TODOROVIC and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
[2005] WASAT 273
•10 OCTOBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: TODOROVIC and BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2005] WASAT 273
MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR K BRADLEY (SENIOR SESSIONAL MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 12 JULY 2005
DELIVERED : 10 OCTOBER 2005
FILE NO/S: VR 252 of 2005
BETWEEN: ZORAN TODOROVIC
Applicant
AND
BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Application for review of decision refusing application for registration as a builder Whether requirement for practical experience in the work of a builder satisfied
Legislation:
Builders' Registration Act 1939 (WA), s 10, s 14, s 10(1)(b)(iv)(I), s 10(1)(b)(iv)(V), s 10(2)(a)
Interpretation Act 1984 (WA), s 18
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Application refused
Decision under review affirmed
Category: B
Representation:
Counsel:
Applicant: Mr R Harrison
Respondent: Mr M Oud
Solicitors:
Applicant: Dwyer Durack
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
The applicant applied for a review of a decision by the Builders' Registration Board of Western Australia refusing his registration as a builder.
The applicant met all the requisite qualification requirements save that the Builders' Registration Board of Western Australia found that he did not have the prescribed practical experience for a period of at least seven years, or for periods aggregating at least seven years, in the work of a builder, or as a supervisor of building work.
While the Tribunal had some concerns about the construction placed on the statutory requirements by the Builders' Registration Board of Western Australia, it found that it was not necessary to determine that issue. The Tribunal considered that even if credit was to be given for work activities disallowed by the Builders' Registration Board of Western Australia, the applicant was not entitled to the full period claimed and that the periods properly allowed did not meet the statutory requirement.
The application was accordingly refused and the decision under review affirmed.
The Review
The Builders' Registration Board of Western Australia (the Board) refused the applicant's application for registration as a registered builder following a hearing on 10 February 2005. The decision was communicated by letter of 11 February 2005.
Pursuant to s 14 of the Builders' Registration Act 1939 (WA) (BR Act) the decision is reviewable by the State Administrative Tribunal. As provided in s 27 of the State Administrative Tribunal Act 2004 (WA), the review is by way of a hearing de novo with the purpose of arriving at the correct and preferable decision.
The issues for determination
The issues raised for determination are whether the applicant has the practical experience required for registration as a builder pursuant to s 10(1)(b)(iv)(I) or s 10(1)(b)(iv)(V).
The decision under review
Written reasons for the Board's decision were provided on or about 12 May 2005. The substance of the reasons for decision is as follows.
The Board found that the section of the BR Act which was most favourable to the application was s 10(1)(b)(iv)(I). The relevant portion of the 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) [which are not relevant], be entitled to be so registered if and when
(a) …
(b)he has satisfied the Board that he
(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;"
The Board stated that the reference to seven years experience refers to experience gained working at the rate of and in the circumstances that apply in the ordinary commercial situation in the industry and that to hold otherwise would deprive the requirement of any sensible meaning.
Reference was then made to the definition of a builder which is "a person trading as a builder" which, in turn, is defined to mean:
"Any person who … is engaged in constructing, altering, repairing, adding to or improving the walls and structural parts of buildings for a fixed sum, percentage or valuable consideration, or reward other than wages."
The Board stated that the phrases "work of a builder" and "building work" are not separately defined in the BR Act but, in its opinion, each denotes what is ultimately defined to be the activity of a builder. That activity was stated to be of a commercial character, in that it is done for reward. The Board continued that the phrase "ownerbuilder" does not appear in the BR Act but pointed out that it is a common industry term to describe a person who is permitted to be issued with a building licence, in restricted circumstances. The restrictions ensure that an ownerbuilder cannot lawfully trade as a builder. Thus, in the Board's opinion, the work of an ownerbuilder "cannot satisfy the requirements of item (V)".
The reference to item (V) is understood to be a reference to subsection 10(1)(b)(V) which provides:
"(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".
The Board stated that the applicant had completed the Board's prescribed academic course, the Board was satisfied that he had attained the age of 21 years and that he is a person of good character. There is nothing to indicate that the Board required any other requirements to be met, for example, under subsection 10(2)(a), the Board is entitled to require that an applicant demonstrate sufficient material and financial resources are available to enable the applicant to meet his or its financial obligations as and when they become due.
The Board then went on to examine various activities in which the applicant had been engaged to assess whether the practical experience requirements were met.
The applicant was credited with 19 months' experience as a bricklayer and a period of 10 and a half months while he was employed by a registered builder as an estimator/scheduler.
The Board declined to give any credit for two periods spent as a survey assistant totalling 26 months.
The Board also refused to give any credit for three periods during which the applicant was involved in ownerbuilder projects totalling 33 months.
The Board considered that the first two projects had taken an exceedingly long time to complete and stated that this probably reflected that the applicant not only carried out the role of the ownerbuilder but also provided much of the physical work on the site. Each of those projects took 12 months to complete. The Board did not criticise the nine months taken for the third project which the applicant stated he had only supervised. This was because the Board considered the project was not of sufficient size to have required a fulltime supervisor.
Finally, the applicant claimed a credit of 27 months for a period which he had been employed up to the date of the hearing before the Board by a property developer. The developer company, Elsoni Pty Ltd, entered into contracts from time to time with various builders to have buildings built. The applicant was responsible for the planning and preparation for the projects, communication with the builders, negotiation of the contracts, monitoring of performance and ensuring that his employer's cash flow was sufficient and appropriate to the company's needs. He also dealt with the sale of the completed homes.
The Board declined to give any credit for this period, finding that the work is neither "practical experience in the work of a builder" nor "supervision of building work".
The parties' submissions
Mr, Oud for the respondent, supported the Board's reasons. The Tribunal raised with Mr Oud its tentative concerns about the Board's interpretation of the statutory requirements and the way in which they were applied. The Tribunal mooted that if the phrase "work of a builder" was intended to encompass no more than the type of activities in which a builder was engaged, it might be that a person who was engaged in ownerbuilder work should be entitled to a credit, whether or not, for the full period claimed. The Tribunal further mooted that it might be that, on a proper construction, the reference to "practical experience" for a stated period was the means by which to equate and assess whether the time spent in an ownerbuilder project should be credited in full, or in part.
Mr Oud's submission in response was that, even in that event, it was likely that the Tribunal would conclude that the aggregate period of experience either under item (1) or item (V) had not been met. He submitted that the issue raised in relation to ownerbuilders was one of considerable importance to the Board and reflected a policy which had been applied for a considerable period of time. In the circumstances, he requested that the Tribunal make no definitive finding on the construction of the statute, if it was not necessary to do so.
Mr Harrison's submission for the applicant concentrated on the construction of the legislation. He criticised the Board's interpretation, emphasising that all that was required, ignoring other criteria not relevant, was that the applicant have practical experience for a period of at least seven years or for periods aggregating at least seven years. To the extent that the respondent contended that the construction of the subsection was assisted by reference to the definition of a builder as a person trading as a builder, he pointed out that it was selfevident that the person applying for registration as a builder, could not be a person trading as a builder. For the purposes of determining whether a person had been engaged in the work of a builder, the relevance is to the nature of the work done that is, engaging, constructing, altering, repairing, adding to or improving the walls or structural parts of a building as reflected in the definition of "person trading as a builder".
When it came to assessing the activities undertaken by the applicant, Mr Harrison submitted that the time taken to complete the works was an irrelevant consideration.
It was submitted that supervising as an ownerbuilder is supervisory experience in the work of building construction as required by s 10(1)(b)(iv)(V) of the BR Act. Further, credit should be given to the applicant under the same subsection in relation to his involvement with the building projects for the above development company.
Considerations
In deference to Mr Oud's submission that the issues raised by the application are of considerable importance to the Board in its consideration of applications by persons who have relied on experience as an ownerbuilder, and because we consider it is unnecessary to determine the issue, we shall limit our finding as to the proper construction of s 10(1)(b)(iv)(I) and s 10(1)(b)(iv)(V) to the extent hereinafter stated.
The intent of s 10 is obviously to ensure that those applying for registration as a registered builder must have the requisite qualifications and experience. The provisions are for the public benefit as part of the regulation and control of the building industry and with the obvious object of ensuring that members of the public have the comfort of knowing that registered builders are suitably qualified.
Section 10 of the BR Act should be construed in a way that would promote this purpose as prescribed by s 18 of the Interpretation Act 1984 (WA).
Item 1 of the subsection recognises that continuous experience is not necessary by allowing periods aggregating at least seven years to be included.
But, in the Tribunal's view, an applicant must be able to demonstrate something other than that for seven years, or for an aggregate period amounting to seven years, he or she has had some remote connection with building work.
The section refers to "practical experience" for the requisite period. We consider that means that for the whole of the period, or the aggregated period, the applicant has been engaged in the work of a builder.
We are prepared to assume, for the benefit of the applicant, that the activities of an ownerbuilder fall within the meaning of this phrase, without deciding the point.
It then remains necessary to assess the nature of the activities undertaken by the applicant during the period in which he was involved in ownerbuilder work. We do not accept the submission made on behalf of the applicant that the time taken by the project is irrelevant.
The intent of the legislation is to ensure a total of seven years practical experience is gained in the work of a builder. It is necessary, in our view, to have regard to the activities which a person trading as builder undertakes. If it is necessary to measure whether one has practical experience which amounts to seven years experience in the work of a builder, there must, in our view, be a qualitative element in that assessment.
The point is easily demonstrated by examining an extreme example. If an applicant spent seven years, working on occasional weekends, in constructing a modest dwelling, could it be said that he had met the practical experience requirements of the legislation? In our view, an affirmative answer would be absurd.
We consider, to meet the practical experience requirement, it is necessary to be engaged fulltime, every day, in carrying out the work of a builder, or as a supervisor of building work.
We also consider that it is only actual time involved in this way which must be taken into account. There can be delays in the ordinary construction of a dwelling because materials are not available. A builder will then go on to another job. An ownerbuilder has no other job to go to and cannot be said to be engaged in building work, or to be gaining practical experience as specified, when no work is being carried out. We consider that in order to properly assess the practical experience gained by an applicant in this situation, it is necessary to assess the length of time it would have taken a registered builder to carry out the project in question. In that way, the applicant becomes entitled to the credit which equates to the experience accrued in the work of a builder.
We shall approach the time claimed by the applicant in relation to the ownerbuilder projects on this basis. In our view, and with the benefit of an experienced builder member in Mr Mittonette, we have allowed the applicant three months for the first project, four months for the second project and three months for the third project. This is, in our estimate, the amount of actual construction time.
The Board disallowed the applicant any credit for time spent as a surveyor or surveyor's assistant. The evidence showed that one of the courses in the academic training requirements includes a course in building site surveying and set out. In our view, some credit must be allowed for this activity. Doing the best we can on the limited evidence before us, we think that at least a few weeks of that experience would be beneficial to a builder and would assist in the carrying out of building work, namely in the proper set out of the work and that it involves doing the work of a builder. We accordingly allow 0.5 of a month in respect of this activity.
The next activity planned is experience as a supervisor in respect of the employment by Elsoni Pty Ltd, the property development company. In relation to this activity, we agree entirely with the reasoning of the Board. The fact that Elsoni Pty Ltd engaged builders demonstrates the point. It is the work undertaken by the builders in relation to each project which constitutes either the work of a builder under item (1) or "the work of building construction" under item (V). The work in which the applicant was engaged was, as reflected in the description of the company's activities, property development work.
The above periods which we have allowed must be added to those periods which the Board accepted and which were not in issue. They amount to an aggregate period of 40.5 months. We accordingly find that the applicant has not met the practical experience requirements of either s 10(1)(b)(iv)(I) or s 10(1)(b)(iv)(V).
Orders
For the above reasons we order as follows:
1.The application for review of the decision of the Builders' Registration Board made 10 February 2005 and communicated by letter dated 11 February 2005, is refused.
2.The decision under review is affirmed.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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