Keating v Commissioner for Fair Trading [2009] NSWADT 16 (3 February 2009)

Last Updated: 6 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Keating v Commissioner for Fair Trading [2009] NSWADT 16


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Colin Keating

RESPONDENT
Commissioner for Fair Trading



FILE NUMBERS:
083176

HEARING DATES:
15 August 2008

SUBMISSIONS CLOSED:
15 August 2008



DATE OF DECISION:
3 February 2009

BEFORE:
Grotte E - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Home Building Act 1989
Home Building Regulation 2004

CASES CITED:
Doumit -v- Commissioner for Fair Trading, Office of Fair Trading (2008) NSWADT 138

TEXTS CITED:


APPLICATION:
Compliance, Review, No Review of Commissioner's standards available under Home Building Act

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
W Maynard, solicitor


ORDERS:
The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 On 28 December 2007 Colin Keating, the Applicant, applied to the Office of Fair Trading for a contractor licence in the electrical category. In support of his application, Mr Keating provided the following:

(i) a letter setting out his experience dated 21 December 2007 in which he stated he is a fully qualified electrician;

(ii) a Craft Certificate dated 25 July 2007 issued by the New South Wales Department of Education and Training confirming that Mr Keating satisfied the requirements for trade recognition and that he is adequately trained to pursue the trade of electrical mechanic;

(iii) a transcript of Academic Record dated 13 December 2007 issued by TAFE NSW confirming that Mr Keating is eligible to receive a NSW Certificate III in Electrical Wiring;

(iv) a referee statement provided by Justin Laughton;

(v) a letter from Chris Hand of Allstate Electrical Contracting Inc (New York) dated 29 April 2006 confirming Mr Keating’s employment with Allstate Electrical Contracting for a period of six years, initially as a foreman overseeing electricians and later as a project manager in charge of various electrical installations;

(vi) a letter from Mary McGrath, Apprentice Manager, of Kentz Corporation (Ireland) dated 14 June 1994 confirming Mr Keating’s employment with Kentz Corporation from 28 September 1987 to June 1992 as an apprentice electrician;

(vii) a letter from Wayne Taylor dated 20 December 2007 of Compliance Services Australia Pty Ltd confirming that Mr Keating was employed by that company for a period of four months in 2007 working closely with sub-contractors in computer monitored emergency lighting system.

2. On 11 February 2008 the Manager Licensing of the Home Building Service for the Commissioner of Fair Trading advised Mr Keating that his application for a Contractor Licence as an Electrician had been deferred. He was informed that he was required to undertake an Electrical Oral Technical Assessment on his knowledge of the AS/NZS 3000-2000 wiring rules.

3. Mr Keating objected to undertaking the oral assessment stating that he had come to Australia because there was a skills shortage and that he had been accepted by the Australian Government as a skilled migrant, that is an electrician. Mr Keating claimed that he should not have to undertake the oral assessment as he had already completed the Electrical Wiring Certificate at TAFE NSW.

4. On 5 March 2008 a delegate of the Commissioner for Fair Trading refused Mr Keating’s application because the delegate was not satisfied that Mr Keating had substantiated the requisite 12 months experience in electrical wiring installation work in residential, commercial and/or industrial situations.

5. On 1 April 2008 Mr Keating requested an internal review of the delegate’s decision. He stated as follows:

"1. I have worked in the electrical industry since 1987 until 2006, which equates to 19 years. This term takes into account my time as an apprentice through to a qualified tradesman.

2. I have applied and been granted a Craft Certificate by the VTT Part 3 of the Apprenticeship and Traineeship ACT 2001. This craft certificate as (sic) issued by the New South Wales Department of Education and Training and signed by the Commissioner of Vocation clearly states that the applicant "has satisfied the trade recognition and is adequately trained to pursue the trade of Electrical (Mechanic)".

Clearly I have demonstrated that I have the practical experience required. I have also completed the course 90988 Certificate III in Electrical Wiring at TAFE NSW, which addresses both the local practices and underpinning knowledge required. This underpinning knowledge allows a candidate to transfer their skills to new situations.

With regards to the requirement of Oral Assessment:

As stated earlier, I have attended and successfully completed the TAFE course 90988 NSW Certificate III in Electrical Wiring. This course requires development of in-depth knowledge of the AS/NZS 3000-2000 and associated standards. Their module NUE 505 addresses this directly.

To quote directly from the Industry Training Advisory Board EE-OZ:

The assessment outcomes specified in module 505A focus on the higher knowledge and skills applicable to:

Safety of electrical tradespersons themselves.

Safety of co-workers,

Safety of industry and the community.

The assessment has two components, these are:

Test 1

Knowledge of performance standards to ensure electrical installations are safe.

Knowledge and skills in applying requirements to planning/designing and altering/repairing electrical installations to ensure they are safe.

Test 2 – Skills and knowledge applied to the arrangement of earthing and protective devices and to testing and identifying non-compliance of electrical installations. To pass this module, students must pass both components.

6. On 1 May 2008 Mr Keating was notified that the Commissioner’s decision to refuse his application for a Contractor Licence had been reviewed and the original decision was confirmed because Mr Keating did not substantiate evidence of minimum 12 months electrical wiring installation work and the OFT informed Mr Keating that he needed to undertake an Electrical Oral Technical Assessment on his knowledge of the AS/NZS 3000-2000 wiring rules but Mr Keating refused. It was stated that the standards and other requirements determined by the Commissioner in regard to the qualification, examination/test/assessment and experience requirements for an endorsed licence or supervisor certificate to do, or to supervise, electrical work are as described in Fair Trading’s publication entitled "Electrical Work; Qualifications – Contractor Licence-Individual/Qualified Supervisor Certificate". To be eligible for a Contractor Licence for the category of Electrical, an application must provide evidence of:

(iii) All Other Applicants including Overseas Applicants (except New Zealand)

Trades Recognition as an Electrical Mechanic, Electrical Fitter/Mechanic. Electrical Tradesperson; Plus

Minimum 12 months electrical wiring installation work in residential, commercial and /or industrial situations; Then

Completion of Certificate III Electrical wiring (Course 9968) through NSW TAFE (or accredited registered training organisation).

Trades Recognition is defined as a Craft Certificate or a Certificate of Proficiency issued by the NSW Vocational Training Tribunal or an Australian Recognised Tradesperson’s Certificate issued by Trades Recognition Australia.

The Office of Fair Trading’s publication entitled "Electrical work; Qualifications – Contractor Licence-Individual/Qualified Supervisor Certificate "requires Evidence of Practical Experience".

7. The reviewer considered the references provided and concluded that Mr Keating was unable to provide evidence of a minimum 12 months electrical wiring installation work. Mr Keating was only able to demonstrate acceptable work experience of approximately four months. The reviewer also stated that Mr Keating had been incorrectly offered the EOTA as a special circumstance in the absence of providing evidence of minimum 12 months electrical wiring installation work.

Relevant Legislation

8. Section 20(2) of the Home Building Act 1989 (the Act) relevantly provides:

2 The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.

9. Section 20(5) of the Act provides that a decision of the Director-General relating to determining standards under subsection (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act.

10. Clause 26 of the Home Building Regulation 2004 sets out additional requirements for obtaining contractor licences. It provides:

(1) Before a contractor licence is issued, the Director-General must be satisfied that:

(a) ...

(b) the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate:

(i) complies with the requirements prescribed by clause 28(1), and

(ii) ...

(iii) ...

11. Clause 28 of the Home Building Regulation 2004 provides for additional requirements for obtaining certificates. It states:

(1) Before a certificate is issued, the Director-General must be satisfied that the applicant:

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

(b) has had experience of such a kind and for such a period, as the Director-General considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and

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

...

Tribunal Hearing

12. Mr Keating appeared on his own behalf and made submissions to the Tribunal. He submitted that the requirement of a minimum 12 months experience does not stipulate a particular country. He submitted that he has ample experience overseas. Mr Keating relied on an Australian Government document bearing the title "Trades Recognition Australia – Pre-Migration Trade Skills Assessments". He submitted that he satisfied the Australian Government in respect of his trade skills. Mr Keating submitted that he completed a Craft Certificate at NSW TAFE and this meant that he was able to demonstrate to TAFE that he had a "clear understanding and extensive experience in installing wiring and equipment and how the fundamental principles of safety apply" and of the AS/NZS Wiring Rules.

13. It was submitted on behalf of the Respondent that section 20 of the Act prohibits the Tribunal from challenging the Commissioner’s standards, which have to be satisfied. Mr Keating’s qualifications are accepted but he needs to demonstrate a minimum 12 months experience.

Findings and Decision

14. In conducting a review of a decision relating to the application of the standards determined by the Commissioner under section 20(2) the Tribunal does not have the power to review the standard itself. The issue is simply whether Mr Keating satisfies the standard and whether he has the required trade experience (Doumit –v- Commissioner for Fair Trading, Office of Fair Trading (2008) NSWADT 138).

15. The NSW Department of Commerce – Office of Fair Trading standards and requirements for a Contractor Licence in Electrical Work for an overseas applicant are as follows:

Trades Recognition as an Electrical Mechanic, Electrical Fitter/Mechanic. Electrical Tradesperson; Plus

Minimum 12 months electrical wiring installation work in residential, commercial and /or industrial situations; Then

Completion of Certificate III Electrical Wiring (Course 9968) through NSW TAFE (or accredited registered training organisation).

Trades Recognition is defined as a Craft Certificate or a Certificate of Proficiency issued by the NSW Vocational Training Tribunal or an Australian Recognised Tradesperson’s Certificate issued by Trades Recognition Australia.

The Office of Fair Trading’s publication entitled "Electrical work; Qualifications – Contractor Licence-Individual/Qualified Supervisor Certificate "requires Evidence of Practical Experience".

16. The standards also require evidence of practical experience, such that all applications from overseas applicants must be accompanied by supporting statements on the approved referee’s statement form from the applicant’s employer/supervisor verifying the applicant’s experience and covering the required period of time.

17. The statements are required to be completed and signed by the applicant’s qualified/licensed supervisor. The supervisor must hold a certificate or licence (Q) to perform electrical work, for the period of time covered by the reference. The statement must provide a detailed description of the type of work performed and positions held by the applicant and must indicate the time spent on each aspect of the electrical work including a period on the installation of Low Voltage (50V A.C. 1000V A.C.) requiring a knowledge and understanding of the AS/NZS 3000-2000 Wiring Rules in residential, commercial and /or industrial situations and show the first and last dates of employment.

18. The standards and requirements are criteria with which there must be compliance. There is no discretion. Mr Keating has satisfied the first and third criteria of the standard. Although it is correct the second criterion does not specify that the minimum 12 months electrical wiring installation experience be carried out in Australia, there is an additional requirement that Mr Keating’s application be supported by referee statements that comply with the requirements set out under the heading "Evidence of Practical Experience". Unfortunately, the references supporting Mr Keating’s application as to the work he carried out in Ireland and New York do not comply with this requirement and are deficient in this regard. Accordingly, Mr Keating has not complied with the standards/requirements set by the Commissioner and has not satisfied the Director-General in accordance with clauses 26 and 28 of the Home Building Regulation 2004 and the correct and preferable decision is that the application be refused.

19. The decision under review is affirmed.