder of a kind other than the arms length relationship with which effective supervision is usually associated.
The issues raised in the crossexamination of Mr Monastra relating to projects No 8 and No 13 (being the first and third longest periods of claimed time as supervisor) are in our view well made. In neither case was Mr Monastra's arrangement with the builder conducive to providing him the necessary support one would expect in the case of a builderemployed supervisor, and his role was a limited, essentially nonsupervisory one.
Our concerns about the claimed periods of supervision reflect a broader issue related to the small number (approximately 20 completed) of building projects with which Mr Monastra has been associated, relative to what might be expected of supervisors in the residential housing sector of the industry, a matter alluded to in the passage from Thorp at [22] reproduced earlier. A fulltime supervisor in that sector would be required to manage a project load of 20 to 30 houses at any one time, equating to some 50 to 60 homes completed per year. If one is to consider large commercial building construction, it might be reasonable to expect in the case of a 20 storey building that a supervisor would remain permanently onsite for the full construction period. By contrast, Mr Monastra has been, in the main, involved for significant periods, on a proportionate fulltime basis of between 50% and 100%, on projects of a wholly smaller scale.
One issue of difference between the parties concerns Mr Monastra's capabilities in the area of multistorey buildings. Bearing in mind that registration cannot be conditioned so as to exclude the possibility of his nomination as the builder of multistorey buildings, we are not satisfied that Mr Monastra's experiences with buildings of greater than one storey demonstrate that he has sufficient knowledge and competence to be entrusted as the registered builder for the purposes of multistorey buildings.
Counsel for Mr Monastra made much of the coverage in Mr Monastra's experience of the different types of building referred to in the definition. Although it is true that his experience includes commercial, industrial and residential buildings, for the reasons that we explained, it is the shallowness of his experience in relation to each building type which leads us to the view that his knowledge and competencies are not analogous to those which would be expected upon the requirements of item (1) being met. We are, therefore, not satisfied that Mr Monastra is fit and competent to carry out all types of building work as registered builder.
Order
For the above reasons, the Tribunal shall issue and order in the following terms:
1.The application is dismissed.
2.The decision of the respondent to refuse the applicant registration as a registered builder under the Builders' Registration Act 1939 (WA) is affirmed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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