Part 7: Overseas applicants

7.1
One of the reasons we carried out this inquiry was to examine concerns expressed by migrant plumbers and gasfitters that they were being unfairly treated by the Board. In this Part, we review the Board's policies for assessing migrant plumbers and gasfitters from countries other than Australia (overseas applicants), and the process the Board used to register overseas applicants. We have examined:

• the registration system used before 2003;
• the registration system used since 2003, including the Board's Immigrant Qualification Assessment System; and
• the registration system under the 2006 Act.

Summary of our findings

7.2
Overall, we found that:

• the Board had fettered its statutory discretion under the 1976 Act and so acted unlawfully by refusing to consider registering any overseas applicants at craftsman level;
• the Board operated a very rigid system for assessing overseas applicants; and
• the Board may not be able to grant provisional licences under the 2006 Act to overseas applicants before they file applications for registration.

Registration system under the 1976 Act

7.3
Before 2003, the Board used a registration system for overseas applicants that was different from the system it uses now.

7.4
Section 26 of the 1976 Act set out the Board's powers to register overseas applicants. The Board had the power to register a person at either craftsman or registration level, provided the requirements of section 26 about qualifications and examinations were met. The Board also had the power, under section 64 of the Act, to arrange for the reciprocal recognition of plumbers and gasfitters from other countries.

7.5
The Board has had reciprocity arrangements with Australia since 1950. These arrangements allowed registered plumbers and gasfitters from Australia and New Zealand to work in either country without any requirements for their skills and experience to be assessed. However, the process used to register plumbers and gasfitters from other countries was different.

Registration system for overseas applicants before 2003

7.6
Before 2003, it was easier for migrants to be granted registration as a plumber or gasfitter. Migrants would submit details of their qualifications and experience to the Board, which would issue a provisional practising licence that was valid for three months.

7.7
During the three months, the holder of the provisional licence was expected to become familiar with New Zealand's requirements. Board staff would meet with the provisional licence holder and assess their competency. If the provisional licence holder was considered to be competent in plumbing or gasfitting, the provisional status was removed and the Board would register them. In some cases, where the person was considered to have superior skills in plumbing or gasfitting, the Board would register them as a craftsman. In other cases, a person would be registered and told that, if they completed specified correspondence papers, they could achieve craftsman status.

7.8
If a person was not considered to be sufficiently skilled, the provisional licence was removed and the Board would require that person to work on a limited certificate, under the supervision of a registered person. It would also be necessary for the person to gain a New Zealand qualification. In practice, the Board rarely applied this option.

Registration system for overseas applicants from 2003 until 2010

7.9
In June 2003, the Board decided to tighten the system for considering applications for registration from migrants. It decided that all migrants would have to sit and pass the New Zealand registration examinations before being eligible for registration.

7.10
Our review of the registration files showed that there were good reasons for tightening up the system. One of the files we reviewed was of a migrant gasfitter who applied for registration in 2001. Board staff interviewed the person and noted that he had limited understanding of the controls applying to gasfitting, possibly because of his limited English language ability. The report of this interview noted that he had been self-employed as an electrician and gasfitter, but the report did not state his formal qualifications. The report noted that:

Language difficulties being a major factor during the assessment however, with patience by all parties and the use of numerous sketches we were able to draw out his knowledge. The assessment was carried out over a period of some 8 hours.

7.11
Despite the language difficulties and the fact that the migrant came from a country whose qualifications in gasfitting were not recognised in New Zealand,⁸ he was registered. Granting registration in these circumstances suggests to us that it had become too easy for migrants to be registered. In our view, applicants should be able to explain, in English, how to safely install gas appliances without resorting to sketches.

7.12
In 2007, the Board introduced further restrictions. To be eligible for registration, applicants were required to pass the registration examinations and also pass a practical examination.

7.13
The reason the Board gave for tightening the requirements for migrants was its analysis of disciplinary cases over a five-year period. During the five years, there were 26 disciplinary cases. Eleven of these cases involved UK-qualified tradespeople. The Board concluded from this analysis that, because of the large number of disciplinary cases involving people who were trained overseas, it needed to tighten the system for assessing plumbers and gasfitters seeking New Zealand registration.

7.14
The Board stated that its primary mandate under the Act was the protection of public health and safety, and that it must ensure that tradespeople from New Zealand and overseas met minimum standards for registration.

7.15
The Board issued a policy document on the Immigrant Qualification Assessment System (IQAS) that it operated for registering immigrants. The IQAS has been in place, largely in the form described below, since November 2007.

7.16
Under the IQAS, applicants for registration sent certified copies of their qualifications, training experience, and work experience to the Board. Board staff then assessed those qualifications and determined whether the applicant had relevant qualifications and adequate experience. Board staff then interviewed the applicant, either by telephone or in person, to verify their qualifications and experience.

7.17
If the applicant was considered to have enough knowledge and experience to be eligible for registration, they were then required to pass both the Board's registration examination and a practical test of workmanship. The Board could grant provisional licences to applicants until they were registered. This enabled them to work under the supervision of a craftsman plumber or gasfitter until they were registered.

7.18
The practical test of workmanship was conducted over four days at the Board's assessment centre in Wellington. Applicants paid $3,200 for each practical assessment. A mark of 75% was required to pass the practical assessment. Pass marks in the registration examination and practical test of workmanship meant that an applicant was then eligible for registration.

7.19
Applicants whose qualifications and experience were not considered to have met the Board's prerequisites for assessment were referred to the ITO for training and assessing under the National Certificate. Once they had obtained the National Certificate, they were then eligible to sit the registration examination. If they wanted to work, they were required to obtain a limited certificate and work under the supervision of a craftsman plumber or gasfitter until they obtained registration. They effectively entered the system as apprentices or exemption holders.

What we found in 2008/09

7.20
The main problem that we found was with the way the Board exercised its discretion to register overseas applicants. The 1976 Act gave the Board substantial discretion in how it recognised overseas qualifications and at what level it let a person start work in New Zealand. Section 26 enabled the Board to assess a person's overseas qualifications and their experience, and to then register them at the craftsman or the registered level, as appropriate.

7.21
We understand the practical and public safety concerns that led the Board to tighten its assessment and entry processes. However, we were surprised that the Board adopted a fixed policy that all overseas applicants were required to enter at the registration level and could not move directly to craftsman status. The statute gave the Board capacity to register someone at either level.

7.22
We question whether it was lawful for the Board to have adopted such a fixed view and to effectively fetter its discretion by discounting the possibility of direct entry as a craftsman in all cases. In general public law terms, public decision-makers cannot refuse to consider choices that are legally available to them.

7.23
The Board told us that the policy was a reflection of long experience, because no overseas candidate was qualified enough to seek anything other than registration. It considered that this was not a matter of fettering of discretion, but rather reflected the reality that overseas applicants needed to spend time gaining experience and a practical understanding of New Zealand conditions before they would be ready for craftsman status.

7.24
We note that, in practice, these requirements have been a significant barrier for people who may be well qualified. Again, this is significant because, until the people were qualified as craftsmen, they were required to work under the supervision of another craftsman.

7.25
Migrants, particularly from the UK, have been very critical of the Board's policy that required them to pass the registration examinations. They argued that they have many years of experience in plumbing or gasfitting in the UK, yet effectively must start again as apprentices. Some migrants who were given a limited certificate until they become registered stated that they received very little supervision, possibly because, in their view, they were recognised as being skilled practitioners.

7.26
We were presented with totally contrary views about whether the system was necessary and appropriate. The Board maintained that most overseas qualifications and training were not readily comparable to the New Zealand training and that it was important to assess all migrant applicants carefully. In particular, the Board was concerned that modern UK qualifications may often relate only to particular types of plumbing or gasfitting rather than the general training that New Zealand practitioners need.

7.27
We spoke with many migrant practitioners who held the opposite view. They showed us evidence of the businesses they had run elsewhere and, in some cases, were very critical of the quality of work they saw here. Most accepted that a small amount of retraining and supervision would be appropriate, while they learned about New Zealand legislation and the special conditions and materials used here. They thought that the Board's requirements were excessive.

7.28
We are not technically competent to assess the merits of either view. For the purposes of this report, we simply note that the requirements did not appear to be widely accepted or understood and that many people considered them overly onerous. Some regarded the barriers to entry to these occupations, through the retraining, stand-down periods, and fees for assessment and examinations, as protectionist.

7.29
We also received a number of complaints from overseas applicants about the way the Board had treated them. These included complaints relating to supervision requirements, licensing, and examinations, and we have dealt with them in the Parts that deal with those issues more generally.

Recent changes

Modified requirements under the 2006 Act

7.30
Under the 2006 Act, the Board has the power to prescribe the minimum standards for registration for both certifying and licensed plumbers, gasfitters, and drainlayers. If it does so, the Board is required to publish these as a New Zealand Gazette notice. Under the 2006 Act, the Board also has discretion to recognise any overseas qualification, certificate, registration, or licence as satisfying a particular minimum standard for registration, if that overseas qualification is, in the opinion of the Board, equivalent to or "as satisfactory as" that minimum standard for registration. If the Board recognises such a qualification, it is required to publish it in a notice in the New Zealand Gazette.

7.31
The Board has published New Zealand Gazette notices that set out the minimum standards for the registration of plumbers, gasfitters, and drainlayers at licensed and certifying level. The Gazette notices do not include any recognised overseas qualifications that satisfy the minimum standards for registration at either licensed or certifying level. However, the Gazette notices do set a minimum standard for registration for overseas people. They are required to:

• hold an overseas qualification that is accepted by the Board as equivalent to the New Zealand National Certificate in plumbing or gasfitting or drainlaying – to meet this requirement, they are required to provide the Board with documentary evidence of their qualifications and an assessment of those qualifications (it is not clear what this requires) and attend an interview with Board staff to verify documentation and validate their experience and technical proficiency; and
• pass the Board's three-hour registration exam at licensing level in plumbing or gasfitting or drainlaying; and
• pass the Board's practical test of workmanship.

7.32
As discussed above, the Board applies the IQAS to register overseas applicants.

What the Board has been doing to address the problems

7.33
The Board told us that the immigrant policy would be reviewed and published as part of a general review of policies. We note that the latest version of the IQAS is dated April 2010 and largely replicates the IQAS that operated previously. The main difference is that the Board proposes to grant provisional licences to applicants until they have been registered, provided that the person has met the criteria to enable them to sit the registration examination and practical test of workmanship. People working under provisional licences are required to work under the supervision of a certifying person.

7.34
The Board has also told us that it will revisit the process it uses for the practical test of workmanship to improve access and, if appropriate, reduce costs. It currently costs $3,200 to sit each practical test of workmanship, and the test is held over four days. Several people who contacted us were concerned that the cost of sitting these tests in each trade, and the opportunity cost of a week not working each time, acted as a significant barrier to entry.

Issues that still need attention

7.35
In our view, the system the Board operates for assessing overseas people for registration is still too rigid. The 2006 Act gives the Board a discretion to recognise overseas qualifications as satisfying a particular minimum standard for registration. However, it does not appear that the Board has considered how it could exercise this discretion. Rather, it has specified minimum standards for overseas people to meet to be registered, and only at the licensed level.

7.36
The effect of this is that someone from overseas – regardless of their qualifications and experience – must sit both the Board registration examination and practical test of workmanship to be able to work under the supervision of another person. They then have to work for two years under that person's supervision before they can apply to be registered at certifying level. They cannot work independently until they have reached certifying level. Therefore, a person running a plumbing or gasfitting business in their home country will have to wait more than two years before they can work autonomously here.

7.37
We also note that the Board has the power under section 52 of the 2006 Act to exempt a person from complying with the minimum standards for registration. There is no indication in the IQAS policy that the Board would use its exemption powers for any overseas applicants.

7.38
The Board told us that it is trying to adopt a standardised approach for overseas applicants. When an overseas person makes an application, the applicant will be assessed and placed at the appropriate level. The Board will be able to exercise a discretion under section 52 for those applicants who clearly meet the competencies for a certifying gasfitter or plumber. The Board is also in discussions with the ITO about merging IQAS and the general competency assessment systems to ensure that the route to training and registration is simple and consistent.

7.39
In its Licensing Policy Statement, the Board indicates that it intends to exercise its discretion to grant provisional licences to overseas applicants who have applied for registration and meet the criteria for sitting the registration examination and practical test of workmanship. In our view, while this may be a good solution to the problem, it is not clear that the Board's powers under the 2006 Act are so broad.

7.40
The Board has the power under section 38 of the 2006 Act to issue provisional licences to any person pending the consideration of their application for registration or for a practising licence. The holder is then authorised to carry out the plumbing, gasfitting, or drainlaying work specified in the licence. Section 39 provides that provisional licences are issued for a period of not more than 12 months or until the application has been determined.

7.41
In our view, the power to grant a provisional licence is quite narrow – that is, the Board can grant a provisional licence to a person pending the consideration of their application for registration. However, an overseas person's application for registration is not in fact made until they have sat and passed the registration examination and practical test of workmanship. Therefore, we are not certain that the Board has the power to issue a provisional licence to an overseas applicant until that applicant has applied for registration after passing the registration examination and practical test of workmanship. The Board told us that it is reviewing this issue.

8: New Zealand has recognised plumbing and gasfitting training and qualifications from 17 countries as a prerequisite for registration.

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