PCBQ and Commissioner for Fair Trading (NSW) - [2022] AATA 3725

PCBQ and Commissioner for Fair Trading (NSW) [2022] AATA 3725 (4 November 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4795
Re:PCBQ
APPLICANT

AndCommissioner for Fair Trading (NSW)
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Mr S Evans, Member

Date:13 September 2022
Date of decision: 4 November 2022
Place:Sydney

The Applicant’s Contractor – Builder (General Building Work) licence is varied to include the conditions set out in this decision.
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The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MUTUAL RECOGNITION — Application of Mutual Recognition Act 1992 (Cth) — Registration of construction contractor — Application of mutual recognition principles — Substantial equivalence of occupations — Applicant a registered builder in Victoria — registered in New South Wales — Registered by operation of section 21(4) - Whether activities of builder substantially the same as those of a builder under respective registrations – whether restrictions necessary to achieve substantial equivalence — registration varied to include restrictions.
Legislation
Mutual Recognition Act 1992 (Cth)
Cases
Rowe and New South Wales Police Service (1997) 47 ALD 442
Turner and Registrar, Supreme Court of Queensland (No. 2) [2003] AATA 887
Secretary, Department of Social Security v Wetter (1993) 29 ALD 310
Secondary Materials
Building Regulations 2018 (Vic)
Home Building Regulations 2014 (NSW)
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
Mr S Evans, Member
4 November 2022
Introduction

PCBQ (the Applicant) relocated to New South Wales (NSW) from Victoria where he was registered as a Domestic builder (limited to carpentry) (the Victorian licence). In February 2020 the Applicant lodged an application for a Contractor – Builder (General Building Work) licence with appropriate conditions with the Department of Fair Trading NSW relying on provisions of the Mutual Recognition Act 1992 (Cth) (the MRA).[1]
[1] PCBQ and Commissioner of Fair Trading (NSW) [2021] AATA 1436, [4]
The Commissioner of Fair Trading (NSW) (the Respondent) refused to issue the Applicant the licence requested. Instead, the Applicant was offered a combination of two residential building work licenses – a Carpentry licence and a Kitchen, bathroom and laundry renovation licence.[2]
[2] PCBQ and Commissioner of Fair Trading (NSW) [2021] AATA 1436, [7]
The Applicant was not satisfied that the combination of licences offered by the Respondent would enable him to perform substantially the same building work in NSW that he was authorised to carry out in Victoria.[3] Further, he argued that he was entitled to immediate registration as the Respondent had not met its obligation to process his application within one month of lodgement as required by subsection 21(4) of the MRA.[4]
[3] PCBQ and Commissioner of Fair Trading (NSW) [2021] AATA 1436, [6]
[4] PCBQ and Commissioner of Fair Trading (NSW) [2021] AATA 1436, [12]
On 16 July 2020 the Respondent formally refused his application for a Contractor – Builder (General Building Work) licence and the Applicant sought review of the decision at the Administrative Appeals Tribunal (the Tribunal).[5]
[5] PCBQ and Commissioner of Fair Trading (NSW) [2021] AATA 1436, [11]
On 24 May 2021 the Tribunal found that the Applicant was entitled to registration pursuant to subsection 21(4) of the MRA. The matter was remitted to the Respondent with the direction that he be issued a NSW individual contractor’s licence in the category of Builder consistent with his application of 17 February 2020.[6] The Respondent issued the Applicant a NSW Contractor – Builder (General Building Work) licence without conditions (the NSW builders licence) prior to appealing the Tribunal’s decision.
[6] PCBQ and Commissioner of Fair Trading (NSW) [2021] AATA 1436, [44]
On 4 February 2022 the Federal Court found that the Tribunal had erred by ‘failing to consider whether to impose conditions on [the Applicant’s] registration pursuant to s 20(5) of the MRA’.[7]
[7] Commissioner for Fair Trading (NSW) v PCBQ [2022] FCA 59, [8]
The matter was remitted to the Tribunal by the Federal Court ‘for decision according to law, in particular by consideration of whether appropriate conditions ought to be applied to the [the Applicant’s] licence under s 20(5) with reference to s 29 of the MRA’.[8]
[8] Commissioner for Fair Trading (NSW) v PCBQ [2022] FCA 59, [9]
Issue to be determined
The Federal Court concluded – and both parties agree – that the sole issue to be determined by the Tribunal is whether appropriate conditions ought to be applied to the Applicant’s NSW builders licence.
The Tribunal must therefore consider:
·whether the Applicant’s NSW builders licence provides for a scope of work that is equivalent to what he was authorised to carry out in Victoria; and if not
·whether appropriate conditions ought to be applied to the Applicant’s NSW builders license to achieve equivalence.
Legal framework
In considering these issues, the Tribunal has had reference to the MRA, the Building Regulations 2018 (Vic) (the Victorian regulations), and the Home Building Regulations 2014 (NSW) (the NSW regulations).
Part 1 of the MRA provides the objective of the Act is to ‘promote the goal of freedom of movement of goods and service providers in a national market in Australia’.
Subsection 16(1) provides that the requirement of equivalence applies to the actual occupations and the work done by the person, as opposed to the statutory power or authority that can be exercised by persons registered to carry out the occupation.
Division 4 of the MRA provides for the determination of equivalent occupations in different states and section 29 sets out the general principles:
(1)An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2)Conditions may be imposed on registration in accordance with this Part so as to achieve equivalence between occupations in different States
(3)This section has effect subject to any relevant declarations in force under this Division.
Section 20 provides for entitlement to registration and allows for the imposition of conditions to achieve equivalence of occupations:
(5) The local registration authority may impose conditions on the registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.
The scope of work authorised by the Applicant’s Victorian licence are set out in Schedule 12 - Domestic building work authorised to be carried out by registered domestic builders, Item 21 of the Victorian regulations:

21

Category of builder, class of domestic builder (limited to carpentry)

The carrying out of domestic building work involving carpentry work associated with the alteration and repair of homes, carports, garages, pergolas, decks, verandas and similar structures.
Work in this class also includes the domestic building work authorised to be carried out by the following classes of domestic builder—
(a) class of domestic builder (limited to the construction of non-habitable building structures);
(b) class of domestic builder (limited to the construction of gates and fences);
(c) class of domestic builder (limited to bathroom, kitchen and laundry renovation);
(d) class of domestic builder (limited to framing);
(e) class of domestic builder (limited to external wall cladding);
(f) class of domestic builder (limited to door and window replacement and installation);
(g) class of domestic builder (limited to cabinet making, joinery and stair construction).

The licence types and categories which are applicable in NSW are provided in Regulation 13 of the NSW regulations and extended descriptions of work authorised by contractor licenses provided in Schedule 4:
13 Categories of residential building work
a) For the purposes of sections 21 (1) (a) and 27 (1) (a) of the Act--
(a) the following building work categories of residential building work are prescribed-
(i) erection of pre-fabricated metal-framed home additions and structures,
(ii) general building work,
(iii) kitchen, bathroom and laundry renovation,
(iv) structural landscaping,
(v) swimming pool building, and
(b) the following trade categories of residential building work are prescribed--
(i) bricklaying,
(ii) carpentry,
(iii) decorating,
(iv) dry plastering,
(v) excavating,
(vi) fencing,
(vii) general concreting,
(viii) glazing,
(ix) joinery,
(x) metal fabrication,
(xi) minor maintenance and cleaning,
(xii) minor tradework,
(xiii) painting,
(xiv) roof plumbing,
(xv) roof slating,
(xvi) roof tiling,
(xvii) stonemasonry,
(xviii) swimming pool repairs and servicing,
(xix) underpinning or piering,
(xx) wet plastering,
(xxi) wall and floor tiling,
(xxii) waterproofing.
does the applicant’s NSW builders licence provide equivlance?
Both the Applicant and Respondent made submissions comparing the scope of work authorised by licences, trades and building work categories provided for by the NSW and Victorian building regulations.
We note at the outset that the Victorian and NSW regulations are inconsistent. The Victorian regulations follow a ‘top-down approach’, where a broad category of occupation is provided to the licence holder to which exclusions or restrictions are added as appropriate. In contrast, NSW has a ‘bottom-up approach’, where a licence holder is generally licensed to practice their profession in a restricted scope of work, with additional allowances made for further qualifications or experiences.
In the Tribunal’s opinion, the differing construction of the NSW and Victorian licensing schemes formed the basis of much of the disagreement between the parties as to what constitutes equivalence for the purposes of the MRA.
The difficulty of achieving substantial equivalence was acknowledged by counsel for the Respondent who observed:
Unfortunately, as with a lot of regulation, it’s difficult even when you’re in one jurisdiction to work out exactly how something works when you’re looking at two states that have developed different approaches to regulation, from a very different framework, probably over at least [tens] or if not [one hundred] years. It’s unsurprising that the task is difficult. Ultimately, the question for the tribunal is, well, what is substantial. Is there something of substance that PCBQ says that he is entitled to something of significance as to how his licence would operate, or how he intends to conduct his business.[9]
[9] Transcript of proceedings dated 13 September 2022, 44
The Respondent is firmly of the view that the Applicant’s NSW builders licence does not provide equivalence as it permits him to undertake work in NSW beyond that which he was authorised to perform in Victoria.[10]
[10] Transcript of proceedings dated 13 September 2022, 3
The Applicant concedes that a NSW builders licence allows him to perform work beyond the scope of his Victorian licence. He acknowledged as much when he applied for a NSW builders licence with restrictions as appropriate in 2020.[11]
[11] Opening Statement of Applicant dated 13 September 2022, 3
However, it is the Applicant’s case that the Tribunal should be satisfied that the imposition of conditions on his NSW builders licence is no longer appropriate.
Since being issued a NSW builders licence, the Applicant has – without issue - undertaken work in all five categories of residential building work included in subsection 13(a) of the NSW regulations. He submits that the additional experience entitles him to maintain his NSW builders license without conditions.[12]
[12] Transcript of proceedings dated 13 September 2022, 25
The general principles set out in section 29 of the MRA prescribe that equivalence is provided if the activities authorised to be carried out under each registration are substantially the same. Whilst the Tribunal accepts the Applicant’s claim to have obtained substantial additional experience since being issued a NSW builders licence, the Tribunal’s function is limited to ensuring the Applicant is authorised in NSW to carry out activities largely equivalent to those he was authorised to carry out in Victoria. Whilst the task of the Tribunal is to make the correct and preferable decision based on the circumstances as they exist at this time, there is no evidence that the Applicant’s additional experience alters the scope of works he is permitted to undertake in Victoria.
Both parties agree that the Applicant’s NSW builders licence without conditions provides for a broader scope of activities than that to which he was authorised to perform in Victoria. As mentioned above, the MRA only entitles the Applicant to a licence that provides equivalence to the occupational activities he is entitled to perform in Victoria. Based on the evidence and submission from both parties, the Tribunal accepts that the Applicant’s NSW builders licence without conditions does not provide equivalence.
We now turn to considering what conditions ought to be applied to Applicant’s NSW builders licence to achieve equivalence.
What conditions ought to be applied to the applicant’s builders licence?
Achieving ‘equivalency’ through the application of conditions does not require total congruence in occupation or scope of work. In Rowe and New South Wales Police Service[13], the Tribunal set out the ‘the five distinct steps to be undertaken in determining the equivalence of occupations’, with the final step being to make a comparison between the activities authorised in each of the registrations to determine whether they are substantially the same’. A component of this final step being ‘to consider whether conditions should be imposed on registration to achieve equivalence’.
[13] (1997) 47 ALD 442, [12]
The meaning of ‘substantially the same’ was considered by Federal Court in Secretary, Department of Social Security v Wetter[14] where it was determined that ‘substantially’ means something less than ‘wholly’, and can be appropriately paraphrased as ‘in the main’ or ‘as to the greater part’. This approach was adopted by the Tribunal in relation to section 29(1) of the MRA in Turner and Registrar, Supreme Court of Queensland (No 2)[15], where ‘substantially’ was interpreted to be a qualification upon the word ‘same’, meaning something less than ‘the same’ or ‘identical with’. Consistent with these authorities, the task of the Tribunal is to consider is whether conditions ought to be imposed so that the activities authorised to be carried out under the Applicant’s NSW builders licence are ‘in the main’ or ‘as to the greater part’ the same as what was permitted by his Victorian licence.[16]
[14] (1993) 29 ALD 310, 317
[15] [2003] AATA 887
[16] Turner and Registrar, Supreme Court of Queensland (No 2) [2003] AATA 887, [24] – [25]
Prior to and following the hearing, both the Applicant and Respondent made written submissions outlining what conditions they believe might apply to the Applicant’s NSW builders licence to achieve equivalency with the Victorian licence.
The Respondent maintains that the Applicant’s NSW builders licence ought to be substantially conditioned by removing the building work category of General building work, which it argues is too broad to be approached on an ‘exclusion’ basis.[17] The Respondent instead proposes the Applicant be issued a contractor license limited to:
1.    Kitchen, bathroom or laundry renovation;
2.    Fencing
3.    Carpentry
4.    Joinery
5.    Fencing[18]
[17] Transcript of proceedings dated 13 September 2022, 25
[18] Submissions of the Respondent dated 7 June 2022, Attachment I
By way of concession, in its final submission the Respondent proposed the Applicant’s contractor licence may reasonably be broadened to include not just Fencing but:
Structural landscaping, but excluding the construction of (a) retaining walls (b) driveways, paths and other paving and (c) ornamental ponds, water features and other structural ornamentation;[19]
[19] Submissions of the Respondent dated 20 September 2022, [11]
The Applicant opposes the conditions proposed by the Respondent being placed on his NSW builders licence for a number of reasons.
Firstly, he submits that should the conditions proposed by the Respondent be imposed on his NSW builders licence, the scope of the work he is authorised to carry out in NSW would be substantially and materially reduced in comparison to that permitted by his Victorian licence. He would, for example, be prevented from building class 10 building structures including sheds, garages and carports in NSW unless they are prefabricated metal framed structures, where his Victorian licence permitted building class 10 structures including all the associated building work.[20]
[20] Applicant’s further submissions dated 26 September 2022, 2
Whilst the Respondent proposes the Applicant be licensed in the work category of Kitchen, bathroom and laundry renovations, the Applicant contends that without inclusion of the General building work category he would be unable to work on load bearing walls, which he was able to do in Victoria and considers an important part of his business. Additionally, he would be excluded from performing work on structural walls in any part of a house, which was within the scope of work he was entitled to carry out in Victoria.[21] By excluding General building work, the Applicant submits that even if the building work category of Joinery were included, the work he would be licensed to perform would be significantly restricted by the requirement that the joinery work be limited to ‘installation of non-structural timber’.[22]
[21] Applicant’s further submissions dated 26 September 2022, 2
[22] Applicant’s further submissions dated 26 September 2022, 3
Secondly, the Applicant’s Victorian licence entitled him to subcontract work which he was not licensed to carry out to others who were appropriately licensed. The conditions proposed by the Respondent would, with limited exceptions, prevent him from subcontracting to licensed trades outside his own.[23] During the hearing, the Respondent indicated it was prepared to allow the Applicant to subcontract to other trades in the 5 proposed categories, though this concession did not expressly form part of the final proposed conditions.[24]
[23] Submissions of the Applicant dated 16 June 2022, 4
[24] Transcript of the proceedings dated 13 September 2022, 44
Finally, the conditions proposed by the Respondent included a combination of building work and trade categories.[25] The Applicant expressed concern that framing his licence in this way would be confusing to local councils and customers and significantly impact his ability to bid for work and contends it would ‘be a constant pain point with councils and building surveyors’.[26]
[25] Transcript of the proceedings dated 13 September 2022, 54
[26] Further submissions of the Applicant dated 26 September 2022, 3-4
The Respondent initially argued that distinguishing between building and a trade authorisations was an artificial distinction by name and the Tribunal should determine equivalency by examining the actual occupational activities carried out, and not the extent to which there are differences in naming between regulations.[27] However, after further consideration the Respondent conceded there were commercial benefits to the Applicant if his licence were to be framed by reference to the ‘building work’ categories in 13(a) of the NSW Regulations.[28]
[27] Submissions of the Respondent dated 7 June 2022, [22]
[28] Transcript of the proceedings dated 13 September 2022, 56
Consideration

The purpose of the MRA is to enable individuals such as the Applicant to move freely from one state, present their credentials and be recognised as a qualified individual in another. One should not suffer disadvantage simply because the government and officials in one state decided to take a different regulatory approach to another state.
The Respondent has made some concessions to accommodate the different constructions of the Victorian and NSW licensing regimes and achieve equivalency for the Applicant. Most notably, the offer to including the work category of structural landscaping with conditions and pre-fabricated metal structures.
However, even with these concessions the Applicant’s capacity to work and achieve an income in his profession will be substantially affected if he does not continue to hold a contractors’ licence incorporating general building works, even one which carries restrictions imposed by the Tribunal.
Apart from the acknowledged difficulties in establishing equivalency between two different regulatory regimes, the Applicant faces the additional challenge of applying the proposed conditions in the real world. The Applicant gave evidence, to which the Tribunal gave significant weight, that the approach proposed by the Respondent, whereby he is issued a limited contractor license excluding General building works, would place him at substantial disadvantage. He explained that when dealing with customers, local authorities and councils the perceived difference between a limited contractor licence and one which includes General building works is significant and would be an impediment when bidding for work, obtaining council approvals and dealing with customers and suppliers.[29]
[29] Transcript of the proceedings dated 13 September 2022, 21
These considerations led us to prefer a simpler path to equivalence over any complex alternative.
The Tribunal was given evidence by the Applicant that he had built a swimming pool since being issued a NSW builders licence.[30] He was entitled to do so, and there is no evidence to suggest this work was not compliant or in any way beyond his professional abilities. However, as his Victorian licence did not allow him to construct swimming pools, it is appropriate to exclude swimming pools from his NSW builders licence.
[30] Transcript of the proceedings dated 13 September 2022, 25
CONCLUSION
Having considered the submission of both parties, the Tribunal concludes that the following conditions are to be applied to the Applicant’s existing unlimited NSW Contractor – Builder (General Building Works) licence:
·Building work category (v) swimming pool building is excluded
·Structural landscaping (iv) is permitted excluding (a) retaining walls of any material that do not form part of a habitable building (b) driveways, paths and other paving of any material and (c) ornamental ponds, water features and other structural ornamentation.
In its final written submission to the Tribunal, the Respondent wrote that should the Applicant be ‘granted a license [sic] on the basis of the Commissioner’s primary position, he will be invited to apply for the renewal on those classes and will be granted his renewal… If [the Applicant] is granted a license [sic] on some other basis, the Commissioner will pay due regard to the Tribunal’s reason for imposing those alternative conditions in making any decision to renew the license.’[31]
[31] Submissions of the Respondent dated 20 September 2022, [13]
The Tribunal perceived this to be a veiled threat not to renew the Applicant’s NSW builders licence should the Tribunal not act in accordance with the Respondent’s wishes. This is not the function of the Tribunal, and the extent to which such a threat is made, the Tribunal rejects it.
The Federal Court instructed the Tribunal to determine whether appropriate conditions ought to be applied to the Applicant’s NSW builders licence. Having had regard to the general principles and section 20(5) of the MRA, we are satisfied that the conditions we have imposed on the Applicant’s NSW builders licence are not more onerous and all that are necessary to ensure the activities authorised to be carried out under each registration are substantially the same. It is the Tribunal’s firm view that any reasonable delegate of the Respondent would be expected to renew the Applicant’s NSW builders licence with the same conditions.
Finally, the Tribunal acknowledges the Applicant’s submissions regarding his experience applying for a NSW builders licence under the MRA. He details a stressful and drawn-out process which jeopardised his livelihood and has taken a significant personal toll on he and his family.
DECISION
The matter is remitted to the Respondent with the direction that the conditions set out in paragraph 45 be applied to the Applicant’s unrestricted NSW builders licence.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President and Mr S Evans, Member

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Associate
Dated: 4 November 2022

Date of hearing: 13 September 2022

Date final submissions received: 26 September 2022

Applicant: In person

Counsel for the Respondent: Thomas Bagley

Solicitor for the Respondent: Jamie Coss

Date of hearing:	13 September 2022
Date final submissions received:	26 September 2022
Applicant:	In person
Counsel for the Respondent:	Thomas Bagley
Solicitor for the Respondent:	Jamie Coss