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Builders Licence Refusal Overturned

Kreisson acted for the Applicant in a recent application to the New South Wales Civil and Administrative Tribunal Occupational Division (NCAT) for a merit review of the decision by New South Wales Fair Trading (Fair Trading) to refuse an application for a contractor’s licence in the category of general building work.*

Background

The Applicant is a licenced plumber who has been engaged in the building industry for over 35 years and was recently employed by the Sydney Harbour Federation Trust (Trust) as a Senior Maintenance Officer. The role involved significant renovation work on a number of the Trust’s residential houses over a period longer than 2 years.

The Applicant applied to Fair Trading to obtain a general building licence on the basis that he had gained experience for over 2 years supervising and coordinating residential building work under the supervision of a licenced builder.

The Applicant provided three Referees Statements including one from his supervisor at the Trust.

The Refusal

Fair Trading refused the application on the grounds that the Applicant:

  • had not been involved in any residential projects that would give him the experience or understanding of the construction of a dwelling from site set out to final handover to the client;
  • did not have experience on any major renovations or additions;
  • did not have experience in a wide range of building works;
  • had experience over 10 years old which meant it could not be accepted;
  • had experience as an owner builder which is not acceptable;
  • had experience on commercial work which is not acceptable; and
  • the experience with the Trust was not on projects with Development Application (DA) approval and therefore was not acceptable.

The Instrument

The Commissioner of Fair Trading issues an Instrument from time to time which provides the criteria for the granting of a builders licence in NSW. The Instrument lists the qualifications and the type of experience that will be acceptable.

In this case, Fair Trading and the Tribunal were satisfied that the Applicant had the relevant qualifications as he had obtained a Certificate IV and Diploma in Building and Construction in October and April 2013.

The issue for the Tribunal was whether the Applicant satisfied the requirements of the Instrument for minimum of 24 months experience in a wide range of building and construction work and was supervised and renumerated in an appropriate work place relationship.

The Instrument defines the relevant experience as:

Experience means experience gained by the Applicant as:
an employee of; or
a holder of a supervisor certificate and has a nominated supervisor for the contractor licence held by; or
a holder of an endorsed contractor licence contracted to; or
a holder of a supervisor certificate the capacity of a nominated supervisor for a contract licence held by an individual, partnership or corporation contracted to, the holder of the contractor licence authorised by the holder to do the class of residential building in which the experience was gained (“the Work”) where the Applicant during the relevant period, was supervised and directed during the Work by the holder of an endorsed contractor licence or supervisor certificate, authorising its holder to supervise the Work; and
remunerated with money in accordance with law for the work which the Applicant carried out.

Referee Statement 1

One of the Referees Statements supported experience gained while the Applicant was an owner builder engaging a builder on the renovation of both commercial and residential projects.

The Tribunal agreed with Fair Trading that experience gained while an owner builder cannot be relevant experience as it fails the criteria for remuneration and supervision, in that, it is the builder being engaged and paid by the Applicant rather than the Applicant being engaged and paid by the builder while undertaking the work.

Referees Statement 2

A further Referee Statement which supported work experience over ten years old was not put to the Tribunal at the hearing and therefore the experience was not accepted, however, the Tribunal disagreed with Fair Trading’s interpretation of the requirement in relation to the recency of experience.

In its refusal of the initial application Fair Trading noted that the experience was over 10years old and therefore not acceptable. In her finding the Senior Member noted that the wording of the Instrument is that “the majority of the experience has been obtained ten years prior to the lodging of the application”.

The Senior Member considered that this meant that theoretically, 51% of experience needed to have been obtained within the 10 year period and that 49% of the claimed experience obtained outside the 10 year period could be considered as relevant experience.

Referee Statement 3 (The Trust)

The Referee Statement from the Applicants supervisor at the Trust showed that the Applicant had been involved in the renovation of several houses ranging from three weeks up to three months’ work on each site.

This experience was supported by scope of works showing that an extensive number of types of trades were involved in the work at each site and a summary of the type of work undertaken included structured work including excavation and footings, foundation and slab work and involvement in many of the aspects of building works such as lining, tiling, bathroom renovation, plumbing, electrical coordination and waterproofing.

Fair Trading contended that in his work for the Trust the Applicants experience was limited in scope given the limited monetary value of and of time spent at each job and they did not consider that there was experience in a wide range of building and construction works. In addition Fair Trading considered the experience unacceptable in that the Applicant had not worked on new dwellings.

The Tribunals Findings

The Senior Member overturned Fair Trading’s refusal to grant the licence as she considered that the Applicant’s experience at the Trust was verified and sufficient that he met the criteria for a general building licence.

In relation to Fair Trading’s claim that experience was required on a new dwelling, the Senior member agreed with the finding in Tange v NSW Fair Trading [2013 NSWADT 2001] at para 57, where Judicial Member Montgomery found that it is not conclusive of the issue if the Applicant had not constructed a house from start to finish as the Home Building Act is a consumer protection act and skill knowledge and ability are the significant factors.

In relation to Fair Tradings claim that the Applicants experience was limited to alterations, additions and maintenance, the Senior Member pointed out that the Fair Trading website set out the text in relation to residential building work as:
any work that is residential building work under the Home Building Act 1989 which involves construction of a dwelling, or alterations or additions to a dwelling. It also includes repairing, renovation, decorating or applying protective treatment to a dwelling”.

The Senior Member therefore considered that the Applicant in his role with the Trust had been undertaking work which fell into the category of residential building work.
The Senior Member also considered that the range of trades and functions involved in the Applicants work constituted experience in a wide range of building work.

In relation to Fair Trading’s claim that a DA was required on the residential building work before it could be acceptable to use as experience the Senior Member noted that in Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42, Senior Member Molony found that the standards do not require that there be a DA in place of work done on the site to be relevant industry experience.

Conclusion

This case highlights the difficulties some contractors can have obtaining a general building licence when they do not neatly fit into the criteria which Fair Trading consider is appropriate. There are some definitive conclusions arrived at in this case that will assist any person applying for a general building licence, they are:

  1. commercial work will not be accepted as relevant experience;
  2. owner builder work will not be accepted as relevant experience;
  3. it is not necessary there be a DA;
  4. it is not necessary to build a house from start to finish;
  5. the majority of experience must be within 10 years but this does not mean that other experience, outside the ten years, cannot be considered.

Applying for a builders licence can be a complex process and if you wish to discuss any issues relating to building licence applications feel free to contact us at Kreisson.

This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.

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*Trist v Commissioner for Fair Trading, Office of Finance and Services [2016] NSW CATOD131