Appendix 1: Mr Jones' story

This case study is about a registered plumber and gasfitter, Mr Garry Jones. Mr Jones arrived in New Zealand before the Board's change of policy in June 2003 that required all migrants to sit the registration examination. We interviewed Mr Jones, who agreed to us describing in our report the details of his many interactions with the Board.

To compile this case study we have:

• reviewed the Board's file on Mr Jones;
• reviewed the investigation report that the Department of Building and Housing commissioned into his situation;
• discussed his file and the concerns with Board staff, including the most recent former Registrar;
• interviewed Mr Jones;
• interviewed the relevant staff member from the local authority involved;
• contacted the relevant Australian organisation for information; and
• sought comments from Mr Jones, appointed members of the Board, and the most recent former Registrar on drafts of this summary.

Mr Jones' dealings with the Board span 10 years, three sets of Board members, and three Registrars. We identified many different substantive or procedural problems, on several different issues, during these 10 years. His case also shows how some of the legal and procedural concerns we have discussed in the body of the report can affect an individual tradesperson.

Moving to New Zealand and initial registration in 2001

Mr Jones worked as a plumber and gasfitter in the United Kingdom (UK) for more than 20 years. For much of this time he operated his own plumbing and heating business. He holds the City and Guilds of London Institute Advanced Certificate in plumbing. This qualification includes gasfitting.

In 2001, Mr Jones decided to move to New Zealand. His application to immigrate was handled by a London firm of immigration consultants, who also handled his application to the Board. The immigration consultants provided copies of his qualifications to the Board and asked the Registrations Manager if Mr Jones was able to gain registration and, if so, at what level his qualifications would be recognised: plumber only, plumber/gasfitter, plumber/drainlayer, or plumber/gasfitter/drainlayer.

The Registrations Manager emailed the consultant explaining that Mr Jones would be registered as a plumber and gasfitter. There was no reference to the possibility of him being registered as a craftsman plumber and gasfitter, or to the processes he would need to go through to achieve that status. The Registration Manager registered Mr Jones as a plumber/gasfitter and posted his certificate of registration to Mr Jones' UK address. His registration certificate was dated September 2001.

Mr Jones arrived in New Zealand soon after obtaining his registration and started work as a plumber and gasfitter. He was not contacted by the Board about any matters. In particular, he was not informed by Board staff that he could be assessed on arrival in New Zealand and that he might be able to be registered as a craftsman plumber and gasfitter relatively quickly.

From the documentation we have reviewed, we can see a possible failure of communication between the immigration consultant and the Board. The consultant asked a question that confused categories of registration (which trades) and the level of registration. The Board's response appears to have looked only at categories and not to have considered the level of registration. The response did not volunteer information on the system that was operating then for assessing overseas qualifications and deciding the level of entry.

The process the Registrations Manager followed in registering Mr Jones differed from the way in which other applicants from overseas were dealt with at the time. For example, in 1998, a UK-based plumber and gasfitter applied, from his UK address, for New Zealand registration as a plumber and gasfitter. He had the same advanced qualifications as Mr Jones and had also operated his own business. He was told by the then Registrations Manager that on arrival in New Zealand he would need to obtain a three-month provisional licence from the Board. During this time, he would be visited by Board staff, who would assess his competency as a plumber and gasfitter. If he received a favourable report, he would be granted full registration.

The assessment did not take place until April 2000, and in the meantime the plumber and gasfitter continued to practise under a provisional licence. The assessment was of his knowledge and abilities. The Board's assessors concluded that, subject to completing several correspondence courses, he should be registered not just as a plumber and gasfitter but as a craftsman plumber and gasfitter. These courses were completed and the Board registered this individual as a craftsman plumber and gasfitter in late 2001.

We also identified some internal confusion in the Board about Mr Jones' status. The documentation shows that he was given full registration rather than a provisional licence in 2001. Yet at some later point, the Board appears to have assumed that he was on a provisional licence only, because the Board minutes show that his registration as a plumber and gasfitter was formally approved by the Board on 24 April 2003.

To summarise, at this early point, Mr Jones' treatment shows inadequate communication or information, apparent inconsistent treatment, and some internal confusion about his status.

Application in 2003 to upgrade to craftsman status

Mr Jones worked as a plumber and gasfitter for 14 months before deciding to apply to the Board to have his registration upgraded to craftsman status. In late 2003, he wrote to the Board stating that he was unaware, before leaving the UK, that he would need craftsman status to work without supervision. He wrote that he wanted to apply for that status.

By the time that Mr Jones wrote to the Board, the Board had changed its policy on registering people with overseas qualifications. The Board now required all applicants seeking craftsman status to sit and pass the craftsman examination. We discuss this change, and the problems with this policy, in Part 7. The then Registrar wrote to Mr Jones and told him about the new requirement.

Mr Jones was not happy with this response. From talking with other UK-trained plumbers and gasfitters with the same qualifications, he was aware that they had been granted craftsman status without sitting the examinations. Mr Jones approached the Board again about being registered as a craftsman plumber and gasfitter, and was again told that he would need to sit and pass the examinations.

Mr Jones wanted the Board members to formally consider his case to be registered as a craftsman plumber and gasfitter. The Board's Examinations Committee considered his request on 2 February 2004. The Committee confirmed that the Registrar's letter to him had correctly set out the requirements for him to be eligible to be registered as a craftsman.

All of this correspondence from the Board is written as if the Board is applying a rule (its policy). There is no recognition in the documents we have seen that the Board had a statutory discretion about how to register overseas applicants that it might not have properly exercised when he first applied, and that it was effectively being asked to exercise that discretion now. Mr Jones was entitled to make a case for the Board to exercise that discretion and to be accorded procedural rights in the process.

Mr Jones decided to sit the examinations. He has sat the gasfitting examination twice, and the craftsman common examination twice, but was unable to achieve pass marks. He sat these examinations with very little preparation and believed that passing the examinations would necessitate taking too much time off work to study and prepare.

Mr Jones said that the time needed to prepare was significant because he had to memorise material that he usually carried with him in reference manuals (because the examinations are closed book), and because there are several possible solutions for most work. He needed time to become familiar with the approach favoured by the examiners here. He noted that there was no standard way of teaching and preparing people for the examinations, and that he struggled in particular with the business and taxation elements of the examinations. In practice, Mr Jones found it was not possible to close his business and not respond to customers for the time he needed.

Mr Jones' grades in some of his attempts at the examinations have been close to the pass mark of 60%. We have not attempted to check whether the examinations he sat included problematic questions that were ambiguous or could not be answered, but we note that his inability to pass the examinations may not be a reliable indicator of his competence. As noted elsewhere in this report, we have raised concerns about the fairness of the examinations.

Seeking registration in Australia in 2005

This part of Mr Jones' story is contested, and we record both perspectives here.

Mr Jones told us that, in early 2005, he decided to investigate the possibility of working in Queensland. He rang the Department of Natural Resources and Mines in Brisbane and outlined his UK qualifications and experience. He was told that his qualifications and experience entitled him to a gas works licence, which meant he would be able to work independently. Mr Jones was also told that he could be issued with a gas works licence almost immediately. He decided to travel to Brisbane to confirm absolutely that he would be able to obtain a gas works licence and work independently as a gasfitter.

Mr Jones travelled to Brisbane in May 2005. At the office of the Department of Natural Resources and Mines, his papers were checked and photocopied. He tells us that he was told that he was eligible for a gas works licence that would let him work without supervision, and it would be posted to his home address within a fortnight.

Mr Jones sought confirmation from a more senior official. This official confirmed that Mr Jones was eligible for the gas works licence. Mr Jones said the senior official he spoke to was aware that he was not a craftsman gasfitter in New Zealand and the advice that he would be granted a gas works licence was made on the basis of his UK qualifications and experience.

The licensing of plumbers is handled by a different agency and Mr Jones also applied there for a plumbing licence that would allow him to work independently. His UK qualifications were assessed and he was told that, because of the extensive use of solar energy in Queensland, he would need to complete a one-week course on solar energy. He could complete this course in Brisbane or by correspondence in New Zealand.

Soon after returning to New Zealand, Mr Jones received his Queensland gas works licence, dated 10 June 2005. It was valid until 24 May 2010.

Mr Jones told us that he then saw an article in the Board's newsletter of June 2005, which explained the reciprocity arrangements between Australia and New Zealand for registering plumbers and gasfitters. These arrangements allow someone registered as a plumber or gasfitter in Australia to work in New Zealand at the same level of registration that they held in Australia. The same arrangements apply to New Zealand plumbers and gasfitters wishing to work in Australia. Mr Jones said he was not previously aware of these arrangements.

Mr Jones telephoned the Board's Registrar to ask if his Queensland gas works licence would be recognised in New Zealand. This would mean that he would be able to work without supervision as a gasfitter. He was told that he would need a Certificate of Reciprocity from the Department of Natural Resources and Mines. Mr Jones obtained this certificate, which is dated 4 July 2005. It states that Mr Jones has met the minimum competencies for a gas works licence covering two classes of work: gasfitting (independent certifier) and liquid petroleum gasfitting (independent certifier).

Mr Jones then rang the Registrar to say that he had obtained the reciprocity certificate for gasfitting. He was told that he needed to send all his original documentation to the Board. Mr Jones was reluctant to do this and offered to send verified copies of the documents. The Registrar told Mr Jones that the Board was investigating how he had obtained his Queensland gas works licence.

The Board wrote to Mr Jones, on 29 August 2005, explaining that his application for registration as a craftsman gasfitter had been deferred while the Board made enquiries with the Department of Natural Resources and Mines. The Board emailed the Department of Natural Resources and Mines and asked what test Mr Jones underwent to obtain his gas works licence. The email said that, under the reciprocity agreement that New Zealand has with Australia, the Board might have to accept the Certificate of Reciprocity and grant Mr Jones independent status as a gasfitter, when the Board knew that he has not been able to meet the requirements in New Zealand.

The Department of Natural Resources and Mines told the Board that the Department had been misinformed, and had assumed that Mr Jones was able to work independently in New Zealand as a gasfitter. It said that the licence had been issued based on reciprocity with New Zealand, rather than the UK qualifications. The Department said that it would now cancel the licence issued to Mr Jones.

We note that, if that is the basis on which the application was processed, it would not have been supported by the right documentation. Mr Jones had not provided any reciprocity certificate from the Board.

Mr Jones told us that he rang the Department of Natural Resources and Mines to find out why his licence was to be cancelled. He said he was told by a senior official that he was entitled to his licence but, because the Board was annoyed that Mr Jones had been granted the licence, the Department had decided to cancel it.

The Board and the now former Registrar told us that the relevant senior official at the Department of Natural Resources and Mines had repeatedly told them that Mr Jones had been attempting to abuse the system to obtain craftsman status by another route.

From this point, both the Department of Natural Resources and Mines and the Board appear to have operated on the basis that the licence had been obtained by deception. The Department cancelled the gas works licence, and the Board resolved to reject the application from Mr Jones to be awarded craftsman status as a gasfitter based on reciprocity. We did not see any documentation to suggest that these assertions were put to Mr Jones for comment before the decisions were made.

Mr Jones maintains that he acted in good faith, and that his Queensland gas works licence was cancelled because the Board was unhappy that it might have to register him and put pressure on the Department of Natural Resources and Mines.

The Board's view, which it has set out in writing a number of times, was that this was an attempt to dishonestly manipulate the system.

We attempted to check with the Department of Natural Resources and Mines to establish the basis on which the licence was issued and then cancelled. It was not able to provide any useful clarification this long after the event.

Over the years, Mr Jones said he has had a number of conversations with the now former Registrar of the Board. Although other staff maintained a record of their telephone conversations with Mr Jones, there is no record of the Registrar's conversations with Mr Jones.

Given the lack of written records, we have not been able to establish exactly what conversations took place. The written records do show a failure to afford Mr Jones basic natural justice procedural rights, such as an opportunity to see and comment on the information being relied on, and to be heard by the decision-maker.

Further discussions with the Board about craftsman status and supervision arrangements in 2006 and 2007

In 2006, the District Council of the area in which Mr Jones lives and works wrote to the Board, asking about the supervision arrangements for Mr Jones. The craftsman who was supervising Mr Jones lived nine hours away by road, and the District Council wanted to check that supervision from this distance met the requirements of the Act.

The reply from the Registrar to the District Council said that supervision arrangements were for the craftsman supervisor to determine and it is the craftsman who was ultimately responsible for the work of the registered person. The Registrar also said that, because the Board has a complaints jurisdiction, it had to remain impartial and could not give an opinion on the supervision arrangements.

The District Council was looking at this issue because it was changing some of its own requirements. In October 2006, it advised all tradespeople that, from 1 January 2007, it would require the responsible craftsman to personally sign the application form for a code of compliance certificate at the end of some work. The District Council said that it was making this change because of concerns about supervision that had been raised by the local master plumbers group, and in anticipation of changing requirements about building work.

The Board was copied into some of the correspondence between the District Council and Mr Jones. The Board flagged Mr Jones' file as requiring follow-up action about this.

Mr Jones told us that, when a new Board was appointed in 2006, he thought it might be worthwhile to raise the question of his registration status again. He contacted the Board. A staff member there suggested that, if he wanted to have his situation reviewed, then he might consider writing to the Ministry of Health. Mr Jones took up this suggestion in 2007.

A Ministry of Health official wrote to the Board and sought its views on the matter. The Registrar responded with a detailed summary of the interactions from the Board's perspective. The letter included some strong statements. It said that Mr Jones had been very selective in the information he had provided, and that he supplied false information to the Department of Natural Resources and Mines in his attempt to be registered in Queensland. Based on this information, the Ministry wrote to Mr Jones advising that it considered that he had been treated fairly.

About this time, Mr Jones recalls receiving a telephone call from the Registrar just before 10pm one night, which he found intimidating. The Registrar does not recall making such a telephone call.

Scrutiny of supervision arrangements from March to May 2008

In March 2008, Mr Jones rang the Board to obtain a new password so that he could uplift his annual practice licence for the 2008/09 year. The Registrar telephoned him back, saying that the District Council was not happy with the supervision arrangements and that no licence would be issued until the Registrar was satisfied with the supervision arrangements.

Mr Jones later received a letter from the Registrar, advising that the District Council would be contacting him about the supervision arrangements. The letter also explained that, until the Registrar was satisfied that Mr Jones was working under the direction of a craftsman plumber and gasfitter, his licence would not be renewed. This would mean that Mr Jones could not legally work as a plumber and gasfitter.

We discussed in Part 3 our concerns with this type of action by the Board. We consider that there is a good argument that the Board does not have the legal authority to withhold a licence on this basis. Even if it does have the power to do this, its process was wanting because we have seen no evidence of natural justice procedural rights being afforded to Mr Jones.

Mr Jones contacted the District Council, which said it had no problems with his work but were under pressure from the Board to tighten the supervision arrangements. The District Council later wrote to Mr Jones indicating that it was happy with the existing supervisory arrangements, but if Mr Jones did not obtain craftsman status by mid-2008 it would need to review the situation because the Board had indicated that distance arrangements were no longer acceptable.

Mr Jones's licence expired on 1 April 2008, and he was unable to do any plumbing or gas work until he found a local craftsman plumber and gasfitter willing to supervise him. He was forced to suspend work for two weeks until he could find a local supervisor.

In the meantime, a colleague of Mr Jones met with a local member of Parliament (MP) and explained the problems that Mr Jones was having. The MP put him in touch with his electorate secretary, and she was able to arrange for a craftsman plumber and gasfitter, who lived a two-hour drive away, to supervise Mr Jones. The Registrar wrote to the craftsman plumber and gasfitter, on 4 April 2008, asking how he intended to supervise Mr Jones. The firm for which the craftsman plumber and gasfitter worked replied on 6 May 2008, confirming the supervision arrangements. The Registrar then asked for a statutory declaration from the craftsman plumber and gasfitter that was supervising Mr Jones. Such a declaration was eventually obtained.

Mr Jones told us that he feared that the Board was using the renewing of his annual licence as a means of applying pressure, to ensure that he would not continue to press the Board to be registered as a craftsman.

The former Registrar told us that, once the supervision arrangements came to the Board's attention, it needed to act to enforce the requirements.

Investigation of a complaint about supervision in May 2008

In May 2008, the Board received a complaint about Mr Jones. The allegation is contained in one line and simply said that in the firm operated by Mr Jones there was no craftsman direction in both plumbing and gasfitting. No evidence was presented. There was a second allegation that an employee of Mr Jones, who held a limited certificate in gasfitting, was listed in a motor caravan handbook as a craftsman gasfitter.

The second complaint was easily resolved. The Registrar said he spoke with a representative of the motor caravan association who said that the mistake was theirs and would be amended. The association had not understood the distinction between a limited certificate holder and a craftsman.

The Registrar decided that the first allegation warranted investigation, even though in the same month he was completing his confirmation of Mr Jones' supervision arrangements. The Registrar also decided to investigate how Mr Jones was supervising the person who worked for him, although there had been no complaint about the supervision nor any evidence to suggest that it was improper.

Several months later, in November 2008, the Registrar wrote to Mr Jones saying that he had found that he was supervising the limited certificate holder in compliance with the requirements of the Act.

The Registrar also concluded that Mr Jones had not been carrying out work without proper direction. The Registrar said in his letter to Mr Jones that, although on this occasion he had no specific evidence that Mr Jones was not properly supervising the person who worked for him, or that Mr Jones was carrying out work without proper direction, if there were any further complaints where there was evidence then the Registrar would "not hesitate to proceed with disciplinary actions against you".

Mr Jones told us that he understood this to be a further attempt at intimidation. The Registrar told us that this was standard wording when the Board was "letting someone off with a warning". We are unclear what the basis for a warning was, because it had been established that Mr Jones' actions were appropriate.

Attempts to complain and the Board's responses during 2008 and 2009

Through 2008 and 2009, Mr Jones continued to challenge the Board's actions. The local MP who had earlier supported Mr Jones raised concerns with the Board. We have already described the essence of the Board's comments in response. The local MP then contacted the Minister for Building and Construction and the Department of Building and Housing. The Department commissioned an independent lawyer to review the file, interview Mr Jones, and prepare a report. The report raised many questions about the Board's actions.

A draft of the report was sent to the Board in April 2009. In a response to the Private Secretary of an MP, dated 30 April 2009, the Registrar said that Mr Jones travelled to Australia in an attempt to usurp the requirements of becoming registered in New Zealand, and supplied false information to the Department of Natural Resources and Mines. The Department, based on this information and its mistaken belief that Mr Jones already had craftsman status in New Zealand, issued him with a Reciprocity Certificate to work in Queensland. The Registrar described a telephone conversation that he had with a senior official at the Department of Natural Resources and Mines about Mr Jones. According to the Registrar, the senior official said that Mr Jones was a dishonest man who provided false information. Although the Board has a system that requires staff to record the details of all telephone conversations with particular people, we could find no record of this telephone conversation on Mr Jones' file.

More recent developments

In early 2010, we started discussing our likely findings and recommendations with the Board, including the recommendation that it should work to resolve long-standing grievances (where possible). The Board has been acting on this recommendation. One of the people it has met with to try to find a solution is Mr Jones.

Our understanding is that Mr Jones now refuses to sit the examinations again. He believes he was initially entitled to be considered for craftsman status and would like to be given that status now. We note that all those we spoke to about Mr Jones, including the relevant District Council employee, said that there were no issues with Mr Jones' work, which was of good quality. He was seen as providing valued services in a remote area.

The Board also considers that, now that he has worked in New Zealand for so long and has failed the examinations, it could not properly award him craftsman status on some other basis. That would be unfair to others sitting the same examinations. Instead, it has offered him a range of practical help with preparing for the examinations.

We are pleased that the Board has now engaged directly and constructively with Mr Jones, but are concerned that the parties may be at an impasse. We cannot resolve the situation for them, but it would be a concern if the result was that a skilled tradesperson left New Zealand because of his frustrations with the Board. Mr Jones tells us that his employee has already left the trade and left the country because of these difficulties. Mr Jones is now considering doing so too.

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