ZUBAC and BUILDING SERVICES BOARD
[2018] WASAT 110
•24 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011(WA)
CITATION: ZUBAC and BUILDING SERVICES BOARD [2018] WASAT 110
MEMBER: MS D QUINLAN (MEMBER)
MR RJ KERSHAW (SESSIONAL MEMBER)
MR S WALLACE (SESSIONAL MEMBER)
HEARD: 3 OCTOBER 2018
DELIVERED : 24 OCTOBER 2018
FILE NO/S: VR 45 of 2018
BETWEEN: ANTE ZUBAC
Applicant
AND
BUILDING SERVICES BOARD
Respondent
Catchwords:
Building Services Board - Refusal of registration - Building service practitioner - Building service contractor - Architect - Set 2 pathway for registration - Whether experience satisfies as supervising building construction
Legislation:
Architects Act 2004 (WA)
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 17, s 17(1), s 17(1)(b), s 17(1)(c), s 18, s 18(1), s 18(1)(d), s 21(2), s 64(2)
Building Services (Registration) Regulations 2011 (WA), reg 12, reg 16(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 31, s 31(2), s 31(3)
Result:
Review allowed and registration granted
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Derby |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Department of Mines Industry Regulation and Safety |
Case(s) referred to in decision(s):
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Director General of Department of Transport v McKenzie [2016] WASCA 147
Genovese and Building Services Board [2012] WASAT 244
Reitsema and Building Services Board [2013] WASAT 132
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 3 April 2018, Mr Ante Zubac (the applicant) lodged an application with the Tribunal seeking a review of the decision of the Building Services Board (Board) on 13 March 2018 to refuse his application for registration as a building service practitioner (Set 2) and building service contractor (individual) pursuant to s 17 and s 18 of the Building Services (Registration) Act 2011 (WA) (BSR Act).
The basis of the Board's refusal was that the Board was not satisfied that the applicant had demonstrated the prescribed experience for an equivalent period of five years full-time in supervising building construction.
The applicant seeks a review in the Tribunal of that decision pursuant to s 64(2) of the BSR Act.
Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and an invitation from the Tribunal for the Board to reconsider its decision, on 20 August 2018 the Board reconsidered its earlier decision of 13 March 2018 and resolved to affirm its decision under s 31(2) of the SAT Act to refuse his application for registration as a building service practitioner and building service contractor. Since the Board affirmed and did not vary or set aside its decision of 13 March 2018, s 31(3) does not operate in these proceedings, therefore the decision under review by the Tribunal remains the decision of the Board on 13 March 2018.
Section 27 of the SAT Act details the nature of review proceedings in the Tribunal. Review proceedings are not appeal proceedings and no appealable error need be shown on the part of the Board in order for the applicant to succeed. In review proceedings, the Tribunal reviews the decision afresh standing in the shoes of the original decisionmaker with all the powers and duties of the Board. The purpose of the review is to produce the correct and preferable decision at the time of the decision under review and the Tribunal is not limited by the reasons for decision of the Board or any grounds of review in the applicant's application.
Issue for determination
There exists only one issue in dispute between the parties that requires determination by the Tribunal as to whether the Tribunal is satisfied that the applicant has the experience prescribed by the relevant regulations, namely supervising building construction for periods totalling at least the equivalent of five years full-time.
Legislative framework
Relevant to these proceedings, s 17(1)(b) of the BSR Act provides that the Board (and in these proceedings, the Tribunal) must register the applicant as a building service practitioner in the class applied for if it is satisfied that the applicant has the qualifications and experience for that class of building practitioner prescribed by the regulations.
Relevant to these proceedings and a submission made by the Board, is s 17(1)(c) of the BSR Act which provides that the Tribunal must register the applicant as a building service practitioner in the class applied for if it is satisfied that he is a 'fit and proper person to be registered'.
Relevant to these proceedings, s 18(1)(d) and s 21(2) of the BSR Act provides that a building service contractor who is an individual must also be an eligible person and the nominated supervisor. In short, this means that the applicant in order to be a building service contractor must also be a building service practitioner.
Regulation 16(1) of the Building Services (Registration) Regulations 2011 (WA) (BSR Regulations) provides as follows:
Qualifications and experience: building practitioners
(1)For the purposes of section 17(1)(b) a qualification (if any) listed in a set in the Table, together with the experience listed in the same set, are prescribed as qualifications and experience for building practitioners.
Table
Qualifications
Experience
Set 1
(a) CPC50210 Diploma of Building and Construction (Building) as described in the CPC08: Construction, Plumbing and Services Training Package published by Training.gov.au including the following units –
(i) CPCCBC4005A Produce labour and material schedules for ordering;
(ii) CPCCBC4018A Apply site surveys and setout procedures to building and construction projects;
(iii) CPCCBC5005A Select and manage building and construction contractors;
(iv) CPCCBC5007A Administer the legal obligations of a building construction contract;
(v) CPCSUS5001A Develop workplace policies and procedures for sustainability;
(vi) CPCCBC4014A Prepare simple building sketches and drawings;
(vii) CPCCOHS1001A Work safety in the construction industry;
or
(b) an equivalent qualification as determined by the Board.
Carrying out or supervising building work for periods totalling at least the equivalent of 7 years full-time
Set 2
qualifications acceptable for
(a) membership as Member (Level 1) or Member (Level 2) of the Royal Australian Institute of Architects; or
(b) registration under the Architects Act 2004; or
(c) membership as Professional Engineer (MIEAust or FIEAust) of the Institution of Engineers, Australia; or
(d) membership as Fellow or Member of the Australasian Institute of Mining and Metallurgy,
evidenced by such membership or registration
supervising building construction for periods totalling at least the equivalent of 5 years fulltime
Set 3
qualifications acceptable for membership as Fellow or Member of the Australian Institute of Building evidenced by such membership
carrying out, supervising or managing building construction for periods totalling at least the equivalent of 5 years fulltime
Set 4
experience in supervising or managing building construction
(a) for periods totalling at least the equivalent of 5 years fulltime; and
(b) sufficient to gain knowledge and skills equivalent to those possessed by a person who has successfully completed a qualification referred to in set 1
Set 5
experience in carrying out building work, other than in the area set out in Schedule 3 or the area of the State within which the Builders’ Registration Act 1939²applied before it was repealed
(a) for periods totalling at least the equivalent of 7 years fulltime; and
(b) sufficient to gain knowledge and skills equivalent to those possessed by a person who has successfully completed a qualification referred to in set 1
Regulation 16(1) of the BSR Regulations prescribes the qualifications (if any) and experience listed in the Table for five different set pathways of registration as a building service practitioner. The applicant has applied for registration under Set 2 which requires the applicant to be a qualified and registered architect under the Architects Act 2004 (WA) (Architects Act) and to have the experience of supervising building construction for periods totalling at least the equivalent of five years full-time (Set 2 pathway).
The Tribunal notes that the experience required in the Table under Set 1 and Set 5 pathways relates to experience in 'building work', however in the Sets, 2, 3 and 4 pathways, the experience required refers to 'building construction'. Further, Set 1 and Set 5 pathways require the equivalent of seven years full-time experience, whereas Sets 2, 3 and 4 pathways requires the equivalent of five years full-time experience.
The Tribunal also notes a distinction in the different set pathways to registration in the Table in relation to the required type of experience as to 'supervising' and 'managing' or 'carrying out', summarised in short to illustrate the differences as follows:
(a)Set 1 pathway requires the type of experience to be carrying out or managing building work for seven years;
(b)Set 2 pathway requires the type of experience to be supervising building construction for five years;
(c)Set 3 pathway requires the type of experience to be carrying out, managing or supervising building construction for five years;
(d)Set 4 pathway requires the type of experience to be supervising or managing building construction for five years; and
(e)Set 5 pathways requires the type of experience to be carrying out building work for seven years.
The term 'building construction' is not a defined term in the BSR Act or BSR Regulations. Whereas the term 'building work' is defined in reg 12 of the BSR Regulations as having the meaning given in s 3 of the Building Act 2011 (WA) (Building Act). Section 3 of the Building Act defines 'building work' as follows:
building work means
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work;
or
(f)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]
In a recent decision of the Court of Appeal, Director General of Department of Transport v McKenzie [2016] WASCA 147, the principles of statutory construction were helpfully summarised by his Honour Justice Buss at [45]-[48] as follows:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
The Tribunal considers that the defined term 'building work' can assist the Tribunal in interpreting the relevant term for these proceedings of 'building construction'. The defined term 'building work' is a broad definition and can include 'building construction'. However, these terms are separate and distinct and the Tribunal does not consider the terms to be as easily interchangeable (or arguably, conflated) as it appears the Board does which is evident from the explanation provided in its pro forma Form 6 application for registration, its reasons for decision and as it presented its case to the Tribunal in these proceedings.
The BSR Act or BSR Regulations do not provide a definition of 'construction', 'supervising', 'managing' or 'building'. In addition to statutory context, the Tribunal may be assisted in interpreting those terms as used in the BSR Regulations by the ordinary use of that term as suggested by a dictionary.
The Macquarie Dictionary Online (2018) defines 'building' as:
1.a substantial structure with a roof and walls, as a shed, house, department store, etc.
2.the act, business, or art of constructing houses, etc.
The Macquarie Dictionary Online (2018) defines the noun 'construction' as:
1.the act or art of constructing.
2.the way in which a thing is constructed; structure: objects of similar construction.
3.that which is constructed; a structure.
The Macquarie Dictionary Online (2018) defines the verb 'supervising':
to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of.
The Macquarie Dictionary Online (2018) defines the verb 'managing':
1.to bring about; succeed in accomplishing; he managed to see the governor.
2.to take charge or care of: to manage an estate.
3.to dominate or influence (a person) by tact, address, or artifice.
4.to handle, direct, govern, or control in action or use.
5.to wield ( a weapon, tool, etc.)
6.to succeed in accomplishing a task, purpose, etc.
7.to contrive to get along: *Oh, I'd manage somehow. MURRAY BAIL, 1988.
8.to handle or train (a horse) in the exercises of the manège.
9.to conduct affairs.
Previous Tribunal decisions
We could not locate, and none were indicated to us by the parties, of previous Tribunal decisions for registration under the Set 2 pathway. Previous Tribunal decisions were decided under the different pathways highlighted above, and some decisions were also made under a different, albeit similar, legislative regime for registration. Therefore, prior Tribunal decisions cannot directly assist the Tribunal in determining what constitutes 'supervising building construction' under the Set 2 pathway. The decisions cited below may provide some limited assistance to the Tribunal, however, we rely principally on our statutory interpretation of the meaning of the terms used in reg 16(1) of the BSR Regulations, in particular as they relate to the Set 2 pathway.
In Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 (Thorp and BRB) at [27]-[29] the Tribunal considered the meaning of the terms 'manager' and 'supervisor' in previous similar legislative framework and made the following observations:
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 in practice, some of the management responsibilities, particularly in relation to the coordination of trades, may be left to the supervisor.
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.
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.
As stated above, the observations made by the Tribunal in Thorp and BRB are of assistance to the Tribunal in these proceedings but are not formally adopted as they are under a different, albeit similar, legislative regime and were observations made in the context of the particular facts and circumstances of those proceedings in an application under the Set 1 pathway for supervision of building work, not building construction.
Similarly, the Tribunal in these proceedings is assisted and informed by the reasoning in Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 at [33], that the benefit of particular experience in a particular trade which falls within the scope of the meaning of 'building work', whilst not sufficient to guarantee competency in building generally, when coupled with formal qualifications and training can together satisfy the Tribunal of competence in building generally.
Again applying the principles of statutory interpretation enunciated above, as well as being assisted and informed by the reasoning in Reitsema and Building Services Board [2013] WASAT 132 (Reitsema and BSB) at [25], the Tribunal considers that the lesser period of five years required experience for the managing or supervising of 'building construction' as opposed to the seven years for 'building work' recognises the value and importance of pure building construction experience more highly than building work experience in determining the registration of a building service practitioner.
Board's submissions
The Board concedes that the applicant has the relevant qualifications as required by the Set 2 pathway in that he holds a registration as an architect under the Architects Act. The Board also concedes that, if the Tribunal takes the view that the applicant has the requisite Set 2 pathway experience and, therefore, he must be registered as a building services practitioner, that there is no impediment to the applicant also being registered as a building services contractor.
The primary submission of the Board is that the evidence presented by the applicant should be considered to be insufficient to satisfy the Tribunal that he has at least five years full-time equivalent experience in supervising building construction. The Board conceded in oral closing submissions that the applicant has a considerable proportion of the requisite experience at Tempo-Vranica (36½ months), but not a sufficient time period to reach the 5 years full-time equivalent of supervising building construction and that a considerable discount should be applied for management. A secondary submission by the Board is that the Tribunal should also discount the experience of the applicant at Tempo-Vranica on the basis that his experience is outdated, from around 30 years ago, and in another regulatory environment. The Board submits that this secondary discount is allowed under the 'fit and proper' requirement in s 17(1)(c) of the BSR Act.
The Board submits that the applicant's time working as an architect on behalf of a client in both New York and Western Australia should not be counted in any way toward the requisite Set 2 pathway experience of supervising building construction. The Board submits that the requisite Set 2 pathway experience can only be counted if an applicant works for and on behalf of a builder who has the legal obligation to certify compliance of the building work (for instance, building work done in accordance with the building permit).
Therefore, the Board submits, the applicant cannot be registered as a building service practitioner nor a building service contractor.
Applicant's submissions
The applicant submits that he has provided clear and overwhelming evidence of his education, professional credentials and building construction supervising experience.
The applicant submits that, on his calculations, he has 74 months of supervisory construction experience working for building construction company TempoVranica (plus significant overtime which was not included in his calculations). To support this time period calculation he provided various supporting documents including two certified letters, one record document and three witnesses' statements from company directors and colleagues: see pages 81, 106, and 108-114 of the Hearing Book.
The applicant also submits that prior to taking up this role with TempoVranica, during his last year of university studies he did practical training on a construction site for a 10 storey highrise apartment building in Sarajevo with Tempo-Vranica for six months where he got experience under direct supervision of the on-site nominated supervisor. The applicant submits it is here that he gained hands on construction supervision experience which then led into his formal role with Tempo-Vranica.
The applicant submits that during his time in Europe, in former Yugoslavia (today Croatia, Bosnia and Herzegovina) it was the norm for a graduate engineer of architecture to supervise, control, direct and lead the construction of buildings at the construction site.
The applicant submits that in addition to his time with TempoVranica, on his calculations, he has a further 79 months of building construction experience including 28.1 months of supervisory construction experience and 50.9 months of construction management experience, while he was working with Ammann & Whitney in New York, SEME Solutions in Osborne Park and T&Z Architects in West Perth.
In response to the Board's submission that the applicant's time should not be credited as he was working for the client and not for the builder, the applicant submits that the BSR Act and BSR Regulations do not state that an architect must work for a builder in order to gain experience in supervising building construction.
As a registered architect working for the client overseeing and managing building construction, the applicant submits that he was responsible for accepting and signing off the builder's work and, at the end of the construction project, signing off that the project was completed in accordance to the contract documents. Further, the applicant submits that a significant amount of construction management and supervision work done by architects is undertaken when working directly for clients where the architect inspects, accepts or rejects the builder's work.
The applicant submits in summary that he is a registered architect with a Diploma in Architecture & Engineering and Masters of Architecture with over 30 years of combined architecture and building construction supervision as well as management experience where he has designed, supervised and managed construction of complex buildings on four continents including Europe, North America, Asia and Australia. The applicant submits further that he has an impeccable professional and work history and has never had any accidents on a construction site. Based on these credentials, he submits, he was elected to the Architects Board of Western Australia for two terms.
Finally, the applicant submits, the Tribunal should consider all his professional credentials, broad knowledge and experience in supervising building construction and with all the evidence in support that has been provided, approve his registration as a building service practitioner and building service contractor.
Facts
Much of the background facts in these proceedings are not in dispute between the parties, or perhaps better put, the respondent does not dispute the factual background of the applicant's work history and experience as presented by the applicant. Where the parties do substantially differ, however, is whether the applicant's experience is sufficient to be characterised as 'supervising building construction' in order to satisfy the Tribunal that the requirements have been met for the Set 2 pathway.
The background facts as to the work history and experience of the applicant are detailed at length in the applicant's statement of issues, facts and contentions, the record of interview conducted as part of the reconsideration process on 9 August 2018, as well as the respondent's statement of issues, facts and contentions and the documentary evidence provided by both parties. This evidence was also explained further by the applicant at the hearing in his oral evidence where he was subject to questions from the Tribunal and crossexamination by the Board.
The Tribunal had the opportunity to observe the demeanour of the applicant throughout the hearing process and whilst he gave oral evidence. We find that the applicant is an honest, forthright and credible witness of fact.
We find the applicant's oral evidence and record of interview to be consistent with and supported by the documents provided which include from now retired Tempo-Vranica company directors as well as former colleagues. Some of those supporting documents, have been produced and translated. An issue arose at hearing as to translating discrepancies between two translations of the one document written in 1991 which was differently translated twice in 2018: see pages 108109 and 237 of the Hearing Book. Neither the author of the 1991 document nor the two translator's provided oral evidence in the hearing in order to be crossexamined and explain the discrepancies to the Tribunal.
The Tribunal finds that any changes or inconsistencies in the applicant's evidence are considered minor and can be explained by the genuine efforts he has made to satisfy the Board with its changing position as to what it considers the phrase 'supervising building construction' means in the context of the applicant's particular experience.
The Tribunal finds that, in reaching its decision as to assessing the relevant experience of the applicant as to whether he satisfies the Tribunal that he has at least five years full-time equivalent experience supervising building construction, the Tribunal relies principally on the direct oral and documentary evidence of the applicant. The applicant's evidence is supported by the documents. However, where there are any potential inconsistencies between the documents (such as the translating issue identified above) we prefer the direct evidence of the applicant.
The Tribunal, having considered the BSR Act and BSR Regulations and the distinction between 'management' and 'construction' has determined to accept the percentage calculations made by the applicant in his statement of issues, facts and contentions. This is because we find that the applicant's percentage approach in the facts and circumstances of these proceedings to be overly conservative. This is perhaps reflective of his efforts to satisfy the Board in its somewhat inflexible policy approach to percentage calculations in the facts and circumstances of this matter. We find, with all due respect to previous Tribunal decisions and fairness to the Board, that previous Tribunal decisions on the facts and circumstances of those matters have perhaps encouraged the Board along this inflexible policy pathway. However, we find that, due to the findings we make later in these reasons, the distinction between 'management' and 'construction' in the Table of reg 16(1) of the Regulations and what we consider to be an inflexible policy approach to percentage calculations in the facts and circumstances of these proceedings does not require further detailed analysis in these proceedings. The Tribunal is not suggesting that percentage calculations have no role to play in assessing experience. However we caution that such an approach should not be inflexibly applied by a decisionmaker if they are to make a genuine attempt to decide an application on its merits.
The Tribunal notes the portion of the voluntary record of interview with the applicant where the applicant was, in the Tribunal's view, unfairly peppered with irrelevant questions regarding painting, plastering, carpentry and tiling. Whilst painting, plastering, carpentry and tiling may relate to a consideration of experience in supervising 'building work' it is not relevant to the assessment of experience of supervising 'building construction'. Therefore, that portion of the record of interview is of no assistance to the Tribunal in determining the applicant’s experience in supervising building construction.
Therefore, in light of the respondent's position as to the background facts as well as having considered the evidence provided to the Tribunal as a whole and the findings made above as to the reliance that the Tribunal places on the direct evidence by the applicant, the Tribunal makes the following material findings of fact:
(a)During the last year of his degree in architecture the applicant spent 6 months on site with his future employer, Tempo-Vranica where he got experience under direct supervision of the on-site nominated supervisor and it is here that he gained hands on construction supervision experience which then led into his formal role with Tempo-Vranica.
(b)In April 1984 the applicant completed his studies at the University of Sarajevo with a Graduate Engineer of Architecture.
(c)From June 1984 to June 1991 (with a 10 month absence discounted due to mandatory army service) the applicant was employed by Tempo-Vranica with a professional title of 'Architectural Engineer' with his day to day duties being a Building Construction Supervisor for a total period of 73.5 months on the following projects:
a.Ten-storey apartment buildings in Zalik 8 months;
b.Two six-storey apartment buildings in Zalik 5 months;
c.Airport buildings (two hangars, control tower and security underground command facility) in Iraq 12 months;
d.Eight-storey apartment building in Mostar 22 months; and
e.Residential apartment complex of 18 buildings supervisor for six of those buildings 26½ months;
(d)In 2000 the applicant completed a Masters in Architecture from the University of Houston, Texas.
(e)In 2002 the applicant was registered as an architect in New York and he maintains that registration to the present day.
(f)From July 2004 to March 2009 the applicant worked in the position of Senior Architect for Ammann & Whitney in New York for 57 months with supervising building construction comprising 17 months and construction management 40 months (rounded).
(g)From December 2011 to September 2012 the applicant worked in the position of Architect for SEME Solutions, Osborne Park, Western Australia. The applicant suggests that half of his 9 months there constitutes supervision of building construction but he does not rely on that for the time period calculation in these proceedings.
(h)From September 2011 to October 2012 the applicant worked in the position of Project Architect for T&Z Architects with a total period of 6.5 months supervising building construction.
(i)In November 2014, following successfully completing an oral and written examination, the applicant was registered as an Architect in Western Australia.
(j)Since his registration as an architect in Western Australia, the applicant has served two terms of two years on the Architects Board of Western Australia and operated a business as a sole practitioner. The applicant does not seek to rely on any of that experience in the Tribunal's calculations.
Consideration
Based on the material findings of fact made by the Tribunal above, and the specific findings of fact and law made below, it is apparent that the Tribunal does not accept the primary submission made by the Board in these proceedings.
In particular, the Tribunal does not accept the Board's submission that the applicant cannot satisfy the Tribunal that during his time with Tempo-Vranica that he was sufficiently individually responsible for supervising building construction work as Tempo-Vranica was a large company and there is a lack of detailed verification of his role. The Tribunal is satisfied that the applicant was in a supervisory role supervising building construction whilst employed by Tempo-Vranica. When being involved in a large company with large construction projects, for the purposes of the relevant experience required for these proceedings, the applicant need not prove that he was supervising the whole construction project, just that his role was supervision of work that constituted building construction, even if that was part of the whole construction project.
Further, the Tribunal does not accept the submission from the Board that the applicant's experience from 1984 to 1991 should also be discounted on the basis he is not 'fit and proper' under s 17(1)(c) of the BSR Act because it is 30 or so years ago and from another regulatory regime. Whilst the Tribunal accepts this submission as a matter of principle agreeing with the reasoning in Reitsema and BSB as well as Genovese and Building Services Board [2012] WASAT 244 (Genovese and BSB), the Tribunal does not agree that this reasoning applies to the facts and circumstances of these proceedings for two reasons.
Firstly, the Tribunal finds the applicant's experience to be extensive during 1984 to 1991 in supervising building construction of significant structures, namely multi-storey apartment buildings, airport hangars, an extensive 1500m² underground structure and airport control tower. Secondly, the Tribunal finds that the applicant has since that time worked consistently as a registered architect in both New York and Australia, re-qualifying in both jurisdictions, so it could not be found that his experience generally is outdated and from another regulatory regime. Moreover, the Tribunal finds that the fact that the applicant has worked in his profession in multiple countries, and reregistered as an architect in both New York and Western Australia, bodes well for his ability to adapt and learn different regulatory regimes such that he is 'fit and proper' in all respects.
The Tribunal further finds that the discounted calculation approach considerable suitable in Thorp and BRB as well as other Tribunal decisions is not appropriate in these proceedings. The Tribunal finds that the projects detailed by the applicant, particularly during his time employed by Tempo-Vranica from 1 June 1984 to 13 June 1991 (a total of 74 months discounting his ten months military service), are of the type referred to in Thorp and BRB at [28], in that they were large and complex developments requiring extensive supervision of building construction such that no discount or percentage quantification is required.
Therefore, the Tribunal finds that the applicant's employment by Tempo-Vranica alone satisfies the Set 2 pathway requirement for supervision of building construction for a period totalling at least five years equivalent full-time.
For the reasons explained below, the Tribunal cannot accept the proposition advanced by the Board that a person cannot be considered to be supervising in the relevant sense unless they are acting for, or on behalf of the person legally responsible for certifying compliance of the building work (which the Board submits is the builder). The Board submits that this person need not be employed by the builder (they can be a sub-contractor) and are, therefore, acting on behalf of the builder in the relevant sense. The Board submits that this contrasts with the position of an architect who engages (directly or indirectly) the builder rather than being a subcontractor of the builder.
In support of this submission, the Board did not call any factual or expert evidence to explain the process of supervision of building construction. This is not to suggest that such evidence could be considered determinative of a qualitative assessment of the applicant's individual experience, particularly in other regulatory regimes. The only substantive factual evidence that the Tribunal has been provided with as to the qualitative experience of the applicant as to his supervision of building construction has been provided principally by the applicant himself and supported by the documentary evidence. That is evidence, for the reasons explained above, that the Tribunal accepts.
Therefore, the Tribunal cannot accept the submission made by the Board that, under the Set 2 pathway, the experience referred to must be experience supervising building construction for and on behalf of a builder, and cannot ever be experience supervising building construction as part of an architect and client relationship. We consider the Board's interpretation of the Set 2 pathway to be an overly restrictive or narrow interpretation of how such experience can be obtained which imports requirements into the legislation that, in the Tribunal's view, do not exist and are not required. The Tribunal takes the view that the Board's submission or practice in this regard takes an inflexible policy approach to how the requisite experience can be obtained. It is simply too narrow an interpretation of the Set 2 pathway to take the view that experience working as an architect for a client (where the architect has directly or indirectly engaged the builder) can never be counted in calculating the requisite Set 2 pathway experience. We consider that the requisite experience needs to be qualitatively assessed in the particular facts and circumstances as to whether the applicant has experience for at least five years full-time equivalent in supervising building construction.
We also refer to the previous decisions of the Tribunal in which it was not held that the supervision of building work required for that to be done for and on behalf of the builder. In Thorp and BRB the Tribunal found that experience could be counted where it was obtained as an owner/builder and when engaged to assist an owner/builder.
In Genovese and BSB at [20]-[25], the Tribunal found that limited direct experience that was largely, though not exclusively, obtained through the supervision of electrical contractors could be counted however left open a possible argument it would consider discounting that experience on the basis of a 'fit and proper' argument, analogous to the one made in these proceedings. We would distinguish the discount proposed in Genovese and BSB to the facts and circumstances of this case as we find the Set 1 pathway for an electrician to be considerably different to the Set 2 pathway for the applicant as a registered architect with experience in supervising building construction and apply no such 'fit and proper' discount.
Therefore, if it was necessary which we find it is not in this case due to the findings above in relation to the applicant's experience gained with Tempo-Vranica, we find that we could include in our calculations the applicant's experience in New York supervising building construction as an architect and his experience in Western Australia supervising building construction as an architect. However, we reiterate that it will depend on the individual facts and circumstances of a particular case and an assessment of the qualitative experience relied upon by an applicant in the Set 2 pathway.
Therefore, the Tribunal finds that it is open to make a further finding on all of the evidence that the applicant's experience detailed above, over his 30 or more years working as an architect actively on site on various projects across four continents including Europe, North America, Asia and Australia is found by the Tribunal, in its totality, to be well in excess of the required five years full-time equivalent building construction supervisory experience for registration as a building practitioner.
Conclusion
In accordance with these reasons, the Tribunal finds as a matter of fact and law, that it is satisfied that the applicant has the experience prescribed by the Set 2 pathway, namely supervising building construction for periods totalling at least the equivalent of five years full-time.
Therefore, in accordance with s 17(1) of the BSR Act, the Tribunal finds that the applicant must be registered as a building service practitioner. As the only impediment to registration as a building service contractor raised by the Board was the finding above in relation to the requisite prescribed experience, in accordance with s 18(1) of the BSR Act, the Tribunal finds that the applicant must also be registered as a building services contractor.
Orders
Accordingly, the Tribunal orders as follows:
1.The application for review is allowed.
2.The decision of the Building Services Board (Board) made on 13 March 2018, affirmed by the Board on 20 August 2018, is set aside.
3.Subject to payment of any prescribed fee, the applicant's application for registration as a building service practitioner (Set 2) and a building service contractor (individual) is granted.
4.Within 14 days of the date of this order, the Board is directed to effect the applicant's registration in accordance with order 3 and to issue the applicant with the relevant registration certificates.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
25 OCTOBER 2018
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