Saunders v QBCC
[2017] QCAT 318
•15 September 2017
CITATION: | Saunders v QBCC [2017] QCAT 318 |
PARTIES: | Stephen Saunders |
| v | |
| Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | OCR177-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 28 – 29 August 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 15 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Queensland Building and Construction Commission made on 22 September 2016 that Mr Saunders’ application for a Builder – Low Rise licence be rejected is confirmed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – Where application made for Builder Low Rise licence – Whether requisite four year period of experience had accrued Queensland Building and Construction Act 1991 (Qld), s 3, s 31 |
REPRESENTATIVES: | |
APPLICANT: | Mr Stephen Saunders appeared in person |
RESPONDENT: | Queensland Building and Construction Commission was represented Mr Malcolm Robinson of Robinson Locke Lawyers |
REASONS FOR DECISION
Mr Stephen Saunders began his professional life as an accountant. He worked for many years with clients in the building industry and developed a strong interest in becoming a builder himself.
With this aim in mind, Mr Saunders set about obtaining the necessary qualifications and experience to be eligible to apply to the Queensland Building and Construction Commission (the Commission) for a licence as a “Builder – Low Rise”. This licence, although general in its coverage, is the main licence covering residential construction in Queensland.
Mr Saunders did not undertake qualifications in a carpentry or brick or block laying upon which to base his application. Rather, he relied on the provisions of s 31(1) of the Queensland Building and Construction Act 1991 (the QBCC Act).
That section says a person is entitled to a contractor’s licence if the Commission is satisfied:
a)the applicant is a fit and proper person to hold the licence;
b)the applicant has the qualifications and experience required by regulation in relation to a licence of the relevant class;
c)the applicant satisfies the relevant financial requirements stated in the board's policies;
d)the applicant can lawfully work in Queensland;
e)the applicant is not an excluded individual for a relevant event or a permanently excluded individual;
f)the applicant is not a disqualified individual;
g)the applicant is not a banned individual; and
h)the applicant does not have an unpaid judgment debt for an amount the Commission may recover under s 71.
The minimum requirements for the Builder - Low Rise licence are found in Part 4 of Schedule 2 of the Queensland Building and Construction Regulation 2003 (Qld) (Regulation).
The experience requirements are the following:
a)for a person who has a technical qualification required under Schedule 2, Part 3 (bricklaying and block laying) or 16 (carpentry)—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 for the class;
b)otherwise 4 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 for the class.
Without a technical qualification in bricklaying and blocklaying or carpentry, Mr Saunders must satisfy four years experience in the scope of work for the class or other work at least equivalent.
The “scope of work for the class” referred to in Schedule 2 above is found in the Building Code of Australia[1] and is defined as work experience relating to:
a)Building work on a class 1 or class 10 building;
b)Building work on classes 2 to 9 with a gross floor area not exceeding 2,000 square meters, but not including Type A or Type B construction.
[1]Available on the Commission’s website.
The technical qualifications required for the 4 years’ experience are set out in Part 4 of the Department of Housing and Public Works Building Industry Policy[2] of April 2016. This requires an applicant to have successfully completed a Certificate IV in Building and Construction (Building) or a course the Commission considers is at least equivalent.
[2]Exhibit 4, Annexure 1.
Mr Saunders applied for a licence giving detail of his experience in late December 2015. On 12 May 2016, the Commission advised Mr Saunders his application was refused.
Mr Saunders sought an internal review resulting in a further decision to refuse the application on 22 December 2016.
On 29 September 2016, Mr Saunders filed a review application in QCAT.
S 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) sets out the function of this Tribunal on review. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.[3]
[3]QCAT Act, s 24(1).
The purpose of the review is to produce the correct and preferable decision and is heard and determined by way of a fresh hearing on the merits.[4]
[4]Ibid, s 20.
In opening submissions from the Commission accepted the following requirements of s 31(1) were satisfied:
a)S 31(1)(c) - Financial Criteria: Mr Saunders declares he has at least Net Tangible Assets of $36,000, allowing for a Maximum Revenue of $600,000.[5]
b)S 31(1)(d) - Lawfully work in QLD: Mr Saunders declares he is a citizen.[6]
c)S 31(1)(e), s 31(f), s 31(g) - Excluded, disqualified or banned: These exclusions are not triggered.
d)S 31(1)(c) - Financial Criteria: Owing a judgment debt to the Commission: This exclusion is not triggered.
[5]Exhibit 2 - Statement of Reasons, page 17.
[6]Ibid, page 18.
The issues to be address by this Tribunal therefore were limited to
s 31(1)(a) and s 31(1)(b) and these sub-sections are the subject of these reasons.
S 31(1)(a) – Fit and proper person
In closing, the Commission submitted that there will only be a concern that the applicant is not a fit and proper person to hold a licence if:
a)There has been intentional deception; or
b)There has been such disregard and lack of care for detail that it is possible to say Mr Saunders does not warrant holding a licence.
Discussion
I found Mr Saunders to be a truthful witness. Mr Saunders is committed to his new profession and keen to be able to build under his own licence. He gave his evidence in both written and verbal forms thoughtfully and in detail. As will be seen later in these reasons, he made appropriate concessions in relation to the experience he was claiming after the evidence had been presented to the Tribunal.
I observed no evidence of intentional deception, disregard or lack of care in the detail of Mr Saunders’ evidence. In closing, the Commission did not press the submission that Mr Saunders did not satisfy this requirement.
I am satisfied that Mr Saunders is a fit and proper person to hold a licence if all other requirements are met.
S 31(1)(b) – Has the qualifications and experience required by regulation
This requirement became the main issue in this matter. In Mr Saunders’ circumstances, the QBCC Act and the QBCC Regulation require 4 years’ experience for this class of licence.
The usual practical approach by the Commission in calculating time is a “by the month” basis and this basis was adopted by the Tribunal as appropriate in this matter. Where work was of a sporadic or part-time basis, times were aggregated so as not to diminish the work periods.
Mr Saunders now has two formal qualifications. Mr Saunders completed his Certificate IV in Building and Construction (Estimating) in October 2010. He further completed a Diploma in Construction Management in November 2011.
It was not until Mr Saunders completed his Diploma course in November 2011 that the Commission considered he had completed an equivalent course to the required Certificate IV in Building and Construction (Building) as Mr Saunders’ certificate course had been in estimating not building.
Although Mr Saunders argued that many of the modules in each course were the same, it remains that his certificate course was not the required course. This necessary qualification was put beyond doubt by his subsequent completion of the Diploma in Construction Management in November 2011.
I am satisfied the requirement under the legislation is for a Certificate IV in Building and Construction (Building). Oral evidence from Mr Anderson, the Commission’s Licensing Manager, was that the Certificate IV in Building and Construction (Estimating) completed by Mr Saunders was not equivalent to the Certificate IV in Building and Construction (Building) required under the technical qualification policy.
Mr Anderson gave evidence that although many modules may be the same between both certificates, the estimating certificate was to qualify for that purpose, not for on-site building management.
I am satisfied that the Certificate IV in Building and Construction (Estimating) is not equivalent to the required Certificate IV in Building and Construction (Building) as it does not address requirement site management and qualifies for the estimating role only.
Projects going to 4 years’ experience
Mr Saunders identified a number of projects he submitted counted towards the level of experience necessary to qualify for the licence he seeks.
The following list sets out the projects:
Project
Period claimed
8 Norman St, Kingaroy
May to October 2008
8 Macdiarmid St, Kingaroy
August to September 2009
40 Carrol St, Kingaroy
September to December 2009
BER Projects x 4
November 2009 to April 2010
16 Cochrane St, Brighton
December 2010 to December 2011
(part-time – 10.5 months)
50 Nelson St, Golden Breach
February to September 2012
70 Banksia Dve, Kingaroy
December 2012 to February 2013
152 Blacombe St, Mentone
March to September 2013
24 Wembley Ave, Cheltenham
January to February 2017
33 Lockhart St, Caulfield
November 2015 to August 2016
Hoath St, Hughesdale
March to June 2017
The Commission submits that work prior to obtaining the qualification in 2011 appears to be, in substance, below the level required and should be excluded; work unsupervised must be excluded; and work when viewed objectively is merely work as a labourer should also be excluded.
Mr Saunders conceded that work undertaken while he was learning was below the level required to be taken into account as necessary experience.
On this basis, Mr Saunders appropriately conceded the work onsite in Kingaroy from May 2008 to December 2009 should not be counted.
The granting of a builder’s licence allows the builder freedom to build unsupervised. The objects of the QBCC Act include ensuring the maintenance of proper standards in the industry.[7] It follows that the standard of experience and the breadth of experience required to licence a builder who seeks to be responsible to the Queensland community should be higher than the learning phase of a builder’s career. Evidence of actual experience in such matters as, for example, dealing with clients, planning and drawings, actual higher order building skills and supervision of staff and subcontractors in more than a cursory way is integral to the granting of a licence.
[7]QBCC Act, s 3(a)(i).
This higher level of expectation of an applicant is an appropriate standard of experience again in line with the objects of the QBCC Act to protect the interests of consumers and to provide support, education and advice for those who undertake building work.
Mr Saunders does claim a total of 6 weeks for this early 2008-09 period in recognitions for skills he says he gained in preparing plans and specifications, obtaining necessary permits, council approvals and obtaining the final building certification. He says this is the type of experience that falls within the Scope of Work for a Builder – Low Rise licence.
These projects were Mr Saunders’ own properties under an owner/builder arrangement through a company arrangement. Mr Saunders gave directions to a draftsperson for the plans as the owner of the property and employed qualified tradespersons as required for the renovations.
I am not satisfied that the experience he gained was of a sufficient level, over that required of any homeowner undertaking renovations of their own property, to be sufficient to be counted towards the level required for a Builder – Low Rise licence.
I will not count the 6 weeks sought by Mr Saunders towards the required time for his licence application.
After 2011, the Commission accept that Mr Saunders had the appropriate technical qualifications to count any practical experience. The projects that fall into this category are those undertaken with Citadel Building at Mentone, Cheltenham, Caulfield and Hughesdale in Victoria.
There is a further earlier project undertaken with Citadel Building at Brighton, prior to Mr Saunders completing his Diploma in Construction Management in November 2011. The Commission does not accept that Mr Saunders had the appropriate technical qualifications to count time at this project towards any practical experience.
There is conflicting evidence about Mr Saunders’ involvement in all of these Citadel Building projects.
Evidence was given by the licenced builder for these projects, Mr Oleh Pelyshchuk, that on all of these projects, Mr Saunders worked with him fulfilling the role of “leading hand”. In Queensland this is equal to the role of “site supervisor” – a role Mr Saunders could then undertake in Queensland because of his technical qualifications.
The Commission accepts that if Mr Pelyshchuk’s evidence is preferred, the time undertaken on the Mentone, Cheltenham, Caulfield and Hughesdale projects can be counted towards Mr Saunders’ licence application.
Contradictory evidence of Mr Saunders’ involvement in the Brighton and Mentone was given by Mr Alan Mark, the owner of those properties and a registered builder himself. Mr Mark is also a professional health provider.
Mr Mark contracted with Mr Pelyshchuk on both properties and gave evidence he was on site regularly, sometimes more than once daily. He says he did not meet, know or see Mr Saunders on either site and to his knowledge, Mr Saunders had no involvement in either project.
Mr Saunders disputes this, recalling conversations with Mr Mark on site and producing pictures of him working on the sites.
Mr Mark conceded that when he did come on site he dealt with his contracted builder, Mr Pelyshchuk, not anyone else on the site. The staff employed by Mr Pelyshchuk were his responsibility - not Mr Mark’s. This is entirely consistent with a usual chain of responsibility on a work site and would explain why Mr Mark did not remember Mr Saunders.
I accept the evidence of both witnesses and while initially seemingly contradictory, when the role of each witness is examined, there is a plausible explanation for why the evidence differs.
I am satisfied on the balance of probability that Mr Saunders did undertake the role of leading hand comprehensively described by Mr Pelyshchuk in his evidence.
I will count the time sort by Mr Saunders towards the required time for his licence application on the Mentone, Cheltenham, Caulfield and Hughesdale projects.
While I do accept the work was undertaken by Mr Saunders on the Brighton project with Mr Pelyshchuk, Mr Saunders did not have the technical qualification necessary until mid-November 2011. Mr Saunders’ evidence was that when the study finished, he worked full-time on the Brighton project until the end of December 2011.[8]
[8]Mr Saunders’ final submissions, paragraph 1.
I will count the time on the Brighton project from when the technical qualification was completed by Mr Saunders towards the required time for his licence application and allow 1.5 months.
I have accepted Mr Saunders must have the technical qualifications to exercise the required skill to acquire the practical building experience necessary to support his licence application. Therefore, projects undertaken by Mr Saunders between November 2009 and November 2011, prior to his obtaining technical qualifications, cannot be counted in the required time for Mr Saunders’ licence application.
The projects that fall into this category are the four BER projects. It is also relevant to my ability to count this experience, that for these BER projects, neither Mr Saunders nor his company held a building licence and were engaged despite being unlicensed subcontractors – contrary to the licencing requirements in Queensland then and now.
There are two remaining projects relied on by Mr Saunders to support his licence application to consider. These are the projects at Golden Beach and Banksia Drive Kingaroy. Both of these projects were completed after Mr Saunders obtained his technical qualifications.
Both of these projects were properties owned directly or indirectly by Mr Saunders and he undertook them as an owner.
Mr Saunders claims eight months’ experience for the Golden Beach project from February 2012 to September 2012. This was Mr Saunders’ own property. He was converting a single dwelling into a duplex. Mr Saunders gave evidence he worked with a builder engaged by him to offer his labour for a reduced contract price and to gain further building experience.[9] He said he worked alongside the builder to “enhance“ his “overall building experience”.[10]
[9]Exhibit 10, page 2, paragraph 5.
[10]Ibid.
Mr Saunders did not supervise staff and employed other trades as required as owner. While he undertook some works himself, for example internal works, the structural works required a licenced builder whom he assisted.
I am not satisfied this project provided the higher level of on-site experience required, for example supervision or responsibility for structural works required for the purposes of his licence application. I am satisfied the main purpose of his labour was to reduce costs of the contract on his own property by defraying the builder’s costs.
Mr Saunders did undertake the required certification processes but I am satisfied to no greater level that that required of an owner-builder.
I am not satisfied that the experience Mr Saunders gained on the Golden Beach project was of a sufficient level, over that required of any home owner undertaking renovations of their own property, to be sufficient to be counted towards the level required for a Builder – Low Rise licence.
Mr Saunders claims three months’ experience for the Banksia Drive project from December 2012 to February 2013. Again, this was Mr Saunders’ own property and on his own evidence,[11] he worked with a builder engaged by him to offer his labour for a reduced contract price and to gain further building experience.
[11]Exhibit 4, page 4, paragraph 6(f).
For the same reasons, I was not satisfied that the experience Mr Saunders gained on the Golden Beach project was of a sufficient level over that required of any home owner undertaking renovations of their own property, I am also not satisfied the Banksia Beach project was of a sufficient level to be counted as experience towards a Builder – Low Rise licence.
Mr Saunders’ evidence concerning his work on this site did not display higher-level elements expected to a low-rise builder, such as staff supervision or responsibility for, for example, structural works on the site. I am satisfied Mr Saunders’ predominant goal was to save costs, although the building experience would have provided further training for him.
The following table sets out the experience which satisfied me could be counted toward Mr Saunders’ application for a Builder – Low Rise licence.
Project
Period claimed
Time allowed (months)
8 Norman St, Kingaroy
May to October 2008
0
8 Macdiarmid St, Kingaroy
August to September 2009
0
40 Carrol St, Kingaroy
September to December 2009
0
BER Projects x 4
November 2009 to April 2010
0
16 Cochrane St, Brighton
December 2010 to December 2011 (part-time – 10.5 months)
1.5
50 Nelson St, Golden Breach
February to September 2012
0
70 Banksia Dve, Kingaroy
December 2012 to February 2013
0
152 Blacombe St Mentone
March to September 2013
7
24 Wembley Ave Cheltenham
January to February 2017
2
33 Lockhart St Caulfield
November 2015 to August 2016
10
Hoath St Hughesdale
March to June 2017
8
TOTAL
28.5
The total of his experience gained at a sufficiently high level is insufficient at this time to support his application for a Builder – Low Rise licence.
The decision of the Commission made on 22 September 2016 that Mr Saunders’ application for a Builder – Low Rise licence be rejected must be confirmed.
0
3