O'Brien v Queensland Building and Construction Commission
[2024] QCAT 603
•19 December 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
O’Brien v Queensland Building and Construction Commission [2024] QCAT 603
PARTIES:
GARY O’BRIEN (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:
OCR057-23
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
19 December 2024
HEARING DATE:
30 September 2024
HEARD AT:
Brisbane
DECISION OF:
Member King-Scott
ORDERS:
1. On the Applicant paying the appropriate fee to the Commission, the Commission issue the Applicant with a nominee supervisors’ licence in the class of ‘Builder — Low Rise’.
CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR
REGULATION OF OTHER PROFESSIONS, TRADES
OR CALLINGS – OTHER PROFESSIONS, TRADESAND CALLINGS – general administrative review – applicant refused nominee supervisor’s licence in the class of low-rise – insufficient experience – no discretion – applicant well qualified and experienced
Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Building and Construction Commission Regulation 2018 (Qld)
APPEARANCES & REPRESENTATION:
Applicant:
Mr L Watt of Becker Watt Lawyers
Respondent: Mr T Schmitt of Counsel instructed by the Commission REASONS FOR DECISION
This is an application to review the decision of the Queensland Building and Construction Commission (‘the Commission’) to refuse the Applicant’s application for a nominee supervisor's licence in the class of ‘Builder — Low Rise’. The Commission’s decision was to refuse to grant the application.
After a number of concessions made by the Commission at the hearing and subsequently, the issue for determination, essentially, is whether the Applicant, Gary O’Brien, has the requisite experience to be entitled to the ‘Builder — Low Rise’ class of nominee supervisor's licence. The Commission says that the application should be refused, and its decision should be confirmed on the following grounds:
(a)The extent of the Applicant's experience in (or at least equivalent to) the scope of the ‘Builder — Low Rise’ licence class is less than four years’ duration;
(b)The Applicant is therefore not entitled to a nominee supervisor's licence in the class of ‘Builder — Low Rise’.
Background
Mr O’Brien is a licensed site supervisor in the class of ‘Builder — Low Rise’, as of 25 November 2022. He also holds other licences with the Commission under licence number 741629.
On 15 December 2022, Mr O’Brien applied to the Commission for a nominee supervisor's licence in the class of ‘Builder — Low Rise'.
On that day he attended the Commission’s offices at Townsville. There, at the counter, he met Ms Natalie Schopp, the Commission’s Assessment Officer. On reviewing the application, Ms Schopp rejected it on the basis that he did not have the appropriate qualifications. He returned to his office and checked the material he had submitted. He returned to the Commission office later in the day and was served at the counter by a different person and his application was accepted. He then requested an interview thinking it would assist in progressing his application.
The interview took place on 7 January 2023 present was Ms Schopp and Mr Kevin Cameron, a Building Inspector with the Commission. Mr O’Brien and Mr Cameron were acquainted and there had been some issues between them in respect of a claim for defective work by QPAMS Pty Ltd a company part owned by Mr O’Brien and his brother Geoffrey.[1] That had been resolved without any adverse finding against QPAMS but the legal issues arising from the matter, Mr O’Brien believed, caused significant problems for the Commission. He believed that Mr Cameron was biased towards him.
[1]Hearing Book page 11.
Mr O’Brien was then subjected to a number of questions relating to setting out a building.[2] It appeared to me that the interview was quite demeaning and silly when one considers Mr O’Brien’s qualifications and experience and that he already held a Site Supervisor Licence Builder — Low Rise.
[2]Hearing Book pp 12 and 13.
Mr O’Brien’s qualifications are and were at the time of application:
(a)Bachelor of Engineering (electrical);
(b)Bachelor of Commerce;
(c)Master of Professional Accounting;
(d)Master Business Administration;
(e)Cert IV Building and Construction.
Mr O’Brien also holds the following licences with the Commission:
(a)Builder Low-Rise Site Supervisor;
(b)Painting and Decorating (Nominee Supervisor);
(c)Waterproofing Nominee Supervisor licence.
Ms Schopp also involved herself in the interview posing the question of what Mr O’Brien would have done had a cyclone occurred and knocked over what had been constructed, and how he would set out the building. It is relevant that Ms Schopp has a law degree but no building qualifications.
These matters are not now in issue as the Commission has made a number of concessions that should have been made a lot earlier in the proceedings if not at the outset of Mr O’Brien’s application.
Mr O’Brien is Project Manager for QPAMS and is its nominee supervisor for the Waterproofing trade licence. His brother Geoffrey is the nominee supervisor for the low rise building licence. The reason for Mr O’Brien’s application was as a backup supervisor for the Company in the event that Geoffrey O’Brien may not be available.
Mr O’Brien at the same time had applied for a Painting and Decorating (Nominee Supervisor) licence which was granted. His application for Builder — Low Rise (Nominee Supervisor) licence was refused with the explanation that [a]s Commission has not received the requested information from you, your licence application has now been closed.
To be entitled to the requested licence, Mr O’Brien was required to satisfy the requirements of section 32 of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’).
The Commission found that the Applicant did not fulfil the requirement to have four years’ experience in the class of ‘Builder — Low Rise’. However, the Commission found that the Applicant otherwise fulfilled the remaining criteria (including, for example, technical qualifications).
On 7 February 2023, the Commission made the decision to refuse the Applicant's nominee supervisor's licence application as it related to the class of ‘Builder — Low Rise’.
Mr O’Brien filed the Application to Review on 28 February 2023.
Following a Compulsory Conference on 31 July 2023 the Commission was invited to reconsider its decision. On 2 August 2023 Mr O’Brien submitted further material to the Commission. The Commission confirmed its original decision which it filed on 26 September 2023. Both decisions were made by Ms Schopp.
The Issues
It was conceded by the Commission that Mr O’Brien satisfies the technical requirements. Counsel for the Commission identified the issues for me to determine as:
(a)Does Mr O’Brien’s experience satisfy the Commission’s requirements?
(b)Does Mr O’Brien have to demonstrate merely some experience in Class 1 buildings or does he have to demonstrate that 50% of his experience relates to that class of building?
Mr O’Brien says that from 30 July 2020 to September 2024 he has 48 months of experience, and the Commission concedes that if that is the case then he has satisfied the requirement.[3]
[3]Transcript 1-4 line 48.
Initially, the Commission said that experience obtained after the filing of the review application should not be counted. However, Counsel for the Commission advised that the tribunal could take account of all experience obtained up to the date of hearing.[4]
[4]Transcript 1-4 ll 33-40.
The Commission now admits that the experience gained by Mr O’Brien between 2015 (when he commenced employment with QPAMS Pty Ltd) and 20 July 2020 (when he obtained the requisite technical qualification) may be considered when determining whether the Applicant has obtained the necessary 4 years’ experience.[5]
[5]Paragraph 5 Commission’s closing submissions dated 4 November 2024.
Legislation
The objects of the QBCC Act are set out in section 3. They relevantly include the object of regulating the building industry “to ensure the maintenance of proper standards in the industry”.
Licences for carrying out building work are administered by the Commission pursuant to Part 3 of the QBCC Act.
The criteria for entitlement to a nominee supervisor's licence are prescribed in section 32 of the QBCC Act. The Applicant is required to fulfil the experience requirements pursuant to the following provision:
32 Entitlement to a nominee supervisor's licence
(1)An individual is entitled to a nominee supervisor's licence if the commission is, on application by the individual, satisfied that—
(a)the applicant has the qualifications and experience required by regulation for a licence of the relevant class;
(b)…
The other requirements are irrelevant to the issues I am asked to determine.
Nominee supervisor's licences may be issued in any licence class listed in Schedule 2 of the Queensland Building and Construction Commission Regulation 2018 (‘QBCC Regulation’). The ’Builder — Low Rise’ licence class sought by the Applicant is provided by Section 2 Part 4 of Schedule 2 relevantly as follows:
1 Licence class
Builder—low rise.
2 Scope of work
(1)Building work on a class 1 or class 10 building.
(2)Building work on classes 2 to 9 buildings with a gross floor area not more than 2,000m2, but not including Type A or Type B construction.
(3)Building work that consists of non-structural work on a building, regardless of—
(a)the class for the building; or
(b)the gross floor area of the building.
(4)Prepare plans and specifications that are—
(a)for the licensee's personal use; or
(b)for use in building work to be performed by the licensee personally.
…
5 Experience requirements
The experience requirements are the following —
(a)For a person who has technical qualification required under Part 3 or 16 — 2 years’ experience in —
(i)the scope of work for the class; or
(ii)the Commission is satisfied is at least equivalent to experience in the scope of work for the class;
(b)otherwise — 4 years’ experience in —
(i)the scope of work for the class; or
(ii)The Commission is satisfied is at least equivalent to experience in the scope of work for the class;
A Fact Sheet entitled Builder Low Rise Experience Requirements published by the Commission advises the applicant for a licence on what experience is required for completing an application. Under Application Essentials it states, inter alia:
· The majority of experience, i.e greater than 50% must be in Class 1 work. Samples of Class 10 may contribute. Building work relating to medium and open licence classes may be accepted where it is demonstrated the construction methodology aligns with Class 1 work, from volume 1 and 2 in NCC, for example internal partition walls.
· Do not provide examples for work that was performed or undertaken prior to obtaining the technical qualification for this licence class, unless it was performed as an employee for an employer with the appropriate class of licence.
· Ideally, referees verifying your work examples should hold a licence or qualification at the same or greater level than the licence that you are applying for. Alternatively, the QBCC may give consideration if your referee is employed in the supervisory or managerial role with the company.
The Commission relies upon a document entitled Work instruction to assist Commission staff in assessing licensing applications. Under a paragraph entitled Criteria for assessing experience it contains the following:
An applicant for a contractor’s licence or nominee supervisor’s licence must satisfy all of the following criteria:
Criteria (1): An applicant must have experience in critical skill areas relevant to the licence class.
Criteria (2): At least 50% of the experience must be in work exclusive to the licence class.
Criteria (3): Experience must be lawful experience.
Criteria (4): Experience must be supported by evidence.
Criteria 2 requirements are further detailed as follows:
Builder low-rise requirement
The applicant must be able to demonstrate that they have at least 2 years' experience (if they have Carpentry or Brick and Blocklaying qualification) or 4 years' experience in the following:
·Building work on a class 1 building; and or
·Building work on a class 2-9 building that relies on a methodology that aligns with Class 1 work.
If the above 50% requirement is satisfied, the applicant may use building work for a class 10 building for the purposes of demonstrating the remaining practical experience component.
An applicant may demonstrate the above experience through personally performing the work or supervising the work. An applicant can rely on experience acquired under a previous or currently held contractor's licence provided the work was not undertaken in contravention of the QBCC Act (e.g. in breach of section 42 (Unlawful carrying out of building work) of the QBCC Act).
The Commission concedes that there is no statutory requirement that the applicant provide references nor that the references be in any particular form nor that that they be by any particular person (so far as the qualifications of that person is concerned). The Fact Sheet and Work instruction have no statutory basis other than provided by section 16(1)(b) of the QBCC Regulation which in general terms requires the application to be accompanied by, inter alia, documentary evidence, satisfactory to the Commission, of the applicant’s identity and qualifications.
Although it is appropriate that licensing staff be provided with guidance in assessing applications it would appear that there is no discretion for the licensing officer to depart from the instructional guidelines nor to exercise any degree of discretion.[6]
[6]Transcript 1-22 ll 45-50 and 1-23 ll 1-15.
Ms Schopp’s evidence was that the instruction was quite strict on the methodology and the requirement that 50% of experience be in Class 1.[7] However, the regulation is not that prescriptive. It requires, in respect to an applicant in Mr O’Brien’s position, 4 years’ experience in the scope of work for the class (which is Class 1 or 10 or Classes 2-9 with qualifications) or equivalent experience. The 50% requirement applied by the Commission appears to be arbitrary and although it may offer some guidance, rigid application to the requirement would not be in accord with the regulation. Some discretion needs to be exercised. Ms Schopp made it quite clear that her discretion was limited.[8]
[7]Transcript 1-16 ll 35-45.
[8]Transcript 1-23 ll 15.
Case for the Commission
Counsel for the Commission made the following submission in closing submissions filed after the hearing.
(a)The Applicant has claimed 100.5 months of experience.[9] Having regard to the Applicant’s evidence given at the hearing, and his closing submissions filed with the Tribunal, the Commission admits that the Applicant has obtained 38 months experience in the scope of works for the Builder low rise class of licence. That experience has been gained in the following projects.
[9]Hearing Book page 405 (Applicant’s Submissions Final).
Project Period Months Lavarack Barracks 03/2015 – 05/2016 11 Yacht Harbour Towers, Hamilton Island 07/2016 – 12/2016 6 No 3 The Strand 10/2019 – 12/2019 3 Metro Quays Ogden Street 08/2019 – 10/2019 2 121-125 Commercial Avenue, Bohle 08/2021 – 11/2022 16 Total 38
While none of that experience involved building work on a Class 1 building, the Commission admits that it did involve building work on other classes of buildings (classes 2 – 10) that relied on a methodology which aligns with class 1 work. In that premise, the Tribunal can be satisfied that at least half of the Applicant’s experience (that is, at least two years) was in work exclusive to the Builder – low rise licence class.[10]
(b)Based on the evidence before the Tribunal, the Tribunal cannot be satisfied that the Applicant gained relevant experience in respect of each of the other projects he relies on. That is because the Applicant has failed to provide sufficient detail to allow a proper assessment to be made as to whether the experience involved work in the scope of works for the Builder – low rise class of licence. The Applicant has not sufficiently articulated the nature of the experience he gained and what work he was supervising at certain projects.
[10]Hearing Book page 486 (Commission’s Work Instruction).
The Applicant’s case
The Commission is criticised for changing the basis of its objection through the process of considering whether Mr O’Brien is appropriately qualified. There is some truth in that assertion.
It is submitted that the Commission has not taken account of Mr O’Brien’s experience post November 2022 which he gave evidence about in his recent statement submitted for reconsideration.[11] That totalled 75.5 hours.
[11]Hearing Book page 22.
The Commission claims that details of Mr O’Brien’s experience are not sufficiently detailed for it to reach an opinion as to his experience. However, Mr O’Brien submits that the Referee Reports have been completed by third parties at his request but not at his direction or interaction. One referee was Mr O’Brien’s brother Geoffrey O’Brien who has detailed Mr O’Brien’s experience over 15 years. Mr O’Brien says that it should be accepted that over that period it would be expected that the referee might be general in providing the information and that it would be unrealistic to expect a referee to recall site details, classes of buildings, number of storeys, types of construction and time frames for buildings over a 15 year period.
Mr O’Brien was of the view, perhaps mistaken, that he was submitting references by people who were familiar with his work and were prepared to say that he had the experience and that they supported his application. He submitted references from nine referees. Five were in the Commission’s template for references and were detailed, others were letters.[12] They spoke highly of his technical competency, planning ability, supervisory skills and ability to bring a project to fruition. Some of the projects the referees spoke of preceded the date when Mr O’Brien obtained his Cert IV qualification. Nevertheless, the material demonstrated that he had the qualification and skills for a Nominee Supervisor’s licence for Builder low rise.
[12]Hearing Book pp 382-404 and 658-669.
What the Commission appeared to require was detailed information on Mr O’Brien’s involvement in each project. As Mr O’Brien rightly commented, if he successfully tendered for a project it would be unrealistic to ask another builder for a reference on how he completed the project.
Mr O’Brien’s experience extended over a variety of classes of buildings from Class 1 to Class 9 buildings. It would assist to provide a brief description of the respective classes. They are:
| Class 1 | Houses or dwellings of a domestic or residential nature—single or horizontally attached to other Class 1 buildings such as terrace houses, row houses, or townhouses. |
| Class 2 | Apartment buildings |
| Class 3 | A residential building, other than a Class 1 or 2 building |
| Class 4 | Part of a building that is a dwelling or residence within a non-residential building (Class 5 to 9), such as a caretaker’s residence in a hospital. |
| Class 5 | Office buildings for professional and/or commercial purposes (excluding Class 6 to 9). |
| Class 6 | Shops, restaurants and cafés |
| Class 7 | Buildings including carparks, warehouses or storage buildings. |
| Class 8 | Factories |
| Class 9 | Public buildings |
| Class 10 | Non-habitable buildings or structures. |
The Commission, or rather Ms Schopp, spent a great deal of time distinguishing Mr O’Brien’s experience in Class 1 buildings from the remaining class of buildings he was involved in. Mr O’Brien was at pains to point out that there was much overlap in the methodology of construction of the other classes compared with a Class 1 building. Indeed, there was greater complexity in some of projects Mr O’Brien was involved in. They detailed in an annexure to his final submissions.[13]
[13]Hearing Book page 405.
Mr O’Brien was not advised what the deficiencies of his application were until the compulsory conference. I find that he would have been more than willing to provide further details if requested.
I find that Mr O’Brien’s experience more than satisfies the requirements of the QBCC Regulation Schedule 2 Part 4 section 5.
The Commission has suggested that if the Tribunal is satisfied that Mr O’Brien has sufficient experience, the matter should be remitted back to the Commission. Mr O’Brien opposes that suggestion on the basis that there is no confidence that it would be dealt with appropriately. I agree.
I make the following orders:
On the Applicant paying the appropriate fee to the Commission, the Commission issue the Applicant with a nominee supervisors’ licence in the class of ‘Builder — Low Rise’.
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