licensing procedure manual may 08 mid size · 2014. 11. 18. · finaltranscript confirming...

PROCEDURES MANUAL

FOR THE

LICENSING BRANCH

HOME BUILDING SERVICE

OFFICE OF FAIR TRADING

MAY 2008

Reviewed and updated February 2009

INDEX

1. Overview 5 Role of Licensing Branch and O� cers 5

Guarantees of Service/Branch Service Standards 6

2. Assessments 7 Licensing Requirements for Applicants 7

Trade Categories – Individual, Quali� ed Supervisor 13

Building Categories – Individual, Quali� ed Supervisor 18

Company/Partnership 23

Plumbing – Tradesperson Certi� cate 27

Plumbing – Individual, Quali� ed Supervisor 33

Electrical – Individual, Quali� ed Supervisor 40

Restricted Electrical – Quali� ed Supervisor 46

Airconditioning & Refrigeration – Individual, Quali� ed Supervisor 51

Building Consultancy Licence 56

Statements of Practical Experience 62

Mutual Recognition 64

3. Existing Authorities 67 Exceptional Assessment 67

Variation to an Authority – Change in Class-Condition-Restriction 69

Flowchart – Assessment Process 71

Application Assessment Sheet 72

Renewals and Restorations 74

Renewals and Restorations Flow Chart 77

Nominated Quali� ed Supervisor 78

Section 131 Certi� cates 82

Companies – Change in Details 84

Partnership – Change in Details 86

Surrender of an Authority - Deceased Authority 88

Continuing Professional Development 90

Cancellation of an Authority 93

Change of Address 96

4. Fit and Proper 99 Financial History 99

Financial History Flow Chart 108

Unreasonable Number of Complaints, Claims, Compliance Action 109

Unsatis� ed Tribunal Orders 112

Criminal History 115

Policy & Guidelines for Fit and Proper 117

5. Internal Review 127

6. Administration 133 Receipting & Banking 133

Refunds 134

Refund Request Form 135

Dishonoured Cheques 136

Declined Credit Cards 137

Delegations 139

Format of Letters 145

File Notes 146

PAG

E 5

CH

AP

TE

R O

NE

OV

ER

VIE

W

1. Overview

Role of Licensing Branch and O! cers

Role of Home

Building

Licensing

Branch

The Home Building Licensing Branch under delegation:

Assesses applicants’ suitability for a licence, or the renewal of a licence, under the

legislative provisions,

Maintains the public register of licence holders,

Reviews licence holders’ ongoing suitability to continue to hold an authority,

Maintains changes and variations to existing licence holders.

Role of O! cers O! cers are responsible for carrying out the Branch functions as outlined above in

accordance with:

� Legislative, procedural and policy requirements,

� Within guarantee of service standards,

� ethical practices, and

� Department of Commerce’s Code of Conduct.

Con" ict of

Interest

Any o! cer assessing an application (includes new application, renewal & owner-

builder permit where there is a con" ict of interest (For example, the applicant is

personally known to o! cer) must declare their interest to the Team Leader who will

re-assign the matter.

PAG

E 6

CH

AP

TE

R O

NE

OV

ER

VIE

W

Guarantees of Service

New Applications 30 working days

Mutual Recognition 1 calendar month

Renewals/Restorations 14 calendar days

Internal Review 28 calendar days

Branch Service Standards

Response to enquiries 1 business day

Response to general correspondence 10 business days

Ministerial Correspondence As nominated by MECB

Other Service Standards

Receipting of Payments Day of receipt

Processing of Refunds 5 business days

PAG

E 7

CH

AP

TE

R T

WO

AS

SE

SS

ME

NT

S

2. Assessment

Licensing requirements for applicants

À Applications assessed within 30 working days

1. Reference Information

When a Licence

is required

A licence is required to contract, subcontract and/or advertise to carry out:

� all residential building work where the current market value of labour and

materials is more than $1,000 (GST included);

� all electrical wiring work (including domestic, commercial or industrial);

� all plumbing, draining and gasfitting work (including domestic, commercial

or industrial);

� all air conditioning and refrigeration work (except on a self-contained, single

phase plug-in domestic system or an air conditioning system in a motor

vehicle); and

� supply of kit homes where the contract price for the set of building components

is $1,000 or more.

� building consultancy work including the co-ordinating or supervising of

inspections of dwellings and reporting on their condition, or inspection and i

supply of reports in respect of specialist work.

Eligibility to

obtain an

authority

To be eligible for the issue of an authority, the applicant:

1 must be 18 years or over (s.6) (includes individuals, partners and directors);

2 must not be a current trainee or an apprentice;

3 must not be a mentally incapacitated person;

4 must be capable and have relevant qualifications and experience to door

supervise the work; and

5 must be a fit & proper person.

In addition to the eligibility, the applicant must not be:

1 a director/partner or manager in a disqualified business entity within the last

three years (unless the DG is satisfied that the applicant took all reasonable

steps to prevent the conduct that led to the disqualification);

2 currently or in the past three years, a bankrupt or does not have a directorship

or management role in a business entity which is subject to a winding up order

(unless the application is for a Tradesperson Certificate).

PAG

E 8

CH

AP

TE

R T

WO

AS

SE

SS

ME

NT

S

Types of

Authorities

Authorities may be issued as:

Individual contractor licence

Company contractor licence

Partnership contractor licence

Qualified Supervisor Certificate

Tradesperson Certificate (Plumbing only categories)

Tradesperson Certificate (Provisional) - Vetassess applicants only

Building Consultancy Licence

Provisional Tradesperson Certificate (specialist classes)

Class of Work The class of work for which an authority may be issued are prescribed by the Home

Building Act and are listed on the website.

Qualifications The Home Building Act requires the Commissioner to determine acceptable

qualifications for each class. Licensing officers are to assess applications within

these requirements.

Applications that are exceptional in their circumstances may be referred to the

Exceptional Assessment Panel.

Assessment

Criteria

The assessment process looks at the following key areas of information in order to

assess the individual applicant’s eligibility: These are:

Qualifications

Refer to website for the qualifications for building and trade. Specialist classes

(categories) are outlined on individual application forms.

Fit and Proper

Fit and proper encompasses a range of factors used to determine whether an

applicant (or any relevant person to an application) is of a reasonable character. To

determine this, the following criteria is identified in the legislation:

� Compliance History;

� Financial History;

� Criminal History;

� Is not subject to an unsatisfied Tribunal order.

PAG

E 9

CH

AP

TE

R T

WO

AS

SE

SS

ME

NT

S

Additional

Requirements

Companies /

Partnerships

Qualified Supervisor

A company or partnership cannot be issued with a contractor licence unless the

company or partnership has such numbers of nominated supervisors to ensure

that all work for which the contractor licence is required will be done supervised by

qualified individuals.

The class of licence issued to a company/partnership will reflect the class held by

the supervisor/s. Changes to the authority held by the supervisor/s must be reflected

in the company/partnership.

(cl.26(1)(a). Generally speaking one nominated supervisor is adequate for most

instances. This does not preclude a company or a partnership having numerous

nominated supervisors.

Financial History

Each relevant person in relation to an application for an authority is not currently,

or in the last three years, bankrupt or a director or person concerned in the

management of a company that is the subject of a winding up order or for which

a controller or administrator has been appointed (cl.25(1)(xii) and (xiii). Refer to

Financial History Procedure.

2. Procedures

Refer to relevant Procedure depending on type of authority and class of licence as

follows:

Trade Categories – Individual, Qualified Supervisor

Building Categories – Individual, Qualified Supervisor

Company/Partnership

Plumbing – Tradesperson Certificate

Plumbing – Individual, Qualified Supervisor

Electrical – Individual, Qualified Supervisor

Restricted Electrical – Qualified Supervisor

Air conditioning & Refrigeration – Individual, Qualified Supervisor

Tradesperson Certificate (Provisional) - Vetassess applicants only


PAG

E 1

0C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Proof of identity

1. Relevant Information

Background From 1 March 2006, individuals applying for a new licence or certificate require proof

of identity (POI). The requirement was introduced to minimise the potential occurrence

of identify fraud across the industry.

Applies to Any individual application for a licence (across all categories).

Any application for a qualified supervisor certificate (across all categories).

A tradesperson’s certificate (issued in plumbing categories and to Vetassess applicants

only).

An individual application for building consultancy licence.

Any variation to class/category of an existing individual or qualified supervisor licence.

An application under Mutual Recognition (to be introduced in 2008).

Exemptions The POI relates to individuals only and does not apply to applications by company or

partnerships.

POI is only required for new or varied class applications and is not required for

renewals.

Evidence

Required for POI

To comply with POI, applicants are required to provide:

� identification from two groups of documents - one document from POI List 1 and

two documents from POI List 2 as described below; and

� a passport quality photograph.

POI List 1 documents are:

� a current Australian photo driver’s licence or other current photo card issued by a

State or Territory Government agency;

� a current Australian passport;

� a current non-Australian passport.

Note: The POI List 1 document must show the day, month, and year of your birth, and

a photograph.

PAG

E 1

1C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

POI List 2 documents are:

� a current Medicare card;

� a current credit card;

� a current passbook or account statement from a bank, building society or credit

union, up to one year old;

� a telephone, gas or electricity bill up to one year old;

� a water rates, council rates or land valuation notice up to one year old;

� a residential tenancy agreement;

� an electoral enrolment card or other evidence of enrolment not more than two

years old;

� a current student Identity card or a certificate or statement of enrolment up to two

years old from an education institution.

Note: One POI List 2 document must show the applicant’s current address.

Lodging an

Application & POI

In order to meet POI requirements, an applicant must visit a Fair Trading Centre or

Government Access Centre to enable checking of their identity.

FTC staff therefore have primary responsibility for ensuring the true identity of an

applicant.

Where an applicant is unable to visit an FTC or GAC due to extenuating circumstances

(ie, they are overseas/interstate), the applicant may lodged copies of the evidence

required certified by an acceptable official as being a true copy of the original. An

acceptable official is:

� Police Officer;

� Clerk of the Court;

� Local Member;

� Australian High Commission/Australian Embassy.

2. Procedure

Online Not Applicable

FTC On lodgement, request applicant supply evidence as outlined above.

Officers are to check the identification as follows:

1. Compare photo identification from POI List 1 with passport photo affixed to the

application for likeness. If substantially different, identification may be refused and

applicant requested to produce further photo identification.

2. Check address on POI List 2 is current and consistent with address provided on

application.

PAG

E 1

2C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

3. Check spellings of name on all identification shown and ensure it is consistent with

spelling of name on application. The application must be made in the legal name

(ie no nicknames, shortened names, middle name first, etc). Any difference

between names on the evidence provided by the applicant will require either:

� provision of further consistent identification, or

� proof of change in name from Registry of Births Deaths and Marriages.

Complete POI information on application form.

Sign application to declare compliance with POI.

HBL On receipt of the application, HBL are to check that POI has been completed and

signed on the application by FTC/GAC officer.

Where POI is not completed, the application must be returned to the applicant and the

applicant requested to visit an FTC or GAC to enable completion of POI.

PAG

E 1

3C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Trade CategoriesIndividual, Qualified Supervisor

¿ 30 Business Days from Receipt of Application


Forms Applicants to complete Application Form – Individual – Contractor Licence, Qualified

Supervisor Certificate

Work Performed Refer to Website

Statements

Of Practical

Experience

Not required for most trade categories as there is no experience pathway for

qualification.

Exceptions being Mechanical Services and Swimming Pool Repairs and Servicing.

Refer to Statements of Practical Experience Procedures.

Qualifications Pathway Evidence Required

1 Certificate III for relevant category

(refer to website)

Final transcript confirming “Eligible to

Receive Certificate”

Certificate issued by RTO or Vetassess

certificate (carpenter, joiner or bricklayer

only)

2 Previous superseded qualifications

relevant to the category

(refer to website)

As above

If previously lodged qualifications are

on file, accept subject to confirmation of

original file.

3 Previously held licence in same category. Nil.

Check GLS records to verify licence

category, and expiry.

4 Mechanical Services only

Licence skills assessment by RTO

Assessment results from RTO

5 Swimming Pool Repairs & Servicing only

- Completion of SPASA course

or

Licence skills assessment by RTO

SPASA certificate showing completion of

course

or

Assessment results from RTO

PAG

E 1

4C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

2. Procedure for Trade Categories – Individual, Qualified Supervisor

Online Not Available

Step 1. Check the application as follows (FTC and HBL):

Section 1

Type of

Application

A licence type is nominated.

The period of licence is nominated.

Section 2

Details of

Applicant

Applicant has provided full details and these details match POI and qualifications. See

below Assessment Procedures.

Note: Initials not acceptable – name must be in full.

Residential or Business Address must not be a PO Box.

Where no business address provided, residential address to be used as a business.

Section 3

Category of

Work

Ensure category/class has been nominated and is consistent with qualifications

provided.

Check the classes ticked. It is not necessary to tick additional classes if the work done

is already in the primary category/class. For instance, an application for Carpentry

does not need to tick Flooring as this work is already included in the Carpentry scope.

Section 4

Current or

Previous

Licence

Must be completed with Yes or No. Full details must be provided if Yes is ticked.

Section 5

Quals,

Experience

References

Ensure evidence of qualifications as outlined above is provided in either:

- an original document which is copied and cited by the officer as a true copy of the

original;

- a copy of the original document cited by a JP as a true copy of the original.

Where statement of practical experience is required (Mechanical Services and

Swimming Pool Repairs and Servicing only), check the statement as outlined in

References – Statement of Practical Experience Procedures.

Section 6

Experience

History

To be completed by applicant for specific categories as outlined in the application.

Section 7

Financial &

Criminal

History

The applicant must answer every question.

Where a ‘yes’ response is given, the applicant should attach the relevant “Application –

Additional Details” form.

Applications may be accepted without additional details, however, this will affect the

turnaround time in assessing the application.

PAG

E 1

5C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 8

Home Warranty

Insurance

Applies to Building Applications only.

Section 9

Declaration

& Photograph

Ensure the applicant enters their name in both places. In order to comply with

legal declaration requirements, the applicant must sign and date the declaration.

Applications cannot be processed without a signature.

Check photo is a true likeness of the applicant.

Section 10

Checklist

For completion by the applicant.

Section 11

Office Use

Complete as per POI Procedures

Important: Where there are any discrepancies in identity (ie difference names on

evidence provided) take copies of the evidence used (eg driver’s licence) and attach

to the application.

Section 12

Receipting

Must be completed by officer accepting application.

Step 2. Assessment Procedure –Trade

FTC Refer application to HBL for Assessment.

HBL

Identity of

Applicant

Complete for All Applications

To minimise the risk of fraudulent applications and ensure the applicant is eligible to

apply, staff are to pay particular attention to ensuring the identity of the person. Check

the following:

� applicant is 18 years or over (under 18 ineligible to apply);

� is not a trainee or apprentice;

� check names and spelling are identical on application, POI and qualifications;

� application is made in the legal name;

� where there is a difference in name, applicant to provide evidence of name

change. Acceptable evidence is a copy or certified copy of Registry of Births,

Deaths and Marriages document.

If any concerns regarding the identity of the applicant, refer to HBL for further

assessment.

PAG

E 1

6C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Previous

licence history


Check GLS for previous licences, refusals, cancellations and/or disqualifications, any

unsatisfied Tribunal orders, compliance action (penalties or breaches) or insurance

claims.

If applicant is under 21 years of age complaint and compliance history does not have

to be checked (unless answer YES to questions in section 7).

Assess as per Unreasonable Number Procedures.

Complete for all declared occurrences and random audits.

Request CAS search for unreasonable number of complaints.


Fit and Proper Complete for all declared occurrences and random audits.

Check Section 7. Financial and Criminal History for any Yes responses.

If applicant has answered Yes to any question:

� check adequate information provided to assess application;

� undertake additional searches if necessary; and

� send correspondence to obtain additional information if necessary.

Assess as per relevant Fit and Proper Procedures.

Quali! cations Complete for All Applications

Check that correct evidence is provided for relevant qualification pathway.

Check documentation provided is certified by JP or FTC as a true copy of the original.

Check the qualification is provided in the identical name as the applicant. If not,

qualification cannot be accepted for approval. The applicant will need to arrange for

re-issue of qualification under correct name or, provide evidence of a change in name

(eg marriage certificate). This evidence must be an original or a copy certified by a JP.

If previously licensed further qualification documentation is not required.

Complete for random audits

HBL will conduct regular audits of applications to verify the authenticity of

qualifications.

Audits to be conducted in accordance with Policy and Guidelines for Fit and Proper.

Statements

of Practical

Experience


Where required, assess statement in accordance with Statement of Practical

Experience Procedures.

For Mechanical Services and Swimming Pools Repairs and Servicing, if reference

acceptable then send letter of referral to undertake licence assessment if required.

Checklist Complete for All Applications

Complete assessment checklist.

PAG

E 1

7C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Determination Complete for All Applications

Determine application based on all available information and in accordance with HB

Licensing Procedure Manual and legislative requirements.

Complete a recommendation on the checklist.

Where application is unusually complex or there are extenuating circumstances

consider referral to Exceptions Panel as per Exception Assessment Procedures.

Check GLS data Complete for All Applications

Ensure accurate data entry of applicant’s details prior to updating determination in

GLS.

Approved

Application

Approval to be undertaken by a delegated officer.

Update assessment sheet with approval determination.

Complete GLS data as per GLS procedures.

Complete File Records.

Refused

Application

Note: Where an application is refused, OFT must provide all reasons for refusal. For

example, where an applicant does not have sufficient qualifications a full audit of the

application is required before the refusal is made to enable any further grounds to be

identified.

Identify all grounds for refusal on the assessment sheet.


Provide letter to applicant confirming refusal, ensuring reasons are clearly stated and

letter attach in GLS.

Resubmit file until end of review period.

Request refund of fixed fee in GLS.

Requisitioning

Information

Where additional information/evidence is required, officers are to:

� contact the applicant by telephone in the first instance;

� where the information required is complex, a letter may also be forwarded to the

applicant confirming the information requested by phone. Attach letter to GLS

record;

� note GLS with a record of the contact and the information requested;

� retain the application until the agreed time for supply;

� if information is not provided and/or applicant fails to contact, the application is

refused as per above.

PAG

E 1

8C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Building CategoriesIndividual, Qualified Supervisor



Forms Applicants to complete Application Form – Individual – Contractor Licence, Building

Consultancy Licence, Qualified Supervisor Certificate or Tradesperson Certificate

Work

Performed

Refer to Website.

Statements

Of Practical

Experience

Required for general building work and swimming pool building.

Exceptions being Prefabricated Metal Framed Home Additions, Structural Landscaping

and Kitchen Bathroom and Laundry Renovations, Supply of Kit Homes


1 Certificate for relevant category (refer to

website)

Final Transcript confirming “Eligible to


Certificate Issued by RTO as above.

2 Previous superseded qualifications relevant

to the category (refer to website) As above

3 Previously held licence in same category

expiring not more than 2 years ago.

Nil

Check GLS records to verify licence

category, and expiry.

4 Supply of Kit Home Nil qualifications required

5 Swimming Pool Builder Nil qualifications required

2. Procedure



Section 1

Type of

Application



PAG

E 1

9C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 2

Details of

Applicant

Applicant has provided full details.



Where no business address provided, residential address to be used as business.

Section 3

Category/

Class of Work


provided.

Check the classes ticked. It is not necessary to tick additional classes if the work

done is already included in the primary category/class. For instance, an application

for general building work does not need to also tick any trade category as this work is

already included building.

Section 4

Current or

Previous Licence


Section 5

Quals,

Experience

Statements

of Practical

Experience

Ensure evidence of qualifications as outlined above is provided as either:


original;


Where a statement of practical experience is required (general building work and

swimming pool building only), check the statement as outlined in References –

Statement of Practical Experience Procedures.

Section 6

Experience

History

To be completed by applicant for Building and Swimming Pool Building only.

Section 7

Financial &

Criminal

History


Where a ‘yes’ response is given, the applicant should attach the relevant

“Application – Additional Details” form.



Section 8

Home Warranty

Insurance

Applies to all Building Applications. Must either supply Certificate of Eligibility or

Certificate of Home Warranty Insurance or exemption will automatically be granted and

condition placed on licence.

PAG

E 2

0C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 9

Declaration

& Photograph

Ensure the applicant enters their name in both places and signs. Applications cannot

be processed without a signature.


Section 10

Checklist


Section 11

O! ce Use

Complete as per POI Procedures.

Important: Where there are any discrepancies in identify (ie different names on

evidence provided) take copies of the evidence used (eg drivers licence) and attach to

the application.

Section 12

Receipting


Step 2. Assessment Procedure – Building

FTC Refer application to HBL for Assessment

HBL

Identity of

Applicant

Complete for all Applications



the following:





� where there is a difference in the name, applicant to provide evidence of name



If any concerns regarding the identity of the applicant, refer to HBL senior officer for

further assessment.

PAG

E 2

1C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Previous licence

history

Complete for all Applications


unsatisfied Tribunal orders, insurance claims or compliance action. Check CAS for any

adverse entries relating to the applicant.

Assess as per Unreasonable Number Procedures and existing complaints, investigations or

rectification orders.


Check Section 7 of application form for Financial and Criminal History for any Yes

responses.


� check adequate information provided to assess application

� undertake additional searches if necessary

� send correspondence to obtain additional information if necessary


Qualifications Complete for all applications







If previously licensed within 2 years of application further qualification documentation

not required.

Complete for Random Audits


qualifications.


Statements

of Practical

Experience

Complete for all applications



For Swimming Pool Builder, if reference acceptable then send letter of referral to

undertake licence assessment if required.

Checklist Complete for all applications

Complete assessment checklist

PAG

E 2

2C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Determination Complete for all applications






Check GLS

Data

Complete for all applications


GLS

Approved

Application

Approval to be undertaken by a delegated officer



Complete File Records.

Refused

Application

Important: Where an application is refused, OFT must provide all reasons for refusal.

For example, where an applicant does not have sufficient qualifications a full audit of

the application is required before the refusal is made to enable any further grounds to

be identified.






Request refund of fixed fee if no review requested.

If review requested, refer to Internal Review Procedures.

Requisitioning

Information




applicant confirming the information requested by phone. Attach letter to GLS

record;

� ensure both telephone and mail contact provide a timeframe for responding;

� note GLS with a record of the contact and the information requested as per File

Note Procedures;




PAG

E 2

3C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Company/Partnership Licence





Work

Performed

Depends on the licence/certificate category of nominated qualified supervisor.

Statements

of Practical

Experience

Not relevant.

Quali! cations Qualifications are not required for a company or partnership. The category/class of

work is dependent on the category/class of the nominated supervisor. Assessment

for the purpose of company/partnerships is limited to assessing the supervisor in

accordance with Nominated Qualified Supervisor Procedures.

2. Procedure for Trade Categories – Individual, Qualified Supervisor


Step 1 - Check the application as follows (FTC & HBL):

Section 1

Type of

Application



Section 2

Name and

Address

Applicant has provided full details.

Note: Name must be in full.

Business Address must not be a PO Box.

Section 3

Category

of Work

Ensure category has been nominated and is consistent with nominated supervisor.

Check the classes ticked. It is not necessary to tick additional classes if the work

done is already included in the primary category/class. For instance, an application

for general building work does not need to also tick any trade category as this work is

already included in building.

PAG

E 2

4C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 4

Current or

Previous

Licence


Section 5

Nominated QS

or Nominated

Person

Ensure that supervisor’s details are completed in full including the supervisor’s

signature and dated declaration.

Note no nominated supervisor required for Supply of Kit Homes.

Section 6(a)

Details of

Company

Directors/

Partnership

Members

Must be completed in full including all directors/member’s full names and date of birth

details.

Section 6(b)

Details of

Company

Directors/

Partnership

Members


Where a ‘yes’ response is given, the applicant should attach the relevant “Application

– Additional Details” form.



Section 7

Home Warranty

Insurance

Applies to all Building Applications. Must either supply Certificate of Eligibility or

Certificate of Home Warranty Insurance or request an exemption.

Section 8

Declaration

& Photograph

Ensure that declaration is completed and signed by all directors/members and dated.


Section 9

Application

Fee

Where paying by credit card must be fully completed signed and dated by cardholder.

Receipting

Panel


PAG

E 2

5C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Step 2 - Assessment Procedures – Company/Partnership

FTC Refer application to HBL for Assessment

HBL

Identity of

Applicant


To minimise the risk of fraudulent applications and ensure the applicant is eligible

to apply, staff are to pay particular attention to ensuring the identity of the person/

company. Check the following:

� applicant (Directors and Members) are 18 years or over (under 18 ineligible to

apply); and

� application is made in legal name.

Previous

licence

history



unsatisfied Tribunal orders, compliance action (penalties or breaches), or insurance claims.

This includes the company/partnerships’ licence history and all directors/members. Check

CAS for any adverse entries relating to the applicant or parties to the application.

Assess as per Unreasonable Number Procedures and existing complaint, investigations or

rectification orders.

Fit and Proper Complete for all declared occurrences and random audits Check Section 6(b).

Financial and Criminal History for any Yes responses.






Nominated

Supervisor


Check that the nominated supervisor/s is appropriately licensed for category applied

for and meets the requirements as per Nominated Qualified Supervisor Procedures.

ChecklistComplete for All Applications


DeterminationComplete for All Applications

Determine whether to request additional information or accept or reject the application.

Check GLS data Complete for All Applications

Ensure accurate data entry of applicant’s details prior to updating determination

in GLS.

PAG

E 2

6C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Approved

Application

Approval to be undertaken by a delegated officer.



Complete file records.

Refused

Application




identified.







Requisitioning InformationWhere additional information/evidence is required, officers are to:



applicant confirming the information requested by phone. Attach letter to

GLS record;

� note GLS with a record of the contact and the information requested as per File

Note Procedures;




PAG

E 2

7C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Plumbing CategoriesTradesperson Certificate





Work Performed Refer to Website.

Referee

Statements

Required for most categories (refer to website).

Pathway Evidence

Required

Qualification Experience

Plumber and/

or Gasfitter

and Drainer

1. Certificate III Referee’s statement

verifying 4 years general

experience

Final transcript

confirming

“Eligible to Receive

Certificate”

Certificate issued

by RTO

2. Craft Certificate or

Certificate of

Proficiency

N/A

3. Experience only Referee’s statement


experience

Water

Plumber

Referee’s statement


experience

Drainer Referee’s statement


experience

PAG

E 2

8C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Water Plumber

– Fire Protection

Systems

1. Fire Sprinkler Fitting

Course

Referee’s statement


experience

Final transcript

confirming

“Eligible to

Receive

Certificate”

Certificate

issued by RTO

2. Craft Certificate or

Certificate of

Proficiency

N/A

3. Experience only Referee’s statement

verifying 4 years

general experience,

then referral to

undertake an

assessment

Water Plumber

– Mechanical

Services

Experience only Referee’s statement

verifying 4 years

general experience

Water Plumber –

Urban Irrigation

Experience only Referee’s statement

verifying 2 years

general experience

Interstate or

New Zealand

Applicants

Certificate of

Reciprocity

All of the above Previously held licence in same category Nil.

Check GLS

records to

verify licence

category, and

expiry.

PAG

E 2

9C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

2. Procedure for Tradesperson Certificate



Section 1

Type of

Application



Section 2

Details of

Applicant



Note: Initials not acceptable – name must be in full



Section 3

Category of

Work


provided.




Section 4

Current or

Previous

Licence


Section 5

Quals,

Experience

References


- an original document which is copied and cited by the

officer as a true copy of the original;

- a copy of the original document cited by a JP as a true

copy of the original.




Section 6

Experience

History


Section 7

Financial &

Criminal

History






PAG

E 3

0C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 8

Home Warranty

Insurance


Section 9

Declaration

& Photograph





Section 10

Checklist


Section 11

Office Use


Important: Where there are any discrepancies in identify (ie difference names on


the application.

Section 12

Receipting


Step 2. Assessment Procedure – Tradespersons Certificate


HBL

Identity of

Applicant




the following:





� where there is a difference in name, applicant to provide evidence of name change.

Acceptable evidence is a copy or certified copy of Registry of Births, Deaths and

Marriages document.


assessment.

PAG

E 3

1C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Previous

licence

history


Check GLS for previous licences, refusals, cancellations and/or disqualifications,

any unsatisfied Tribunal orders, compliance action (penalties or breaches) or insurance

claims.







Fit and

Proper



If applicant has answered Yes to any question





Qualifications Complete for All Applications










qualifications.


Statements

of Practical

Experience






PAG

E 3

2C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS









Check GLS

data


Ensure accurate data entry of applicant’s details prior to updating determination in GLS

Approved

Application

Approval to be completed by delegated officer.

Updated on assessment sheet.



Refused

Application




identified.







Requisitioning

Information




applicant confirming the information requested by phone. Attach letter to

GLS record;




refused as per above

PAG

E 3

3C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Plumbing CategoriesIndividual, Quali! ed Supervisor





Work

Performed

Refer to Website

Referee

Statements

Required for all plumbing categories except where Craft Certificate or Certificate of

Proficiency acceptable evidence of practical experience.


Plumbing,

Draining,

Gasfitting

and LP

Gasfitting

Certificate III and Certificate IV (refer to website)

or

Transcript showing completion of required modules

from Certificate III and IV (refer to website)

Final Transcript

confirming

“Eligible

to Receive

Certificate”

Certificate

Issued by RTO

as above.

Plumbing Certificate III and Certificate IV (refer to website)

or

Transcript showing completion of required

modules from Certificate III and IV (refer to website)

Water

Plumbing

Plumbing Water Supply Course

or


Certificate III and IV (refer to website)

Draining Draining Special Course

or



PAG

E 3

4C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Gasfitting Transcript showing completion of required modules Certificate III

and IV (refer to website)

LP Gasfitting Liquid Petroleum Gas Installation (Restricted) Course,

or



Advanced LP

Gasfitting

As for LP Gasfitter

and

Liquid Petroleum Gas Installation (Unrestricted)

Course

Water

Plumbing – Fire

Sprinkler Systems

Fire Sprinkler Fitting Course

Water

Plumbing -

Fire

Protection

Systems

Fire Sprinkler Fitting Course

or

If completed Fire Sprinkler Course 1423 also require

transcript showing completion of module Water

Supply Service II

Water

Plumbing – Urban

Irrigation

Urban Irrigation Systems Course

All categories

above

Previous superseded qualifications relevant to the

category (refer to website).

Previously held licence in same category. Nil

Check GLS

records to

verify licence

category, and

expiry.

Interstate or

New Zealand

applicants

Certificate of Reciprocity

PAG

E 3

5C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

2. Procedure for Plumbing Categories – Individual, Qualified Supervisor



Section 1

Type of

Application



Section 2

Details of

Applicant






Section 3

Category of

Work


provided.


is already in the primary category/class. For instance, an application for Plumbing does

not need to tick Roof Plumbing or Water Plumbing as this work is already included in

Plumbing scope.

Section 4

Current or

Previous

Licence


Section 5

Quals,

Experience

References



original;


Check the statement as outlined in References – Statement of Practical Experience

Procedures.

Section 6

Experience

History


PAG

E 3

6C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 7

Financial &

Criminal

History






Section 8

Home Warranty

Insurance


Section 9

Declaration

& Photograph





Section 10

Checklist


Section 11

Office Use

Complete as per POI Procedures.

Important: Where there are any discrepancies in identify (ie difference names on

evidence provided) take copies of the evidence used (eg drivers licence) and attach

to the application.

Section 12

Receipting


Section 12

Receipting


Step 2. Assessment Procedure – Plumbing Categories


HBL

Identity of

Applicant




the following:









assessment.

PAG

E 3

7C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Previous

licence

history


Check GLS for previous licences, refusals, cancellations and/or disqualifications,

any unsatisfied Tribunal orders, compliance action (penalties or breaches) or

insurance claims.
























qualifications.


Statements

of Practical

Experience






PAG

E 3

8C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Plumber

Drainer,

Gasfitter, LP

Gasfitter

Referee’s statement verifying six years general experience or

if completed an apprenticeship

Craft Certificate or Certificate of Proficiency and

Referee’s statement verifying two years general experience completed after

apprenticeship

Plumber Referee’s statement verifying six years general experience

Water Plumber Referee’s statement verifying four years exclusive experience

Drainer Referee’s statement verifying two years exclusive experience

Gasfitter Referee’s statement verifying four years exclusive experience

LP Gasfitter Referee’s statement verifying two years exclusive experience

Advanced LP

Gasfitter

As per LP Gasfitter plus

Referee’s statement verifying one year experience

Water Plumber

– Fire Sprinkler

Systems

Referee’s statement verifying four years exclusive experience or

Craft Certificate or Certificate of Proficiency

Water Plumber

– Fire

Protection

Systems

Referee’s statement verifying four years exclusive experience or

Craft Certificate or Certificate of Proficiency

Water Plumber

– Urban

Irrigation

Referee’s statement verifying three years exclusive experience









PAG

E 3

9C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Check GLS

data



GLS

Approved

Application





Refused

Application




identified.







Requisitioning

Information



� where the information required is complex, a letter may also be forwarded to

the applicant confirming the information requested by phone. Attach letter to

GLS record;





PAG

E 4

0C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Electrical Individual, Qualified Supervisor





Work Performed Refer to Website

Referee

Statements

Required for electrical licence.

Exceptions being applicants applying based on stream (ii) of the qualification brochure

for electrical engineers


Trade Course

Certificate

Holders and other

applicants

1. Certificate III (refer to website), and Final transcript

confirming

“Eligible to

Receive

Certificate”

Certificate

issued by RTO

2. Craft Certificate or Certificate of Proficiency or

Australian Recognised Trade Certificate

Electrical

Engineers

1. Certificate III (refer to website), and

2. Craft Certificate or Australian Recognised Trade Certificate, and

Electrical Engineering Degree/Associate Diploma/Institute of

Engineers Membership

New Zealand

applicants

Certificate of Registration or current licence

All applicants Previously held licence in same category Nil.

Check GLS records

to verify licence

category, and

expiry

PAG

E 4

1C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

2. Procedure for Electrical – Individual, Qualified Supervisor



Section 1

Type of

Application



Section 2

Details of

Applicant






Section 3

Category of

Work


provided.




Section 4

Current or

Previous

Licence


Section 5

Quals,

Experience

References


� an original document which is copied and cited by the officer as a true copy of

the original;

� a copy of the original document cited by a JP as a true copy of the original.




Section 6

Experience

History


PAG

E 4

2C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 7

Financial &

Criminal

History






Section 8

Home Warranty

Insurance

Applies to Building applications only.

Section 9

Declaration

& Photograph





Section 10

Checklist


Section 11

Office Use




to the application.

Section 12

Receipting


Step 2. Assessment Procedure – Electrical


HBL

Identity of

Applicant




the following:









assessment.

PAG

E 4

3C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Previous

licence

history




claims.



















re-issue of qualification under correct name or provide evidence of a change in name


If previously licensed further qualification documentation is not required. Applicant will,

however, be assessed and referred for wiring rules testing.



qualifications.


PAG

E 4

4C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Statements

of Practical

Experience


Where required, assess statement in accordance with Statement of Practical Experience

Procedures. Applicants who have not completed an apprenticeship and trade course

will need to have their practical experience assessed by a member of the HBS Energy &

Utilities Unit. Referrals to the unit must be addressed to the Manager, Energy & Utilities

Unit and submitted via the Coordinator, Licence Assessments. Additionally, licence

assessors may feel that technical expertise is required on some aspect of an application.

For example, the work described in the referee statement may be highly technical or

unusual. These cases may also be referred, at their discretion, by the Coordinator, Licence

Assessment to the Manager, Energy & Utilities Unit for advice.











Check GLS

data



GLS.

Approved

Application





Refused

Application



application is required before the refusal is made to enable any further grounds to

be identified.







PAG

E 4

5C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Requisitioning

Information


� contact the applicant by telephone in the ! rst instance;



GLS record;


� retain the application until the agreed time for supply; and



PAG

E 4

6C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Restricted Electrical

Qualified Supervisor





Work

Performed

Refer to Website.

Referee

Statements

Require Referee’s Statement and letter from employer.


1. Transcript showing completion of modules

(refer to website), and

2. Craft Certificate/Trade Certificate/Certificate of

Proficiency/Australian Recognised Trade Certificate

(refer to website).

1. Previous superseded qualifications relevant to

the category.

1. Previously held licence in same category. Nil.

Check GLS

records to

verify licence

category, and

expiry.

2 Procedure for Restricted Electrical



Section 1

Type of

Application



PAG

E 4

7C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 2

Details of

Applicant






Section 3

Category of

Work


provided.




Section 4

Current or

Previous

Licence


Section 5

Quals,

Experience

References


an original document which is copied and cited by the

officer as a true copy of the original;

� a copy of the original document cited by a JP as a true

copy of the original.




Section 6

Experience

History


Section 7

Financial &

Criminal

History






Section 8

Home

Warranty

Insurance

Applies to Building applications only

Section 9

Declaration

&

Photograph





PAG

E 4

8C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 11

Office Use



evidence provided) take copies of the evidence used (eg driver’s licence) and attach to

the application.

Section 12

Receipting


Step 2 - Assessment Procedure – Restricted Electrical


HBL

Identity of

Applicant




the following:









assessment.

Previous

licence

history




claims.







PAG

E 4

9C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS


















qualifications.


Statements

of Practical

Experience



Experience Procedures











Check GLS

data



in GLS

PAG

E 5

0C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Approved

Application





Refused

Application




identified.







Requisitioning

Information





GLS record;





PAG

E 5

1C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Air conditioning & Refrigeration CategoriesIndividual, Qualified Supervisor





Work

Performed

Refer to Website.

Referee

Statements

Only required for applicants applying based on Mechanical or Electrical Engineering

Qualifications or applications for Cooling Tower only work.


Air conditioning

and

Refrigeration

(including

associated

electrical work)

1. Craft Certificate or Australian Recognised

Trade Certificate or Certificate of Proficiency,

and

Certificate III (refer website), or

Transcript showing completion of NRE01,

NRE02 and NRE12.

Final transcript

confirming “Eligible to


Certificate issued by

RTO

2. Mechanical or Electrical Engineering Degree,

Diploma or Associate Diploma,

and

Certificate III (refer website), or

Transcript showing completion of NRE01,

NRE02 and NRE12.

Air conditioning

and

Refrigeration

(excl. electrical

work)

Craft Certificate or Australian Recognised Trade

Certificate or Certificate of Proficiency,

and

Mechanical or Electrical Engineering Degree, Diploma or

Associate Diploma.

Air conditioning

(Cooling

Towers only)

Microbial Control Course

All of the

above

Previously held licence in same category Nil.

Check GLS records

to verify category, and

expiry.

PAG

E 5

2C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

2 Procedure for Air conditioning Refrigeration –

Individual, Qualified Supervisor



Section 1

Type of

Application



Section 2

Details of

Applicant






Section 3

Category of

Work


provided.




Section 4

Current or

Previous

Licence


Section 5

Quals,

Experience

References



the original;





Section 6

Experience

History


PAG

E 5

3C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 7

Financial &

Criminal

History






Section 8

Home

Warranty

Insurance


Section 9

Declaration

&

Photograph





Section 10

Checklist


Section 11

Office Use




the application.

Section 12

Receipting


Step 2. Assessment Procedure –

Airconditioning and Refrigeration


HBL

Identity of

Applicant




the following:









assessment.

PAG

E 5

4C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Previous

licence

history




claims.
























qualifications.


Statements

of Practical

Experience






PAG

E 5

5C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS









Check GLS

data


Ensure accurate data entry of applicant’s details prior to updating determination in GLS

Approved

Application





Refused

Application




identified.







Requisitioning

Information





GLS record;





PAG

E 5

6C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS






Work

Performed

Refer to Website.

Referee

Statements

Not required if current building licence held. If no current building licence see

requirements for building category.


In addition to qualification requirements for building,

or a current building licence, applicant must provide:

1. transcript of academic record showing completion

of units of competency (refer to website)

2. previously held licence in same category expiring

not more than three years ago.

Nil.

Check GLS

records to

verify licence

category, and

expiry.

2. Procedure for Building Consultancy



Section 1

Type of

Application



PAG

E 5

7C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 2

Details of

Applicant






Section 3

Category of

Work


provided.




Section 4

Current or

Previous

Licence


Section 5

Quals,

Experience

References



the original;





Section 6

Experience

History


PAG

E 5

8C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Section 7

Financial &

Criminal

History






Section 8

Home Warranty

Insurance


Section 9

Declaration

& Photograph





Section 10

Checklist


Section 11

Office Use




to the application.

Section 12

Receipting


PAG

E 5

9C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Step 2. Assessment Procedure – Building Consultancy


HBL

Identity of

Applicant




the following:





� where there is a difference in name, applicant to provide evidence of name change.

Acceptable evidence is a copy or certified copy of Registry of Births, Deaths and

Marriages document.


assessment.

Previous

licence

history




claims.














PAG

E 6

0C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS



Check documentation provided is certified by JP or FTC as a true copy of

the original.








qualifications.


Statements

of Practical

Experience



Experience Procedures











Check GLS

data



in GLS.

Approved

Application





PAG

E 6

1C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Refused

Application




identified.







Requisitioning

Information



� where the information required is complex, a letter may also be forwarded

to the applicant confirming the information requested by phone. Attach letter to

GLS record;





PAG

E 6

2C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Experience to do or Supervise the Work

(References – Statement of Practical

Experience)


Legislation Section 26 of the Home Building Act 1989

Clauses 26(1)(b)(i) and 28(1)(b) of the Home Building Regulation 2004

Purpose of a

Referee

Statement

The categories of general building work, swimming pool building; swimming pool

repairs and servicing; mechanical services; and specialist classes (categories) require

evidence of practical experience.

To enable assessment of an applicant’s experience to ensure that the applicant is

a capable person and has the kind of experience to undertake the work as required

under cl.28(1)(b) of the Regulation.

Statements of Practical Experience are required to be completed by the person who is

providing a reference for the applicant.

There is one Statement (Form) that can be used for trade or building classes

(categories). Refer to website.

There are Statements for each of the specialist classes (categories). Refer to website.

The Statements are subject to a current review of forms.

Acceptable

Referee

Must be a person who currently holds, or has previously held, an authority under the

NSW Act (chartered architect; engineers).

A person who currently holds the class of general building.

A person who previously held or currently holds the equivalent class (category) to the

class (category) the applicant is seeking.

A person who employed and/or supervised the applicant and who held the equivalent

class (category) during the period of time that the referee is providing a reference for

the applicant.

Preventing

Fraudulent

Referee

Statements

In addition to meeting the above requirements, an additional check is made in GLS

to ensure the referee is not providing multiple statements unless there are reasonable

grounds such as a supervisor at a large electricity authority.

PAG

E 6

3C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

2. Procedure

Online Not applicable

FTC Not applicable

HBL

Assess

� Check to ensure that the referee has the appropriate class (category) and holds

a valid authority during the period of time which the referee is supplying the

applicant with the reference.

� Check dates of work conducted by applicant to ensure time period meets or

exceeds requirement.

� Check licence record and history of referee to ensure:-

o they have or did hold a licence in an equivalent category/class to that being

applied for;

o the referee’s licence was not subject to unreasonable complaints or

compliance action.

� Check Statement of Practical Experience to ensure Referee has not provided more

than three references in the past two years without good reason. If so, Assessing

officer is to consider whether:

- to contact Referee to establish whether any good reason for the quantity of

reports, or

o to reject report and request an additional report as per “Report not

Acceptable” below;

- enter note in GLS with action taken.

Where an assessing officer is of the view that reports are being fraudulently provided,

matter is to be referred to Team Leader for consideration of further action against the

Referee.

Report

Satisfactory

Continue with the assessment in accordance with the Assessment Procedures.

Report not

Acceptable

Practical experience not demonstrated:

� contact applicant and request additional experience outlining the reasons current

statement not acceptable e.g. practical experience not sufficiently demonstrated,

referee unacceptable;

� make file notes in GLS outlining action taken and information required;

� if no response within reasonable time, contact applicant providing 14 days or

application will be determined and refused on available evidence;

� if no additional evidence or contact, refuse application as per Assessment

Procedures.

PAG

E 6

4C

HA

PT

ER

TW

OA

SS

ES

SM

EN

TS

Mutual Recognition

¿ 1 Calendar Month from Receipt of Application


Legislation Mutual Recognition (New South Wales) Act 1992

Trans-Tasman Mutual Recognition 1997

What is Mutual

Recognition

Mutual Recognition means that any individual person holding an occupational licence

or registration in one State/Territory is entitled to a comparable licence or registration

in another state/territory, where available, on lodgement of the proper notification and

payment of the required fee.

Applications are considered under Mutual Recognition Act rather than the Home

Building Act.

Companies

Partnerships

Excluded

Mutual recognition legislation applies only to individuals and the occupations carried

on by them. If it is intended

to contract or operate in New South Wales as a partnership or company a

Contractor Licence must be obtained by completing the application form for a

Contractor Licence - Company/Partnership available from the Office of Fair Trading

(under the Home Building Act).

An application cannot be made under mutual recognition for the issue of a Contractor

Licence in the name of a company or partnership.

However, an employee, member of the partnership or director of the company may,

if the appropriate interstate registration is personally held by that individual, make

application under the mutual recognition legislation for issue of a Qualified Supervisor

Certificate or qualified individual Contractor Licence in order to be proposed as the

nominated supervisor of the company/partnership.

Deemed

Registration

A person who lodges a notice for registration under the mutual recognition legislation

with the required fee is, pending the grant or refusal of ‘substantive registration’, is

taken to be registered. Such registration is called ‘deemed registration’. Deemed

registration in one State does not of itself provide a basis for registration in another

State.

A person’s deemed registration continues until it is cancelled or suspended or

otherwise ceases by way of the Office granting or refusing to grant substantive

registration, subject to any final or interim determination as the result of an appeal.

Deemed registration is not affected by any decision to postpone the granting of

substantive registration.

PAG

E 6

5C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Commencement

Date of Licence

As mutual recognition provides deemed registration, on approval of a licence the

commencement date will be the date the application was lodged rather than the date

of granting of the licence.

Once registration in this State has been effected, the applicant need not maintain the

licence issued in the home State.

3 Procedure for Trade Categories – Individual, Qualified Supervisor


FTC/HBS Check application form to ensure it is completed in full, and declaration and

documentation certified by a JP.

Obtain certified copy of licence card.

Enter application details and receipt in GLS as per GLS procedures.

FTC Refer application to HBL for assessment.

HBL Undertake Mutual Recognition check with interstate authority by facsimile (LETTER).

Check Licence Recognition website (www.licencerecognition.gov.au) to determine

equivalent licence categories in NSW.

Where no equivalent NSW category – Consult with Team Leader. Application may be

rejected under Mutual Recognition if no NSW class, substantially save as applicant’s

interstate authority.

Contact interstate regulator and confirm history of complaint and currency of licence.

Home Licence must be current at time of application for registration.

Assess application as per relevant assessment procedures for category of work.

Check previous licence history in GLS.

Complete Mutual Recognition Checklist.

Approval As per Assessment procedures.

Backdate approval to lodgement date.

Refusal Applicants under Mutual Recognition are to be subjected to the same fit and proper

provisions as general applications.

Refusal is processed as per Refusal procedures.

Refunds Refer to Refund Procedures.

PAG

E 6

7C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

3. EXISTING AUTHORITIES

EXCEPTIONAL ASSESSMENT


Legislation Sections 20, 25 and 40 of the Home Building Act 1989

Clauses 26, 28 and 39A of the Home Building Regulations 2004

Purpose To provide expert assessment of applications that are complex or of a contentious

nature.

Panel Applications that fall into this category will be assessed by a Panel comprising of:

Manager Licence Administration (Chair) l

Co-ordinator Assessments l

Co-ordinator Internal Review and Audit l

Co-ordinator Existing Authorities and Document Administration l

Matters to Be

Assessed

Applications for a new authority.

Applications to renew or restore an authority.

Applications for Mutual Recognition registration.

Terms of

Reference

The Panel may determine:

1. the frequency of meeting to discuss matters, taking into consideration legislative

and departmental service standards;

2. type of matters that will go before the Panel;

3. the procedure to enable a matter to be assessed by the Panel; and

4. the administrative functions to be undertaken in addition to:

the determination to be recorded on the licensing file reflecting the reasons for l

the decision and reflecting the reasons if the determination was not unanimous;

Panel members present to sign the determination; and l

determining any additional action such as recording the result separately to l

that on file for statistical and precedent purposes, or ongoing development of

business improvements.

PAG

E 6

8C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

2. Procedure


FTC Not applicable

HBL Licensing officers who are dealing with unusually complex matters may refer the

determination to their Co-ordinator for consideration by the Panel.

PAG

E 6

9C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

VARIATION TO AN AUTHORITY CHANGE OF CLASS/CONDITION/RESTRICTION

Applies to: An existing Authority Holder and can be for an individual, a company or a partnership)


Legislation Section 7(2) of the Licensing and Registration (Uniform Procedures) Act 2002 specifies

that an application for the amendment of a licence may be made to the relevant

licensing authority by the licensee at any time while the licence is in force.

Section 36(2) of the Licensing and Registration (Uniform Procedures) Act 2002 specifies

that an application for the amendment of registration may be made to the relevant

registration authority by the registered person at any time while registration is in force.

What is it? Downgrade to a class

For example: An existing authority holder no longer wishes to hold the class of building

and wishes to apply for a trade (eg bricklaying; wall and floor tiling)

Upgrade to a class

For example: An existing authority holder with a trade class (eg carpentry) wishes to

upgrade to a building class.

Upgrade to a class by removing a condition/restriction

For example: An existing authority holder with Floor (Timber Floors only) wishes to

have the condition of ‘timber floors only’ removed to be able to undertake all types of

flooring work.

Adding another class

For example: An existing authority holder with carpentry wishes to add the electrical

class.

Same class with the addition of a condition/restriction

For example: An existing authority holder with Building (Kitchen and Bathroom

Renovations) and wants to add another (condition) to Building such as ‘Swimming

Pool Building and Repairs’.

For example: An existing authority holder with Plumbing, Draining and Gasfitting wishes

to add the condition of ‘Restricted Electrical only’.

Removal of a condition/restriction

For example: An existing authority with the class of Building (not to exceed contracts

of $12,000 including GST) wishes to have the condition of ‘not to exceed contracts of

$12,000 including GST’ removed to enable the authority holder to contract for work in

excess of $12,000. This variation does not require an application and fee.

PAG

E 7

0C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Process Any variation to class, condition or restriction, requires assessment of the applicant’s

qualifications as per Assessment Procedures for the type of category.

What is NOT a

Variation

When a company/partnership that has an existing licence nominates a new supervisor

with the same class as the company/partnership. Refer to Nominated Qualified

Supervisor Procedure.

An existing authority holder has several existing classes, for example, minor trade

work/carpentry and joinery/wall and floor tiling and wishes to remove the minor trade

work from the authority.Refer to GLS Procedures for inactivation of class.

2. Procedure

Online Not available.

FTC/HBL Enter in GLS as per GLS Procedures.

FTC Forward the application to HBL.

HBL Retrieve existing licence holder licensing file.

Assess identity as per Assessment Procedures.

Assess qualifications as per appropriate assessment procedures for the category

arising from the change.

CHAPTER THREE EXISTING AUTHORITIES

PAG

E 7

2C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

DEPARTMENT OF COMMERCE - OFFICE OF FAIR TRADING

HOME BUILDING SERVICE

APPLICATION ASSESSMENT SHEET

APPLICANT:

APPLICATION NO: TRIM FILE NO:

Section 1

TYPE OF APPLICATION:

INDIVIDUAL CONTRACTOR LICENCE

PARTNERSHIP QUALIFIED SUPERVISOR CERTIFICATE

COMPANY TRADESPERSON CERTIFICATE

VARIATION

CORRECT FEE PAID:

Not Applicable No – Overpayment

Yes No – Underpayment

SEARCHES REQUIRED:

Company (ASIC) Bankruptcy (BSRC)

Police Search (PDSR) Mutual Recogntion Search (MUTU)

HBS History:

Yes No

CTTT Orders Complaints Breaches Insurance Other

Notes:

PREVIOUS FILES:

Files Attached Yes No Not Applicable

Notes/File Numbers:

Actioning Officer:

Name Signature Date

PAG

E 7

3C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Section 2

PARTICULARS OF APPLICANT/DIRECTORS/PARTNERS/SUPERVISORS:

Yes No Acceptable

Over 18 years of age

Previous Licence Held/Current Licence

Criminal History

Licence Previously Refused/Cancelled

Complaints

Penalty Notices

Disciplinary Action (NTSC)

Insurance Claims History

Outstanding Tribunal Orders

Bankruptcy

Involvement with Failed or Administered Company

If insufficient space attach a separate sheet

COMPANY DOCUMENTS: Not Applicable

Yes No Acceptable

Confirmed Company Name

Confirmed Details of Directors

Notes:

QUALIFICATIONS: Not Applicable

TAFE/RTO/Transcripts of Academic Records: Yes No Curr/Previously Lic Acceptable

Details:

Licence no/Expiry Date/Category:

PAG

E 7

4C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

RENEWALS & RESTORATIONS

À 14 Calendar Days


Legislation Section 40 of the Act

Clause 39 of the Regulation

Renewals The Home Building Act, 1989 requires an authority to be renewed after a period not

exceeding three years.

A renewal is a review of the licence holder’s ongoing suitability to maintain their

authority. Accordingly, a renewal will require assessment if there is a change in the

circumstances used to assess the licence holder as ‘Fit & Proper’. These include:

financial position; l

criminal conviction; l

non-compliance with Tribunal orders; l

insurance claims; l

other actions which result in an alert on the licence; and l

where appropriate, that the licence holder has undertaken continuing professional l

development (CPD).

Declarations Licence holders who are required to meet the ‘fit and proper’ requirements and/or

undertake CPD, complete a declaration either by signing the renewal or by lodging

online. In addition to making a declaration, HBL will conduct regular audits of renewals

to identify any false declarations.

Making of a false declaration can be subject to severe penalties and the actions of

the licence holder may be subject to compliance action. It is therefore mandatory that

the licence holder complete the declaration. It is not acceptable for any person to

complete the declaration on their behalf.

CPD Refer to Continuing Professional Development Procedures.

(Continuing Professional Development Procedures.doc)

Restorations A licence holder may restore their authority for up to 3 months from expiry of their

licence. This is calculated as 3 calendar months. If not renewed within this period the

licence is expired and cannot be restored.

Issue of Renewal

Notices

A renewal application is generated automatically 6 weeks prior to the expiry date of

the licence. The application is posted to the nominated postal address. Only one

application is sent.

PAG

E 7

5C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Re-issue of

Notice

Where an applicant has not received the renewal:

A replacement can be requested in GLS – l Note this will generate the notice from

the external mail house and should only be requested via GLS 14 days or more

before expiry. Less than 14 days print standard renewal letter.

Refunds,

Waivers

Refer to Refund Procedures

2. Procedures

Online Renewals lodged online are automatically receipted (if a fee is payable), updated to

GLS and a card request made.

FTC/HBL On receipt of a renewal application

Check renewal is lodged before expiry date.

If lodged within 3 months of expiry date, restoration of the licence may be effected with

payment of additional fee. Continue to process as per a renewal.

If lodged more than 3 months after expiry date, the licence is considered as expired and

a new application is required.

Receipt in GLS as per GLS procedures.

Check for any change in address. Clarify which addresses are affected (eg residential

and/or place of business and/or postal).

Complete Change of Address details in GLS as per GLS Change in Address

Procedures.

Check declaration:

has been signed by licence holder and l

for any declarations in regard to fit and proper. l

FTC If there is an occurrence declared:

enter application details in GLS. l

do not renew l

refer application to HBL for processing. l

PAG

E 7

6C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

HBL If there is an occurrence declared:

enter application details in GLS l

refer to relevant Fit and Proper Procedures depending on the type of event/s l

declared.

FTC/HBL Check CPD (if applicable) declaration confirms required points achieved.

If no/insufficient points refer to CPD Procedures

FTC/HBL Check GLS for Alerts, CTTT Orders and Insurance Claims.

FTC If any of these occurrences, refer application to HBL Existing Authorities.

Issue receipt to customer (if fee payable)

HBL Refer to HBL Existing Authorities procedures.

FTC/HBL Complete GLS entry as per GLS manual.

FTC Complete lodgement details on renewal application and forward to Licensing.

HBL Complete lodgement details on renewal application and attach with any file records to

licence file.

PAG

E 7

7C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

RENEWALS / RESTORATIONS

No changes No occurrences declared

Online FTC’s

Receipt & enter in GLS

NO: Alerts CTTT Orders Insurance Claims lodged before expiry date

Alert CTTT Order Insurance Claims lodged after expiry date

Change in Details Occurrences Declared

FTC FAX MAIL

Receipt if Fee Payable Receipt if Fee Payable

FTC

Change of Address Only All Other Changes

Enter in GLS Enter in GLS

Check GLS for: • Alerts • CTTT Orders • Insurance Claims

Check GLS for: • Alerts • CTTT Orders • Insurance Claims

Satisfactory Not Satisfactory Process as per Existing Authority Procedures

Renew Cancellation

Licence Holder Notified

Review Cancellation

Decision Overturned

Decision Confirmed

Renewal Granted and Card Issue Requested

FILE

PAG

E 7

8C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

AMENDMENTS

NOMINATED QUALIFIED SUPERVISOR


Legislation: Section 22 of the Home Building Act 1989 refers to the cancellation of a company/

partnership if there is no nominated supervisor within 30 calendar days. This period

can be extended upon written request and in special circumstances.

Clause 26(4) of the Home Building Regulation 2004 refers to the need for the

nominated supervisor being appropriately licensed.

Clauses 31, 32 and 36 of the Home Building Regulation 2004 refers to changes to be

notified to HBL within seven days of the change being made.

Clause 26(6) of the Home Building Regulation 2004 refers to dual nominees.

Clause 26(1) of the Home Building Regulation 2004 specifies that the Commissioner

must be satisfied that there are sufficient qualified

supervisors to supervise the amount of work.

What is a

Nominated

Qualified

Supervisor?

To be granted or retain a licence as a partnership or company, a qualified supervisor

must be nominated. (Note: Kit home supply companies do not actually do any

residential building work and are therefore exempted from needing a nominated

qualified supervisor.)

The nominated qualified supervisor must:

be an employee of the contractor licence holder or, a member of the partnership l

or, a director of the corporation which is the contractor licence holder. (Note:

Employee means an employee who is required by the terms of their employment,

to work otherwise than on a casual or temporary basis for their employer. They

cannot be engaged on a contract or sub-contract basis);

hold a supervisor certificate for the same category of work for which the contractor l

has been licensed, or where there is more than one nominated qualified supervisor,

the combined categories are equivalent to the company or partnership’s licence

category; and

not be the nominated qualified supervisor for more than one contractor unless l

the Department is satisfied that special circumstances exist which will ensure

the individual will supervise all work (whether alone or in conjunction with other

nominated supervisors).

PAG

E 7

9C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Notification of

Change:

A change in the status of a nominated QS must be notified within 7 days. The

notification must be in writing and is generally lodged as follows:

the current nominated QS of a company/partnership provides notification that they l

are no longer the nominated supervisor;

the company/partnership notifies of a change to the nominated QS; l

the company/partnership applies for a renewal of their licence and GLS will not l

allow the renewal because there is no nominated supervisor or the supervisor’s

authority is not current; or the supervisor’s category is not equivalent to the

company/partnership category.

While it is preferable for the change to be notified on Form 10 or by completing

the change notification on a renewal, any written notice can be accepted provided

sufficient details are provided.

Processing

A Change

On notification of a change, the following checks must be undertaken in relation to the

company/partnership which is the contractor licence holder:

that a currently licensed nominated qualified supervisor is retained; l

that the authority of the nominated QS is equivalent to that of the company/ l

partnership (or there are a number of nominated QS’s and their collective

authorities meet the contractor licence holder authority);

that there are sufficient nominated QS to provide reasonable supervision of work l

carried out.

Assessing

Sufficient

number of QS:

To assess whether:

a company/partnership licence holder has a sufficient number of nominated QS or l

there are special circumstances existing which would satisfy the Commissioner that l

a nominated QS can be nominated for more than one company/partnership,

The following criteria should be taken into consideration:

nature of proposed activities (type of work) for the company/partnership/s; l

estimated projected turnover for each organisation; l

approx number of jobs estimated for the next 12 month period; l

other partners/directors/employees involved in carrying out the work and the l

authorities they hold;

proposed arrangements for providing immediate supervision to employees/partners l

who do not hold an authority; and

any other arrangements for carrying out work or special circumstances. l

No nominated

QS

A company/partnership has 30 days from the cessation of a nominated QS in which to

appoint another QS with equivalent classes to the company/partnership licence.

Where no nominated QS is appointed in this time, the company/partnership licence

must be cancelled under the Home Building Act.

PAG

E 8

0C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Change in

Category/

Class

If the supervisor’s category/class differs from the class held by the company/

partnership then the following options are available to the company/partnership:

nominate a new supervisor that holds the appropriate category/class; or l

the current supervisor may consider upgrading their licence (refer to Variation l

Procedure) (Variations.doc); or

the company/partnership may remove the category/class that is not covered by the l

current supervisor (refer to variation procedure) (Variations.doc); or

if no response is received, the company/partnership will have any category/class l

removed that is not covered by the nominated QS. This removal may result in a

downgrade or cancellation of the licence depending on the QS category/class.

(Refer to Variation Procedures) (Variations.doc).

Review A licence holder may apply for a review and/or appeal to any change or cancellation of

an authority.

PAG

E 8

1C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

2. Procedures

On Line Not available

FTC/HBL On receipt of notification:

Enter in GLS (Receipt if notice received with a Renewal Application)

FTC Forward documents to HBL for processing

HBL Removal/Appointment of a Nominated QS

Check GLS for other nominated QS and ensure number is sufficient. l

Check category of work for remaining/appointed nominated QS is equivalent/ l

sufficient for authority held by contractor licence holder.

If satisfactory, effect change in GLS as per GLS procedures. l

File application on original file. l

No nominated QS

Send letter to company/partnership providing 30 days from vacancy of nominated l

QS to nominate another.

Place Alert on GLS. l

If no nomination, process as per Cancellation Procedures. l

(Cancellation.doc)

Insufficient number of nominated QS

If no remaining nominated QS, send letter (form) to company/partnership advising l

of requirement to nominate a supervisor within 30 days or licence will be cancelled.

If assessed as insufficient number, contact company/partnership seeking further l

information to assist in assessment.

Place Alert on GLS. l

If still unsatisfactory, process as per Cancellation Procedures l

(Cancellation.doc)

Refund Refer to Refund Procedures (refund of application fees.doc)

PAG

E 8

2C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

SECTION 131 CERTIFICATES


Legislation Refer to Section 131.0 of the Home Building Act 1989.

Refer to Clause 16 of Schedule 4 of the Home Building Act 1989.

Purpose These Certificates indicate whether an individual or corporation has held; does hold or

has not held an authority issued under the Home Building Act (or previous legislation).

These Certificates are admissible as evidence in court.

Requests Requests are received from members of the public for use in court actions. The

Compliance Branch of HBS and Legal Services Division use Certificates as evidence in

Notice to Show Cause actions and prosecution matters.

Applications Applications must be submitted in writing. For internal use a memo or an email is

sufficient. It is preferable that the public use the form that is available on the website.

Applications can be received by mail or be lodged at a Fair Trading Centre.

Application The public are required to pay an application fee. Refer to the fee

Fee schedule on the website. There is no fee for requests from OFT staff for work related

matters.

GLS GLS is the source of the information that is used to prepare the Certificate. (GLS does

not generate the Certificate. The Certificate is manually prepared at present and a hard

copy of the Certificates are retained. GLS is being enhanced to generate the Certificate

and keep a record of the Certificates issued.)

The Certificate must be authorised (and signed) by a designated senior officer (see

Delegations) and cannot be authorised by the officer preparing the Certificate.

Insurance Services Branch of Home Building Service is responsible for issuing Section

131(h) Certificates under the Act.

PAG

E 8

3C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

2. Procedure

À 24 hrs from lodgement.

Online Not Available.

FTC/HBL Receipt in GLS.

Notification of the application being received and the date received is to be entered

on to GLS using the ‘note’ field. (Refer to GLS procedures). Forward the application

to HBL as a priority because the Certificate is required to be prepared by HBL within

24 hours of receiving the request. Requests should be faxed to: 9895 9956. The

application is noted as being faxed and forwarded to HBL by mail.

HBL If the application is received through a FTC the GLS is to be checked for the date the

application was received and any other information that may have been entered by the

FTC.

The information that is to be used on the Certificate is taken from the GLS. Any

discrepancies or non-sensible data should be brought to the attention of the

supervisor.

The Certificate is prepared in the required format.

Two copies are prepared for signature. One is the original to be sent to the applicant

and the other is to be retained for HBL records.

Delegations – Team Leader (7/8) or above can sign a 131 Certificate.

On approval, the preparation officer forwards the Certificate to the applicant and files

the copy in general file.

The preparation officer completes the process by entering information on the GLS that

the Certificate has been completed and sent to the applicant.

PAG

E 8

4C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

AMENDMENTS

COMPANIES – CHANGE IN DETAILS

1. Reference

Legislation Clause 34 of the Home Building Regulation (Corporation contractor licences).

Applies to A request for changes in company details where:

the ACN number has not changed; or l

director/s is/are removed. l

Note: The company name and directors may change, but as long as the ACN remains

the same, the legal entity of that company also remains the same.

Excludes A company change where the ACN is changed. This action indicates the formation of a

new legal entity and therefore a new application is required.

ASIC The Australian Securities & Investments Commission (ASIC) is the Government body

responsible for registration of companies within Australia.

Information from the records is available via website at www.asic.gov.au. This

information is limited to company name, list of documents lodged such as change in

directors, winding up orders, etc.

More detailed information is available by requesting a search through Intelligence

(Intel) Unit.

Processing a

Change

Notice of change in details must be lodged in writing (Form 11).

A copy of ASIC Form 484 - Change to company details certified by a director of the

company or a Justice of the Peace OR an

ASIC company records extract verifying directorship changes MUST be attached to

verify the change.

Declaration Any additional or new directors are required to complete the declaration on Form 11.

PAG

E 8

5C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES


Online Not available

FTC/HBL Receive documents and enter on GLS as per GLS procedures.

FTC Send documents to HBL for processing.

HBL Retrieve original file.

Conduct ASIC search through Intel to establish:

the ACN has not changed; l

no record of insolvency for any director; l

notified changes have been recorded with ASIC; and l

company not under administration. l

Where a new director is appointed also conduct Intel searches to establish fit and

proper as per Application Procedures.

(3-Licensing Requirements for Applicants.doc)

If satisfied, process the application and effect changes on GLS.

File application on original file.

If not satisfied with search results then:

notify applicant of issue with application. (Variety of standard letters available l

depending on the issue);

if no response, a reminder may be sent, however if applicant fails to respond, l

assessing officer is to consider whether the issues affects the licence holders

ability to retain a licence;

refer to Cancellation Procedures. l (28-Cancellation of an Authority.doc)

PAG

E 8

6C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

AMENDMENTS

PARTNERSHIPS CHANGE IN DETAILS


Legislation Section 22(1)(b) of the Home Building Act 1989 specifies that the Commissioner must

cancel a contractor licence if the holder of the contractor licence is a partnership and

(without the prior approval of the Commissioner given for the purposes of this section)

there is any change in its membership (otherwise than because of death).

Also refer to Clause 33 of the Home Building Regulation (Partnership contractor licences) and the

accompanying note.

Change of

Membership

Adding or removing a partner is a change in the membership of thepartnership and

this is not permitted under the Act. The partnership is to be cancelled and a new

application lodged.

Change of Name

of partner

The name of the partnership can be amended when a changes their name through

marriage or other means. This is not a Partnerchange of membership; it is a change of

name. The partner will need to supply acceptable evidence (eg Marriage Certificate) of

the change of name before Licensing records can be amended. Copies of documents

must be sited as true copies of the originals by a JP or staff member.

Deceased

Partner

The Act allows the partnership to continue if a partner is deceased as the membership

has not changed. A replacement partner will change the membership. Consideration

should also be given to whether the deceased partner was also the nominated

qualified supervisor and if so, a new qualified supervisor must be nominated (refer

Nominated Qualified Supervisor Procedures).

2. Procedure

Online Not available

FTC Request/certify copies of supporting documents e.g. Marriage Certificate, Death l

Certificate.

Receive documents. l

Forward documents to HBL. l

HBL Check change does not involve a change to the membership. l

If so, contact the partnership to advise them that the partnership is to be cancelled l

because the membership has changed. Also advise them of the option to form

another partnership with the new membership and apply for a new licence.

PAG

E 8

7C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

Change of

Name

If there is a change of name of a partner check certified copies of change provided. l

If not, contact the partnership seeking a certified copy of the change of name within l

14 days.

GLS is to be noted (refer to GLS procedures) and the file resubmitted for 14 days. l

If there is a satisfactory response the GLS will be amended to reflect the change of l

name of the partner.

If there is no response, the change of name of the partner will not be done. l

GLS will be noted accordingly. l

Deceased

Partner

If not already provided, HBL requests a copy of the Death Certificate through Intel Unit

to confirm the death of the partner (refer to Surrender of Authority Procedures).

(surrender (including deceased).doc)

If verification is received the GLS will be amended to reflect the death of the partner

(refer to GLS procedures).

Refund of Fees Refer to fee schedule and Refund of Fees Procedures.

(refund of application fees.doc)

PAG

E 8

8C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

SURRENDER OF AN AUTHORITY DECEASED

AUTHORITY HOLDER


Legislation Refer to section 21(7) of the Licensing and Registration (Uniform Procedures) Act 2002

for the surrender of a licence and its subsequent cancellation. (Refer to cancellation

procedures).

Refer to section 50(7) of the Licensing and Registration (Uniform Procedures)

Act 2002 for the surrender of the relevant certificate of registration and its subsequent

cancellation. (Refer to cancellation procedures).

Refer to sections 44(1) and (3) of the Home Building Act 1989 for the return of a

cancelled or varied authority.

Surrender may occur because:

the licensee no longer requires the licence. For example, retirement, illness, no l

longer working in the industry or is deceased; or

the dissolution of a partnership or change to company arrangements; or l

financial insolvency or bankruptcy. l

Note: Companies subject to a winding-up order or liquidation cannot surrender the

licence. Licence must be cancelled. (See Cancellations)

Notification The surrender should be notified in writing and signed by the licence holder; or in the

case of a deceased licence holder the person submitting the notice. Completion of the

surrender form that is available on the website is preferred. The surrender form and the

return of the authority card can be lodged in person at the FTC or to HBL by mail.

Return of Card The authority card should be attached to the Notice to Surrender Form. The surrender

form and the authority card must be placed on the licence file. Where the licence

holder is unable to provide the card they must make a written statement as to the

reasons.

Note: Penalties do exist for non-lodgement of the authority card. Discretion is to be

used as whether it is appropriate to seek compliance from the person surrendering the

authority, for example if the person is surrendering the authority on behalf of a deceased

licence holder.

Deceased

Authority Holder

It is necessary to obtain a certified copy of the Death Certificate either from the

deceased estate or through the Intell Unit. The Death Certificate must be placed on the

licence file.

PAG

E 8

9C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

2. Procedure


FTC/HBL On receipt of written notice of surrender:

Note: If the person has notified Fair Trading in writing, and it is not on the preferred

form, discretion may be exercised as to whether the notification is acceptable, for

example, clearly states the details of the licence holder and it is signed by the person

surrendering the authority.

Deface the authority card by placing several holes in the card with a standard hole

puncher; and

FTC Forward the form, copy of death certificate (if applicable) and the Authority card or

statement to HBL.

HBL On receipt of surrender:

Refer to GLS for notes/comments entered by FTC.

Retrieve the licence file (see File Records Procedures).

Determine as follows:

ensure all information provided; l

if no death certificate, request a copy through Intelligence Unit (do not contact l

lodging party to request);

if no card returned, check statement that a satisfactory reason has been provided; l

and

send letter confirming cancellation of authority. l

If licence holder does not provide written notice or required details, and does not

respond to requests within a reasonable time, enter a note in GLS outlining action

taken. Do not proceed with surrender. Attach all documents to file and return to

records. Licence will expire if there is no response to the next renewal notice.

Note: Notification of deceased authority holder is to be processed on receipt of death

certificate provided by lodging party or Intelligence search. Return of the card is limited

to one request only. If card is not provided, note GLS with comment.

Refund: Process the refund of the application fee as per Refund Procedures.

PAG

E 9

0C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

CONTINUING PROFESSIONAL

DEVELOPMENT (CPD)


Legislation: Refer to Section 40(2D), (E) and (F) of the Home Building Act 1989.

Commissioner Guidelines commencing on 1 January 2008. Refer to website.

CPD applies: To renewal applications for individuals who are licensed or hold a certificate as a

builder or swimming pool builder under the Home Building Act 1989. These licence/

certificate holders are required to undertake Continuing Professional Development

(CPD) each year as a condition of licence renewal.

Transition CPD point system was changed effective 1 January 2008. Builders and pool builders

will switch to the new 12-point CPD system on the date the licence is renewed.

Where a three year licence is held the change will be the anniversary of the date when

the three year licence is commenced (the change date will occur between July and

December 2008). Until the renewal or anniversary date in 2008, builders and pool

builders are required to undertake CPD under the previous arrangements.

Refer to the Commissioner’s guidelines under the heading of ‘Switching over in 2008’

for examples of how the introduction of this new system will operate. Guidelines located

on website.

Non

Compliance

Failure to fulfil CPD requirements may result in the refusal of an application for renewal

under section 40 (2E). An application for restoration of the licence may be made

in the three months after the expiry of the licence and may be granted once CPD

requirements (and any other requirements) have been completed.

During the transitional period, licensees will be able to renew once only without

compliance with CPD. Any further incidents of non-compliance and future incidents will

result in corrective action.

Exemptions In extenuating circumstances, the Commissioner may exempt a licensee from

complying with part or all of the requirements for CPD. The circumstances are limited

and may relate to serious illness or misadventure.

Audit Licensees are responsible for maintaining records of their CPD activities. These

records are subject to audit and failure to comply with the Commissioner’s guidelines

and/or the making of false claims may result in a show cause as to why the licensee

should not have their licence cancelled or suspended.

PAG

E 9

1C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

2. Procedure

On-line To renew on-line the applicant must declare compliance with a number of factors,

including obtaining sufficient CPD points. If an alert is put on GLS that the applicant

has not previously complied with the CPD provisions (or non-compliance with other

provisions), the renewal will not be effected online and the applicant advised to lodge

their renewal through an FTC or HBL.

2.1 Compliance with CPD requirements

HBL/FTC Renew licence/certificate as per Renewal/Restoration Procedures l

(Renewals.doc)

2.2 Non-Compliance with CPD Requirements

HBL/FTC Check GLS for any alert on previous non-compliance with CPD (or other l

occurrence requiring assessment of ongoing suitability to hold an authority.

Receipt and enter in GLS as per GLS procedures manual. l

FTC Forward application to HBL. l

HBL

·

·

·

Place Alert on GLS to indicate non-compliance. l

If first incidence of non-compliance and occurring in 2008: l

issue letter (LETTER X) and l

continue to renew as per Renewal/Restoration Procedures. l

(Renewals.doc)

If previous history of non-compliance or non-compliance occurring later than 2008: l

issue letter (LETTER X) requesting compliance within restoration period. l

If compliance is achieved within 3 months of expiry date, renew application as per l

Renewals/Restorations. (Renewals.doc)

Note compliance with CPD on GLS Alert. l

If compliance not notified by applicant within 3 months of expiry date; cancel l

licence as per Cancellation Procedures.

2.3 Exemptions

Applications to be processed within 7 business days. l

FTC/HBL Applicant to outline reasons for exemption in writing. Enter note in GLS that l

exemption application lodged.

PAG

E 9

2C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

FTC Forward Application to HBL (Communications Branch). l

HBL HBL Communications to consider application and make recommendation to l

Manager, Licence Administration, in accordance with legislation and guidelines.

If exemption approved: l

comment to be placed on GLS to this effect and applicant notified in writing; ¡

and

renewal process to continue as outlined as per Renewal/Restoration ¡

Procedures. (Renewals.doc)

If exemption l not approved:

applicant to be notified in writing and requested to comply; ¡

renewal process to continue as outlined above for non-compliance. ¡

Applicant to be notified of exemption decision within 7 days of receipt of request. l

Applicant to be notified of appeals process (see Internal Review Procedures. l

Payment of

Fees/Refunds

Renewals not accepted refer to Refunds Procedures. l

Renewals that do not comply with CPD until the restoration period will incur l

restoration fees.

Requests for exemptions that are approved are to be charged the applicable fee l

at the time of lodgement of the request. Any request lodged before expiry and

not approved until after the expiry date is to have the additional fee for restoration

waived.

PAG

E 9

3C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

CANCELLATION OF AN AUTHORITY


Legislation Home Building Act 1989

Section 3 refers to the definitions of an ‘authority’ and a ‘contractor licence’.

Section 22 specifies that a contractor licence must be cancelled (subject to clause

39 of the Home Building Regulation 2004) under certain circumstances.

Section 43(1) specifies that an authority may be cancelled because of

misrepresentation (whether fraudulent or not); issued, renewed or restored in error

(whether as a result of such a misrepresentation or not).

Section 43(2) specifies that an authority cancelled under section 43(1) may be

retrospectively restored if the error concerned has been rectified and the authority

holder acted in good faith.

Section 44 refers to the return of a cancelled or varied authority.

Interpretation Act 1987

Sect. 76 refers to any document to be served by post is taken to have been received

on the fourth working day after the letter was posted.

Delegation The Grade 7/8 officer (and above) is required to approve the cancellation of an

authority under the Act. A Grade 3/4 (and above) officer may notify the authority holder

that the authority is cancelled.

Refer to the Instrument of Delegation and Authority by the Commissioner for Fair Trading

Department of Commerce dated 6 December 2007.

When is a

Contractor

Licence

Cancelled

Section 22 of the Act outlines the circumstances that a contractor licence must be

cancelled.

Exception Clause 39 of the Regulation does allow for a contractor licence not to be cancelled

under section 22(1)(c) of the Act (inter alia bankrupt or takes the benefit of any law for

the relief of bankrupt).

It is possible for a condition to be placed on the licence that the holder is not to

contract to do work in excess of $12,000 (inclusive of GST) if it is assessed that there

is no evident risk to the public that the holder will be unable to complete any building

work.

NOTE: Clause 39 does not apply to the classes of general building work and

swimming pool building.

Right of Internal

Review

There is no right of internal review under the Act where a licence is cancelled

under s.22.

PAG

E 9

4C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

2. Procedure


FTC Not applicable

HBL File to be retrieved (as per file retrieval procedure)

A brief submission is to be prepared to outline:

Background including (not limited to):

how HBL became aware of the need to cancel the authority; l

legislative support to cancel the authority; l

legislative support to condition a contractor licence (if applicable); and l

other relevant information. l

Recommendation:

seek approval to cancel an authority; l

seek approval to send to the authority holder the attached letter. (LETTER) l

If approval is given to the recommendation:

the letter is to be sent to the authority holder; l

the file is to be resubmitted for four days (as per Interpretation Act); l

after four days the GLS is to be amended to show that the authority has been l

cancelled (as per GLS procedure);

the file is resubmitted to wait for the return of the authority card – if received it is to l

be placed on the file and the file is to be returned to file;

after 14 days if the card is not returned, Compliance Division is to be notified of the l

failure to return the card; and

the file is to be returned to file. l

PAG

E 9

5C

HA

PT

ER

TH

RE

EE

XIS

TIN

G A

UT

HO

RIT

IES

HBL Restoration Of an

authority

File to be retrieved (as per file retrieval procedure)

A brief submission is to be prepared to outline:

Background including (not limited to):

how HBL became aware of the need to restore the authority; l

legislative support to restore the authority; l

legislative support to condition a contractor licence if restored (if applicable); and l

other relevant information. l

Recommendation:

seek approval to restore an authority; l

seek approval to send to the authority holder the attached letter. (LETTER) l

If approval is given to the recommendation:

restore the authority on the GLS (as per GLS procedure). l

PAG

E 9

6C

HA

PT

ER

FO

UR

FIT

AN

D P

RO

PE

R

AMENDMENT TO DETAILS OF AN EXISTING

AUTHORITY HOLDER

CHANGE OF ADDRESS


Legislation Refer to Clauses 32, 33, 34 and 35 of the Home Building Regulation 2004 that makes

reference to section 24(1) of the Licensing and Registration (Uniform Procedures)

Act 2002 (as modified by section 19(3)(d) of the Home Building Act 1989).

Refer to Clause 36 of the Home Building Regulation 2004 that makes reference

to specifies that under section 24 (1) of the Licensing and Registration (Uniform

Procedures) Act 2002 (as modified by section 24 (3) (d) of the Home Building

Act 1989).

Refer to Section 120 of the Home Building Act 1989; and Clause 80 of the Home

Building Regulation 2004 that outlines the information in the public register, including

references to the business and residential address of an authority holder.

Requirement

For Address

The Act requires the business address to be displayed on the public register.

When making an application, a residential, business and postal address is requested.

A PO Box is not acceptable for business or residential addresses.

Seven days to

Change

The legislation requires an authority holder is to advise of a change of address within

seven days after the change.

How to Notify

of a Change

An authority holder may advise OFT of their change of address in writing using the

form available on the website or by making amendments to the renewal application.

Change of address can be lodged by mail, counter or fax. Online changes will become

available mid 2008.

These changes may be processed by HBL or Fair Trading Centres.

Priority Amendment to a change of address is a priority because a renewal application is sent

to the authority holder six weeks prior to the expiry date. The renewal application is

generated by GLS.

If the change of address is received after the renewal application is sent to the

applicant, then a further renewal application should be sent to the applicant at the new

address as per the Renewal/Restoration Procedures. (Renewals.doc)

PAG

E 9

7C

HA

PT

ER

FO

UR

FIT

AN

D P

RO

PE

R

2. Procedure

Online Available to change address. (mid 2008)

FTC/HBL Record change in GLS as per GLS procedures.

Where necessary, clarify which address/es is affected by the change. E.g. business,

residential and/or postal.

If lodged within 6 weeks of renewal date, generate a replacement renewal to the new

address.

FTC Forward any written application to HBS.

HBL File application on general file. It is not necessary to attach to the authority holder’s file.

PAG

E 9

9C

HA

PT

ER

FO

UR

FIT

AN

D P

RO

PE

R

4. Fit and Proper

FINANCIAL HISTORY


Legislation New Applications – c.25(1)(a)(xii), c.26(2), c.27(2) and c.28(2)

Renewals/Restorations – c.39A (1)(c), c.39A(1A), c.39A(1B), c.39A(3)

The above legislation requires that before issuing an authority or renewal of an

authority, the Commissioner must be satisfied that each relevant person is not:

an undischarged bankrupt; l

a director or person involved in the management of an externally administered l

company (except in a case of voluntary winding up).

Relevant persons are considered to be individuals, any partner, or any director of a

company applying for the authority.

Exemptions An authority may be issued if the Commissioner is satisfied on a number of criteria

which vary depending on the type and category of authority.

Authority Type Building/

Swimming Pool

Building

Trade, Specialist

Other Building

Building

Consultant

Contractor Refused May issue if:

no evident risk to

the public,

and

took all reasonable

steps to avoid the

insolvency.

May issue if:

took all reasonable

steps to avoid the

insolvency.

Supervisor/

Tradesperson

May issue if:

took all reasonable

steps to avoid the

insolvency.

May issue if:

took all reasonable

steps to avoid the

insolvency.

N/A

Assessing

Exemptions

To assess whether the applicant meets these exemptions, the following is to be

taking into consideration:

Took reasonable steps to avoid the insolvency

When did the applicant become aware or should have reasonably become l

aware of the possible insolvency?

What steps did the applicant take, or should have taken upon becoming aware? l

Were those steps reasonable in the circumstances? l

PAG

E 1

00

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Risk to the Public

Is there any risk the applicant is unable to complete existing or future work? Did the l

applicant increase risk to public by continue to trade while insolvent?

Consider how the insolvency occurred, ie as a result of management failures, l

external forces, unforeseen circumstances, etc.

Consider what effect the insolvency had, ie where the failure resulted with work l

incomplete, complaints outstanding or insurance claims being lodged, failure to

pay sub-contractors and suppliers, would be considered a high risk to the public.

Where the insolvency arose due to misadventure, ill health or injury and OFT is l

satisfied this as an isolated incident, the risk to the public may be low.

Issue of

conditioned

authority

In considering an application from an insolvent person related to a licence, the

Commissioner may issue a limited or conditioned authority depending on the category

of licence and the circumstances of their insolvency.

If satisfied that the applicant meets the exemptions above, the applicant may be

issued with a condition authority limited to contracts under $12,000.

Where OFT is not satisfied that there is no risk to the public, consideration may be

given to the issuing of a certificate that requires the applicant to work as an employee:

a qualified supervisor certificate; l

Tradesperson Certificate (plumbing classes only). l

Period of time

for a conditioned

Authority

A conditioned authority will continue until such times as the applicant requests a review

of the conditions.

The review is to be undertaken on the current circumstances of the applicant. Their

financial history is to be considered in accordance with these procedures taking

into account the period of time that has elapsed since the insolvency. Requests for

variation are processed in the same manner as Variation in Category/Class/Restriction

Procedures.

Assessing

Financial status

Financial status is to be considered in accordance with the Policy and Procedures on

Fit and Proper.

The attached assessment sheet and flow chart are to be used by assessing officers to

assist in identify all grounds for consideration and options available for the issuing of

an authority.

Flow Chart

Assessing Bankruptcy Less Than 3 Years

Assessing Bankruptcy More Than 3 Years

Assessing Administration Less Than 3 Years

Assessing Administration More Than 3 Years

Bankruptcy & Qualified Supervisor

Administration & Qualified Supervisor

PAG

E 1

01

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

2. Procedures


FTC Not available. Refer any documents with declarations as to insolvency to HBL for

assessment.

HBL Request bankruptcy search from ITSA or company search from ASIC through Intel

Request

Search GLS to determine if the person is connected to any other authority.

Complete Financial Assessment sheet to establish:

whether there are any grounds for exemption; l

whether reasonable steps have been taken; l

whether there is a risk to the public; and l

an appropriate determination for the circumstances of the applicant. l

On determining application continue to process as per relevant Assessment

Procedures.

Assessing Bankruptcy Within 3 Years

Background

Qualifications/Experience

Applicant has applied for the category of (insert trade of specialist category). He has submitted:

Certified copy of Craft/Proficiency Certificate;

Certified Trade Course Certificate;

References verifying the required (number of years) in (insert category);

Applicant has therefore met the qualification requirements for (insert category).

Other Matters

The applicant was also previously held an individual contractor licence (insert licence number) from (insert date)

to (insert date) for the category of (insert category). He had one complaint in (insert date) and was listed as

NFA. He had no insurance claims, breaches or CTTT orders. Due to the fact he was licensed for (number of

years) years and had no further issues no further action needs to be taken in relation to this.

PAG

E 1

02

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Issues

Applicant advised on his application form that was bankrupt within the last 3 years. The details are as follows:

applicant was bankrupt from (insert date) until (insert date); l

a letter was sent to the applicant on (insert date) requesting information concerning the bankruptcy. The l

applicant advised as follows:

1. that the bankruptcy resulted from (insert reason);

2. the creditors were:

(name) (amount owed)


3. applicant took steps to avoid bankruptcy as follows:

(List action taken)

4. Accountant’s report states that:

(provide details).

Recommendation

Applicant has/has not provided sufficient information to demonstrate that there is no evident risk to the public

that the applicant will be unable to complete building contracts and therefore meets/does not meet the

requirements of clause 26(3)(a).

Applicant has demonstrated that he took a number/no of steps to avoid the bankruptcy as detailed above and

therefore meets/does not meet the requirements of clause 26(3)(b).

As the applicant has/has not met all of the above requirements it is recommended that the licence be approved/

approved with condition (clause 26(3A))/refused in accordance clause 25(1)(a)(xiii) and section 25(1)(a) and

25(1A).

Assessing Bankruptcy More Than 3 Years

Background





References verifying the required (number of years) in (insert category).


Other Matters





PAG

E 1

03

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Issues

Applicant advised on his application form that he is currently bankrupt. The details are as follows:

a letter was sent to the applicant on (insert date) requesting information concerning the bankruptcy. He l

advised as follows:

1. that the bankruptcy resulted from (insert reason)




3. applicant took steps to avoid the bankruptcy as follows:

(List action taken)


(provide details).

Recommendation

Applicant is applying for (insert category) and therefore meets/does not meet the requirement of clause 26(2)(a).



requirements of clause 26(2)(b)(ii).


therefore meets/does not meet the requirements of clause 26(2)(b)(ii).

As the applicant has/has not met all of the above requirements it is recommended that the licence be approved

with condition (clause 26(2)(c))/refused in accordance clause 25(1)(a)(xii) and section 25(1)(a) and 25(1A).

Assessing Administration Within 3 Years

Background







Other Matters





PAG

E 1

04

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Issues

Applicant advised on his application form that he was the director of a company under administration within the

last 3 years. The details are as follows:

(insert company name) was licensed from (insert date) until (insert date) for the category of (insert category); l

the company was registered on (insert date) and was placed under administration on (insert date) due to l

(insert reason from ASIC report eg court winding up);

a letter was sent to the applicant on (insert date) requesting information concerning the administration. They l

advised as follows:

1. that the administration resulted from (insert reason);




3. applicant took steps to avoid administration as follows:

(List action taken)

4. the liquidator states in his report that the administration resulted from:

(Detail reasons).


(provide details).

Recommendation



requirements of clause 26(3)(a).

Applicant has demonstrated that he took a number/no of steps to avoid the administration as detailed above

and therefore meets/does not meet the requirements of clause 26(3)(b).

As the applicant has/has not met all of the above requirements it is recommended that the licence be approved/

approved with condition (clause 26(3A))/refused in accordance clause 25(1)(a)(xiii) and section 25(1)(a) and

25(1A).

Assessing Administration More Than 3 Years

Background







PAG

E 1

05

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Other Matters





Issues

Applicant advised on his application form that he is the director of a company under administration. The details

are as follows:





advised as follows:




(name) (amount owed);


(List action taken);


(Detail reasons);


(provide details).

Recommendation

Applicant has demonstrated that he took a number/no of steps to avoid the administration as detailed above

and therefore meets/does not meet the requirements of clause 26(3)(b).

As the applicant has/has not met all of the above requirements it is recommended that the certificate be

approved/ refused in accordance clause 25(1)(a)(xii) or (xiii) and section 25(1)(a) and section 25(1A).

Assessing Bankruptcy & Qualified Supervisor

Background







PAG

E 1

06

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Other Matters





Issues

Applicant advised on his application form that he is/was bankrupt. The details are as follows:

a letter was sent to the applicant on (insert date) requesting information concerning the bankruptcy. The l

applicant advised as follows:

1. that the bankruptcy resulted from (insert reason);




3. applicant took steps to avoid bankruptcy as follows:



(provide details).

Recommendation


therefore meets/does not meet the requirements of clause 26(3)(b).As the applicant has/has not met all of the

above requirements it is recommended that the certificate be approved/ refused in accordance clause 25(1)(a)

(xii) or (xiii) and section 25(1)(a) and section 25(1A).

Assessing Administration and Qualified Supervisor

Background







Other Matters





PAG

E 1

07

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Issues

Applicant advised on his application form that he is the director of a company under administration. The details

are as follows:





advised as follows:








(Detail reasons);


(provide details).

Recommendation


therefore meets/does not meet the requirements of clause 26(3)(b).

As the applicant has/has not met all of the above requirements it is recommended that the certificate be

approved/ refused in accordance clause 25(1)(a)(xii) or (xiii) and section 25(1)(a) and section 25(1A).

PAG

E 1

08

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Fit & Proper

Financial History Flowchart

Application (New, Renewal)

Building Swimming Pool Building

Current Insolvency < 3 years

Decline May consider trade category

Previous Insolvency > 3 years

Consider whether Reasonable Steps taken Consider whether Risk to the Public

Satisfied on Both Grounds

Not Satisfied on Both Grounds

Not Satisfied on Risk only

Not satisfied on Reasonable Steps only

Approve With or Without a Condition

Decline Decline Consider QSC

PAG

E 1

09

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

UNREASONABLE NUMBER OF COMPLAINTS,

FORMAL CAUTIONS, PENALTY NOTICES,

INSURANCE CLAIMS


Legislation The Commissioner must reject an application for:

the l issue of a contractor licence (s.20(1)(a) of the Act);

the l issue of a supervisor or tradesperson certificate (s.25(1)(a) of the Act);

the l renewal or restoration of an authority (s.40(1)(a) of the Act);

if the Commissioner is not satisfied that the applicant is a fit and proper person.

Before an authority is issued (other than an owner-builder permit) or renewed or

restored the Commissioner must be satisfied that each relevant person* in relation to

an application for an authority is not subject to what the Commissioner considers to be

an unreasonable number of:

Complaints cl 25(1)(a)(vii) and cl 39A(1)(f) l

Formal cautions cl 25(1)(a)(viii) and cl 39A(1)(g) l

Penalty notices cl 25(1)(a)(ix) and cl 39A(1)(h) l

Insurance claims cl 25(1)(a)(x) and cl 39A(1)(i) l


company applying for the authority. Refer to Relevant Person for further information.

Application: The level of complaints, claims and compliance action is reviewed in relation to:

applications; l

renewals/restorations; and l

advice/information received. l

Fit and Proper Unreasonable work history may be used to form part of determining whether a person

is fit and proper to hold an authority under the Act.

Requirements for determining Fit and Proper are dealt with in more detail in the ‘Policy

& Guidelines for Fit and Proper’.

PAG

E 1

10

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Assessing

‘Unreasonable’

Number

There is no finite term for unreasonable number of complaints, insurance claims,

penalty notices, etc. Assessing officers will need to examine the background of

each in accordance with Policy & Guidelines for Fit and Proper in order to make a

determination. The occurrence of a formal caution, penalty notice or complaint history

must be considered in association with all other Fit and Proper provisions.

The following information and thresholds are provided as a guide only in alerting

assessment officers as to when it is necessary to conduct further enquiries.

Complaints

<3 complaints may be disregarded for assessment purposes unless there is evidence

of substantial breaches associated with the complaints or the number of complaints

involves the majority of work undertaken by the licence holder.

>3 complaints will require further enquiry. Assessing officers are to consider:

the nature of the complaints; l

the level of detriment to consumers; l

whether multiple complaints relate the work volume of the licence holder to a single l

issue (ie failure of a building product as opposed to systemic work quality issues;

whether multiple complaints arise from the one residential building ie strata units l

(These matters should be considered as 1 complaint).

Insurance

Assessing officers are to consider the number of insurance claims and when the

insurance claim was made.

When:

Prior to 1 July 2002, insurance claims could be lodged without alternative dispute

resolution resulting in many disputes being lodged direct with the insurer.

From 1 July 2002, insurance became ‘last resort’ which required homeowners to

exhaust all avenues before making a claim. Hence these claims would result from the

contractor’s continual refusal or inability to effect rectification work and as a result must

be considered as a serious impact on the suitability of the applicant.

Number:

In considering the number of claims, assessing officers are to view every claim post

1 July 2002 as serious and requiring further enquiry. Enquiries can be made with

Insurance Services Branch. Information lodged by insurers is limited to statistical

data. However, where a claim is lodged through BIGCorp more detailed information is

available from Insurance Services Branch. In reviewing claims, assessing officers are to

consider:

whether licence holder is insolvent (Process as per Bankruptcy/Liquidation) (insert l

link);

the nature of claims; l

the level of detriment to consumers; l

whether multiple complaints relate to a single issue (ie failure of a building product l

as opposed to systemic work quality issues; and

whether multiple complaints arise from the one residential building ie strata units. l

(These complaints should be lodged by the Owners’ Corporation as one complaint.

However, individual unit owners will from time to time lodge individual complaints

which must be registered in CAS.)

PAG

E 1

11

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Formal Cautions

Formal cautions are issued as a warning to the contractor to comply with the law.

Generally, formal cautions are not issued for major offences. A major offence or non-

compliance with a caution generally results in other compliance action. Accordingly, for

the purpose of assessment, a formal caution may be disregarded provided there is no

other occurrence which might affect fit and proper assessment and there is no history

of formal cautions being issued.

Penalty Notices

Penalty notices are issued for breaches of legislation. For assessment purposes the

following guide may be used:

< 2 penalty notices in any 2 year period may be disregarded for assessment purposes

(unless other occurrences are also under consideration).

> 2 penalty notices in any 2 year period will require further assessment of fit and

proper, including enquiry as to the nature of offence and the contractor’s response, if

any.

2. Procedure

Online Applications not available.

To renew/restore on-line the applicant must declare events or occurrences that would

affect the renewal/restoration of an authority. This includes whether the applicant has

incurred complaints, formal cautions, penalty notices and insurance claims. If an alert

is put on GLS that the applicant has these issues (or other events or occurrences), the

renewal will not be effected online and the applicant advised to lodge their renewal

through an FTC or HBL.

HBL/FTC Receipt application and enter in GLS as per GLS procedures.

Do not accept renewal or grant a licence application where any occurrences have

been declared.

Enter Alert in GLS, if not already present.

FTC Forward application to HBL for further assessment.

HBL Arrange for appropriate searches on history of all complaints, insurance claims, formal

cautions, penalty notices.

Consider these events as outlined above in “Assessing Unreasonable Number” and in

accordance with provisions of the Policy & Guidelines on Fit and Proper.

If determination is unreasonable number, prepare written brief for the Co-ordinator

outlining the reasons for recommending refusal.

On approval by Co-ordinator, notify licence holder in writing of decision and right to

review/appeal.

If determination is a reasonable number, prepare brief for the Co-ordinator’s approval

outlining reasons and recommendation. On approval, continue to assess application or

renew/restore as per relevant procedures.

PAG

E 1

12

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

UNSATISFIED TRIBUNAL ORDERS


Legislation Section 40(1)(a) of the Home Building Act 1989 specifies that:

1. the Commissioner must reject an application for:

the l issue of a contractor licence (s.20(1)(a) of the Act);

the l issue of a supervisor or tradesperson certificate (s.25(1)(a) of the Act;.

the l renewal or restoration of an authority (s.40(1)(a) of the Act);

if the Commissioner is not satisfied that the applicant is a fit and proper person.

2. Before an authority is issued (other than an owner-builder permit) the Commissioner

must be satisfied that each relevant person* in relation to an application for an

authority:

is not subject to any order of the Tribunal that has not been satisfied within the l

period required by the Tribunal (cl 25(1)(a)(vi) of the regulation).

This does not prevent the Commissioner from issuing an authority if the l

Commissioner is satisfied that the person has complied with the order of the

Tribunal after the period required by the Tribunal, and has a reasonable excuse for

the failure to comply with the order within that period (cl.25(3) of the regulation).

3. Before an authority is renewed or restored the Commissioner must be satisfied

that each relevant person*:

is not subject to any order of the Tribunal that has not been satisfied with the l

period required by the Tribunal (cl 39A(1)(e) of the regulation.

This does not prevent the Commissioner from issuing an authority if the l

Commissioner is satisfied that the person has complied with the order of the

Tribunal after the period required by the Tribunal, and has a reasonable excuse for

the failure to comply with the order within that period (cl.25(3) of the regulation).

Before an authority is issued (other than an owner-builder permit) or renewed or

restored the Commissioner must be satisfied that each relevant person* in relation to

an application for an authority is not subject to what the Commissioner considers to be

an unreasonable number of:

Complaints cl 25(1)(a)(vii) and cl 39A(1)(f) l

Formal cautions cl 25(1)(a)(viii) and cl 39A(1)(g) l

Penalty notices cl 25(1)(a)(ix) and cl 39A(1)(h) l

Insurance claims cl 25(1)(a)(x) and cl 39A(1)(i) l


company applying for the authority.

PAG

E 1

13

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Application Unreasonable work history applies to:

applications; l

renewals/restorations; and l


CTTT –

What is it

The Consumer, Trader and Tenancy Tribunal deals with disputes and can make legally

binding orders for the payment of money, rectification or work, supply of goods, etc.

The Tribunal is independent of OFT and reports directly to the Minister. It is part of the

home building dispute resolution process. Disputes are negotiated by FTC staff and/or

Building Inspectors. Where resolution cannot be achieved and/or the tradesperson fails

to comply with a rectification order issued by the Inspector, the Tribunal can hear and

determine the dispute and make orders.

How Orders

work

Where the Tribunal makes an order for the payment of money, the order advises the

licence holder they must notify OFT when the order has been complied with. Failure to

comply or notify they have complied will result in an unsatisfied Tribunal order being

placed on the public register.

Fit and Proper The existence of unsatisfied Tribunal orders may be used to form part of determining

whether a person is fit and proper to hold an authority under the Act. Refer to Policy

& Guidelines on Fit and Proper.

Admin Process

for Recording of

Orders

Compliance Division is responsible for entering Tribunal order data on to the GLS.

Generally, a contractor is notified of an unsatisfied order being placed on GLS and

informed that renewal may not be effected if there is no compliance with the order or

no advice received that they have complied.

Assessing

Unsatisfied

Tribunal Orders

Refer to Policy and Guidelines – Fit and Proper.

New applications and renewal/ restoration applications must be refused where there

are outstanding Tribunal orders.

Assessing officers should contact the licence holder to advise that the application

cannot be granted and request compliance with the order within 7 days (or before

expiry of their licence).

Where the order has been complied with, the contractor must notify Compliance

Branch in writing to enable updating of the register. The renewal cannot be granted

until this has been done. Compliance will, in some instances, contact the claimant to

confirm payment of the order.

PAG

E 1

14

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

2. Procedure

Online To renew/restore on-line the applicant must declare compliance with a number of

factors, including that there are no unsatisfied Tribunal orders. If an alert is put on

GLS that the applicant has unsatisfied Tribunal orders (or non-compliance with other

provisions), the renewal will not be effected online and the applicant advised to lodge

their renewal through an FTC or HBL.

HBL/FTC Receipt application and enter details in GLS.

Do not renew or grant the application.

FTC Forward documents to HBL for processing.

HBL Contact the applicant to query the status of the unsatisfied order.

Request order be satisfied and/or written notice provided within 7 days.

Note GLS with action taken. Resub for 7 days.

If order satisfied and public register updated, continue to process application as per

usual procedures.

If no response and/or order remains outstanding, application is refused as per usual

procedures.

Refunds Refer to Refunds.

Payment of Fees For renewal/restoration, an applicant is to be charged the applicable fee as at

lodgement or, where there are unsatisfied orders, as at the date the applicant notifies

OFT of compliance with that order.

Where renewal is not accepted, the renewal fee is to be refunded less the

processing fee.

PAG

E 1

15

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

CRIMINAL HISTORY


Legislation Section 40(1)(a) of the Home Building Act 1989 specifies that the Commissioner must

reject an application for the renewal or restoration of an authority if the Commissioner

is not satisfied that the applicant is a fit and proper person.

Section 40(1A) of the Home Building Act 1989 specifies that without limiting subsection

(1)(a) in determining whether an applicant is fit and proper person to hold a licence the

Commissioner is to consider whether the applicant is of good repute, having regard to

character, honesty and integrity.

Application Criminal history checks apply to:

applications; l

renewals/ restorations; and l


Declaration Applicants for a new licence and those renewing a licence are required to make

a declaration as to whether any events or occurrences have occurred that would

adversely affect their application. This declaration includes a statement to confirm or

advise of any criminal proceedings within the past 10 years.

False

Declaration

At times, the criminal history of an applicant is revealed from other

sources other than the applicant’ declaration on the renewal application. HBL

considers an applicant not declaring a criminal history to be serious and, unless

special circumstances exist, the renewal application may be refused.

The making of a false declaration is also an offence under the Crimes Act.

Assessing

Criminal History

Refer to Policy & Guidelines for Fit and Proper for full details.

In general, criminal history is to be assessed with a view to establishing if those

offences:

impede the applicant’s ability to undertake work; l

affects the applicant’s trustworthiness and ability to meet obligations under a l

residential building contract.

And if so, whether the applicant’s reputation, character and honesty are sufficiently

adverse enough to reject their application.

Offences are broadly categorised in the Policy & Guidelines as high, medium and low

in relation to the potential risk a homeowner may be exposed to. High risk offences

will generally result in refusal of a claim. Medium offences may result in refusal while

low risk are disregarded for assessment purposes. Offences requiring assessment

consideration are summarised as follows.

Dishonesty – Considered high risk as to the character, honesty and trustworthiness of

the applicant.

PAG

E 1

16

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Violence – While these are serious offences, they are considered medium.

Consideration should be given as to the circumstances – particularly if the offence

occurred in relation to a building contract/site.

Sex Offences – Considered high risk, however, consideration must be given as to the

nature of the offence and whether there is potential detriment to a homeowner.

It is important to note that residential building work is not considered “child-related

employment” and therefore these offences do not automatically prohibit a person

from obtaining a licence. Consideration must be given to the nature of offences and

the likelihood as to whether the applicant will be involved in work where children are

present and the amount of supervision of the applicant.

All Other Offences – are considered low risk unless there is a history of offences or

some other circumstances which would indicate the person does not have sufficient

character, honesty and trustworthiness to be issued a licence.

2. Procedure

Online Renewals can be renewed on line for a small number of authorities. If an alert is on

GLS the applicant cannot renew on line and must mail in the renewal or visit a FTC.

FTC Accept application and enter in GLS. l

Receipt if appropriate. l

Do not renew or grant the application. l

Refer documents to HBL for processing. l

HBL Enter an Alert in GLS.

Request criminal history search through Intel Branch with authorisation by a delegated

officer.

Review criminal history in accordance with “Assessing Criminal History” above and

Policy & Guidelines – Criminal History.

Where necessary, and appropriate request further information from the applicant.

Assessing officers are to exercise care and discretion when making enquiries and must

consult with supervisor before initiating contact.

Prepare recommendation and forward to Team Leader for approval.

If refused, notify applicant in writing (LetterX) providing information on right for review

and appeal as per refusal procedures.

If granted, process as per usual Renewal/Restoration or Application Procedures.

Refund Refer to Refund Procedures.

PAG

E 1

17

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

POLICY AND GUIDELINES FOR DETERMINING WHO IS A

“FIT AND PROPER PERSON” TO HOLD AN AUTHORITY

UNDER THE HOME BUILDING ACT 1989

1. SCOPE

This policy relates to the application of sections 25, 40 and 56(b) of the Home Building Act 1989 (the Act)

which specify that an authority cannot be granted, renewed or restored unless the applicant is a “fit and proper

person” and that disciplinary action can be taken against a licensee who is not a fit and proper person. It also

takes into consideration decisions of courts and tribunals which have consistently used the words “fit and proper

person”, as a phrase encapsulating one concept, rather than separating considerations of fitness and treating

these as distinct from considerations of propriety.

2. RATIONALE

The Director-General/Commissioner has to consider each applicant’s fitness and propriety as well as a number

of other criteria for the grant of an authority (i.e. applications for and renewals and restorations of authorities)

and whether, when taking disciplinary action, there are any one or more grounds for doing so, as listed in

sections 56-57 of the Act, fitness and propriety being one such ground.

A policy explaining when and how to apply the fit and proper person criteria in licensing and disciplinary

procedures will ensure a consistent and transparent approach in the consideration of licence applications,

improve efficiencies in the regulatory process and enhance industry and homeowner confidence in the NSW

home building licensing system.

3. PURPOSE

To guide Home Building Service officers in making consistent and transparent decisions about whether or

not a “relevant person” is a fit and proper person to hold an authority based on grounds relating to his or her


4. DEFINITIONS

“relevant person” s.25 (2) Home Building Act 1989:

(a) the applicant,

(b) if the applicant is a partnership:

(i) every partner of the applicant, and

(ii) if a member of the partnership is a corporation – every director of that corporation,

(c) if the applicant is a corporation – every director of the applicant

“fit and proper person” - There is no definition in the Act or the Home Building Regulations 2004. However the

law fraternity have explored the concept and made decisions from the following perspective.

Legal terminology OE – fita – an adversary of equal power; Lat – proprius – belonging to oneself, suitable.

Suitable, appropriate, and legally eligible. The expression ‘fit and proper’ standing alone, carries no precise

meaning. It takes its meaning from its context: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;

94 ALR 11. A legalistic doublets, the words fit and ‘proper’ (in its archaic sense) are treated as synonymous,

although ‘fit’ may also include a moral dimension of honesty. The purpose of the words is to give wide scope for

judgement and allow broad bases for rejection: Capital for Australian Capital Territory Revenue v Alphaone Pty Ltd

(1994) 49 FCR 576; 127 ALR 699. The term can be replaced by ‘fit’ alone.

PAG

E 1

18

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Administrative law The suitability of a person to undertake a particular activity based on a determination of

that person’s previous conduct, character or reputation. The phrase takes its meaning from its context, from

the activities in which the person is or will be engaged and the ends served by those activities: Australian

Broadcasting Tribunal v Bond (1990) 170 CLR 321 at380; 94 ALR 11. In media law, this extends to any aspect

of fitness and propriety that is relevant to the public interest and includes determining the conduct, character

or reputation of a prospective television licence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;

94 ALR 11. A conviction for an offence in an unrelated industry is not to be treated in the same way

as an offence related to the industry. Similarly, personal misconduct, as distinct from professional

misconduct, may well be treated differently in a determination of whether a person is a fit and

proper person to practice in a particular industry or profession: Re New Broadcasting Ltd and Australian

Broadcasting Tribunal (1987) 12 ALD 1; 6 AAR 385.

5. APPLICATION OF S. 20 (1A) OF THE ACT IN DETERMINING WHETHER

AN APPLICANT IS A FIT AND PROPER PERSON.

S. 20 Issue of contractor licences

(1) The Director-General must reject an application for a contractor licence if:

(a) the Director-General is not satisfied that the applicant is a fit and proper person to (1A) Without limiting

subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Director-

General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

The difficulty in applying s.20 is that there is no test or formula to which an officer must conform in making a

judgment about an applicant’s, or an authority holder’s character, honesty and integrity. Case law does however

provide some guidance and it is on the basis of the following court and tribunal decisions that this policy has

been developed.

Other applicable legislation is summarised and available at Attachment A.

5.1 Court and Tribunal Decisions

Outlined below are lessons derived from decisions on what constitutes a Fit and Proper person within the

context of their work practice, professional conduct and criminal history where applicable. A summary of these

court and tribunal decisions can be found at Appendix B.

Fitness and propriety in the context of the work the person is or will be engaged in:

“fitness and propriety” encompasses not only honesty and integrity but also the knowledge and ability l

required to carry out the duties and/or responsibilities of the office or authority holder.

honesty ¡ - to execute the office or responsibility truly without malice, affection or partiality;

knowledge ¡ - to know what the holder of the office or authority ought duly to do; and

ability ¡ - of the holder of the office or authority to execute his tasks and duties diligently and not neglect

his responsibilities.

Hughes & Vale Pty Ltd v The State of New South Wales (1955)

The fit and proper requirement takes its meaning only from activities to be engaged in through the authority. l

New Broadcasting Ltd v Australian Broadcasting Tribunal 1987, Maurice Neville Hinchcliffe v Building Services

Corporation (Commercial Tribunal of NSW 24/07/1997) and Re Brennand Casino Surveillance Authority (1995)

38 ALD 794

Offending conduct must be considered in the light of the activity to be licensed and not at large. That is, a l

different approach would be required for those contracting with the public as against holders of certificates.

This is because those entering into contracts with consumers would need to meet high standards of

trustworthiness and honesty.

Australian Broadcasting Tribunal v Bond 1990

PAG

E 1

19

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Consumers must have confidence in builders in both the standard of work and the honesty of the builder. l

Petracaro v Commissioner Affairs (1994)

Fitness and propriety in the context of HBA compliance and public interest:

While licensees may not fully understand the provisions of legislation, they must be prepared to observe the l

requirements of any legislation governing their profession.

Kioussis v Director General, Department of Fair Trading (2002) NSWADT 2

Even where there is no evidence of dishonesty or bad repute, a record of tardiness or intransigence in l

relation to rectification can mean the licensee is not a fit and proper person.

Obradovic v Commissioner for fair Trading, Office of Fair Trading (2005) NSWADT 140

Another issue to consider is whether offending conduct has or is likely to recur. That is, the indication of l

future conduct based on immediate past behaviour can determine whether the person is fit and proper.

Australian Broadcasting Tribunal v Bond (1990)

Following a period of criminal or improper conduct, subsequent good conduct must be over a sufficient l

period of time to indicate clearly to the community that his/her rehabilitation is complete.

Maio v Superintendent of Licences, New South Wales Police (1987) ASC 55-551 and Massoud v

Commissioner for Fair Trading (2006) NSWADT59

The failure to disclose prior licence refusals or other issues is significant as is the failure to respond truthfully l

and frankly to questions.

Lindfield v Commissioner for Fair Trading (2005) NSW ADT32, Calleia v Commissioner for Fair Trading (2005)

NSW ADT 42

Fitness and propriety in the context of a person’s criminal history:

To be relevant in considering whether the applicant/licensee is a fit and proper person, convictions should l

be for offences involving dishonesty, not general character aspects. Again, this is because general

trustworthiness and honesty would be expected in persons negotiating and discharging contractual

obligations.

Criminal convictions by themselves are not enough to determine a licensee is not a fit and proper person.

Regulators must show the conduct is such that the person is unfit to remain a member of the profession

concerned.

Ziems v Superintendent of Licenses, NSW Police1987

Past improper conduct of the applicant must be considered in light of the activity which is to be licensed and l

not considered at large.

Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 392 and Corkin v Director General,

Department of Fair Trading (2001)NSWADT 190

Where criminal behaviour has led to previous action against the licensee, subsequent good behaviour must l

be over a sufficient time to indicate rehabilitation so as to allow for re-entry into the profession.

Sakellis v Officer in charge of Police, Paddington District Court March 7, 28 1968 and Maio v Superintendent

of Licenses, NSW Police 1987. ASC 55-551 and Re Habis (The Licensing Court of NSW, 9 July 1998,

unreported)

(Note that clause 28A (2) of the Home Building Regulation 2004 permits the Director-General to decide that

an offence can be ignored because of time lapsed since the offence or the triviality of the offence).

Concealment of criminal convictions in an application form, irrespective of any sentence being served has l

been construed as a lack of endeavour to retrieve good character. Conversely, full disclosure of convictions

and their seriousness has reflected well on an applicant’s honesty and integrity when determinations about

their fitness and propriety have been made.

Re Davis (1947) 75 CLR 409, Law Society of NSW v Foreman 1994 34 NSWLR 408, McEvoy v Director-General

of the Department of Fair Trading (2000) NSWLEC 183, Corkin v Director-General, Department of Fair Trading

(2001) NSWADT 190

PAG

E 1

20

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

CONCLUSIONS AND IMPLEMENTATION:

In determining whether a person is fit and proper to hold an authority:

regard character, honesty, integrity, knowledge and ability in light of the work to be performed or being l

performed under the authority;

regard character, honesty and integrity as particularly important when responding to improper conduct of an l

authority holder whose work involves fulfilment of contractual obligations;

regard recidivistic non-compliance with the Home Building Act as reflective of a person’s lack of fitness to l

hold an authority particularly when that conduct involved dishonesty and/or caused high levels of consumer

detriment;

regard a record of tardiness or intransigence in relation to compliance with statutory warranties as reflective l

of a person’s lack of fitness to hold an authority particularly when there have been numerous complaints and

insurance claims against the contractor (see compliance thresholds);

regard a person who has within the previous 3 years been found guilty of improper conduct and continues l

to involve himself in offences involving dishonesty (see compliance thresholds) as demonstrating a lack of

endeavour to retrieve good character and therefore unfit to hold an authority (see cl. 25 (1) (a) (i));

regard failure to disclose prior action against a licence, breaches of the HBA or improper conduct l

irrespective of compliance with any disciplinary action as being a lack of endeavour to retrieve good

character and therefore unfit to hold an authority;.

regard a person who has within the last 10 years been convicted of a dishonesty crime or a crime of a l

serious nature, which would impede his/her ability to carry out the work under the authority obtained or being

sought, as not of good character and therefore unfit to hold an authority;

regard a person who has within the last 10 years been convicted of numerous dishonesty crimes causing l

serious consumer detriment (see criminal history thresholds) as demonstrating a lack of endeavour to

retrieve good character and therefore unfit to hold an authority; and

regard failure to disclose prior criminal convictions as a lack of endeavour to retrieve good character and l

therefore unfit to hold an authority.

Business Rule:

Never refuse to grant, renew, or restore an authority or suspend or cancel an authority on the sole grounds that

the applicant or authority holder is not a “fit and proper person”. When citing this ground, always convey the

substantive ground(s) as well e.g. unreasonable number of insurance claims.

Appendix A

Part 4 - Home Building Act 1989

s. 20 Issue of contractor licences

(1) The Director-General must reject an application for a contractor licence if:

(a) The Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor

licence, or …

(1A) Without limiting subsection (1) (a), in determining whether a person is a fit and proper person to hold

a licence the Director-General is to consider whether the applicant is of good repute, having regard to


PAG

E 1

21

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

(6) Without limiting this section, the Director-General may reject an application for a contractor licence if the

Director-General is of then opinion that it is in the public interest to do so on the following grounds:

(a) an employee or proposed employee of the applicant is disqualified from holding a contractor licence, has

had an application for an authority rejected on a ground relating to his or her character, honesty or integrity

or has had an authority cancelled or suspended on any disciplinary ground,

(b) there are reasonable grounds to believe that the application has been made with the intention of avoiding

disclosure of any relevant past misconduct of the applicant or a close associate of the applicant,

(c) the Director-General considers that a close associate of the applicant who would not be a fit and proper

person to hold a contractor licence exercises a significant influence over the applicant or the operation and

management of the applicant’s business.

s. 32B Issue of building consultancy licences

(1) The Director-General must reject an application for a building consultancy licence if:

(b) The Director-General is not satisfied that the applicant is a fit and proper person to hold a building

consultancy licence, or …

(1A) Without limiting subsection (1) (a), in determining whether a person is a fit and proper person to hold



s. 40 Renewal or restoration of authorities

(1) The Director-General must reject an application for the renewal or restoration of an authority if:

(a) The Director-General is not satisfied that the applicant is a fit and proper person to hold the authority,

or …

(1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold



s. 43 Cancellation because of fraud etc

(1) The Director-General may, by serving on the holder of the authority a written notice setting out the reason for

the cancellation, cancel an authority if:

(a) the authority was issued, renewed or restored because of a misrepresentation (whether fraudulent or not), or

(b) the authority was issued, renewed or restored in error (whether as a result of such a misrepresentation

or not).

(2) The Director-General may, by a further notice served on the holder of an authority cancelled under this

section, retrospectively restore the authority if the Director-General is satisfied:

(a) that the error concerned has been rectified, and

(b) that the holder acted in good faith.

s. 51 Improper conduct: generally

(2) The holder of a contractor licence is guilty of improper conduct if the holder:

(d) employs a person or engages a person under a contract for services knowing the person is disqualified

from holding a contractor licence, has had an application for an authority rejected on a ground relating

to the persons character, honesty or integrity or has had an authority cancelled or suspended on a

PAG

E 1

22

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

disciplinary ground …

(2A) The holder of a contractor licence is guilty of improper conduct if the holder:

(f) employs a person or engages a person to do building consultancy work for the holder knowing the

person is disqualified from holding a contractor licence, has had an application for an authority rejected

on a ground relating to the persons character, honesty or integrity or has had an authority cancelled or

suspended on a disciplinary ground.

s. 54 Improper conduct: members of partnerships or officers of corporations

(1) An individual who is a member of a partnership or an officer of a corporation that is the holder of a contractor

licence or a building consultancy licence is guilty of improper conduct if the holder does any of the things

referred to in section 51 …

s. 56 Grounds for taking disciplinary action against holder of a contractor licence

The Director-General may take disciplinary action under section 62 against the holder of a contractor licence on

any of the following grounds:

(b) That the holder is not a fit and proper person to hold the contractor licence,

(e) in the case of a holder of a contractor licence that is a partnership – that any members of the partnership,

or any of the officers of a corporation that is a member of the partnership, is not a fit and proper person

to be a member of the partnership or an officer of the corporation or has been guilty of improper

conduct, …

Appendix B

Fit and Proper

Legal terminology OE – fita – an adversary of equal power; Lat – proprius – belonging to oneself, suitable.

Suitable, appropriate, and legally eligible. The expression ‘fit and proper’ standing alone, carries no precise

meaning. It takes its meaning from its context: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;

94 ALR 11. A legalistic doublet, the words fit and ‘proper’ (in its archaic sense) are treated as synonymous,

although ‘fit’ may also include a moral dimension of honesty. The purpose of the words is to give wide scope for

judgement and allow broad bases for rejection: Capital for Australian Capital Territory Revenue v Alphaone Pty Ltd

(1994) 49 FCR 576; 127 ALR 699. The term can be replaced by ‘fit’ alone.

Administrative law The suitability of a person to undertake a particular activity based on a determination of

that person’s previous conduct, character or reputation. The phrase takes its meaning from its context, from

the activities in which the person is or will be engaged and the ends served by those activities: Australian

Broadcasting Tribunal v Bond (1990) 170 CLR 321 at380; 94 ALR 11. In media law, this extends to any aspect

of fitness and propriety that is relevant to the public interest and includes determining the conduct, character

or reputation of a prospective television licence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;

94 ALR 11. A conviction for an offence in an unrelated industry is not to be treated in the same way as an

offence related to the industry. Similarly, personal misconduct, as distinct from professional misconduct,

may well be treated differently in a determination of whether a person is a fit and proper person

to practice in a particular industry or profession: Re New Broadcasting Ltd and Australian Broadcasting

Tribunal (1987) 12 ALD 1; 6 AAR 385.

PAG

E 1

23

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Fitness and propriety in the context of the work the person is or will be engaged in.

Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955)

… “The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with

reference to offices and perhaps vocations. But the very purpose is to give the widest scope for judgment and

indeed rejection. “Fit” (or idoneus”) with respect to an office is said to involve three things, honesty, knowledge

and ability: ‘honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought

duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is,

diligently, and not for impotency or poverty neglect it.”

New Broadcasting Ltd v Australian Broadcasting Tribunal 1987

“The requirement that the licensee be a fit and proper person to hold a licence’ looks not to every aspect of

fitness and propriety attaching to a licence but only to such aspects thereof as relate to fitness and propriety to

hold and operate the broadcasting licence.”

Australian Broadcasting Tribunal v Bond (1990)

“The question whether a person is fit and proper is one of value judgement. In that process the seriousness or

otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to

be given to matters favouring the person whose fitness and propriety are under consideration.”

“…where a person must satisfy a legislative requirement of being a “fit and proper person” in relation to a

licence of some kind, the requirement takes its meaning from the activities which the person is or will be

authorised to engage in by virtue of the licence and the ends to be served by those activities

Maurice Neville Hinchcliffe v Building Services Corporation (Commercial Tribunal of NSW 24/07/1997)

The Tribunal held that the intent of the HBA was consumer protection and the accreditation of a person as a

building contractor or a qualified supervisor meant that such a person of “integrity and honesty”. In that case

the refusal to grant he applicant a qualified supervisor’s certificate related to the manner in which the applicant

had previously conducted his business as a licensed builder. That is, the applicant’s improper conduct directly

related to the activity for which he was seeking a licence.

Re Brennand Casino Surveillance Authority (1995) 38 ALD 794

The Administrative Appeals Tribunal affirmed the decision of the administrator to cancel the applicant’s casino

employee’s licence on the grounds that he was not a fit and proper person. In that case the basis of the

decision was the applicant’s failure to reveal in his licence application that summonses had been issued against

him in respect of certain debts and subsequent failure to respond truthfully and frankly to questions by the

relevant licensing authority abut the debts. The improper conduct of the applicant had a direct bearing on the

activity for which the licence was being sought.

Petracaro v Commissioner of Consumer Affairs (1994) SASR 390

“…It cannot be stressed too strongly that the Act is not pre-occupied with general character aspects, except

to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on

the fitness of a person to discharge the responsibilities applicable to a particular type of licence. The statute

is primarily concerned with the protection of the public by ensuring that building work is not carried out by

persons who are not suitably skilled or who are, or are likely to be dishonest with those with whom they enter

into contract. It goes without saying that, in the case of a subcontract bricklayer who usually gives a firm price

to a builder for quite specific work, is to be assessed mainly on his reliability and skill to do the job, whereas in

the case of a category 1 building contractor the public concern must relate not only to technical ability but also

general trustworthiness and honesty in negotiating and discharging contractual obligations.”

PAG

E 1

24

CH

AP

TE

R F

OU

RF

IT A

ND

PR

OP

ER

Fitness and propriety in the context of HBA compliance and public interest

Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955)93 CLR 127

…“in relation to ’fit and proper person’ test that its purpose: … is to give the widest scope for judgement

and indeed for rejection. “Fit” (or idoneus”) with respect to an office is said to involve three things, honesty,

knowledge and ability.

Kioussis v Director General, Department of Fair Trading (2002) NSWADT 2

72 The findings adverse to Ms Kioussis in relation to her ability to competently carry out the activities required

of a qualified supervisor are that: she was aware of the incompetence of Venture but did nothing about it,

she used abusive language and engaged in offensive conduct towards clients of Venture, and she has been

fined three times by the Commercial Tribunal in relation to her knowledge of poor workmanship.

73 The findings of the Tribunal that demonstrate that Ms Kioussis does not have sufficient knowledge of the

legislation to carry out those functions are that she appears to have breached s 12 and/or s 13 of the HB

act when constructing the Croydon, Mortlake, Greystances and Padstow Heights properties. Ms Kioussis

admitted her ignorance of these provisions.

74 In all three areas identified above (honesty, competence and knowledge) Ms Kioussis has less than

satisfactory record. I accept that she was young and naïve when she first became a director of Venture

and that her father was an extremely influential character. But it is not the case that Ms Kioussis merely

acquiesced in the misleading and deceptive conduct of Venture. Hunter J’s decision makes it abundantly

clear that she was privy to Venture’s conduct and that she engaged in dishonest and threatening conduct

herself. She acknowledges that she did not look after consumers or supervise tradesmen as well as she

should have. While Ms Kioussis shows some insight into her behaviour, she does not appreciate its gravity.

She was not able to satisfy me that she would not engage in such conduct again.

Maio v Superintendent of Licences, New South Wales Police (1987) ASC 55-551 and Massoud v Commissioner

for Fair Trading (2006) NSWADT59

The Tribunal recognises that a person who has been convicted of a criminal offence or offences can by his

subsequent conduct rehabilitate himself so as to put the past behind him and thus redeem his good character

and so once again be able to claim that he is now a “fit and proper person”. The subsequent conduct must be

over a sufficient period of time to indicate clearly to the community that his rehabilitation is complete.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 127 at 156 and Obradovic v Commissioner for Fair

Trading, Office of Fair trading (2005) NSWADT 140

…”However, depending on the nature of the activities, the question may be whether improper conduct has

occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general

community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain

contexts, character (because it provides indication of likely future conduct) or reputation (because it provides

indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is

not a fit and proper person to undertake the activities in question.”

Hennessey N – Magistrate (Deputy President) said, “In this case Mr Obradovic’s conduct all relates to his

work as a builder. I have found that in several cases Mr Obradovic did not attend promptly even to the defects

for which he acknowledged responsibility. Clients had difficulty contacting him on occasions and some had

great difficulty in getting him to rectify the work. That situation forced several to make formal complaints to

the Commissioner. Mr Obradovic ignored rectification orders when he did not consider himself liable to fix the

defects and blamed “the system” for this perceived injustice. This led to the payment of six insurance claims

and to court proceedings to recover those monies from Mr Obradovic. Although there was no dishonesty or bad

repute, Mr Obradovic’s extreme tardiness and intransigence means that he is not a fit and proper person to hold

a contractor licence.”

PAG

E 1

25

CH

AP

TE

R F

IVE

INT

ER

NA

L R

EV

IEW

Lindfield v Commissioner for Fair Trading (2005) NSW ADT 32

Molony P – Judicial Member said, “I have found that Mr Lindfield has been guilty of dishonest conduct going

back to 1997 and is not fit to hold a contractor licence. He failed to disclose to the Commissioner serious

pending charges going to his honesty and fitness in 1997. He failed to disclose his convictions for those

offences in 2000. He made false declarations on his applications for a contractor licence.“

Calleia v Commissioner for Fair Trading (2005) NSW ADT 42

Hennessy N - Magistrate (Deputy President) affirmed the Commissioner’s decision to refuse Mr Calleia’s

application for a contractor’s licence. One of the grounds for refusal was that Mr Calleia did not disclose on

the application form that in the last three years he had been a director of a company that was the subject of a

winding up order.

Fitness and propriety in the context of a person’s criminal history

Separate guidelines have been produced on the application of certain criminal convictions to licensing decisions

to supplement these guidelines. These are attached as Appendix C.

Ziems v Superintendent of Licences, NSW Police 1987

…the whole approach of a court to a case of personal misconduct must surely be very different from its

approach to a case of professional misconduct.

…The vital question … is whether the conduct of the person concerned, whether it constitutes an offence

against the law or not, has been such as to show that he is unfit to remain a member of the Bar. The fact that

his conduct may have amounted to an offence against the law is of course a matter for consideration but for the

reasons given it is by no means the end of the enquiry.

Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 392 and Corkin v Director General, Department of

Fair Trading (2001) NSWADT 190

…The statute is primarily concerned with the protection of the public by ensuring that building work is not carried

out by persons who are not suitably skilled or who are, or are likely to be dishonest with those with whom they

enter into contract…

….Past improper conduct of the applicant must be considered in light of the activity which is to be licensed and

not considered at large.

Sakellis v Officer in charge of Police, Paddington District Court March 7, 28 1968

“….I cannot agree with the applicant’s counsel submission that there can be a different standard of honesty in

different occupations. A man is either honest or he is not, and in my view if he is not, he is unfit for any licence of

the present type granted by the public. This is not to say a man convicted once on a crime involving dishonesty

may never again be a fit and proper person to hold a licence, as the cases of McCauley, Lenehan and Davis

make clear.

It seems to me impossible to hold that a man who less than a year ago pleaded guilty to breaking, entering and

stealing his own employer’s goods who is still under a bond in respect of the offence and who is still bound to

submit himself to supervision and guidance of the adult probation officers, can be fit and proper to hold even a

sub-agent’s licence….”

Maio v Superintendent of Licences, New South Wales Police (1987) ASC 55-551

The Tribunal recognises that a person who has been convicted of a criminal offence or offences can by his

subsequent conduct rehabilitate himself so as to put the past behind him and thus redeem his good character

and so once again be able to claim that he is now a “fit and proper person”. The subsequent conduct must be

over a sufficient period of time to indicate clearly to the community that his rehabilitation is complete.

PAG

E 1

26

CH

AP

TE

R F

IVE

INT

ER

NA

L R

EV

IEW

Re Habis (The Licensing Court of NSW, 9 July 1998, unreported)

A Licensing Magistrate refused an application by a person for a certificate of registration as a real estate

salesperson where the applicant had pleaded guilty some nine months previously to stealing money from his

employer. That was the same offence for which the applicant in the present was convicted. The sum stolen in

Habis was a larger amount, namely $8,983. The applicant in that case had pleaded guilty, was sentenced to

100 hours community service and placed upon a bond for two years to be of good behaviour and to accept

the supervision and guidance of the NSW Probation Service. Section 57.8 of the Property Stock and Business

Agent’s Act 1941 provided that a certificate of registration shall not be issued to an applicant who is not of good

fame and character or who is not otherwise a fit and proper person to hold a certificate of registration. The

Licensing Magistrate said:

“The fact that there is less than one year elapsed from the date that the matters were finally disposed of is not a

sufficient period of time to permit Mr Habis to satisfy this Court that he is a person in whom the trust of the Court

can be reposed and a suitable person to be granted or a fit and proper person to be granted the certificate

which he seeks.”

Re Davis (1947) 75 CLR 409, Law Society of NSW v Foreman 1994 34 NSWLR 408, McEvoy v Director-General of

the Department of Fair Trading (2000) NSWLEC 183, Corkin v Director-General, Department of Fair Trading (2001)

NSWADT 190

…intrinsic character is a different matter. A man may be guilty of a grave wrongdoing and may subsequently l

become a man of good character. If the appellant had frankly disclosed to the Board and to the two

solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to

show that he had retrieved his character. But his failure to make such a disclosure in itself, apart from the

conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good

character.

…character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in l

accordance with those standards under pressure. Character is tested not by what one does in good times

but in bad.

…the applicant’s failure to disclose the convictions for the two drug offences and the disqualification l

excludes any possibility of holding that, at the time of making his application for registration; he was a

person of good character. …The obligation of complete candour and disclosure is an important element of

good character.

…Mr Corkin did not in any way conceal the fact of his convictions or the seriousness of them. He disclosed l

in his application to the Director-General the fact that he had been convicted… and stated that he had just

been released from gaol after serving 4 years. Had Mr Corkin concealed his convictions in his application

this would have reflected on his honesty and integrity if there was no satisfactory explanation for such

concealment.

PAG

E 1

27

CH

AP

TE

R F

IVE

INT

ER

NA

L R

EV

IEW

Internal Review

INTERNAL REVIEW

À 28 Calendar Days


1.1 Administrative Decisions Tribunal

The Administrative Decisions Tribunal Act (ADT) provides that certain decisions made under the Home Building

Act 1989 are subject to review by the Tribunal.

A delegate of the Director-General of the Department will have made a decision on an application. An applicant,

who believes that they have been treated unjustly by a decision to refuse or vary their application, may within 28

days of receipt of the notice of decision, write to the Office requesting an internal review of that decision.

(Section 53 of the Administrative Decisions Tribunal Act 1997).

A written statement of reasons (SOR) must then be prepared and forwarded to the applicant within 28 days.

The internal reviewer may refuse to provide a SOR if they are of the opinion that the applicant is not entitled to

be given a statement, or the request was not made within a reasonable time after the decision was made. A

notice of refusal must also be prepared and forwarded to the applicant within 28 days.

A person may usually only apply to the Tribunal for a review of a decision if an internal review has been, or taken

to be completed. In certain circumstances, however, an application may be allowed even though no internal

review has taken place.

1.2 Internal Review

An internal review is an independent examination of the licence applicant’s application and other supporting

documents that have been submitted to determine whether the correct decision was made in rejecting the

application and / or whether subsequent documents produced would support the grant of an authority.

The Administrative Decisions Tribunal Act 1997 (Section 53), together with the Home Building Act, 1989 (Section

83 (b)) states an applicant is entitled to an internal review.

Section 20 (5) of the Home Building Act 1989, provides that a decision of the Director-General relating to

determining standards or other requirements under subsection (2) cannot be reviewed by the Administrative

Decisions Tribunal in an application for review made under this or any other Act. What this means is while

standards are non reviewable, an applicant may still appeal on the grounds that they meet those standards.

Section 53(1) ADT Act provides that an applicant affected by a decision can apply to the Office for an internal

review of that decision. The application must be in writing, addressed to the Director-General of the Department,

and specify an address in Australia to which a notice of the result may be sent.

Section 53(2)(d) ADT Act provides that an application for internal review must be lodged within 28 days after

receipt of the decision letter or such later date as the administrator may allow. The acceptance of a review

request after the 28 day period has expired is at the discretion of the original decision maker. The request is to

be dealt with on its merits considering the reasons advanced for the delay in lodgement.

PAG

E 1

28

CH

AP

TE

R F

IVE

INT

ER

NA

L R

EV

IEW

Section 53 (3) of the ADT Act provides that the person who deals with the internal review must, “as far as

practicable” be someone who:

was not substantively involved in the process of making the decision under review; l

is an employee of the decision maker or the same agency; and l

is suitably qualified to deal with the issues raised in the application. l

Internal Review Process

The reviewer must:

1. Consider all relevant material. This includes the original file, and any relevant information or material supplied

by the applicant, including new material not considered by (or available to) the original decision maker.

(Section 53(4) of the ADT Act).

2. Prepare a submission to the final decision maker, which provides-

a recommendation for a decision – this can propose to affirm the original decision, vary that decision, or l

set aside and substitute another decision;

a statement of reasons for the decision; and l

a draft letter to the applicant for signature of the Co-ordinator. The file and any relevant papers must l

accompany the SOR and recommendations to enable the Co-ordinator to form their own decision.

In assessing the appeal, the review officer needs to take into consideration relevant policy documents in force at

time of the original decision and not rely solely on current documents. In addition the internal review needs to be

mindful of past Tribunal decisions and standards that have been set. The review officer need also to be mindful

that the applicant may not be fully aware of the standards and requirements they are to meet to be successful in

obtaining an authority for which they have applied for.

For a successful outcome of the review process it is necessary for the review officer to fully inform the applicant

of these standards and assist the applicant to provide the necessary documentation to meet Departmental

assessment criteria.

It is only where it is clear that the applicant does not meet the relevant standards, that an appeal should be

dismissed outright and the reasons why need to be clearly documented in a Statement of Reasons which

accompanies the refusal notification to the applicant.

Section 53(7) provides that the statement of reasons need to cover the following:

1. the findings on material questions of fact, referring to the evidence or other material on which those findings

were based;

2. the final decision maker’s understanding of the applicable law; and

3. the reasoning process that led the final decision maker to the conclusions they made.

PAG

E 1

29

CH

AP

TE

R F

IVE

INT

ER

NA

L R

EV

IEW

The following list some more of the common criteria on which an application may have been rejected. While

in no means is the following an exhaustive list, some examples or scenarios are given to assist the reviewer in

examining information provided according to relevant standards and ADT protocol:

Qualification – l

What are the relevant qualification criteria in force at the time of the application? ¡

Can the applicant’s qualifications be considered the equivalent of or can they be further assessed for ¡

equivalence by an appropriate body such as VETAB, MECAT,RPL etc?

Experience l -

Does the employment history generally align with reference details provided? ¡

Is this consistent with dates on qualification certificates supplied? ¡

Has the applicant supplied corroborating information that can be considered in lieu of a formal ¡

reference?

Financial position - l

Does the legislation allow the issue of a tradesperson’s certificate or a qualified supervisor’s certificate in ¡

lieu of a builder’s licence? (Refer to separate bankruptcy guidelines for assessment.)

Has the applicant taken reasonable steps to avoid the liquidation? ¡

What are reasonable steps? This needs to be assessed on a case by case basis. The ADT have ¡

previously determined that reasonable steps should be based on the applicant’s personal experiences

as compared to a fully qualified liquidation expert.

Criminal conviction - l

Does the criminal record of the applicant demonstrate that they would be a risk to the public? (Refer to ¡

separate guidelines for Criminal History assessment.)

Non-compliance with Tribunal orders - l

Generally, the reviewer has no discretion here as the Regulations state that the Commissioner must ¡

reject the application.

Unreasonable number of insurance claims - l

What is an unreasonable number? ¡

An examination needs to be made of the circumstances leading to the claim; the amount of the claim ¡

and whether the applicant attempted to meet their obligations.

Insurance claims on a strata complex may be recorded individually, however, they are generally viewed ¡

as only 1 claim by the ADT.

Unreasonable number of complaints - l

What is an unreasonable number? ¡

Generally, complaints on their own would not withstand scrutiny at the ADT and the reviewer would have ¡

to argue convincingly why a complaint is both unreasonable and significant enough to preclude the grant

of an authority.

PAG

E 1

30

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

Disqualifications - l

Generally, the reviewer has no discretion here as the Regulations state that the Commissioner must ¡

reject the application.

Qualified Supervisor Certificate - l

Could a QSC be issued in lieu of a full builder’s licence? ¡

Company information - l

Would a company application proceed if a nominated director and / or shareholder was removed from ¡

the ASIC records?

Fit & Proper - l

The question of fitness and proprietary need to be considered in the overall context of the applicant’s ¡

work record.

Refer to separate guidelines for Fit & Proper assessment. ¡

2. Procedures

Applicant Applicants who disagree with the decision of the Commissioner (relating to the grant or

renewal of a licence) may apply for an internal review of that decision.

The application must be in writing, addressed to the Director-General of the

Department, submitted with 28 days of receipt of the original decision and specify an

address in Australia to which a notice of the result may be sent.

FTC FTCs may accept any requests for review and refer direct to Review & Audit Branch

of HBL.

HBL The request for internal review is attached to the relevant licensing file and forwarded

to the Co-ordinator Assessment / Maintenance for preliminary determination if licence

can be granted / renewed. Should the matter involve more complicated considerations

or appear not to meet the relevant standard, the relevant Co-ordinator promptly

forwards the file to internal review.

On receipt of file in internal review, the request is registered and an acknowledgement

letter forwarded to the applicant.

GLS noted as per GLS Manual.

Co-ordinator Review manages the internal review process and determines the eligibility

of the applicant to an internal review.

Contact to be made with the applicant to clarify issues and/ or explain issues which

prevented authority from being issued.

PAG

E 1

31

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

Review Officer undertakes internal review and prepares recommendation sheet for the

approval of the Co-ordinator.

Applicant formally advised of the outcome of internal review. The Co-ordinator is

required to sign off on all Statements of Reasons forwarded to applicants.

Where decision has been overturned, complete GLS entry as per GLS Manual and

issue licence.

Where decision has been varied, complete GLS entry as per GLS Manual and issue

licence.

Where decision has been upheld, complete GLS entry as per GLS Manual and

resubmit file for possible ADT appeal and / eventual refund action.

Where applicant appeals to the ADT, Legal Branch request the relevant licensing

file. The Co-ordinator liaises with Legal regarding appeals and provides necessary

follow-up information requested by Legal. Upon request, the Co-ordinator also attends

Tribunal hearings as an expert witness or to provide on hand assistance to the Legal

Officer.

Complete GLS entry as per GLS Manual.

For overturned decisions, the Co-ordinator liaises with Legal to obtain information

concerning the ADT’s decision and the reasoning behind it. The Co-ordinator

then feeds this information back to the appropriate Co-ordinators in Assessment,

Maintenance and Information Co-ordination for relevant action.

For upheld decisions, upon expiry of appeal periods, prepare refunds as per GLS

Manual and send file to records.

PAG

E 1

33

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

ADMINISTRATION

RECEIPTING AND BANKING


Legislation Treasury Directions state that all collections from all sources amounting to $100.00 or

over shall be banked on the day of receipt (TD88/8).

OFT & Commerce Finance and Audit Branch policies and procedures.

Acceptable

Methods of

Payment

Cash Counter

Money Orders Counter, mail

Cheques Counter, mail

Credit Card Counter, fax, online

EFTPOS Counter

Fast Receipts GLS provides the facility for Fast Receipts. However, any payments entered via this

facility are not matched to the document being processed. Therefore the use of Fast

Receipts is limited to the following situations only:

when payment cannot be matched on the GLS; l

for company/partnership contractor licences when the category is different to l

the categories held by the nominated supervisor or the nominated supervisor’s

authority has expired;

when an alert is placed on the authority in GLS and GLS will not allow the renewal l

application to be processed

2. Procedure

Online Renewals lodged online are automatically receipted.

FTC/HBL Receipt as outlined in GLS Procedures Manual.

Banking HBL & FTC – Prepare as per GLS and Banking procedures.

PAG

E 1

34

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

REFUND OF APPLICATION FEES


Legislation Section 51 of the Licensing and Registration (Uniform Procedures) Act 2002 states

that all fees paid in connection with an application that is refused (other than any

processing fee) are to be refunded to the applicant.

Refer also to Section 42 of the Home Building Act 1989.

Refer also to Clause 43 of the Home Building Regulation 2000.

Schedule of

Fees

Refer to website. All fees are GST free

Processing

Fee

All Licensing fees contain a processing fee component.

Retention of

Processing Fee

The processing fee component is deducted from the fee paid when refunding.

Full refund (including the processing fee) requires approval of a Grade 7/8 officer or

above and will be considered where:

misinformation has been given to the applicant; l

the applicant mistakenly pays a fee twice on an application; l

an authority is issued or entered in error. l

Cancelled

Authorities

In general, cancelled authorities are not entitled to a refund. Where the authority has been

granted for 3 years, any unused portion of the authority following the year in which the

cancellation occurred may be refunded. Eg An authority is cancelled in its second year of

renewal and hence the third year only is refunded.

Issue of

Refunds

Refund requests are generated in GLS as per GLS procedures. Processing of the payment is

undertaken by Finance Branch.

Ethical Practice An officer cannot process or approve a refund on any application receipted by them.

2. Procedure


FTC Complete Refund Request Form and fax or mail to HBL.

HBL Complete Refund Request Form.

Check request for appropriate reason and amount.

Authorise refund by delegated officer.

Process refund in GLS as per GLS procedures.

PAG

E 1

35

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

REFUND REQUEST FORM

Reference Number: Refundee Name: Refundee Address Post Code: Type of Refund: Whole Application Fee Application Fee minus Processing Component Part or Whole Renewal/Restoration Fee Reason for Refund : Amount Paid: $ Receipt No.(s): Date Paid: REFUND AMOUNT : $

REFUND NUMBER : __________________________

Refund prepared by : Date : Refund batch sheet checked and approved by: Date:

PAG

E 1

36

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

DISHONOURED CHEQUES


Legislation Treasurer’s Directions 140 (Dishonoured Cheques)

Section 43(1) of the Home Building Act 1989.

Dishonoured/

Declined

Is when the bank, used by the State Government to deposit application fees collected

under the Home Building Act 1989, will not honour the payment because of insufficient

funds in the applicant’s bank account.

Notification The Bank notifies Finance Branch of the dishonour which is forwarded to HBL.

Dishonour

Fee

The dishonour fee charged by the bank to OFT is passed on to the applicant. The

applicant is advised that the outstanding application fee and the dishonour fee are

both required to prevent the authority from being cancelled.

Contacting

The Applicant

A letter is sent to the applicant advising them of the dishonoured cheque and providing

them with 14 days to rectify. There is generally no extension of time on this period

unless the applicant has requested an extension due to extenuating circumstances

and this extension is approved by a Team Leader.

2. Procedure

Online Not Applicable

FTC Not Applicable

HBL The term ‘Dishonour Cheque (D/CH)’ is entered on GLS for the applicant.

A report is produced weekly for dishonour cheques.

The term ‘Dishonour Cheque (D/CH) is entered on the GLS application.

GLS is checked to determine if payment has been made in the interim.

If not, notify applicant by letter. The letter is to include:

notice of outstanding application fee; l

notice of dishonour fee to be included with payment; l

options for payment including mail and FTC; l

GLS reference number to be used when making payment to allow for matching of l

receipt;

Time limit of 14 days for payment; and l

notice that application will be cancelled if payment is not received within this time. l

On receipt of payment, receipt in GLS and place documents on appropriate file.

If payment is not received, process as per Cancellation of an Authority Procedures.

PAG

E 1

37

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

DECLINED CREDIT CARDS


Overview HBL and FTC staffs have credit card readers that allow the credit card payment to be

processed immediately. If there is insufficient funds in the applicant’s bank account the

credit card will be declined and the fee for the application cannot be receipted. The

application is declined to be accepted.

Exception On very rare occasions a credit card is accepted when payment is made and

receipted, only for the bank to decline the payment at a later time.

Notification for

Exceptions

The issuing bank will notify OFT in the same method as when a cheque is

dishonoured.

Processing a

Declined Credit

Card

Processing the

Application

The application is held and entered in GLS until payment is received.

If no payment is received within 14 days, the application is declined and the applicant

notified as per procedures.

2. Procedure


FTC If card is declined and there is no alternative payment:

return application to customer if not already entered in GLS. No further action l

required;

if entered in GLS, retain application at FTC for up to 14 days awaiting payment. l

If no payment is made, make a note in GLS and forward to HBL for decline.

PAG

E 1

38

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

HBL Contact the applicant by telephone to advise of credit card decline. The applicant is

requested to rectify within 24 hours. Options for rectifying include:

forwarding cheque to HBL; or l

visiting FTC for cash, EFTPOS, credit payment. l

Applicant must be provided with reference number to enable matching of payment

when made.

Note action in GLS

Check GLS around 48 hours later to confirm payment. If no payment, notify applicant

in writing that application will be refused if payment not received within 14 days

(unless the applicant has requested an extension on the grounds of extenuating

circumstances. Such extensions are to be approved by the Team Leader.)

If the payment is received the documents are processed in accordance with relevant

procedure ie assessment, renewal.

If the payment is not received process as per Cancellation of an Authority Procedures.

PAG

E 1

39

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

_______________________________________________Home Building Licensing Procedures Manual

DELEGATIONS

PAG

E 1

40

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

INTERPRETATION:

The summaries of the provisions set out in Schedules One, Two and Three are for information only and do not

limit the scope of the relevant function to be exercised by the delegate or prescribed officer.

Where more than one person is delegated, or authorised to perform a function or to be a prescribed officer to

exercise a function, the delegation or authority is to each person concurrently.

The following abbreviations are used in this instrument:

A General Manager, Home Building Service (SES 4)

B Director, Mediation Services & Compliance (SO 2)

C Director, Licensing (SO 2)

D Director, Insurance Services (SO 2)

E Manager, Home Warranty Insurance Branch (Grade 12)

F Manager, HWI Scheme Board Secretariat (Grade 11/12)

G Manager, Building Investigations Branch (Grade 12)

H Manager, Dispute Resolution and Inspection Branch (Grade 12)

I Manager, Compliance Administration Unit (Grade 11/12)

J Manager, Licensing (Grade 11/12)

K Co-ordinator, Licensing Branch (Clerk Grade 9/10)

L Team Leader, Licensing Branch (Clerk Grade 7/8)

M Senior Licensing Officer (Clerk Grade 5/6)

N Licensing Officer (Clerk Grade 3/4)

PAG

E 1

41

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

SCHEDULE ONE

Home Building Act 1989

Column One Column Two Description

A, B, C, J, K, L, M, N s.20 Approve or reject the issue of a licence including an endorsed

licence

A, B, C, J, K, L, M, N s.21(2)(b) Make an order varying the authority conferred by a contractor

licence

A, B, C, J, K, L s.22(1) & (2) Cancel a contractor licence

A, B, C, J, K, L, M, N s.22(3) Notify licensee of cancellation of contractor licence.

A, B, C, J, K, L, M, N s.22B(2) Notify licensee of requirement to provide documentation or

information

A, B, C, J, K, L s.22B(4) Suspend contractor licence

A, B, C, J, K, L s.22B(6) Revoke suspension of contractor licence

A, B, C, J, K, L, M s.22B(8) Return contractor licence

A, B, C, J, K, L, M, N s.25 Approve or reject the issue of a certificate

A, B, C, J, K, L, M, N s.26 Endorse a contractor licence with supervisor qualification

instead of issuing a supervisor certificate

A, B, C, J, K, L, M, N s.27(3)(b) Make an order varying the authority conferred by a supervisor or

tradesperson certificate

A, B, C, J, K, L, M, N s.31 Reject owner builder permits

A, B, C, J, K, L, M, N s.32B Reject building consultancy licence

A, B, C, J, K, L, M, N s.32C(2)(b) Make an order varying the authority conferred by a building

consultancy licence

A, B, C, J, K, L s.32D Cancel a building consultancy licence

A, B, C, J, K, L, M, N s.34(1) Allow longer than 7 days for an applicant to give written

particulars of any changes in particulars or information

accompanying an application for an authority, or for the

variation, renewal or restoration of an authority.

A, B, C, J, K, L, M, N s.35(1) Require an applicant for a contractor licence, an applicant for

the renewal or restoration of such a licence or a close associate

of the applicant to authorise a person to provide information

or records, or, furnish authorities and consents to obtain

information from other persons.

A, B, C, J, K s.36(1) Make an order imposing conditions on an authority when it is

issued

A, B, C, J, K s.38(3) Cancel the provisional nature of an authority at any time

A, B, C, J, K s.38(4) Cancel a provisional authority at any time

A, B, C, G, J, K s.43(1) Serve a notice of cancellation of the authority because of fraud

A, B, C, J, K s.43(2) Serve a notice of retrospective restoration of the cancelled

authority

A, B, C s.47A Appoint a person to co-ordinate or supervise any work that has

not been completed under any contract entered into by the

holder of an authority if that authority is suspended, cancelled or

surrendered

PAG

E 1

42

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION


A, B, C s.51(3) Be satisfied that the licence holder did all that could reasonably

be required to ensure that a nominated supervisor for the

work would exercise such degree of control over the doing of

the work as would be necessary to prevent the occurrence of

improper conduct

A, B, C s.53(3) Be satisfied that the licence holder used all due diligence to

prevent the occurrence of improper conduct.

A, B, C s.54(3) Be satisfied that improper conduct occurred without an

individual’s knowledge, or that the individual was not in a

position to influence the conduct of others so as to prevent

the occurrence of the improper conduct, or that the individual,

being in such a position, used all due diligence to prevent the

occurrence of the improper conduct.

A, B, C s.56 Take disciplinary action against contractor licence holder

A, B, C s.56A Take disciplinary action against a building consultancy licence

holder

A, B, C s.57 Take disciplinary action against the holder of a supervisor or

registration certificate

A, B, C s.58(2) Approve complaint form

A, B, C s.59 Deal with complaints about the holder of an authority

A, B, C s.60(1) Investigate any residential building work, building consultancy

work or specialist work or any kit home, or the holder of an

authority for the purpose of deciding whether or not to serve a

notice under section 61

A, B, C s.60(2) Request, for the purpose of carrying out an investigation under

s.60(1), information from the Consumer, Trader and Tenancy

Tribunal regarding any building dispute or building claim that

has been, or is being, heard by the Tribunal

A, B, C s.61 Issue a show cause notice

A, B, C s.61A Suspend an authority pending a decision on whether disciplinary

action will be taken

A, B, C s.62 Take specified disciplinary action against the holder of an

authority

A, B, C s.64 Notify the holder of an authority of the decision on disciplinary

action

A, B, C s.65(1) Allow a later time when a decision under s.62 becomes effective

A, B, C s.65(2) Decide when a suspension or cancellation under s.62 becomes

effective

A, B, C s.65(5) Refuse to issue or renew an authority in the period between the

making of a decision under s.62 and the serving of notice on the

person affected by the decision

A, B, C s.66(1) Specify a period for the return of an authority

A, B, C s.66(2) Issue a replacement authority when a variation occurs

A, B, C s.67(2) Extend time for the payment of a monetary penalty

A, B, C s.97(2) Grant an exemption from insurance requirements

A, B, C, D, E, F s.103AC(1) Request information from insurers

A, B, C, G, I s.124(1) Make an order for substituted service

PAG

E 1

43

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION


A, B, C, G s.127(2) Serve a written notice requiring a person to provide information

in writing, produce any document or appear and give

information

SCHEDULE TWO

Home Building Regulation 2004


A, B, C, J, K, L, M, N cl.25 Be satisfied with the general requirements for issuing an

authority (other than owner builder)

A, B, C, J, K, L, M, N cl.26 Be satisfied with the additional requirements for issuing a

contractor licence

A, B, C, J, K, L, M, N cl.27 Be satisfied with the additional requirements for issuing a

building consultancy licence

A, B, C, J, K, L, M, N cl.28 Be satisfied that the applicant has the additional requirements

for issuing a certificate

A, B, C, J, K, L cl.28A(2) Determine that an offence committed by a person, of the kind

referred to in cl.28A(1)(a) and (b), should be ignored because

of the time that has passed since the offence was committed or

because of the triviality of the acts or omissions giving rise to the

offence.

A, B, C, J, K, L cl.37 Request further details of the changes referred to in cls.31 to 36

inclusive

A, B, C cl.43 Determine fees payable by candidates for examinations and

applicants for the re-marking of the results of such examinations

A, B, C, J, K, L, M cl.45(3) Require owner-builder permit applicant (who has a leasehold

interests in the land concerned) to get the written permission of

the owner to carry out the work for which the permit is required

PAG

E 1

44

CH

AP

TE

R S

IXA

DM

INIS

TR

AT

ION

SCHEDULE THREE


A, B, C, J, K, L s.131(a) – (e) Sign an evidentiary certificate in respect of any of the matters in

s.131(a) – (e)

A, B, C, E, G, H, J,K,

L

s.131(f) Sign an evidentiary certificate only in respect of the matter in

s.131(f)

A, B, C s.131(h) Sign an evidentiary certificate only in respect of the matter in

s.131(h)

SCHEDULE FOUR

General Manager, Home Building Service

Director, Mediation Services & Compliance

Manager, Building Investigations Branch

Manager, Dispute Resolution and Inspection Branch

licensing procedure manual may 08 mid size · 2014. 11. 18. · finaltranscript confirming...

Documents