Motions — Plumbers, Gasfitters and Drainlayers Board Notices 2010—Disallowances

I move, That the House disallow clauses 3(1), 3(2), 8(1) and 8(2) in the Schedule to the Plumbers, Gasfitters and Drainlayers Board (Plumbing Registration and Licensing) Notice 2010; clauses 3(1), 3(2), 3(3), 3(4), 8(1), 8(2), 8(3) and 8(4) in the Schedule to the Plumbers, Gasfitters and Drainlayers Board (Gasfitting Registration and Licensing) Notice 2010; clauses 3(1), 3(2), 8(1) and 8(2) in the Schedule to the Plumbers, Gasfitters and Drainlayers Board (Drainlaying Registration and Licensing) Notice 2010; and clauses (6) and (7) in the Schedule to the Plumbers, Gasfitters and Drainlayers (Fees) Notice 2010, but that disallowance of clauses (6) and (7) in the Schedule to the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010 not take effect until 31 March 2012. In March last year the Plumbers, Gasfitters and Drainlayers Board issued the four notices named in the motion that I have just moved. In May and June last year complaints were made by members of the industry to the Regulations Review Committee about new training requirements put in place by the notices for plumbers and drainlayers. Similar requirements already apply to gasfitters. The requirements will have to be fulfilled before an annual practising licence will be able to be granted. A further separate complaint was made by a member of the industry last July about the way in which the board set its disciplinary levy—the way in which the board finances the hearing of complaints against members of the industry.

The Standing Order ground for the complaints about the continuing professional development requirements, and the complaint about the disciplinary levy, was that the board had made some unusual or unexpected use of powers conferred by the Act. An additional Standing Order ground was relied upon in the complaint concerning continuing professional development requirements, and that was that the consultation requirements set out in the Act were not followed.

The Regulations Review Committee agreed to hear the complaints, and did so in November last year. We heard from the complainants and from representatives of the board. In respect of the two complaints, we upheld them. We were not satisfied that the continuing professional development requirements had been dealt with under the relevant statutory provisions by the board in a proper fashion. Nor were we satisfied with the consultation undertaken by the board. We did not feel that it was sufficiently thorough or meaningful so as to ensure that the requirements were truly relevant to the industry.

In respect of the disciplinary levy, we were not satisfied that the board had a correct understanding of its statutory powers. According to the evidence we heard, costs for the collection of bad debts, a practitioner roadshow, a fees review, and a debt-collection project were all included in the calculation of the levy. The board also appeared to think—incorrectly—that it could use the levy to enforce action against non-registered persons.

For those reasons we unanimously decided to uphold the complaints, and in February this year we reported to the House and drew its attention to the four notices. In addition, we made a number of recommendations to the Government. A response to those recommendations is due next week, on 16 May, but it has been tabled today. In it the Government accepts the committee’s recommendations, and I thank the Minister for his thorough consideration of those recommendations and his acceptance of them.

In accordance with the committee’s usual practice, following our decision to uphold the complaints a member of the committee placed a disallowance motion on the Order Paper. On this occasion the disallowance motion appeared in the name of the deputy chairperson, Tim Macindoe, because of my absence on bereavement leave. Ordinarily, that would have completed the role of the committee.

The Standing Orders provide that disallowance motions moved by members of the Regulations Review Committee must be brought on for debate by the Government within 21 sitting days, or the regulations that are the subject of the motion lapse. That is the way in which the committee is given teeth by the Standing Orders. But on this occasion the committee made an error. We were well motivated in doing what we did, but it was an error, none the less.

After we reported to the House in February, and after the deputy chairperson moved a disallowance motion, the committee’s involvement should have stopped. If the Government had concerns about the disallowance motion it should have brought it on for debate and then moved amendments to it—as I apprehend that Mr Williamson may shortly do. Instead, the Government asked to meet the committee to express its concerns about the disallowance motion. We were told that it would put the financial viability of the board in jeopardy if it proceeded in its current form.

For that reason, we agreed to meet the officials to hear the detail of the Government’s concerns. We took the Government to be principally concerned with the disciplinary levy rather than the continuing professional development requirements, and, because we were concerned not to send the board insolvent, we took the unusual step of agreeing that it was desirable to defer the coming into effect of the disallowance motion.

So the deputy chair withdrew his motion, and I put one on the Order Paper—the one we are now debating. It is identical to the original motion except that it provides that disallowance in respect of the disciplinary levy should not take effect until next year. Regrettably, that did not satisfy the Government. We received further correspondence, and we heard from the Minister that his officials should also have asked for a deferral of the disallowance of the notices concerning continuing professional development.

When the Minister spoke to us on the subject—because, of course, we made ourselves available to him when he asked—he made further criticisms of the committee’s process. However, we did not feel able to defer to the Minister’s request for yet another disallowance motion, and instead we suggested that bringing the matter on for debate was the appropriate thing to do. I commend the Minister and the Government for agreeing to this course of action, and I confirm on behalf of the Opposition that if a reasonable amendment to the disallowance motion is moved by the Minister, it will be supported by members on this side of the House.

I thought it was important to rehearse the history of this matter, and I have now done so. I wish to make a few points in conclusion, because there is not time to do so fully. However, I want to say this about what my colleagues on the committee and I have learnt from this exercise, specifically in respect of this complaint, and generally in terms of our future procedure. First, the complaints had merit. The complainants were justified and right to bring them, and we were right, I think, as a committee, on the evidence, to have upheld them.

Having said that, I tell the House that the new board, including chairperson Hazel Armstrong, is doing an excellent job of trying to bring in new procedures and new requirements that we hope will see the industry being governed in the future on a much better and more sound footing.

On the subject matter of the complaints, I say that continuing professional development is a good thing in the industry, and it should be supported as long as it is properly consulted on in the future, and put in place in reliance on the correct statutory provisions. That did not happen in the past, but we hope that the board has learnt a lesson and will enable that to happen in the future. Similar comments apply in respect of the board’s disciplinary procedures. They were not made in correct reliance on the statutory procedures. We hope we have been very clear as to how, in future, the board can put in place a disciplinary levy that is properly assessed and properly calculated.

Those are the specific matters that I wanted to draw the House’s attention to in respect of the particular complaints we heard. I will conclude with a couple of general observations about the procedure of the Regulations Review Committee, as far as I intend to supervise it in the time that I have left as its chair. When we hear complaints that may have an effect beyond the narrow interests of the parties concerned, in future we are intending to advertise that fact rather than simply advise the parties themselves that we intend to hear the complaint and hear a response to it from the subject of that complaint. Obviously, that will allow other potentially affected persons or parties to take the opportunity to be heard by the committee, so that we can know the full effects in future of any disallowance motion we might be minded to move.

The final lesson I think we have learnt as far as procedure is concerned is that we will not enter into correspondence once we have decided on a disallowance motion, even for the best of reasons; even if it is to attempt to accommodate a legitimate concern on the part of the executive. Our decisions and any resulting motions will stand.

Motions, when they are made for disallowance, will simply have to be brought on for debate. At that point they can be the subject of amendment motions from any member of the House, including a Minister, so that if the Government has a concern about the way in which we have dealt with a matter, it can put an amendment forward, and the House can deal with the issue in a fully transparent way, as was intended originally by the Standing Orders.

I think that if we proceed otherwise, even when we are motivated by a desire to extend and maintain courtesy to the executive, we endanger the intended transparency with which the committee should function. I commend the disallowance motion to the House, and I thank the House for the time that has been allocated for this matter to be dealt with properly.

In response to the chair of the Regulations Review Committee I will make a few points about members’ motion No. 1. First of all, I start from the fact that the whole issue of the Plumbers, Gasfitters and Drainlayers Board has been quite shambolic for a long period of time. Members on the other side of the House will know that Dr Michael Cullen, while Minister for Tertiary Education, sacked the entire board at least twice because of the complete turmoil it was in. But the good news is that, under the chairmanship of Hazel Armstrong and the board of recent times, it is getting its act together. We recently were in receipt of a report from the Office of the Auditor-General on the operation of the board, and it gave it a reasonably good bill of health. It said there were still some things wrong that needed tidying, but a heap of stuff wrong from the past had been addressed. Basically, it was a report card that said the board was OK at present, poor in the past, and looking to get the future quite tidy. When I met with Hazel Armstrong this morning I conveyed my delight at the progress the board is making.

The two issues we are debating here today are to do with the use of disciplinary fees and how they were set, and, more important, whether a continuing professional development programme that the board had put in place through regulations could stay in place. I want to make it clear that I think both of those issues are being dealt with. I now have an output agreement with the Plumbers, Gasfitters and Drainlayers Board, and under that output agreement these issues will be dealt with. So I do not agree with the timing. The timing of the disciplinary fees matter would basically have meant the Plumbers, Gasfitters and Drainlayers Board was technically insolvent for a period of time, if it had stood. Fortunately, it was withdrawn, but then a split recommendation was resubmitted without our knowledge, and the second one would have made the continuing professional development programme not mandatory.

I say to the chair of the Regulations Review Committee that I think it is really important that—and I think at the end of his speech he covered it well—if a small group of people from whatever industry, from whatever sector, come to a select committee and say to that committee they are unhappy and think something is wrong, then that committee has an obligation to go out and ask whether there is any industry association or any large body out there that represents that industry, and to get them in to find out their view. I think the people who came before the committee were three plumbers, one of whom was not even registered. The Master Plumbers, Gasfitters and Drainlayers (NZ) Inc.—the Master Plumbers association, I call them—has 733 businesses as its members, which employ 3,800 tradespeople, and about 400 of those employees have joined the Master Plumbers, Gasfitters and Drainlayers simply because they want to be an employee member. That means it represents about 60 percent of the entire industry. I think it would have behoved the committee at the time to go out to a massive chunk of the represented industry and ask their view. If their view had aligned with the three people who had come before the committee, it would be all on. But it does not. The Master Plumbers, Gasfitters and Drainlayers do not support this disallowance motion.

I will tell members why. We have already clarified the disciplinary fees issue, which means we will be able to bring in a new regime next year, so I am pleased about that. But the second part is the disallowance of the mandatory nature of the continuing professional development programme. Many employers and industry suppliers out there have geared up their programmes and have invested in continuing professional development. I am sure both sides of the House think it is an essential part of the industry that people keep up their competence levels and their skills. Many tradespeople have also spent money on course fees and have taken time out of their businesses to participate in these courses. If this motion was allowed to stand, those people would have the ground cut right out from under them.

I thank the chairman of the Regulations Review Committee for raising the issues, although both the disciplinary fees issue and the continuing professional development issue are addressed under the new output agreement I have signed with Hazel Armstrong and the board, and we are dealing with them. I also thank him for his comments at the end of his speech that if anything like this comes up in future, the committee will go out and seek a much wider cohort of view. I know that members of the House will have experienced this all the time: a small number of people in any industry members can name—for example, a small number of boners at the meatworks—may have a particular view about the world, but is that view reflected in the view of the Meat Industry Association or the view of the meatworkers’ union? If it is, and if the vast bulk of members support it, then it clearly reflects the wider mood.

I say to the House that the Government will vote against this disallowance motion. We will vote against it not because it is not something that needs to happen—and it will happen—but because of the timing. Had the first motion, the Tim Macindoe motion, stayed, it would have caused serious trouble with regard to the board’s funding. It would have been technically insolvent. That was fixed by withdrawal of the first motion. The split motion would also send massive uncertainty out across the whole sector. The whole sector of plumbers, gasfitters, and drainlayers would now not know what it means to have a continuing professional development regime, which is basically an upskilling system for their members. It is important that they have that certainty. So the Government will vote against this disallowance motion, but I give assurance to those members of the committee who may be concerned that the new regime that comes in as of next year, as we bring the output agreement with the Plumbers, Gasfitters and Drainlayers Board to fruition, will address both the issues. In fact, the disciplinary levies stuff is already under control and being fixed.

I suggest to the House that we not take a lot more time about this matter. The Regulations Review Committee did what it thought was the right thing to do at the time. I have heard the chairman say that in future he will go out and consult more widely so as to get a representative view. If the motion had been a representative view of the entire industry—for example, if the Master Plumbers, Gasfitters and Drainlayers association had agreed with it—I would not be standing here today, because it really does not affect me either way. But I think it is quite clear that the industry does want the continuing professional development regime to stay in place. That will happen by the fact that the Government will vote against the disallowance motion.

I am very happy to take a call on this disallowance motion in respect of the Plumbers, Gasfitters and Drainlayers Board. Before I get into my substantive remarks I want to respond to one or two of the things the Minister for Building and Construction raised and to put out a few points of clarification. The first point of clarification is that all of the decisions on this entire examination of these matters by the Regulations Review Committee have been made unanimously, with the support of Government and Opposition members on that committee. They have been entirely unanimous. The other point of clarification I want to raise is that the Plumbers, Gasfitters and Drainlayers Board was given an opportunity to reply. It was not like the committee was considering the submissions in isolation without providing the board with an opportunity to reply. The board was certainly given that opportunity.

The third point I raise is a disappointment that the Minister has informed us that the Government will vote against the motion, because the Minister had several options open to him. One of the options was to engage with this process earlier. He was informed of the committee’s consideration of the matter. He would have been briefed by his officials. He could have intervened at an earlier point and made submissions to the committee, but he chose not to do so. The second thing is if he was concerned about the timing of the motion coming to the House today, then he could have dealt with it with an amendment in his name that would have delayed the issue regarding the competence requirements, the professional development requirements, and he chose not to do that either. Instead, the Minister has chosen to throw out the recommendation of the Regulations Review Committee altogether. That is a very serious step for the Government to take.

The Regulations Review Committee is a very, very important part of Parliament’s processes. A lot of governing in this country is done by regulation without scrutiny by the House as a whole. We rely on a small committee to do that scrutiny function on behalf of the House. Therefore, when that committee, given the very narrow grounds it has under the Standing Orders to scrutinise regulatory decisions, makes a unanimous decision to the House to disallow regulations, I think that is something the House should take very seriously. I am very disappointed that even though the National members on the committee voted unanimously in favour of the disallowance motion, the Government will now use its power to block the disallowance motion. The reason the committee made the unanimous decision to disallow these regulations is that we did not think the law had been fully complied with. Those are the only grounds upon which the Regulations Review Committee can do that. The grounds upon which the committee can do that are set out in Standing Order 310(2)(a) to (i).

I acknowledge that a variety of concerns were raised by the people who first asked for the committee to consider the matter. A variety of issues have been raised by the Master Plumbers, Gasfitters and Drainlayers and by the board.

💬 Hon Maurice Williamson: You didn’t even hear most of them.

They have corresponded.

💬 Hon Maurice Williamson: You didn’t ask for them to come before you.

I certainly concede that. They had the opportunity to make a submission. They could have put a submission to the committee; they did not. They could have put a submission to the committee but they did not. They have corresponded and they have raised some legitimate concerns. Having said that, I think the step the Government is taking is the wrong one, and I think the Minister would have been better to move an amendment.

I will go back to the issue. Some legitimate concerns have been raised on both sides. The people who have raised concerns to the committee have raised them both within the committee’s delegated authority under the House and outside of the committee’s ability to investigate. For some of the concerns raised, the Regulations Review Committee simply does not have the power to investigate them. That does not mean the concerns are not valid. It simply means the committee does not have the power to investigate them. The board itself has acknowledged that things could have been better. As both the Minister and the chair of the Regulations Review Committee have said, the board is certainly doing very well at shaping up its act. The chairmanship of Hazel Armstrong has been commended from both sides. The board is getting its house in order. That is something we all acknowledge and welcome. Its history has not been flash, and it is good to see that it is getting on top of it and that it is dealing with those issues. The issue from the committee’s perspective is that we can intervene only in so far as the Standing Orders allow. Many of the concerns raised with regard to decisions that have been made fell outside of the competence of the committee to examine them.

I acknowledge the mixed views that exist within the industry itself. As a constituency member of Parliament I have been approached by people with very passionate views on both sides of the debate. It is not the role of the Regulations Review Committee to determine or pass judgment on the desirability or otherwise of decisions that are made under legislation. That is not within the committee’s ambit. The committee’s ambit is to ensure that the laws, delegated authority, and processes are complied with. The desirability or otherwise of decisions is a wider judgment. That judgment predominantly rests with the Minister concerned and the Government. If the Minister concerned or the Government is unhappy with the use of the delegated authority, then they have the ability to influence that. The Regulations Review Committee does not. As long as the law has been complied with and the appropriate process has been followed, then the Regulations Review Committee cannot intervene. It is important that the people who have made a complaint to the Regulations Review Committee and perhaps feel that we did not examine all of the aspects of the complaint are aware of that distinction. Our ability to investigate is quite narrowly constrained and confined. The committee looked at this matter very diligently within the constraints of our terms of reference and of what the Standing Orders allow.

The final point I want to raise is that the onus really now rests with the Government. It is ultimately responsible now for what happens with regard to the board, for supervising the performance of the board. I accept what the Minister has said regarding the performance agreement he has put in place with the board. I think that is a very good step. Again, I acknowledge that the board does seem to be improving what it is getting up to. I also say to the members of the industry who are dissatisfied or unhappy with this regime that they need to raise that with the Government, not with the Regulations Review Committee. I hope that the Minister will take on board any concerns members of the industry who are still concerned may want to raise with him. He is nodding, so I am getting an acknowledgment that he will do that. That is basically all I had to contribute on this particular debate.