Teyfouri v Secretary of the Department of Customer Service

[2024] NSWCATAD 348

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Teyfouri v Secretary of the Department of Customer Service [2024] NSWCATAD 348

Hearing dates:

29 September 2023 and 2 November 2023

Date of orders:

19 November 2024

Decision date:

19 November 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE LAW - qualified supervisor certificate in the category of disconnection and reconnection of fixed electrical equipment (motors only) – refusal – scope of work within the Instrument –qualifications required by the Instrument

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Barber v Commissioner for Fair Trading [2024] NSWCATOD 42

Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112

Jesiolowski v Department of Customer Service: Building Commission NSW [2024] NSWCATOD 72

McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Amin Teyfouri (Applicant)
Secretary of the Department of Customer Service (Respondent)

Representation:

Applicant (Self-represented)

Solicitor:
Corporate Services, Department of Customer Service (Respondent)

File Number(s):

2023/00183599

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 21 February 2022, the Applicant made application (the Application) for a qualified supervisor certificate in the category of disconnection and reconnection of fixed electrical equipment (motors only) (Supervisor Certificate) under the Home Building Act 1989 (NSW) (the HBA).

2. On 1 March 2023, a delegate of the Respondent sought further information by way of Notice in relation to the Application (Notice) that was subsequently provided by the Applicant.

3. On 24 March 2023, the Application was refused by a delegate for the Respondent in accordance with ss 33D(1)(c) and 33D(1)(a) of the HBA. The reasons provided for the refusal included that the qualification relied upon by the Applicant was not in a trade relating to the work being undertaken and that the work that he was requesting to undertake was electrical work and not within the scope of Schedule 1 of the Qualification Requirements for the Specialist Work Category of Disconnection and Reconnection of Fixed Electrical Equipment dated 6 October 2022 (the Instrument).

4. On 21 April 2023, the Applicant sought internal review of that decision and on 9 May 2023, the decision to refuse the Application was affirmed by a delegate for the Respondent (the Decision).

5. On 7 June 2023, the Applicant applied to this Tribunal for administrative review of the Decision (review application).

6. The matter was heard by the Tribunal on 29 September 2023 and 2 November 2023. No issue were raised by the parties in relation to the Tribunal’s jurisdiction in the matter.

Naming issue

7. The review application and the material relied upon by the parties during the hearing identified the Commissioner for Fair Trading as the Respondent in the proceedings.

8. Schedule 1 of the HBA now defines Secretary to mean “the Secretary of the Department” and Department to mean “the department in which this Act is administered”.

9. As a consequence, the Tribunal issued directions to the parties following the hearing in order to identify the proper name of the Respondent.

10. On 20 October 2024, Mr Coss, the solicitor for the Respondent submitted in writing that the correct name of the Respondent was “Secretary of the Department of Customer Service” and indicated that the Respondent consented to this issue being dealt with on the papers.

11. On 24 October 2024, the Applicant indicated in writing that he agreed with the correct name for the Respondent as submitted by Mr Coss and had no objection to the amendment. The Applicant also consented to this issue being dealt with on the papers.

12. I am satisfied on the material before me that this issue can be adequately determined in the absence of the parties having regard to the material before the Tribunal and I dispense with a further hearing in this matter pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). I am satisfied that the proper name of the Respondent in this review is Secretary of the Department of Customer Service.

Legislation and the Instrument

13. The HBA regulates home building and specialist work within NSW and offers protection to consumers.

14. Section 25(1)(a1) of the HBA states that the Secretary must refuse an application for a supervisor or tradesperson certificate if not satisfied as to the matters of which the Secretary is required to be satisfied by ss 33B and 33D of the HBA.

15. Sections 25(2) and (3) of the HBA provide as follows:

(2)  The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a supervisor or tradesperson certificate.

(3)  The Secretary must refuse an application for a supervisor or tradesperson certificate—

(a)  if the Secretary is not satisfied that any such requirement would be met were the certificate to be issued, or

(b)  if the applicant has not completed, at a standard acceptable to the Secretary, any relevant examination or practical test (or both) conducted or nominated by the Secretary and required by the Secretary to be completed by the applicant.

16. Section 25(4)(a) of the HBA states that a decision of the Secretary relating to the specification or qualification and experience or additional standards or other requirements under s 25(2) cannot be reviewed by this Tribunal in an application for an administrative review.

17. Having regard to the decision of the Appeal Panel in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112, I am satisfied that this Tribunal is required to give effect to, and cannot review, the criteria specified in the Instrument.

18. The Acting Commissioner for Fair Trading signed the Instrument on 6 October 2022, which states that:

Pursuant to section s20(2) and s25(2) of the Act, the possession of the qualifications and the passing of the examinations specified in Column 1 and 2 of both Table 1 and 2 or the possession of the qualifications and the passing of the examination specified in Table 3 to be necessary to enable an applicant for a Certificate to do, or to supervise, the Disconnection and Reconnection of Fixed Electrical Equipment as specified in Schedule 1 of this Instrument.

19. The Instrument was subsequently published in the Gazette.

20. Section 33D(1) of the HBA relevantly provides:

33D   Additional requirements for obtaining supervisor and tradesperson certificates

(1)  A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant—

(a)  has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and

…

(c)  is capable of doing or supervising work for which the certificate is required.

21. The Instrument contains Table 1. The left column of Table A is headed, “Column 1 Qualification (or equivalent)” and item 1 in that column states:

A Certificate III level qualification in a trade or higher education qualification that directly relates to the work to be performed as detailed in the Relevant Application Form; AND the work is within the scope defined in Schedule 1.

22. ‘Qualification’ is defined in the Instrument to mean a qualification issued to the applicant under an Australian training package qualification framework (AQF).

23. In the Instrument, ‘Work’ and ‘work to be performed as detailed in the Relevant Application Form’ means:

work lawfully performed by the person and does not include the work of disconnecting and reconnecting fixed electrical equipment.

24. Schedule 1 to the Instrument contains an extended description of disconnection and reconnection of fixed electrical equipment as follows:

Disconnection and reconnection work is limited to:

• disconnection and reconnection of electrical wiring at the equipment itself and only to the extent necessary to permit the non-electrical work to be performed on the equipment

• replacement of equipment on a "like for like" basis

• testing necessary for the safe isolation of the equipment to be disconnected and reconnected

• testing necessary for the safe operation of the equipment

• replacement of 'blown' fuses and resetting of 'tripped’ circuit breakers

• equipment operation at voltages up to 1000V alternating current three phase and 1500V direct current.

Disconnection and reconnection work does not include work:

• that is otherwise defined by the Regulation to be the associated electrical work under the categories of Air Conditioning and Refrigeration

• on Electrical Installations or the alteration of fixed wiring

• where high fault currents are possible

• on complex electrical apparatus and circuits

• associated with fixed wiring other than disconnecting and reconnecting electrical equipment - this exclusion includes locating and rectifying faults of circuits at a switchboard or to general electrical accessories (including switches, socket outlets, circuit protective devices); or installation of or alteration to any part of the Electrical Installation or fixed wiring system (defined as electrical wiring work)

• on fixed wired smoke detectors

• on electric hot water systems except when carried by the holder of a plumbing (or water plumbing) endorsed contractor licence or qualified supervisor certificate

• on luminaires including pre-assembled neon signs

• installing lifts, inclinators and turntables, and

• in hazardous areas or on electrical equipment that is part of an explosion- protection technique.

Applicant’s evidence

25. In his Application (part exhibit R1), the Applicant included the following documents:

1. A letter dated 21 November 2018 from Victoria University, Melbourne headed “Skills Assessment Result”. The letter confirmed that the Applicant had successfully completed his skills assessment in the nominated occupation of “Metal Machinist (First Class) – 32314”. The assessment confirmed that the Applicant demonstrated both the skills and experience to work at trade level in Australia in that nominated occupation and that MEM30205 Certificate III in Engineering – Mechanical Trade (Certificate III) had been issued to the Applicant.

2. An authenticated transcript generated on 20 December 2022 showing the nationally accredited VET units and modules undertaken by the Applicant in the Certificate III.

3. Record of Results from Axiom Compliance Learning dated 20 December 2022 relating to the qualification of ‘Course in Disconnect Reconnect/Restricted Electrical Licence’ and was competent in UEEDC0007 “Apply work health and safety regulations, codes and practices in the workplace” and UEERL0004 “Disconnect-reconnect electrical equipment connected to low voltage (LV) installation wiring.” The document contained the words “Endorsement – Motors”.

4. A Referee’s Statement from Assa Abloy Entrance Systems (Assa Abloy) dated 12 December 2022 stating that between 3 December 2020 to 22 December 2022 the Applicant had held the position of Service Technician and had 24 months of supervised hands on electrical wiring experience in the nominated areas of low voltage electrical wiring work in a commercial and industrial setting.

26. At the hearing, the Applicant relied on his letter dated 7 June 2023 (exhibit A1) as well as an undated letter with a number of attachments and photographs (exhibit A2). It was confirmed by both parties that this undated letter, together with the attachments, was the same document that had been relied upon by the Applicant in relation to his request for an internal review of the Decision. This material was not included in the s 58 documents. The two letters and attachments formed part of the Applicant’s review application.

27. The Applicant gave oral evidence at the hearing and was cross-examined.

Respondent’s evidence

28. The Respondent relied on the s 58 documents (exhibit R1). Mr Bruce Blacker attended the Tribunal and gave expert evidence, pursuant to a summons issued by the Respondent. Mr Blacker was cross-examined by the Applicant.

Submissions

29. The Respondent relied on written submissions filed on 4 September 2023 and both parties made oral submissions at the hearing.

Role of the Tribunal

30. Section 83B(1) of the HBA confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

Issues in dispute

31. In the written submissions, the Respondent accepted that the Applicant has satisfied the requirements under Column 2 ‘Endorsement’ in Table 1 of the Instrument. Having regard to the evidence and the Respondent’s concession, I accept that the Applicant has satisfied the requirement in Column 2 of Table 1 of the Instrument for the endorsement of Motors.

32. The Respondent submitted however that the Applicant has not satisfied the Column 1 “Qualification” requirements prescribed in Table 1 of the Instrument because he does not hold a current endorsed contractor licence or current Supervisor Certificate; and he has not provided any of the certificates specified in items 1, 2 and 3 of the Column 1 qualifications.

33. The Applicant acknowledged that he relied on his Certificate III for the purpose of the Application. He also placed reliance on his completion of an Associate Degree in the field of Industrial Electricity on 18 February 2013 at the Najafabad branch of Islamic Azad University in the Islamic Republic of Iran (Associate Degree).

34. The Applicant provided an official translation of his Certificate of Completion of Associate Degree and transcript of his results (part exhibit A2) and gave evidence that this was relied upon by the Australian Government in relation to his move to Australia. Whilst I accept that the Applicant has attained the Associate Degree, as set out above the Instrument defines Qualification to mean a qualification issued to the applicant under an Australian training package qualification framework (AQF). On the material before me, I am not satisfied that the Associate Degree falls within the definition of Qualification under the Instrument and accordingly, for the purpose of my determination in this matter, I give it no weight.

35. No issue was taken by the Respondent that the Applicant held a Certificate III qualification but submitted that:

1. Such a qualification does not directly relate to the work to be performed by the Applicant as detailed in the Application; and

2. The work to be performed is not within the scope defined in Schedule 1 of the Instrument.

Consideration

Does the Certificate III directly relate to the work to be performed by the Applicant as detailed in the Application

36. The first issue to be considered is the work to be performed that was detailed by the Applicant in the Application.

37. It was not in dispute that the Applicant holds a Certificate III from Victoria University, Melbourne. At the time of his Application, the Applicant was working as a Service Technician with Assa Abloy. His evidence was that he lost that job because he did not hold a Supervisor Certificate. At the time of the hearing, his evidence was that he was working as a service technician for SSI Schmelter Internal (SSI).

38. In the Additional Information Form that formed part of his Application, the Applicant stated that as a service technician, he was responsible for providing repairs and service work in a facility or in the field. He stated that the main part of his job was to test, repair, and replace equipment or systems and that this could be during an emergency breakdown or a scheduled call out.

39. In response to question asking him to provide a list of the types of electrical equipment to be disconnected and reconnected in his workplace, he provided the following information:

1.   Industrial high-speed doors: These doors work with a single or three phase motors and controllers which motors need to be disconnected to be replaced.

2.   Roller shutters: They work with motors to lift them up and also gearbox.

3.   Sliding and boom gates: They work with motors and controllers to secure the facility.

4.   Dock levellers: they work with motors to be lifted for trucks for transportation.

40. In response to the request to provide an explanation of how his trade background was directly related to his principal function in his workplace and the types of equipment he was intending to disconnect and reconnect, he stated:

As a holder of [Certificate III], and technician working almost 5 years in industrial equipment, I need to check blown fuses or tripped circuit breakers, and also test supply and load voltage (low voltage equipment) for a safe isolation. In addition, I need to disconnect the motors in order to replace them with a new and reconnect them.

41. On 1 March 2023, the Respondent asked the Applicant by way of Notice to provide the following information to allow the Application to be further assessed:

1.   Please provide more information regarding work being undertaken specifically.

2.   Is the disconnection and reconnection of fixed electrical equipment licence required due to faulty mechanical parts of doors, gates, etc or faulty electric motors?

3.   Please provide any further information in support of your application.

42. On 5 March 2023, the Applicant responded to the Notice by email and stated that his Certificate III was highly related to his every day job. The Applicant then wrote (sic):

As I have provided some information regarding the products I use everyday and you kindly mentioned it, we work on Industrial Rapid Doors, Roller shutter, gates, and dock levellers. These products work with Low voltage (single or three phase) motors. As I have attached they are on significant amount of tension. These electric motors get faulty for many reasons every day in different customer sites and I need to replace them to get the equipment running. I need to undertake a straightforward disconnection/reconnection of electric motors as I have attached photos.

This is a main part of my everyday job which I have done the training (Disconnection/Reconnection) course in order to apply for qualified supervisor certificate of Discon/Recon Fixed Equip (ELECTRIC MOTORS ONLY).

…

43. The Applicant attached sixteen photographs showing various pieces of equipment. Other than the Applicant’s statement above, there was no description of the photographs, or the equipment shown in them. None of the photographs included any individuals and did not appear to show any work being carried out on the equipment.

43. In his internal review request (part exhibit A2), under the heading “job scope”, the Applicant stated that as a service technician in the industrial entrance systems and industrial automation industry (smaller scale), he works with a variety of machinery and equipment that requires regular maintenance and repairs to keep them running smoothly. He relevantly stated that:

“…this includes industrial doors and docks, as well as a range of automation systems….all of which rely on electrical motors to function properly (Attachment 3).

To maintain these systems, it is often necessary to replace faulty or damaged electrical motors. Without the ability to perform these tasks, my job has become increasingly difficult, and it may be challenging to provide the same level of service to the company’s clients.

…

Not having the certificate has put me in a difficulty position where I am unable to fulfill my job responsibilities effectively….

…

It is essential for me to obtain the certificate to continue performing my job effectively and meeting the needs of my employer’s clients. Obtaining this certificate is of the utmost importance to me, as my entire professional career hinges upon it.”

45. Attachment 3 consisted of a series of 13 photographs showing various types of equipment.

46. At the hearing, the Applicant gave evidence that whilst the equipment that he worked on was electrical, he had never mentioned that he was directly working with electricity. His evidence was that that he has never done any electrical work. In cross-examination, he denied having ever mentioning “swapping” engines and instead said that he had referred to the “replacement” of motors. His evidence was that he could remove the electric motor when it is not powered up and that he could put a new motor in, if it was not connected to power. He stated that he required the Supervisor Certificate for the simple task of disconnect and reconnect and that he did not do electrical work.

47. During the course of his evidence, the Applicant was adamant that he had never undertaken any disconnection or reconnection work except in the context of his course with Axiom Compliance Learning. He confirmed that the work that he had referred to in his Application and in the internal review request was the type of work that he wanted to do if he was granted the Supervisor Certificate. He stated that he had never done this work and that it was not part of his current job. His evidence was that English was not his first language and that this may have resulted in some confusion.

48. The Applicant’s evidence was that his current work as a service technician was limited to mechanical work such as lubricating chains and working with springs, and that he is unable to touch industrial equipment such as electric motors. He stated that in order to be promoted, he needed to work on electrical equipment and that he had lost his previous job because he did not have the Supervisor Certificate and could not work on the electrical parts when not connected. He said that in his current role at SSI, he did not carry out any disconnection or reconnection work and worked on a conveyor with mechanical rollers. If electrical work was needed, then an electrician would be called to attend.

49. The Applicant continued to give evidence on the second day of the hearing. He indicated that in his response to the Notice, he had mistakenly left out the words “will be.” The Applicant maintained that he had not carried out any disconnection and reconnection work and that rather than it being a main part of his every day job at that time, he had meant to communicate to the Respondent that if granted the Supervisor Certificate, it “will be” a main part of his every day job. He said that if granted the certificate, he would be disconnecting the electric motor in order to work on the non-electric parts, His evidence was that he clearly understood what work an electrician was required to do and that he did not intend to do that work.

50. In further cross-examination, the Applicant confirmed that his previous response to the Notice had stated that “These electric motors get faulty for many reasons every day…and I need to replace them to get the equipment running. I need to undertake a straightforward disconnection/reconnection of electric motors…” . His evidence was that he was not doing this work at the time of his response to the Notice but that he would need to do it if he was granted a Supervisor Certificate.

51. The Respondent relied on expert evidence from Mr Blacker, who had been a licenced electrician for over 30 years and held the role of Senior Co-ordinator of Electrical Inspections for the Respondent. As there was no written statement from Mr Blacker, the Applicant was provided with an opportunity to have further time to consider the oral evidence from the witness. The Applicant did not seek further time and put a number of questions to Mr Blacker.

52. Mr Blacker was asked a number of questions about the photographs provided by the Applicant in his response to the Notice. Mr Blacker noted that the photographs depicted various pieces of equipment but did not contain a description of the work to be done on them. Mr Blacker conceded that one of the photos contained a hydraulic pump and an electric motor. He stated that if the hydraulic pump was faulty, then it was a mechanical fault, and a holder of a Supervisor Certificate could disconnect the electric motor to repair the non-electric hydraulic pump. However, his evidence was that if the electric motor was faulty, then it would require an electrician to disconnect it and to work on it.

53. Mr Blacker gave evidence that disconnect and reconnect work is limited to disconnecting a piece of electrical equipment in order to carry out maintenance work or work on the non-electrical equipment that is associated with the electrical components. Mr Blacker gave the example of a faulty appliance that was attached to a motor. The holder of a Supervisor Certificate could work on the faulty appliance attached to the motor but not the motor itself. He stated that in relation to the photograph showing a hydraulic pump, if the pump failed and was attached to an electric motor, the Supervisor Certificate could be used but if the electric motor failed, this formed part of an electrical installation and the motor needed to be changed by a licenced electrician.

54. I have had regard to the submissions by both parties, and in particular to the Applicant’s submission that there had been a lot of misunderstanding about his work if granted the Supervisor Certificate. He stated that if it was granted, he only intended to do non-electrical work and that he had received the training to carry out the disconnection and reconnection work that would allow him to do so.

55. Item 1 of Column 1 of Table 1 of the Instrument makes specific reference to the requirement that the Certificate III qualification be directly related to the work to be performed as detailed in the Relevant Application Form. “Relevant Application Form” is defined in the Instrument to mean “the relevant application from for the Licence or Certificate that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form…”

56. During the hearing, Mr Coss conceded that the Applicant’s response to the Notice formed part of the Relevant Application Form, and I accept this to be the case. Accordingly, I am satisfied that the Relevant Application Form in this matter consists of the Application, including attachments, together with the information provided by the Applicant in response to the Notice.

57. There was no material in the Relevant Application Form from the Applicant’s employer that sets out the work to be performed by the Applicant if granted the Supervisor Certificate . No evidence from the Applicant’s previous or current employers was adduced by him at the hearing. Accordingly, the only evidence as to the work to be performed came from the Applicant himself.

58. The Applicant’s oral evidence was at times confusing and difficult to follow. The Applicant submitted however, that this may have been because English is not his first language and that this was the first time that he had been involved in legal proceedings. I accept this to be the case.

59. The Applicant consistently denied at the hearing that he had ever carried out disconnection and reconnection work, other than in the course of completing the required module UEENEEP015A that he obtained from Axiom Compliance Learning. Whilst the Applicant gave evidence that he had not otherwise carried out any electrical work under supervision, this appears to be at odds with the Referee’s Statement included in the Application that indicates that the Applicant had demonstrated competence in electrical wiring work and had 24 months hands on electrical wiring work as set out in that statement. No reference was made to this document during the hearing.

60. Having regard to the totality of the evidence, I am satisfied that the evidence does not establish that the Applicant has carried out work which required a Supervisor Certificate. Accordingly, I am satisfied that his responses in the Relevant Application Form and throughout the hearing, related only to the work that he would do if granted a Supervisor Certificate.

61. Having regard to the Applicant’s responses in the Application, and accepting that all of the Applicant’s responses are limited to him only carrying out such work if granted a Supervisor Certificate, it is clear that he is referring to the need for him to disconnect the electric motors on the various equipment used at his workplace, in order for him to replace the motors with new motors and then to reconnect them.

62. It is also clear from the Applicant’s response to the Notice, that the Applicant stated that the products that he used every day, including Industrial Rapid Doors and dock levellers, work with low voltage motors; that they work “24/7”; and they are on a significant amount of tension. The Applicant stated that these electric motors get faulty for many reasons every day in different customer sites and that he would need to replace them to get the equipment running.

63. The Notice specifically asked him whether the Supervisor Certificate was required due to faulty mechanical parts of doors, gates, etc or faulty electric motors. The Applicant’s response to the Notice refers to the replacement of faulty electrical motors and makes no reference whatsoever to faulty mechanical parts.

64. I am satisfied that based on the Applicant’s responses in the Relevant Application Form, and confirmed in his evidence before the Tribunal, that if granted the Supervisor Certificate, that the Applicant indicated that he intended to disconnect faulty electric motors and replace them with new electric motors.

65. In the case of Jesiolowski v Department of Customer Service: Building Commission NSW [2024] NSWCATOD 72 (Jesiolowski), Senior Member Little indicated at [10] that a Supervisor Certificate:

… is to permit a person in a specialised industry who does not hold an unrestricted electrical licence to safely carry out replacement, repair and maintenance work on a non-electrical part of the equipment. The Qualified Supervisor Certificate in the category of disconnect/ reconnect appliances is provided to person who are already qualified tradespeople and for work to be carried out by the person must be incidental to the person’s principal function in the workplace: Barber v Commissioner for Fair Trading [2024] NSWCATOD 42 at [42].

66. Evidence as to the purpose of a Supervisor Certificate was given by the Mr Blacker and accorded with the views expressed by the Tribunal in Jesiolowski and in Barber v Commissioner for Fair Trading [2024] NSWCATOD 42 at [42]. I accept this evidence of Mr Blacker and I agree with the views of the Tribunal expressed in the two decisions referred to above.

67. I accept the further evidence given by Mr Blacker, which also appeared to be accepted by the Applicant, that the replacement of faulty or damaged electric motors is work that is required to be performed by a licenced electrician and that a licenced electrician is also required to carry out the disconnection and reconnection of such equipment.

68. The Applicant holds only a Certificate III, and whilst I accept that a number of modules in the Certificate III relate to motors, it is clear that his Qualification does not directly relate to the carrying out of electrical work and that he is not a licenced electrician. Accordingly, I am not satisfied that the Certificate III that he holds directly relates to the work to be performed as he has detailed in the Relevant Application Form.

69. Even if I had been satisfied that the Applicant’s Certificate III did directly relate to the work to be performed by him, I would not have been satisfied that the work is within the scope defined in Schedule 1 of the Instrument.

70. Schedule 1 states that disconnect and reconnection work is limited to disconnection and reconnection of electrical wiring at the equipment itself and only to the extent necessary to permit the non-electrical work to be performed on the equipment. Having regard to my finding that the replacement of faulty or damaged electrical motors is work that is required to be performed by a licenced electrician and that a licenced electrician is required to carry out the disconnection and reconnection of such equipment, it follows that the work proposed by the Applicant in the Relevant Application Form could not be lawfully carried out by him.

71. It emerged in the evidence, and in particular from the cross examination of Mr Blacker, that the Applicant could potentially hold the relevant qualifications to carry out mechanical repairs of the equipment referred to in the Relevant Application Form and that a Supervisor Certificate could potentially be utilised by him to carry out such work. An example of this appeared to be the photograph showing an electric motor connected to a hydraulic pump. Mr Blacker agreed that the repair of a hydraulic pump would not require an electrician to carry out the repair and that the holder of a Supervisor Certificate would be able to disconnect and reconnect the electrical wiring at the equipment to the extent necessary to permit the non-electrical work, namely the repair of the hydraulic pump to be carried out.

72. However, other than the material previously referred to, there is no reference in the Relevant Application Form before the Tribunal, which details the extent of the non-electrical work to be performed by the Applicant as a mechanical service technician if granted a Supervisor Certificate, either from the Applicant or from his employer. Whilst I accept that one of the photographs submitted to the Respondent by the Applicant includes a photograph that shows a hydraulic pump, the photograph also shows an electric motor. The Relevant Application Form does not include any commentary on the photograph and does not detail the nature of any issues with the equipment or any work that may be required to be carried out by the Applicant to repair that equipment.

73. In the absence of such detail in the Relevant Application Form relating to the non-electrical work proposed to be carried out by Applicant, I am not satisfied that the Applicant’s Certificate III directly relates to any non-electrical work to be performed by him, or that it falls within the scope defined in Schedule 1.

74. In his evidence and submissions, the Applicant made reference to having been assessed as being eligible by Axiom Compliance Learning to complete Module UEENEEP015A and to having successfully completed this module. He submitted that it is “therefore reasonable to conclude that the [Applicant] is qualified and competent to perform the task required for the supervisory certificate. If it is NOT considered as a training and an assessment, what is the point and necessity of this very costly training for application lodged.”

75. It is apparent that the Applicant has found the Application process frustrating. As referred to above, Module UEENEEP015A is a requirement specified in the Instrument for an endorsement of motors and it was accepted by the Respondent that the Applicant had met this requirement. Section 33D of the HBA requires the Secretary to be satisfied that the applicant has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required. In this review application, the Tribunal effectively steps into the shoes of the Respondent and it necessary for the Tribunal to be satisfied of those matters set out in s 33D of the HBA.

76. It is not apparent to me what the criteria is, if any, for Axiom Compliance Learning to accept students into a particular course and there is no evidence before the Tribunal from Axiom Compliance Learning as to the steps undertaken by them prior to accepting the Applicant into the course for Module UEENEEP015A. Accordingly, whilst it was accepted that the Applicant successfully completed this module, I have given no weight to him being accepted into that module by Axiom Learning in reaching my decision as to whether or not the Applicant meets the requirements under the Instrument.

Conclusion

77. Taking into the findings made above, I am not satisfied that the Applicant has established that he has met the Qualification requirements set out in the Instrument and that he meets the requirements under s 33D(1) of the HBA for the grant of a Supervisor Certificate. Accordingly, the HBA provides that a Supervisor Certificate must not be issued.

78. It follows that the correct and preferable decision in this matter is to affirm the Respondent’s decision and to refuse the Application at this time.

79. The Applicant is not precluded from making a further application for a Supervisor Certificate in the future or from providing additional information from either himself or from his employer in support of such application.

Order

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 November 2024