By Kelvin Keane | Nexus Law Group Consulting Principal – Sydney
Two recent cases in the NSW Civil and Administrative Tribunal (Tribunal) highlight the difficulties applicants may face at times fulfilling the experience requirements for trade licences. In the matter of Watts v Commissioner for Fair Trading (Watts) and Wall v Commissioner for Fair Trading (Wall) the Applicants both succeeded in having the decision of Fair Trading to deny their application for a trade licence overturned.
In both cases Fair Trading determined that the Applicants did not have enough experience, primarily due to the fact that the details of the experienced gained were not provided on an approved Fair Trading Referee Statement Form, or the person completing the Referee Statement Form was not suitably qualified.
It was therefore not a matter that the Applicants had not gained the experience, instead, it was that the Applicants could not verify the experience in the manner or on the forms Fair Trading required.
In the matter of Watts, the Applicant was seeking to vary his licence to include a qualified supervisor certificate to cover electrical wiring however, Fair Trading denied the Application on the basis the experience was not verified on an approved Referee’s Statement Form and therefore could not be accepted.
The Applicant was not able to obtain a signed Referee Statement as the proposed referee had not agreed to complete the form, however, the Applicant did have signed employment records verifying his experience.
The Tribunal found that Fair Trading’s requirement for experience to be verified on a Referee Statement Form was not a requirement of the legislation and where the experience is verified by other means then the experience should be accepted.
In the matter of Wall, the Applicant was employed by the Department of Public Services (DPS) for over 34 years and had progressed to District Manager of Construction Services overseeing maintenance and construction of new buildings throughout NSW.
The DPS is not required to be licenced for residential building work, nor are its employees required to be licenced, therefore, the Applicant was unable to provide a licenced supervisor to verify his work in a Referee Statement Form. While Fair Trading conceded the Applicant had the required experience they still refused his licence as the referee, who was also employed by DOS, was not licenced.
Again, relying on the Watts decision, the Tribunal overturned the Fair Trading decision noting that, despite the Watt decision and the fact that Fair Trading was acting contrary to its duties under the Model Litigant Policy for Civil Litigation of the NSW Government, Fair Trading appeared to still be insisting on formal requirements of a Referee’s Statement to be completed as per their own policy and this should not continue.
These cases highlight what can at times be a difficult process for applicants, firstly in trying to establish what it is exactly the law or Fair Trading require to meet the experience criteria and secondly, how the applicant is to complete the appropriate forms, especially where the circumstances under which experience was gained is outside the usual parametres.
If you are about to embark on the licencing process, Nexus Law Group can offer practical and up to date advice on all aspects of NSW builders and trade licencing.
If you have any questions, contact Kelvin Keane at [email protected] or telephone +61 (2) 9016 0141
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
 Watts v Commissioner for Fair Trading, Department of Finance, Services and Innovation  NSWCATOD 60
 Wall v Commissioner for Fair Trading  NSWCATOD 76