THORP and Builders' Registration Board Of Western Australia
[2007] WASAT 157
•20 JUNE 2007
THORP and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2007] WASAT 157
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 157 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:191/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR P FAIGEN (SESSIONAL MEMBER) MR P WELLINGTON (SESSIONAL MEMBER) | 20/06/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | FRANK THORP BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA |
Catchwords: | Builders' Registration Act 1939 Review of decision refusing application for registration as a builder Determination of preliminary issues Whether for the purposes of s 10(1)(b)(iv)(V) an applicant is entitled to credit for building works performed as an owner/builder and for experience gained as a manager or supervisor in respect of building work undertaken by an owner/builder |
Legislation: | Builders' Registration Act 1939 (WA), s 2, s 10, s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(IV), s 14(1), s 10AA, s 10B, s 10C |
Case References: | Farano and Builders Registration Board of Western Australia [2006] WASAT 4 Lam and Builders Registration Board of Western Australia [2006] WASAT 227 Re Ryan; Ex Parte Travaglini [1979] WAR 23 Rogers and Builders Registration Board of Western Australia [2006] WASAT 299 Todorovic and Builders Registration Board of Western Australia [2005] WASAT 273 |
Orders | The questions referred to the Tribunal for determination as a preliminary issue are answered as follows:,1) Question: Do building works performed by an owner/builder constitute "the work of building construction" entitling the applicant to be credited for the period/s of such works towards achieving the aggregate period of five years?,Answer: Yes. An owner/builder is entitled to credit for the management and supervision time which can be reasonably incorporated within the time which it would have taken a competent registered builder to carry out the works. An owner/builder is not entitled to any credit for supervising building activities which he carries out himself, as opposed to activities in which trades are supervised. We make no finding as to whether or not the periods of experience may be aggregated as that issue was not addressed by the parties. ,2) Question: Does acting as a manager or supervisor for and on behalf of an owner/builder give the applicant "experience in the work of building construction as a manager or supervisor"?,Answer: Yes. The experience to be credited must be assessed by taking into account the time which it would have taken for a competent registered builder to carry out the works and by determining the proportion thereof which may be allocated to management and supervision.,3) Question: Does "experience in the work of building construction as a manager or supervisor" require the applicant to be in the employ of a registered builder?,Answer: No,We will issue orders accordingly and have the matter set down for a directions hearing to determine its future course. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : THORP and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2007] WASAT 157 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR P FAIGEN (SESSIONAL MEMBER)
MR P WELLINGTON (SESSIONAL MEMBER)
- Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Builders' Registration Act 1939 - Review of decision refusing application for registration as a builder - Determination of preliminary issues - Whether for the purposes of s 10(1)(b)(iv)(V) an applicant is entitled to credit for building works performed as an owner/builder and for experience gained as a manager or supervisor in respect of building work undertaken by an owner/builder
(Page 2)
Legislation:
Builders' Registration Act 1939 (WA), s 2, s 10, s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(IV), s 10(b)(iv)(V), s 14(1), s 10AA, s 10B, s 10C
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr M Mannes (Acting as Agent)
Solicitors:
Applicant : Hardy Bowen
Respondent : Builders' Registration Board of Western Australia
Case(s) referred to in decision(s):
Farano and Builders Registration Board of Western Australia [2006] WASAT 4
Lam and Builders Registration Board of Western Australia [2006] WASAT 227
Re Ryan; Ex Parte Travaglini [1979] WAR 23
Rogers and Builders Registration Board of Western Australia [2006] WASAT 299
Todorovic and Builders Registration Board of Western Australia [2005] WASAT 273
(Page 3)
Summary of Tribunal's decision
1 The Tribunal determined preliminary issues agreed by the parties in relation to an application made to review a decision of the Builders' Registration Board refusing registration as a builder.
2 The preliminary issues required the Tribunal to determine the proper construction of s 10(1)(b)(iv)(V) of the Builders' Registration Act 1939 (WA). The Tribunal concluded that an applicant for registration under this subsection must demonstrate experience in the whole of the process of building in relation to all of the classes of buildings referred to in the definition. In assessing compliance, the requirements need to be applied in a practical and commonsense way because building activities might not differ in any significant way between buildings of different classes.
3 The Tribunal also determined that there was no basis upon which it could find, as contended by the respondent, that experience gained as a manager and supervisor as an owner/builder or when engaged to assist an owner/builder, should not be taken into account. The Tribunal pointed out that the time taken in management and supervision would usually be significantly less than the time taken for the completion of construction of the work. Further, experience credited to an applicant must be based firstly on the time it would take for a competent registered builder to carry out the works and by determining the proportion thereof which might be allocated to management and supervision.
4 It followed that the Tribunal also determined that it was not necessary for a manager and supervisor to be employed by a registered builder. The questions posed as the preliminary issue for determination by the Tribunal were answered to reflect the above conclusions.
The application
5 The applicant applies to the Tribunal under s 14(1) of the Builders' Registration Act 1939 (WA) (BR Act) seeking the review of a decision of the Builders' Registration Board of Western Australia (Board). The decision was to refuse an application to be registered as a builder pursuant to and in accordance with the provisions of s 10(1)(b)(iv)(V) of the BR Act (hereinafter for convenience referred to as "item (V)" and the preceding items of s 10(1)(b)(iv) are referred to as items (I) to (IV) respectively).
(Page 4)
6 The Board has provided reasons for its decision which is based on its conclusion that except for experience totalling a period of 27 months, the Board considers that the remainder of the applicant's experience from May 1981 through to 2003 was either not of a supervisory character, or was for "fit out" work which the Board considered did not constitute experience in "building construction" as required by item (V).
7 The applicant has provided further details of his experience by way of three schedules which are annexed to the application. Schedule 1 reflects experience totalling a period of 33 months during which the applicant was engaged in building work in the north-west of the State, which work is largely of a commercial nature. Based on the information provided to the Board including an interview that was conducted with the applicant, the Board was prepared to allow 27 months in respect of this period. Schedule 2 sets out details of experience totalling 46 months and details building work conducted by the applicant as an owner/builder. Schedule 3 details experience totalling 85 months in respect of building work in relation to most of which the applicant was engaged on behalf of owner/builders in a range of building projects from domestic renovation or extensions to construction of new residential dwellings and office fit out. At a directions hearing on 30 January 2007, the parties agreed to formulate preliminary issues for determination by the Tribunal.
The preliminary issues
8 The preliminary issues for determination by the Tribunal are expressed in the following terms.
1) Do building works performed by an owner/builder constitute "the work of building construction" entitling the applicant to be credited for the period/s of such works towards achieving the aggregate period of five years?
2) Does acting as a manager or supervisor for and on behalf of an owner/builder give the applicant "experience in the work of building construction as a manager or supervisor"?
3) Does "experience in the work of building construction as a manager or supervisor" require the applicant to be in the employ of a registered builder?
(Page 5)
The parties' submissions
9 The parties filed written submissions which are to be read together with a transcript of the submissions made during the directions hearing on 30 January 2007.
10 Reference is made to the requirement under item (V). It is submitted that the reference in item (V) to the requirement that the applicant have "five years' experience in the work of building construction as a manager or supervisor" must be construed so as to mean that the experience gained must be as an employee of a registered builder. It is submitted that conclusion is compelled by consideration of the definition of "building" under the BR Act, that the experience required in "building construction" must be with respect to a building as contemplated by the definition. Further, that the term "building construction" encompasses the entirety of the construction process in the construction of a building so that experience in a single aspect of building would not be experience in "building construction".
11 The Board refers to the sections of the BR Act under which application can be made for registration as a builder as reflecting an intent to provide a system of registration which will ensure that only persons competent to carry out building are registered and that requires an assessment of whether the person has the skills and knowledge to ensure that the whole of the building work is carried out in a proficient and workmanlike manner. As item (V) requires no theoretical training, the Board contends that the breadth of experience relied upon must necessarily be wide enough to ensure experience in all facets of the building process. Reference is made to the definition of supervisor in s 2 of the BR Act which provides that "supervisor" means:
" … a person, not being a builder, who oversees the execution or performance of building work, but does not include a foreman, leading hand or other person employed in a like or less responsible capacity in the building industry."
12 The respondent contends that the notion of a "manager" is similarly restricted in the sense that both terms envisage a subsidiary role under the control and direction of a registered builder, and specifically excludes by definition, the experience being gained as the builder "including an owner/builder". By this it is understood that the Board contends that a supervisor, by definition, is not a builder and therefore neither is a manager, and, neither can an owner/builder be a supervisor or manager.
(Page 6)
13 The Board next submits that the notion of experience as a manager or supervisor gains its significance from the obligations that are imposed by s 10AA, s 10B and s 10C of the BR Act on a registered builder to manage and supervise building work. Flowing from that, the Board submits that the experience required by item (V) is experience gained while under the direction and guidance of a registered builder in overseeing the construction of buildings and that experience ensures that applicants for registration have competency equal to that achieved by undertaking the prescribed course and examinations under item (I). The Board submits that standard cannot be achieved by the experience gained as an owner/builder or in assisting an owner/builder. Otherwise, it is submitted the criteria for registration under item (V) would fall well short of that required under item (I), which would in effect make that item redundant.
14 The applicant has referred to the five different bases on which registration is permitted under s 10 of the BR Act and submits that the experience under items (IV) and (V) is that "in the work of building construction" and that under item (V), an applicant must satisfy the Board that he is "fit and competent to carry out building work". The applicant submits that the meaning of "in the work of building construction" is to be gleaned from the definitions of "building" and "person trading as a builder" contained in s 2 of the BR Act and refers to Farano and Builders' Registration Board of Western Australia [2006] WASAT 4 at 31, Rogers and Builders' Registration Board of Western Australia [2006] WASAT 299 at 15-16 and Lam and Builders' Registration Board of Western Australia [2006] WASAT 227 at 18-26, as being work involving the "constructing, altering, repairing, adding to or improving the walls or structural parts of buildings".
15 The applicant further submits that work performed by an owner/builder constitutes "work of building construction" on the authority of Todorovic and Builders' Registration Board of Western Australia [2005] WASAT 273 and Farano. The applicant submits that there is nothing in any of the permitted categories of registration under s 10, and in particular item (V), that requires or suggests that an applicant for registration must be in the employ of a registered builder to gain the requisite level and depth of practical experience. Further, that item (V) contemplates that an applicant who has a sufficiently broad level of experience and competency, encompassing all aspects of building work or building construction, sufficient to ensure that the building work or building construction is carried out in a proficient and workmanlike manner, qualifies for registration and that acting as a supervisor or project
(Page 7)
- manager for an owner/builder, or carrying out of building work or building construction as an owner/builder, meets those requirements.
16 The Tribunal has further taken into account all of the written submissions made on behalf of the parties and the oral submissions which were made during the course of a directions hearing on 30 January 2006.
Considerations
17 Section 10(1) of the BR Act provides as follows:
"10. Who may be registered
(1) Any person, not being a company or any other body corporate, who applies to be registered under this section as a registered builder shall, subject to subsections (2a) and (2b), be entitled to be so registered if and when ¾
(a) he has paid the prescribed fees for such registration; and
(b) he has satisfied the Board that he ¾
(i) has attained the age of 21 years; and
[(ii) deleted]
(iii) is a person of good character; and
(iv)(I) has completed the prescribed course of training, including practical experience for a period of at least 7 years, or for periods aggregating at least 7 years, in the work of a builder, or as a supervisor of building work, and has passed the examination prescribed for applicants for registration as registered builders;
(Page 8)
- (III) although not having complied with the requirements of item (I) or item (II) has nevertheless had such experience in the work of a builder within the State, but outside the area to which this Act applied at the time he gained such experience, as to render him in the opinion of the Board, arrived at in such manner as the Board thinks fit, competent to carry out building;
(IV) although not having complied with the requirements of item (I), (II) or (III) has nevertheless had at least 5 years' practical experience in the work of building construction and has obtained corporate membership of the Australian Institute of Building; or
(V) although not having complied with the requirements of item (I), (II), (III) or (IV) has nevertheless had 5 years' experience in the work of building construction as a manager or supervisor and satisfies the Board that he is fit and competent to carry out building work,
but for the purpose of this subsection ¾
(c) a person who relies in his application on the provisions of paragraph (b)(iv)(II) shall not be entitled to be so registered unless he satisfies the Board that he was not, on the date of the coming into operation of the Builders' Registration Act Amendment Act 1961, a resident of the State."
18 Contrary to the applicant's submissions we consider that there is a clear distinction in meaning between "the work of a builder" as it is used in item (I) and "the work of building construction" as it is used in items (IV) and (V). We do not consider the authorities cited stand as authority for the meaning of the phrase "work of building construction". In Farano, the Tribunal held that the phrases "work of a builder" or as a supervisor "of building work", as used in item (I) meant "the nature of the work done must be work in which a builder engages, such as constructing, altering, repairing, adding to or improving the walls or structural parts of a building, as reflected in the definition of 'a person trading as a builder'". The Tribunal was not concerned in either Todorovic or Farano with the phrase "work of building construction" which appears in item (V).
19 In Re Ryan; Ex Parte Travaglini [1979] WAR 23, the Full Court of the Supreme Court of Western Australia held that in construing the
(Page 9)
- expression "fit and competent to carry out building work" in item (V) it is necessary that an applicant be competent to carry out building work which would be associated with buildings to be built for the purposes mentioned within the definition of "building". Justice Wickham concurred with the above reasoning of Burt CJ and added "the applicant must be qualified in the erection or structural alteration of all the classes of buildings mentioned in the definition".
20 The effect of the above differences is that an applicant for registration under item (I) may not have experience of all of the activities comprising the work of a builder. The deficiency in experience is made up by the requirement to pass prescribed examinations. By contrast, as submitted by the Board, an applicant for registration under item (V) must demonstrate experience in the whole of the process of building from start to finish, but in our view not just of a building as was submitted, but of all of the classes of buildings referred to in the definition, in order to be able to satisfy the Board that he is fit and competent to carry out building work.
21 The definition of "building" as set out in s 2 of the BR Act is:
"'building' means any building of a permanent nature used or intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional, assemblage, or public purposes, but does not include a farm building, and the term used as an abstract noun means the erection or structural alteration of any such building."
22 In assessing compliance, the above requirements need to be applied in a practical commonsense way. The building activities may not alter in any significant way between a building which is designed for manufacturing purposes as opposed to a building used for trading or commercial purposes. Nevertheless, for registration under item (V), the BR Act clearly intends that there be a wide range of building experience, such that experience can be demonstrated in construction of the classes of buildings stated. Based on that experience, the Board must be satisfied that the applicant is fit and competent to carry out building work. It will consequently be no easy matter to satisfy the requirements of item (V). While we shall turn to deal in more detail with the contentions in relation to owner/builders, it is obvious that it will be extremely difficult for someone to gain the experience required under item (V) as an owner/builder or by assisting an owner/builder, if such experience is permitted.
(Page 10)
23 The Board contends that the definition of supervisor read with s 10AA, s 10B and 10C supports the conclusion that a manager or supervisor as referred to in item (V) cannot be an owner/builder or be engaged by an owner/builder. The definition of "supervisor", which we have set out above in summarising the Board's submissions, clearly has an application to s 10 of the BR Act and item (V) in particular. Obviously, any person applying for registration under s 10 is not a builder until registration is granted. That is self-evidently so and strictly the definition is not required to arrive at that conclusion. Further, the definition does not sit well with s 10AA, s 10B and s 10C because those sections refer to the obligation to manage and supervise by either a natural person who is registered as a builder, or in the case of a partnership, by one of the partners who is registered as a builder (or by an employee of the partners who is so registered) and in the case of a company, by a director who is registered as a builder (or by an employee who is so registered) so that in these instances it is contemplated that a builder may supervise. This reflects an inconsistency in the legislation which should be amended, but is not a basis to support an argument that a person who is not a builder under the BR Act, which by definition means a person trading as a builder, cannot manage or supervise under item (V). To the contrary, s 10 operates to deal with persons engaged variously, depending on the particular item, in the work of a builder, or in the work of building construction, including as a manager or supervisor, who wish to apply for registration so that they are able to trade as builders.
24 We can find nothing within the legislation to support the Board's submission that an owner/builder, or someone engaged to assist an owner/builder, is excluded from the scope of item (V). On the ordinary meaning of s 10, and item (V), all that must be demonstrated is that the applicant has five years' experience in the work of building construction as a manager or supervisor sufficient to satisfy the Board that he is fit and competent to carry out building work. The controls necessary to preserve the public interest in ensuring that only competent persons are registered as builders lie within the latter requirement that the Board be satisfied that the applicant is fit and competent to carry out building work. For the reasons given above, we consider that means that an applicant must have a broad range of experience in the construction of buildings in the various classes referred to in the definition of "building" and that competency is not likely to be demonstrated to the satisfaction of the Board if that experience does not relate to the whole of the building process. We also disagree that there is any prospect of this interpretation making item (I) effectively redundant. There are not likely to be many applicants
(Page 11)
- who can demonstrate the experience required under item (V) when compared to the requirements by which registration may be achieved under item (I) based on the views which we have already expressed. Our further views, set out below, add additional reasons as to why this is so.
25 In Farano, the Tribunal concluded that in assessing the experience relied on by an owner/builder, for the purposes of item (I), it is necessary to compare the time taken in a particular project, if necessary broken down to particular activities, with the time which it is assessed, a reasonably competent registered builder, or trade engaged by the builder, would take to do the same work. In that way, the total time credited to an owner/builder would equate to that of someone engaged full time, every day, in carrying out the work of a builder or as a supervisor of building work. We consider the same rationale applies in assessing the experience of an applicant applying for registration under item (V). That gives the time which should reasonably be allowed for the actual carrying out of the building work, but that construction time does not, in our view, equate to the time spent in the management and supervision of the job.
26 The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) defines a manager as:
"manager ... noun 1. someone who manages. 2. a person charged with the management or direction of an institution, a business or the like. 3. someone who manages resources and expenditures, as of a household. … "
27 Thus a manager will be involved in all of the activities of a builder, beyond the actual physical supervision or oversight of the execution or performance of building work. Those activities may extend from liaison with the client, assisting with planning approvals, design, pricing, the development of a program for the works and scheduling of trades, attending to manage receipt of payments and payment for materials and trades throughout the contract period to practical completion and delivery of possession to the client against final payment and making necessary arrangements for performance of the builder's maintenance obligations. It is likely that in the operation of a sophisticated large builder, the functions of management may be spread across a range of divisions and people within the organisation, but ultimately, the registered builder remains responsible for oversight of all such activities. It may also be that
(Page 12)
- in practice, some of the management responsibilities, particularly in relation to the coordination of trades, may be left to the supervisor.
28 The time taken in supervision of the job will usually be shorter than the actual construction period. A foreman, or leading hand, both of whom are excluded from the definition of a supervisor, would be expected to be on site throughout the carrying out of the works. A supervisor would be expected to attend site to meet trades at the commencement of the activity in which they might be involved, to ensure that they properly understand the work to be undertaken but will not remain any longer on site than is necessary. At each site visit, the supervisor should inspect whatever work has been undertaken to ensure that it complies with the contract and to give directions in regard thereto. In the cottage residential building industry, a supervisor will supervise many sites at the same time. It may only be in large complex developments, that there may be sufficient supervision required to justify a supervisor being on a single site for the duration of the job.
29 The actual time spent in management and supervision will therefore vary depending upon the nature of the building work, but generally, would be expected to be significantly less than the whole time taken for the job. By way of example only, and without making any findings in respect thereof, one would expect that in Sch 1 attached to the applicant's application, where a period of 11 months' experience is claimed in respect of the construction of the Karratha International Motel, which took 11 months to complete, that the time spent in management and supervision may not exceed one month in total.
30 When the above principles are applied to the experience which the applicant claims while engaged to assist owner/builders to carry out building work, it is necessary firstly to determine how long the project would have taken if undertaken by a competent registered builder and then an assessment needs to be made of the time taken in management and supervision.
31 When the above principles are applied to Sch 2 attached to the application, in which the applicant sets out the experience claimed for management and supervision as an owner/builder of the applicant's own projects, the same process of assessment outlined above must be applied in cases in which the entire job is constructed by tradespersons supervised by the owner/builder. But, where the owner/builder carries out any building activities himself, we do not consider that any supervision
(Page 13)
- experience can be attributed to that activity. A supervisor must oversee work, which involves the control and approval of work of others.
32 In arriving at the above conclusions we are aware of the Board’s concern about encouraging the spread of owner/builder activities. We consider those concerns are largely, if not completely, met by the broad range of experience required by item (V) and the requirement that the Board be satisfied that an applicant is fit and competent to carry out building work in the sense discussed above, but if not, the answer lies in legislative amendment.
33 Finally, we note that the first question posed for determination raises whether or not the experience claimed can be credited for the period/s of the works concerned "towards achieving the aggregate period of five years". Unlike item (I), which expressly permits the aggregating of an applicant's practical experience for a period of at least seven years, item (V) simply refers to the requirement that an applicant have "at least five years' practical experience". The parties' submissions have not addressed this issue, and it may therefore not have been appreciated. In the circumstances, we do not consider that it would be appropriate to make any finding on whether or not the periods of experience claimed can be aggregated. There is at least some indication, in the different language used, that aggregation may not be permitted.
Conclusion and orders
34 For the above reasons, we answer the questions raised for determination by way of preliminary issues as follows:
1) Question: Do building works performed by an owner/builder constitute "the work of building construction" entitling the applicant to be credited for the period/s of such works towards achieving the aggregate period of five years?
Answer: Yes. An owner/builder is entitled to credit for the management and supervision time which can be reasonably incorporated within the time which it would have taken a competent registered builder to carry out the works. An owner/builder is not entitled to any credit for supervising building activities which he carries out himself, as opposed to activities in which trades are supervised. We make no finding as to whether or not the
- periods of experience may be aggregated as that issue was not addressed by the parties.
- 2) Question: Does acting as a manager or supervisor for and on behalf of an owner/builder give the applicant "experience in the work of building construction as a manager or supervisor"?
Answer: Yes. The experience to be credited must be assessed by taking into account the time which it would have taken for a competent registered builder to carry out the works and by determining the proportion thereof which may be allocated to management and supervision.
3) Question: Does "experience in the work of building construction as a manager or supervisor" require the applicant to be in the employ of a registered builder?
Answer: No
We will issue orders accordingly and have the matter set down for a directions hearing to determine its future course.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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