Phillips v Queensland Building and Construction Commission

[2021] QCAT 159

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Phillips v Queensland Building and Construction Commission [2021] QCAT 159

PARTIES:

DENIS PHILLIPS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR374-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 March 2021

HEARING DATE:

17 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

The decision of the Queensland Building and Construction Commission made on 7 November 2017 is confirmed and the review application is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – QUALIFICATIONS – where application made for builder low rise licence – whether requisite two year period of experience has accrued

Queensland Civil and Administrative TribunalAct 2009 (Qld), s 20

Queensland Building and Construction Commission Act 1991 (Qld), s 3(a)(i), s 31(1)(b)

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	C Hill, in house solicitor for the Queensland Building and Construction Commission

REASONS FOR DECISION

1. Mr Phillips has applied to the tribunal for a review of an internal review decision of the Queensland Building and Construction Commission (the Commission) dated 7 November 2017 to decline his builder low rise licence application.

2. The review is a fresh hearing on the merits. Its purpose is to produce the correct and preferable decision. The tribunal may confirm or amend the decision, set the decision aside and substitute its own, or set the decision aside and return the matter to the decision maker for reconsideration.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

3. Section 31(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides that a person is entitled to a contractor’s licence if the Commission is satisfied that the person complies with all of the eight (8) criteria set out in that section.

4. It is accepted by the original decision maker, the internal review decision maker and the tribunal is satisfied that the material provided by Mr Phillips satisfies seven (7) of those criteria.

5. The issue in dispute in these proceedings is whether Mr Phillips has provided sufficient evidence that he has the qualifications and experience required by regulation in relation to the builder low rise licence.[2]

   [2]Queensland Building and Construction Commission Act 1991 (Qld), s 31(1)(b).

6. Schedule 2 Part 4 of the Queensland Building and Construction Commission Regulation (the regulations) relevantly provides:

   The experience requirements are the following –

   (a)   for a person who has a technical qualification required under Schedule 2 part 3 or 16 – 2 years experience in –

   (i)the scope of work for the class; or

   (ii)other work the commission is satisfied is at least equivalent to experience in the scope of work in the class…[3]

   [3]It is accepted that Mr Phillips holds a requisite carpentry qualification.

7. To satisfy the experience requirements Mr Phillips provided details of his employment as a site manager and carpenter with That Builder Pty Ltd (February 2009 to November 2009), as a carpenter/supervisor/department manager with Fallon Solutions Pty Ltd (for an unspecified period but for the purposes of the application, August 2014 to October 2014) and as a carpenter and site foreman for Ashley Sparks (1995 to 2003).

8. In respect of his employment by That Builder Pty Ltd and Fallon Solutions Pty Ltd the internal review decision maker could not be satisfied that the roles and responsibilities of Mr Phillips could be said to be experience in the scope of work for building low rise class and in the absence of additional evidence in respect of those works the tribunal agrees with that finding.

9. In any event even if accepted, they do not provide the requisite period of two years and so some or all of his employment with Mr Sparks is necessary to establish that the experience requirements are satisfied.

10. To that end a further statement and materials by Mr Sparks were filed in the tribunal and relied on in these proceedings and oral evidence was provided by Mr Phillips and Mr Sparks, the latter by telephone. Mr Phillips referred to Mr Sparks in his oral evidence as his “best referee”.

11. It is submitted by the Commission that Mr Sparks should not be considered a referee because:

    (a)His employment of Mr Phillips was 15 to 20 years ago in New Zealand;

    (b)At that time building New Zealand was unregulated and remained so until 2004;

    (c)Mr Sparks holds only a New Zealand carpentry licence (since 2011) and there is no evidence that he has ever held a builder’s licence;

    (d)There is confusion as to the entity which employed Mr Phillips and undertook building work;

    (e)The material does not identify the roles undertaken by Mr Phillips and the relevant time frames for them.

12. There is no time limitation for the experience requirement that I can find or that has been drawn to my attention by the Commission nor in my view is Mr Phillips precluded from relying on experience undertaken prior to the existence of a scheme of regulation. The inclusion of the words “other work the Commission is satisfied is at least equivalent to experience in the scope of work in the class” supports that.

13. The passing of time does however pose significant practical difficulties for an applicant. Memories fade, records are lost or destroyed.

14. The work actually undertaken by an applicant cannot be determined by the work defined in the relevant licence class. It must be separately detailed and shown to be at least equivalent to the works defined in the licence class which is subsequently created.

15. The objects of the QBCC Act include ensuring the maintenance of proper standards in the industry.[4] The maintenance of proper standards requires in my view more than merely demonstrating employment as a tradesman or labourer on building sites for the requisite period. Rather it requires an applicant to demonstrate that he has over that period carried out under supervision of a licensed person the types of tasks and responsibilities that he will be permitted to undertake without such supervision should his licence be granted. I am not satisfied that the evidence relied on by Mr Phillips proves experience in the scope of works for a builder low rise licence. The evidence is presented on an “all or nothing” basis. There appears to be no clear definition of the work undertaken in any of the projects specified in Mr Spark’s evidence. There are no clear time frames during which the works were undertaken and I am unable to determine what Mr Phillips did or when he did it.

    [4]Queensland Building and Construction Commission Act 1991 (Qld), s 3(a)(i).

16. In those circumstances the decision of the Queensland Building and Construction Commission made on 7 November 2017 is confirmed and the review application is dismissed.