| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDING SERVICES (REGISTRATION) ACT 2011 CITATION : REITSEMA and BUILDING SERVICES BOARD [2013] WASAT 132 MEMBER : MR C RAYMOND (SENIOR MEMBER) MR P PINDER (SENIOR SESSIONAL MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD : 21 JUNE 2013 DELIVERED : 20 AUGUST 2013 FILE NO/S : VR 3 of 2013 BETWEEN : SHANNON REITSEMA Applicant
AND
BUILDING SERVICES BOARD
Respondent
Catchwords: Building Services (Registration) Act 2011 (WA) Review of decision refusing registration as a building service practitioner and a building service contractor What constitutes carrying out or supervising building work Effect of requirement that applicant be a fit and proper person to be registered Whether applicant has requisite experience
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Legislation: Builders' Registration Act 1939 (WA)
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 9, s 9(1), s (13)(3)(c), s 17, s 18, s 20, s 21, s 23, s 24
Building Services (Registration) Bill 2011 (WA), cl 23, cl 24
Building Services (Registration) Regulations 2011 (WA), reg 4. reg 6, reg 10, reg 12, reg 16, reg 21, Sch 1, Pt 2 Result: Application granted
Summary of Tribunal's decision: The applicant applied for a review of a decision by the Building Services Board refusing his application to be registered as a building service practitioner and building service contractor under the Building Services (Registration) Act 2011 (WA).
The applicant had applied under the Set 1 pathway prescribed by the Building Services (Registration) Regulations 2011 (WA). There was no issue that the applicant had met the prescribed qualifications requirement. It was also accepted that the applicant was of good character. The issue was whether or not the applicant had the required seven years' experience in carrying out or supervising building work and whether if he did, a qualitative test was to be applied in assessing that experience to determine whether he was a fit and proper person to be registered as a building service practitioner. It was conceded that if the applicant was entitled to be registered as a building service practitioner, he qualified for registration also as a building service contractor.
The Tribunal concluded that on a proper construction of the legislation, the requirement that the applicant be a fit and proper person to be registered required the Building Services Board to make a qualitative assessment of the applicant's experience in carrying on or supervising building work. After examination of the separate periods of experience claimed by the applicant, the Tribunal concluded that the applicant had exceeded the requirement for the equivalent of seven years' fulltime experience in carrying out or supervising building work and, further, that having regard to the nature of that experience, when assessed qualitatively, there was no reason to disregard or discount any period of the experience claimed.
It was submitted on behalf of the Building Services Board that if the Tribunal was minded to grant the application for review, it should consider
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imposing conditions on the applicant's registration as a building service contractor so as to restrict the applicant to a scope of work in keeping with his experience. It was submitted that this could be achieved by restricting the applicant to the carrying out of building work in respect of BCA Class 3 to 9 buildings, limited to nonstructural fit out.
The applicant opposed the imposition of any such condition and submitted that the legislation did not envisage that the power to impose conditions could be used in that manner. The Tribunal concluded, after considering the scheme of the legislation and secondary material as an aid to construction, that the legislation intended that the power to impose conditions be used as a means by which a builder of carports and a builder of multistorey skyscrapers could be registered in different categories or classes.
The Tribunal observed that the evidence established that neither the building industry nor the applicant for registration appeared to be aware of the basis on which the Building Services Board was granting conditional registrations. Further, that no evidence on those matters was placed before the Tribunal, which made it difficult for the Tribunal to impose conditions consistent with any policy adopted by the Board, if appropriate to do so. The Tribunal concluded, however, that on the facts of the case, it was not appropriate to impose any conditions on the applicant's registration as a building service contractor.
The Tribunal set aside the decision under review, and substituted its own decision requiring the Building Services Board to register the applicant as a building service practitioner in the class building practitioner and as a building service contractor in the class building contractor (individual).
The applicant reserved its right to apply for costs in the event that it was successful, and directions were accordingly issued providing the applicant a limited time within which to make such an application, if so advised.
Category: B
Representation: Counsel:
Applicant : Mr S Brown
Respondent : Mr E Homan
Solicitors:
Applicant : Contract Intelligence Pty Ltd
Respondent : Evan Homan
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Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462
Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Farano and Builders' Registration Board of Western Australia [2006] WASAT 4
Genovese and Building Services Board [2012] WASAT 244
Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127
Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134
Re Bolton; Ex Parte Beane 162 CLR 514
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 14 November 2012 the Building Services Board (Board) refused the applicant's application to be registered as a building service practitioner and building service contractor pursuant to s 17 and s 18 respectively of the Building Services (Registration) Act 2011 (WA) (Registration Act). The applicant has applied for a review of that decision. 2 The Board contends that the applicant does not qualify for registration as a building service practitioner because he does not have the requisite experience equivalent to seven years fulltime carrying out of supervising building work and because he is not a fit and proper person to be so registered. As registration as a building service practitioner is a prerequisite for registration as a building service contractor, it follows that, if this contention is upheld on review, the applicant will also not be entitled to registration as a building service contractor. The Board acknowledges that the applicant meets all requirements for and will be entitled to registration as a building service contractor if it is established that he is entitled to registration as a building service practitioner. 3 The principal issue between the parties relates to the credit to which the applicant is entitled in respect of the periods he has claimed for carrying out or supervising building work. The Board contends, firstly, that there are significant periods claimed which relate to specialised commercial fit out of ablution areas which it contends does not constitute working on a building. Secondly, the Board contends that in any event, the requirement that an applicant be a fit and proper person for registration as a building service practitioner means that there is a qualitative assessment required of the applicant's experience and that time spent in carrying out the specialised commercial fit out does not give the applicant experience sufficient to make him fit for registration. As we understand the Board's final position as outlined in closing submissions, this also applies to the applicant's entire period of experience relating to commercial fit out, not just the specialised commercial fit out period, which was not its original position. In its written reasons the Board allowed a full credit for general commercial fit out experience. 4 The applicant disputes the Board's interpretation of the legislation and contends that not only is commercial fit out building work, but that in context the requirement to be a fit and proper person for registration, means no more than that the applicant must be of good character. (Page 6)
5 Attached at the end of these reasons for decision marked 'Annexure A' is an extract from a schedule prepared by the applicant reflecting his various claims of experience in carrying out or supervising building work. The schedule prepared by the applicant reflected the applicant's understanding of the periods of experience accepted by the Board based on the written reasons for decision provided by the Board. The column in which that was set out has been omitted in Annexure A because the Board's position changed at the hearing when no credit was conceded for commercial fit out. A column for insertion of the Tribunal's findings has also been omitted. 6 The Tribunal has considered all of the material filed by the parties. Based on that material, the oral evidence of the applicant given at the hearing, the parties respective statement of issues, facts and contentions and submissions during the hearing, resolution of the following issues will determine the outcome of the proceedings. 1) Does the commercial fit out work undertaken by the applicant while employed by West Coast Commercial Industries (WCCI) at relevant times constitute building work within the statutory scheme? 2) In any event, does the requirement that an applicant be a fit and proper person for registration allow a qualitative assessment to be made of the applicant's experience in carrying out or supervising building work? 3) If issue 2 is determined affirmatively, on a qualitative assessment of the WCCI experience claimed by the applicant, should all or any part of that experience be disregarded or discounted? 4) Are the experience requirements for registration of a building service practitioner met, and, if so, is the applicant entitled to be so registered and as a building service contractor subject to conditions or otherwise? 7 Unless otherwise denoted in the reasons which follow, all references to sections or parts of legislation are to sections or parts of the Registration Act. (Page 7)
Part Issue 1: Building work under the statutory scheme 8 Section 17 sets out the requirements for registration of building service practitioners as follows: Registration of building service practitioners (1) The Board must register, or renew the registration of, an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied that the applicant (a) has complied with sections 13 and 14; and (b) has the qualifications and experience prescribed by the regulations for that class of building service practitioner; and (c) is a fit and proper person to be registered; and (d) has complied with any other requirements prescribed by the regulations for registration as a building service practitioner in that class. (2) … 9 Section 17(1)(a) deals with the formalities of applying for registration as a building service practitioner in a class of building service practitioner. Section 9(1) provides that an individual may be registered under s 17 as a building service practitioner in a class of building service practitioner prescribed by the regulations. It is common cause that the applicant has met all of the requirements of s 17(1) other than s 17(1)(b) and (c). 10 The Building Services (Registration) Regulations 2011 (WA) (Registration Regulations), by reg 6, prescribe only five classes of building service practitioner, being a building practitioner, a building surveying practitioner level 1 and level 2, a building surveying practitioner technician and a painting practitioner. There are corresponding classes of building service contractor but allowing for individual, partnership and company registration. 11 Part 2 of the Registration Regulations deals with builders, building service providers, building practitioners and building contractors. 12 It is not necessary to address in detail the requirements relating to registration as a building service contractor. In the case, as here, of an individual registration, the building services contractor must be a building (Page 8)
service practitioner in the same class (s 18(d) read with s 21(1) and s 21(2)). A building service contractor carries out builder work as the person named as the builder on a building permit (reg 21 of the Registration Regulations). In order to be registered as a building service contractor it is necessary to satisfy various conditions including those relating to financial and insurance requirements (s 18). It is common cause that the applicant meets all other requirements relating to registration of a building service contractor save the requirement to be a building service practitioner under s 21. 13 Regulation 16 of the Registration Regulations sets out the qualifications and experience relating to building practitioners in the following terms. Qualifications and experience: building practitioners (1) For the purposes of section 17(1)(b) a qualification (if any) listed in a set in the Table, together with the experience listed in the same set, are prescribed as qualifications and experience for building practitioners.
Table
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| Set 1 | (a) CPC50210 Diploma of Building and Construction (Building) as described in the CPC08: Construction, Plumbing and Services Training Package published by Training.gov.au including the following units (i) CPCCBC4005A Produce labour and material schedules for ordering; (ii) CPCCBC4018A Apply site surveys and setout procedures to building and construction projects; (iii) CPCCBC5005A Select and manage building and construction contractors; (iv) CPCCBC5007A Administer the legal obligations of a building construction contract; (v) CPCSUS5001A Develop workplace policies and procedures for sustainability; (vi) CPCCBC4014A Prepare simple building sketches and drawings; (vii) CPCCOHS1001A Work safety in the construction industry; or (b) an equivalent qualification as determined by the Board. | carrying out or supervising building work for periods totalling at least the equivalent of 7 years fulltime |
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| Set 2 | qualifications acceptable for
(a) membership as Member (Level 1) or Member (Level 2) of the Royal Australian Institute of Architects; or (b) registration under the Architects Act 2004; or (c) membership as Professional Engineer (MIEAust or FIEAust) of the Institution of Engineers, Australia; or (d) membership as Fellow or Member of the Australasian Institute of Mining and Metallurgy,
evidenced by such membership or registration | supervising building construction for periods totalling at least the equivalent of 5 years fulltime | | Set 3 | qualifications acceptable for membership as Fellow or Member of the Australian Institute of Building evidenced by such membership | carrying out, supervising or managing building construction for periods totalling at least the equivalent of 5 years fulltime | | Set 4 | experience in supervising or managing building construction
(a) for periods totalling at least the equivalent of 5 years fulltime; and
(b) sufficient to gain knowledge and skills equivalent to those possessed by a person who has successfully completed a qualification referred to in set 1 |
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| Set 5 | experience in carrying out building work, other than in the area set out in Schedule 3 or the area of the State within which the Builders’ Registration
Act 1939 applied before it was repealed (a) for periods totalling at least the equivalent of 7 years fulltime; and
(b) sufficient to gain knowledge and skills equivalent to those possessed by a person who has successfully completed a qualification referred to in set 1 | 14 The applicant has applied under the registration pathway described in Set 1 of the above table and it is common cause that he meets the qualification requirements. 15 It will be noted that the experience required under Set 1 and Set 5 relate to experience in building work, whereas in Sets 2, 3 and 4 the experience relates to building construction. Whereas Set 1 and Set 5 require the equivalent of seven years' full-time experience, the time requirement for Sets 2, 3 and 4 is the equivalent of five years' full-time experience. 16 The phrase 'building construction' is not defined, whereas 'building work' is defined by Registration Regulations reg 12 as having the meaning given to that phrase in s 3 of the Building Act 2011 (WA) (Building Act). The Building Act in turn defines 'building work' as follows: building work means (a) the construction, erection, assembly or placement of a building or an incidental structure; or (b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or (Page 12)
(c) the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or (d) the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or (e) site work on any land for the purposes of, or required because of, work of a kind mentioned in (f) other prescribed work, but does not include work of a kind prescribed for the purposes of this definition as not being building work[.] 17 'Incidental structure' is also defined by s 3 of the Building Act as follows: incidental structure means a structure attached to or incidental to a building and includes (a) a chimney, mast, swimming pool, fence, freestanding wall, retaining wall or permanent protection structure; and (b) a part of a structure[.]
Part Issue 1: Does the work undertaken while employed by WCCI constitute building work? 18 There are two relevant periods during which the applicant was employed by WCCI. The first was between February 2004 and June 2005. At that stage WCCI was a registered builder restricted to commercial fit outs. The Board in its reasons for decision at paragraph 13b made this finding and further stated that it was then satisfied that the building work undertaken by the applicant was relevant experience. A total of 18 months was credited to the applicant in respect of that period. 19 Until closing submissions it was not understood that the Board had changed its position in respect of this allowance. But counsel for the Board, during closing submissions, went through each period of experience claimed by the applicant and made it then clear that any (Page 13)
commercial fit out work, and express reference was made to this particular claim, should be disallowed. It was difficult to understand the Board's position as outlined, but as we comprehend it, the objection to any allowance in respect of this period is on two bases. Firstly, that commercial fit out is not building work and, secondly, that even if it is, insofar as the applicant is applying for an unrestricted registration as a building service practitioner (and building service contractor) his experience in commercial fit out, assessed qualitatively, should be disregarded as not adding to the knowledge and ability required of a building service practitioner. We shall address only the first basis of objection under this issue heading, leaving the second basis for consideration under issue 3 below. 20 The second period in relation to which the applicant claims experience in carrying out or supervising building work while employed with WCCI relates to the period July 2006 to the present date. In the Board's written reasons for its decision, the Board noted at paragraph 13e that the company changed its function to specialise in the production of toilet and shower partitioning systems, lockers and commercial cabinets, and subsequently the company registration as a builder restricted to commercial fit outs was voluntarily removed from the register of builders in March 2008. 21 It should be noted that the applicant's evidence shows the registration as a builder lapsed, not because WCCI was not carrying out building work, but because WCCI was working as a subcontractor and therefore did not need to be registered as a builder: see the statutory declaration of Mr Gary Reitsema, a director of the company. It is not clear on which evidence the Board formed its view of what caused WCCI to allow its registration to lapse. We accept the evidence of Mr Gary Reitsema in this regard. 22 The Board recorded that the applicant had advised that the scope of work that he performed in his role was project managing the installation teams. He conducted the 'fit out of ablution areas' on large construction projects. The Board did not consider the installation of prefabricated shop fitting partitioning systems to be building work and, accordingly, no credit for this experience was given by the Board. 23 We shall address under issue 3 below the breakdown of tasks undertaken by the applicant. In relation to issue 1 we are concerned merely with the nature of the work. At paragraph 37 of the applicant's witness statement he outlined the work undertaken which included (Page 14)
carpentry works such as the framing of walls for backing panels, the framing in of ceilings to incorporate suspended systems, supervising the installation of wall panelling and access panelling as well as room dividers. 24 It is necessary to find whether any of this work falls within the definition of 'building work' under the Building Act. That definition includes erection, assembly or placement of an incidental structure which in turn includes a chimney, mast, fence or freestanding wall. 25 There is an inconsistency in the position adopted by the Board. It initially found that commercial fit out was work for which the applicant should be credited. We can understand there may be some argument about whether on a qualitative basis the assessment of the period to be credited might be affected, but in terms of whether commercial fit out is builder work, we find that it is. The definition is extremely broad, extended as it is by the definition of an incidental structure. The intent that credit should be given for a wide range of experience, or the carrying out of supervising building work, is evident by the legislature distinguishing in the qualification and experience sets between 'building work' and 'building construction'. Neither the Registration Act nor the Registration Regulations define 'building'. Under the Building Act, building itself is not defined other than as including a part of a building. The ordinary meaning of the term 'building' when used as a noun, as defined by the Macquarie Dictionary (5th ed, 2009) is: Building … / n. 1. a substantial structure with a roof and walls, as a shed, house, department store, etc. … 26 It is evident therefore that although in Sets 2, 3 and 4 of the table under reg 16 of the Registration Regulations, a lesser period of experience is required of five years, as opposed to seven years in Set 1 and Set 5, the experience must relate to the construction of a building or part of a building. Under Sets 2, 3 and 4, experience in the erection, assembly or placement of incidental structures which are attached to and form part of the building is included. The scheme of the qualification and experience sets is therefore quite workable with a greater period of experience being required where that experience is not directly related to the construction of buildings or parts of a building. 27 On this basis we agree with the Board's original finding that during the period of the applicant's initial employment with WCCI he was engaged in carrying out or supervising building work within the meaning of the Registration Act and Registration Regulations. (Page 15)
28 It is not clear to us why specialising in a more limited area of commercial fit out should fall outside the meaning of building work as discussed. We can see no logical reason for drawing any distinction and none was submitted on behalf of the Board. We find this work is also included within the meaning of building work.
Issue 2: The effect of the requirement that an applicant be a fit and proper person for registration as a building service practitioner 29 Counsel for the applicant referred to the Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462 at 488 as authority for the proposition that the expression 'fit and proper', standing alone, carries no precise meaning, and that it takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. 30 It was further submitted for the applicant that to the extent that the Tribunal had determined in Genovese and Building Services Board[2012] WASAT 244(Genovese) that the expression went beyond considerations of moral integrity and good character to include knowledge and ability, the Tribunal had expressed its view obiter and on the correct construction of the legislation the expression should be limited to considerations of good character. 31 Save for the submission that the expression 'fit and proper' should be limited to considerations of good character, these submissions are accepted. In Genovese the Tribunal did not enter into any qualitative assessment of the experience claimed and therefore it was not an essential part of the rationale of the decision to make any determination as to the meaning of the expression 'fit and proper'. This notwithstanding, in the interests of consistency and to avoid bringing the Tribunal's processes into disrepute, the Tribunal should follow earlier decisions unless persuaded they are clearly incorrect: see the principles discussed in Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45. On the same principles, obiter statements of the deliberative nature described in Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134 at [41] should be given great weight. For the reasons which follow we are not satisfied that the opinion expressed in Genovese was wrong; to the contrary, we agree with it. 32 Counsel for the applicant referred the Tribunal to the second reading speech and explanatory memorandum in relation to the Registration Act to support its primary contention that once the qualifications and experience of Set 1 were met, there was no room for any consideration (Page 16)
about the adequacy of the knowledge or experience in order to ensure that an applicant for registration is competent. Once the knowledge and experience requirements were met, the expression 'fit and proper' could only apply to character because there was no work to be done by any other of the elements comprised in the meaning of 'fit', namely, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127 (Hughes and Vale) at 156 157 referred to in Genovese at [21]. The explanatory memorandum does contain statements which support the applicant. At page 2 it is stated: Individuals meeting the qualification, experience and character requirements set out in the Regulations may be registered as building service practitioners … . 33 Later, in explaining the particular clauses of the Building Services (Registration) Bill 2010 (WA) (Registration Bill), it is stated in relation to cl 17 that cl 17(1)(c) allows for the Board to consider convictions, past bankruptcies, etc, when making a decision on whether to grant or renew a registration. It was submitted that under s 18 of the Interpretation Act 1984 (WA) an interpretation should be preferred which promotes the purpose of the legislation as disclosed by the explanatory memorandum. 34 With respect, it is not appropriate to have recourse to the explanatory memorandum in the way submitted. The principles of statutory interpretation require that the legislative intention be ascertained as manifested by the legislation. As stated by the plurality in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010) at 31: Statements as to legislative intention made in an explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. 35 The High Court went on in the following paragraph to refer to Re Bolton; Ex Parte Beane 162 CLR 514 at 518 where the majority stated: [T]he second reading speech of the Minister … quite unambiguously asserts that Pt III relates to deserters and absentees, whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law … It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the (Page 17)
Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. 36 In our view, the clearest indication of the intent of the Parliament is to be gleaned from the qualifications and experience set out in reg 16 of the Registration Regulations as discussed fully above. The very wide scope of building work due to the inclusion in that definition of 'incidental structures' demonstrates the obvious need for the expression 'fit and proper' to be given its usual meaning as discussed in Genovese. A person who spends seven years fulltime erecting boundary fences, or swimming pool fences, either contemporaneously with the completion of a new building or part of which is attached to the building, meets the Set 1 experience requirements. If building work was narrowly confined to building construction, that might have given some support to the applicant's contention that 'fit and proper' be read down to relate only to character. That Parliament shortened the period of experience required where an applicant's experience relates to building construction recognises that the type of experience that might be claimed under Set 1 is not directly comparable. The range of activities which will come within Set 1 are so wide that without a qualitative assessment there could be no assurance that an applicant with the requisite experience can competently carry out the functions of a building service practitioner within the class building practitioner. 37 The clear purpose of the Registration Act is to provide for a system of registration which ensures that those applying for registration have adequate qualifications and experience to permit the applicant to be safely accredited to the public as a person to be entrusted with the sort of work which the registration entails. It is consistent with that intent to ensure competency that the Board should have the widest scope for judgment when considering an application for registration and therefore that the expression 'fit and proper person' be given its traditional meaning as discussed in Hughes and Vale and Genovese. In consequence, the Board must not only determine the appropriate length of any period of experience claimed based on activities performed within a particular job function, but must then assess qualitatively the experience concerned. This needs to be done in a pragmatic and common sense way to screen out, in full or in part, time spent on the peripheral activities which might come within the construction, erection, assembly or placement of an incidental structure or time spent on a limited range of work falling within the concept of builder work. (Page 18)
Issue 3: Should any part of the experience claimed for work undertaken while employed by WCCI be disregarded or discounted? 38 During the period January 2004 to June 2005 the applicant worked fulltime with WCCI when that company was mainly involved in providing commercial fit out services. All of this is detailed in the applicant's witness statement. He worked mainly as a tradesperson, which in his case meant as a carpenter, the applicant having completed an apprenticeship in carpentry and joinery. As the applicant stated, the works he undertook for commercial projects included stripping and renovation of shops, shop fitting, removal and reinstallation of flooring, removal and reinstallation of panels and removal and reinstallation of walls. The applicant estimated that he spent approximately 20% of the time he was employed with WCCI during this period involved in supervision. During the second period of his employment with WCCI, from June 2006 to the present, the applicant explained that WCCI had begun to specialise in commercial fit outs of ablution areas, also including the production and installation of toilet and shower partitioning systems, lockers and commercial cabinetry. The applicant expressed his belief that the building required in the commercial fit outs of ablution areas is substantively the same as the commercial fit out of shops, only with specialised requirements. While this might be regarded as 'opinion evidence' to which little or no weight should be attached, it implicitly contains a statement of fact that the work he was doing was substantively the same as commercial fit out of shops. 39 The applicant stated that during this period he was, and currently is, employed as a projects manager engaging in primarily supervision of building works, although he undertakes some trade works whilst on site. The applicant details in his witness statement that he worked on numerous construction projects involving contracts valued from $10,000 to $1.4 million in value. He identified as notable projects a $1.4 million contract for Brookfield Multiplex for the supply of all the seating, lockers, toilet partitions, showers partitions, disabled access items and lift access doors for all 45 levels of the building. Further, he identified a $500,000 contract for Broad Constructions in relation to the new Perth Arena where WCCI was responsible for supply and installation of all toilet and shower partitioning, washroom accessories and disabled access items, including the installation of wall panelling. He further identified a $130,000 contract for John Holland Group for the Western Australian State Theatre. This involved the installation of toilet cubicles, floor to ceiling partitioning systems in the ablutions areas and high quality veneer work. (Page 19)
40 The applicant states that the works carried out for WCCI are varied and substantial and involve supplying and installing toilet and shower cubicle partitions and doors, installing access panels and undertaking wall panelling works, construction and installation of cabinetry, lockers and seating, as well as installation of disabled access items and supply and installation of room dividing partitions. In his oral evidence the applicant explained that installation could include cutting into floors and ceilings. 41 At paragraph 37 of his statement the applicant details the numerous duties he has undertaken whilst employed by WCCI. The duties are numerous and very much in summary form include working with and coordinating together on site with plumbers, tilers, painters, electricians, carpenters, ceiling fixers, cabinetmakers, glaziers and site supervisors, conducting onsite measurements, organising staged installation of the works including supervision of subcontractors, carpentry works such as framing of walls or backing panels and framing in of ceilings to incorporate suspended systems, organising and planning subcontractor work programs and payment schedules, implementing methods of installation and quality control. 42 In the documentation provided to the Board the applicant estimated that his time could be broken down into the following categories: site coordination - 40%; production office administration - 25%; fabrication supervision - 25%; and trade work - 10%. 43 The Board concedes that if, as we have found above, the type of work carried out by WCCI constitutes building work, the applicant should be entitled to a credit of 10% of his actual time employed by WCCI during the second period of employment insofar as this is the amount of time which is estimated to have been spent on trade work. This, we understand to mean, time spent in carrying out work falling within carpentry or joinery. 44 In the applicant's written statement filed in these proceedings he revised the proportion of time spent on the above activities. He explained at paragraph 40 of his statement that whilst undertaking duties involved with production office administration, he is not restricted to only undertaking managerial administrative tasks. He states that he is usually on the telephone most of the time coordinating and engaging with other site supervisors and subcontractors and also directing works. He states that onsite issues are always a priority to him, and when in the office he is always attending to solve any such issues before undertaking anything else. He stated that he works on average three days per week on site (Page 20)
and two days per week in the office. The revised proportion of time spent in the above activities is given as: site coordination - 50%; production office administration - 20%; fabrication supervision - 20%; and trade works - 10%. 45 The applicant relies on a statutory declaration from his father, Mr Gary Reitsema, who is a director of WCCI. Mr Gary Reitsema confirms that the nature of the work undertaken means that sometimes it is necessary to install aluminium extrusions and cut and form into the floors, walls and ceilings as part of the installation process. Significantly, the reason he gives for WCCI not renewing its registration as a building company in March 2008 is not because of a change in the nature of the work undertaken, but due to the company's focus of working as a subcontractor for commercial builders on large projects. 46 Mr Gary Reitsema confirmed the applicant's estimate of the proportions of time spent on the activities described above and specifically states that, whilst undertaking duties at the office, the applicant spends a lot of his time on the telephone still coordinating and directing works on site. Mr Gary Reitsema states that he constantly hears the applicant engaging with other subcontractors and site supervisors attempting to deal with onsite issues. 47 In the schedule which is attached as Annexure A at the end of these reasons, the applicant claims in respect of this second period of employment (Item 6 in the schedule) that 60% of his time was spent on supervision and 10% on trade work. The schedule is not supported by the evidence to which we have referred. The applicant was not crossexamined on this revision of the time estimate spent on various activities and we accept the breakdown provided in his witness statement and supported by the evidence of Mr Gary Reitsema. 48 As we have already stated, we can find no logical reason for distinguishing between the nature of the work undertaken by the applicant while employed by WCCI during the first period of employment and his current period of employment. It remains commercial fit out work, save that it is now more specialised. 49 We turn to consider the activities in which the applicant has been engaged. We agree that he should be credited in respect of trade work. Insofar as onsite supervision is concerned, including time spent in coordinating and dealing with trades from the office, the activities undertaken by the applicant are indistinguishable from those normally (Page 21)
undertaken by a supervisor engaged in building construction, save that the applicant is dealing with a limited range of materials and scope of work. 50 Because the applicant has been engaged in a relatively limited scope of work while engaged with WCCI, at least during the second period of engagement, it is necessary to consider on a qualitative assessment whether the work should be disregarded or discounted. Clearly, the experience is such that it should not be disregarded but should it be discounted to any extent? This is dependent on an overall view of all the experience of an applicant for registration as a building service practitioner. At the one end of the scale, if that was the only work which had been undertaken there might be a need for a discount to apply. The extent of any discount might in turn depend on the basis upon which an applicant seeks registration. This will be discussed in greater detail in the following issue below, but in closing submissions the Tribunal was informed by the Board's counsel that if the Tribunal was inclined to find that the applicant was entitled to registration, consideration should be given to a condition being imposed on the applicant's registration as a building service contractor limited to the registration to the carrying out of building work in respect of BCA Class 3 to 9 buildings limited to nonstructural fit out. Assuming for present purposes that such a registration could be granted, there would be no need then to consider whether the experience should be discounted to any degree. 51 It should be borne in mind that the Set 1 pathway to registration will be utilised by applicants with trade qualifications who may have gained experience only within a particular trade. One would expect that most building trades would qualify as being fit and proper persons for registration on the basis of the experience gained in that trade supplemented by the qualifications required by Set 1. Where to draw the line is a vexed problem with which the Board will have to grapple as its predecessor, the Builders' Registration Board, did. In that regard, see the controversy discussed in Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 as to whether experience gained as a tiler qualified the applicant in that case to registration as a builder. It is noted that under the now repealed Builders' Registration Act 1939 (WA) (BR Act) registration under the comparable pathway depended upon the applicant having gained 'practical experience' which enabled a qualitative assessment of the experience claimed. That qualitative assessment can now be undertaken because of the requirement that the Board be satisfied that the applicant is a fit and proper person for registration. Subject to the qualification requirements at any particular time, one would not expect that an application of the fit and proper requirement for registration would (Page 22)
result in a different outcome to that which would have been achieved under the previous regime. Our view, as discussed in the following issue, is that the applicant has sufficient experience in other areas such that any discount of the experience based on a qualitative assessment is not necessary. 52 Neither party considered that the time spent by the applicant in the production office administration and in fabrication supervision should be credited. There was accordingly no evidence directed towards precisely what work the applicant undertook in this regard. In the circumstances, it is not appropriate that we make any finding one way or the other. We observe, however, that it is arguable that credit could be claimed for this work given the very wide definition of building work and incidental structure. 53 The Macquarie Dictionary (5th ed, 2009) defines 'construction' as the act or art of constructing. 'Construct' is, in turn, defined as performed by putting together parts; build; frame; devise. 54 If the construction of a swimming pool is regarded as building work in accordance with the definition of an incidental structure, and fibreglass swimming pools are constructed offsite, it may well be that construction of prefabricated shop fitting partitions will constitute building work as defined. If so, this is a good example of the type of work which could be either disregarded or discounted to a significant extent on a qualitative assessment. 55 It follows that we find that the applicant is entitled to a full credit in respect of the initial period of employment at WCCI and to a credit of 60% (50% site coordination and 10% trade works) of the time period in relation to his current employment with WCCI from June 2006.
Issue 4: Are the experience requirements for registration of a building service practitioner met, and, if so, is the applicant entitled to be so registered and as a building service contractor subject to conditions or otherwise? 56 The total experience claimed by the applicant is set out in the schedule marked Annexure A. The claim is broken down into 11 discrete periods of work and the details are set out numbered from 1 to 11, respectively. The column on the right hand side of the schedule shows the separate period claimed in respect of each item. At the hearing, in closing submissions, counsel for the Board conceded additional periods should be allowed over and above those allowed by the Board in its written reasons (Page 23)
for decision. In respect of Item 1, an additional period of 12 months that is, a total of 27 months is conceded. In respect of Item 5, where the employer is shown as RKW Construction, a period of four months is conceded. In relation to Item 7, an additional one month is conceded. In respect of Item 11, the period claimed of one month is now conceded. Apart from the claims in relation to employment with WCCI (Items 2 and 6), the only dispute between the parties relates to Item 10 in which the applicant claims four months' experience but has been allowed only three months by the Board. We note that in the documentation filed with the Board the applicant estimated that the experience he was entitled to claim was three months. There is no logical explanation given for the additional one month. We find that the applicant is entitled to the period allowed by the Board of three months in respect of this period of employment. 57 Consequently, the total period of experience which the applicant is entitled to claim, excluding WCCI, amounts to 48.5 months. The experience gained in relation to the relevant items relating to this period is as varied as one could expect in relation to a carpenter and joiner engaged in building construction. That is a good range of experience, better than might be expected in some cases in respect of a person involved in carrying out or supervising building work, within the meaning of reg 16 of the Registration Regulations. The total period involved in this range of work (excluding WCCI) is slightly in excess of 4/7ths of the total experience required under the Set 1 pathway. In addition to the WCCI periods of employment, the applicant, as we have found, is entitled to the full period of experience in respect of Item 2 of 18 months, as was originally allowed by the Board. To that must be added 60% of the applicant's time spent in the employ of WCCI from 30 June 2006 to the end of July 2013. We calculate that period to be 51.6 months. Thus the total experience period for which the applicant is entitled to be credited is 118.1 months, almost three years more than that required under the Set 1 pathway. 58 It is conceded that the applicant is of good character. That meets the honesty and integrity component of the 'fit and proper' requirement. 59 The Board contends that the applicant is nevertheless not a fit and proper person as discussed above, but, submits further that if we are minded to consider any form of registration, we should consider placing a condition on the applicant's contractor registration limiting him to a scope of work in keeping with his experience. In closing submissions, counsel for the Board submitted that the manner in which to achieve this was to (Page 24)
restrict the applicant to the carrying out of building work in respect of BCA Class 3 to 9 buildings, limited to nonstructural fit out. 60 The applicant opposes any conditional registration. The applicant submits that s 23 is not intended to permit conditions of this nature to be imposed and refers to the second reading speech and explanatory memorandum in respect of the Registration Bill. Section 23 and s 24 provide as follows: Conditions generally (1) Registration is subject to (2) The regulations may provide for conditions of registration. Conditions imposed by Board (1) The Board may impose conditions on the registration of a registered building service provider (2) The Board may vary or revoke conditions imposed under this section. (3) The imposition, variation or revocation of a condition during the currency of the registration of a person does not take effect until written notice, including notice of the person’s right of review under section 64, has been given to the person. 61 As neither the language of the section nor its context within the legislation gives any indication of the scope of any conditions which might be imposed, it is legitimate to have regard to secondary material. 62 The Explanatory Memorandum, in relation to cl 23 of the Registration Bill, states simply that this provides a general power for conditions and that any conditions that apply to existing registrations will carry over to the Registration Act. Clause 24 explains that the provision allows the Board flexibility to grant or continue registration when minor or easily correctable deficiencies occur in applications. It is also explained that conditions may be applied following disciplinary action. (Page 25)
63 The second reading speech given by Mr WR Marmion, the Minister for Commerce (Hansard 10 November 2010, p 8495(b) 8496(a)) makes no direct reference to the imposition of conditions and their intended scope. However, reference is made indirectly, in the sense that the Honourable Minister addresses the creation of different classes of registration. The Honourable Minister states: Two examples illustrate the outdated nature of the Builders' Registration Act. First, the Builders' Registration Act does not have the flexibility to provide for the creation of different classes of registration to reflect the various levels of complexity of building work and the specialties that have been developed in the building industry today. This means that a builder of carports is registered in the same category and must have the same qualifications as a builder of multistory skyscrapers. Secondly … This Bill addresses those problems by replacing the Builders' Registration Act and the Painters' Registration Act with a flexible scheme that allows for any type of building service to be prescribed in the regulations, as well as classes within each of those services. … 64 This suggests that conditions were not intended to achieve different classes within each type of building service prescribed in the Registration Regulations but that the regulations would be used for that purpose. 65 The difficulty with all of this is that there is nothing in the Registration Act or the Registration Regulations which appears to correspond to the system outlined in the second reading speech. Section 9 permits an individual to be registered under s 17 as a building service practitioner in a class of building service practitioner prescribed by the Registration Regulations. As pointed out above, reg 6 of the Registration Regulations provides for only four classes of building service practitioner, one of which is a building practitioner. Regulation 6 also provides for corresponding classes of building service contractors with additional variations for individual, partnership or company forms of registration. Regulation 4 of the Registration Regulations does prescribe different types of building services but there are only four, being, builder work as the person named as the builder on a building permit, building surveying work level 1 as the person issuing a compliance certificate, building surveying work level 2 as the person issuing a compliance certificate, and painter work. 66 The scheme of the legislation, referring to the Registration Act and Registration Regulations, therefore, is to provide for classes of building service practitioners and contractors and, in relation to the building work, the only relevant classes are a building practitioner or building contractor (Page 26)
(individual/partnership or company). Whereas the BR Act governed only builders, building practitioners, building surveying practitioners and painting practitioners and the corresponding building service contractor classes are now covered by the same Act. A further difference, however, is that the Registration Act expressly provides power to impose conditions on registration. That power did not exist under the BR Act: see Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 (Farano). It appears from the second reading speech that it was the type of difficulty outlined in Farano which the Registration Act was intended to address by providing for a builder of carports and a builder of multistorey skyscrapers to be registered in different categories or classes. Under the legislative scheme, the only way in which that can be achieved is by imposing conditions on registration in appropriate cases. 67 In these proceedings, there has been no evidence of any categories of building service practitioners or building service contractors, established by the imposition of conditions. In a letter from Mr Gavan Forster, Housing Director, Master Builders Association of Western Australia, dated 26 March 2013, provided in support of the applicant's application, Mr Forster observed: … [W]e have also noted a definite trend for the Board in recent months to issue conditional rather than unrestricted registration based on an assessment of the type of experience obtained by an applicant. For example our observation is that if an applicant has predominantly housing experience then a building ticket restricted to Class 1 & 10 buildings is now more likely to be issued. Whilst not necessarily disagreeing with this trend, it is the lack of communication of Board policy to industry that is of concern. We are also unaware of the legislative basis on which the Board is issuing these conditional registrations, given that there are literally hundreds, perhaps thousands, of currently registered builders with only housing experience who have been previously granted an unrestricted ticket. 68 No doubt our reasons for decision in this matter will provide an explanation of the legislative basis on which the Board is issuing conditional registrations. But, on review, this Tribunal sits in the position of the Board and in the interests of sound administration should apply policy considerations consistently with the Board, provided those policies can be logically supported and are in turn consistent with the legislation. It is difficult, if not impossible, to do that when no information is put before the Tribunal identifying any policies, or on what basis conditions are imposed. It is evident from Mr Forster's concern that industry, and in particular potential applicants, have also received little guidance. In future applications before the Tribunal of this nature, it is hoped that all (Page 27)
relevant material will be put before the Tribunal so that there is a proper understanding of the classes of registration established by the Board and the basis upon which other classes might be recognised. No doubt this situation is substantially due to the legislation having been in operation for only a relatively short period. 69 In any event, we conclude that there is power to impose a condition on registration so as to effectively establish different classes or categories of a building practitioner or building service contractor. 70 However, in this case the applicant has 48.5 months of general building experience as well as the additional experience gained at WCCI relating to commercial fit out. We do not consider it appropriate to impose any condition on the applicant's registration as a building service contractor, as we have been invited to do. 71 Based on our above findings, the applicant meets all the requirements of section 17(1)(a), (b) and (c) save in one respect. In his witness statement the applicant states that he 'paid the Building Commissioner about $636 for the assessment of my application, of which approximately $350 was returned to me by cheque when my application was refused'. The Building Commissioner has a discretion, under reg 10 of the Registration Regulations, to refund part or all of any prescribed fee. The prescribed fees are set out in Sch 1 to the Registration Regulations and it appears that the application fee for registration as a building service practitioner and building service contractor totals $626. 72 The applicant has not been precise about the amount refunded, but to comply with s 17(1)(a), read with s 13(3)(c) which requires payment of the application fee, the applicant will need to pay the amount refunded to the Building Commissioner. 73 There have as yet been no other requirements prescribed for registration as a building service practitioner in accordance with s 17(1)(d). It therefore follows that subject to payment of the balance of the requisite fee to the Building Commissioner, the applicant has met all the requirements for registration as a building service practitioner. It is common cause that if the applicant is entitled to registration as a building service practitioner that he meets all the requirements for registration as a building service contractor as set out in s 18 (subject to payment of the fee refunded by the Building Commissioner). (Page 28)
Order 74 For the reasons given above, the applicant is entitled to registration both as a building service practitioner and building service contractor as described, and the Tribunal will cause orders to issue consistent with the reasons for decision. 75 The applicant's counsel foreshadowed in closing submissions that if the applicant was successful, the applicant may wish to apply for costs and the applicant's right to make that application was reserved. At the time, the Tribunal drew to counsel's attention and summarised the principles applying to the award of costs in the review of administrative decisions. Counsel indicated an understanding of those principles but wished the applicant to have the opportunity to give considered instructions once the basis of the decision was known. In these circumstances, the orders to be made by the Tribunal will provide a limited time period within which the applicant may make any application for costs, failing which the matter will be regarded as finalised. 1. The application for review is upheld. 2. The decision of the Building Services Board made on 14 November 2012, as reflected in its written reasons for decision dated 5 February 2013 refusing the applicant's applications for registration as a building service practitioner under the class building practitioner and for registration as a building service contractor under the class building contractor (individual), is set aside and the decision of the Tribunal is substituted therefor as reflected in order 3 below. 3. Subject to payment of the balance of any outstanding prescribed fee, the applicant's application for registration as a building service practitioner in the class building practitioner and for registration as a building service contractor in the class building contractor (individual), is granted. 4. The Building Services Board is directed to effect the applicant's registration in accordance with order 3 pursuant to s 17 and s 18 of the Building Services (Registration) Act 2011 (WA), respectively, and to issue the applicant with the applicable registration certificates (Page 29)
pursuant to s 20 of the Building Services (Registration) Act 2011 (WA). 5. The applicant has leave to apply for costs provided that an application in compliance with these orders is made on or before 10 September 2013, failing which the matter shall be regarded as finalised. 6. In the event that the applicant applies for costs, the applicant must file with the Tribunal and provide to the respondent: 7. In the event that the applicant makes an application for costs in accordance with the preceding orders, the respondent may on or before 20 September 2013 file with the Tribunal and provide to the applicant an outline of any submissions which it wishes to make in opposition to the application addressing whether any costs order should be made and the quantum of costs claimed. 8. Subject to further order, any application for costs shall be determined on the documents. (Page 30)
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