REVIEW OF PLUMBING REGULATION IN WESTERN AUSTRALIA · s February 2014 REVIEW OF PLUMBING REGULATION IN WESTERN AUSTRALIA Response by Master Plumbers and Gasfitters Association of

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February 2014

REVIEW OF PLUMBING

REGULATION IN WESTERN

AUSTRALIA Response by Master Plumbers and Gasfitters Association of WA

Master Plumbers and Gasfitters Association of WA

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FOR INFORMATION ON THIS REPORT

Contact:

Murray Thomas

MPGA Chief Executive Officer

MASTER PLUMBERS & GASFITTERS ASSOCIATION OF WA (MPGA)

353 Shepperton Road

EAST VICTORIA PARK 6101 WA

P: (08)9471 6664

F: (08)9471 6663

E: [email protected]

W: www.masterplumbers.asn.au


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CONTENTS

1. Executive Summary ...................................................................................................... 3

2. Questions & Answers ................................................................................................... 5

2. Regulatory definition of plumbing .................................................................................... 5

3. Statement of objectives .................................................................................................... 9

4. Licensing regime ................................................................................................................ 9

5. Compliance regime. ......................................................................................................... 20

6. Key decision makers ........................................................................................................ 22

7. The technical regulator.................................................................................................... 23

8. Who should pay for plumbing regulation ....................................................................... 25

9. The Plumbing Code of Australia ...................................................................................... 26

ATTACHMENTS

1. Western Australian Auditor General’s Report – Public Sector Performance Report 2012 –

June 2012.

2. Master Plumbers and Gasfitters Association of WA – Initial Response to the Review of

Plumbing Regulation in WA (Consultation Process) ‐ July 2013.

3. Master Plumbers and Gasfitters Association of WA – Response to the Building

Commission’s Provisional Licenses for Overseas Trained Applicants Discussion Paper –

December 2013.

NOTE: Question & Answers; Grey text is taken from the report to the Minister for Commerce.

Blue text is the MPGA’s comments.


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1. EXECUTIVE SUMMARY

The Master Plumbers and Gasfitters Association of WA (MPGA) appreciate the Minister for

Commerce, the Hon Michael Mischin’s initiative to undertake the review of plumbing regulation

in Western Australia.

The plumbing industry of Western Australia remains unsatisfied and respectfully requests further

justification and action from Minister Mischin about the findings identified in the Western

Australian Auditor General’s Report – Public Sector Performance Report, June 2012 (Attachment

1) and the regulation review report by ACIL Allen specifically referring that the Auditor General

had expected to find that the Public Sector Commission’s Principles of Good Corporate

Governance for Western Australian Public Sector Boards and Committees would be met in

respect of the Plumbers’ Licensing Board (PLB), but they were not.

We bring special attention to the following excerpt from the Auditor General’s Report:

“Commerce failed to accurately track and report the Board’s financial position. As a result the

Board was unable to identify the deterioration in its financial position and take steps to

address it or to monitor revenue, expenditure, risks and operational performance.”

“The Public Sector Commission’s Principles of Good Governance relating to clarity of roles and

responsibilities, involving Boards in significant decisions affecting matters within their

mandates, and providing timely, accurate and complete information were not met.”

(Western Australian Auditor General’s Report – Public Sector Performance Report, June 2012,

page 16.)

As it stands today the relationship and communication between Commerce and the PLB remains

ineffective and there has been no consultation or change since 2007. The roles and

responsibilities of Commerce and the PLB require further definition, agreement and

understanding. This lack of clarity and dysfunction dating back 6 years is the founding principal

to the ineffectiveness of the regulator, particularly concerning the responsibility for, and control

of, revenue from plumbers fees and the ability for the regulator to undertake compliance

inspections and reporting.

The approximate $4 million collected annually from plumbing and related activities is not being

utilised effectively to uphold this principal and the ongoing protection of public health and

safety.

We are particularly concerned that the reviewer, ACIL Allen has failed to thoroughly investigate

and address this matter as it was raised at all consultation forums across the state of Western

Australia between the reviewer and industry attended by representatives of the MPGA.


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Throughout the document the reviewer has made multiple references and recommendations

with regard to the National Occupational Licensing Scheme (NOLS). Post the issue of the

reviewer’s report the NOLS has been disbanded and no longer operates leaving significant gaps

that remain unanswered.

This is of serious concern for the plumbing industry of WA and Australia as a whole when

satisfying;

Automatic Mutual Recognition of qualifications.

Consistency for migrant entry into Australia.

Licensing that ensures common competencies for plumbers at all levels including

apprentices, tradespersons and contractors.

The WA plumbing industry has clearly stated in all discussions with Government that the

Plumbing Code of Australia (PCA) is the basis for defining the scope of plumbing regulation in

WA. The review’s recommendation to “not make any fundamental changes to the way plumbing

is regulated” is strongly opposed by the industry and needs to be addressed.

Terms used such as ‘carve out’ and the suggestion of reducing regulation that maximises a risk

to public health and safety are focused upon in the accompanying response. The industry’s

position has not been influenced in anyway by the recommendations and evidence provided by

the review following the initial call for comment in 2013 (Attachment 2).

In summary, technical regulator inferences are very vague and lack substance. The industry

requires a self‐sustaining plumbing body / commission that operates and meets the needs of the

industry. The review is very unclear about the way forward which will, in our opinion, create

concern and discontent when the document is released to the broader WA plumbing industry for

comment.

The content of this submission has endeavored to separate out the issues highlighted by the

reviewer.

The Executive Committee of the MPGA looks forward to working with the Minister for Commerce

to progress towards up to date, relevant regulation of plumbing in Western Australia.


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2. QUESTIONS & ANSWERS Part Two

1. Introduction

2. Regulatory definition of plumbing

The author of the regulatory review recommends that the definition of plumbing should be broadened to allow future flexibility with the licensing regime. The MPGA requested that the definition of plumbing be established prior to undertaking the review of plumbing regulation to allow the benefit of the broader definition of plumbing to be fully released. The review was only undertaken with consideration to the status quo and does not consider any benefits of the broader regulatory controls that would align and harmonise plumbing work with other regulatory controls that the plumber is required to adhere to in other jurisdictional controls. A national approach to create consistency across jurisdictions is now more essential given the demise of the National Occupational Licensing Scheme (NOLS). The author recommends that amendments be made to the ‘definition of plumbing work’ to make it clearer and more precise, e.g. meter assembly, potable (drinking) water creates problems in regulatory controls and the AS/NZS 3500. Whilst MPGA support this, true alignments to other regulatory controls should be considered if this was to occur. This would then harmonise the PCA as a true national plumbing document. By ensuring that new definitions of plumbing work capture terms such as grey water, rainwater, non‐drinking (non‐potable) water, recycled water fire water and all definitions of water, this will provide greater protection to consumers. It would also harmonise the Department of Health requirements and local government agencies to ensure the technical standards are clear across all definitions of non‐drinking water. The PCA provides solutions for all types of water and also provides the appropriate precautions that should be adhered to. The author then argues that the current definition creates uncertainty. In relation to urban irrigation, the MPGA disagree. This is still classified as plumbing work regardless of legal interoperations. Urban irrigation terminology creates a problem for grey water distribution / disposal field that are considered as non‐drinking water. Terminologies should be relevant to current modern terms and align with AS/NZS 3500. Grey water is not a term that is recognised in current health regulations. The increased uses of non‐drinking water service providers coming into the market place increased demands to ensure the correct regulatory control is in place.


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In relation to the WA regulatory definition of sanitary and drainage plumbing, the author suggests that there is confusion in relation to stormwater as waste water. This will need a legal interpretation to determine where exactly stormwater and AS/NZS 3500 fails to address this.

(a) The WA regulatory definition of water supply plumbing

1. Water supply plumbing – reference to ‘a meter assembly’ The first problem with the current definition, which was discussed widely, is created by the reference to ‘a meter assembly' in the definition of water supply plumbing.

2. Reference to potable water.

A second problem with the WA regulatory definition of plumbing that emerged during the review relates to the reference to ‘potable water.’ Disagree. The current AS/NZS 3500 refers to potable water as drinking water and the review author should consider this. The terminology is wrong in line with all regulatory controls that fall outside plumbing regulatory controls. A meter shall not be the determining point of plumbing regulatory controls. Numerous examples exist where this argument is flawed and presents increased risks to the public health of WA when water supplies are from other sources. It should be always considered as ‘drinking water’. Irrigation work can be done without a license with the exception of the ‘cut in’ to the plumbing system, where a backflow prevention device must be installed by a plumber. This argument is narrowed to only connections to ‘drinking water’. The author provides conflicting statements. If a backflow device is installed as downstream of a device then this becomes non‐potable water and the regulations do not capture this. The author then argues that this creates uncertainty. The AS/NZS 3500 is clear and precise and is still classified as plumbing work regardless of legal interoperations. Urban irrigation terminology creates a problem for grey water distribution/disposal fields that are considered as non‐drinking water. Terminologies should be relevant to current modern terms and align with AS/NZS 3500.


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(b) The WA regulatory definition of sanitary and drainage plumbing.

Some concerns were raised that these definitions are unclear. It was also apparent that they are understood differently by different stakeholders. For example, it was not clear whether either of these definitions would capture stormwater or roof plumbing. These are widely done by non-plumbers. Disagree. The AS/NZS 3500 part 3 and AS/NZS 3500 part 5 will capture this. Definitions of the broader terminology should be determined to provide clear outcomes. In WA stormwater and roof plumbing are generally not considered to be within the regulatory definition of plumbing. However, there was some debate about whether this is the correct interpretation of the regulations. For stormwater the question seems to turn on the correct interpretation of the word ‘wastewater’. If stormwater is properly considered to be wastewater then fixtures and fittings used to carry it would fall within the definition of sanitary plumbing, though this seems unlikely to be the intention of that definition. This argument will support regulatory change to adopt stormwater and it be recognised as a license outcome. It will be clear moving forward that there will be a regulatory requirement to consider stormwater. Stormwater units of competency are contained within the current training package Certificate III Plumbing and Gasfitting (CPC32411). Stormwater is controlled and regulated in other states and is a component of the standard AS/NZ 3500.

(c) Plumbing for non-potable water

A third issue with the WA regulatory definition of plumbing is that it is not clear how it would capture recycled water, grey water or any other form of non-potable water that may be used in future. As these types of water are being used now, and are not being properly regulated, it would be appropriate to consider the implications in line with other regulatory controls such as the Health Act 1911 and other legislation.

(d) Conclusion – WA regulatory definition of plumbing.

In relation to the WA regulatory definition of plumbing we recommend two things. First, the WA Regulatory definition of plumbing should be broadened. This would extend the potential reach of the WA plumbing regulatory regime.


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However, as discussed in chapter 6 of Part I and section 4.4 of Part II of this report, we do not recommend that the Government extends the actual reach. Again the need is to broaden the scope of plumbing as national training currently supports this outcome and will do moving forward to a plumbing designer if this becomes a license category. Interstate plumbers transferring to WA are disadvantaged and so are plumbers transferring the other way in line with true national harmonisation of licenses. Therefore, second, we recommend that the Government use horizontal separation at the licensing level of the framework to ‘carve out’ work that falls within the broadened regulatory definition of plumbing but does not currently require a plumbing licence (see chapter 4 of Part II for details). MPGA does not support any form of carve out. Regulatory alignments with other jurisdictions including water service providers would provide clear definitions of what is required. The benefits of a revised definition are twofold. It would remove certain identified difficulties with the current definition and it would allow the flexibility to address problems that may be identified in future. Drafting the appropriate definition would presumably require the involvement of the office of Parliamentary Counsel. In our view it is not important whether the definition is framed by specifying branches of plumbing, as in the Victorian definition, or by using broad language, though the latter would be more consistent with the WA approach to other trades. In our view it would be appropriate for that definition to refer to:

the installation, alteration, extension, disconnection, repair or maintenance of pipes, fixtures and fittings to carry water, wastewater and other wastes between equipment owned and operated by a water service provider and a point of use.

Disagree. The definition needs to expand beyond water service providers and consider all types of water by classification. There are only currently two types of water in the Health Act 1911. Sewerage is one and the other is potable water. This simplistic approach would see better harmonization with other regulatory jurisdictions that pertain to plumbing.


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3. Statement of objectives

As discussed in chapter 4 the problem to be targeted by plumbing regulation is that if it was inadequate, plumbing would be done poorly in some cases. This would lead to an increase in the risk of public health problems. If this persisted the risk would ultimately be unacceptable. It follows from this that the appropriate objective of plumbing regulation is to manage this risk. Therefore, as outlined in Part 1 of this report, our view is that the appropriate objective for plumbing regulation in WA is:

To protect the long term interests and health of Western Australians with respect to the safety of the water supply and wastewater removal system by ensuring that plumbing work is performed in accordance with technical requirements appropriate for available technologies by sufficiently skilled persons.

Appropriate objective: “To protect the long term interests and health of Western Australians with respect to the safety of the water supply and wastewater removal system by ensuring that plumbing work is performed in accordance with technical requirements appropriate for available technologies by sufficiently skilled persons.”

4. Licensing regime

As discussed in chapter 2 of Part II of this report we recommend that the WA regulatory definition of plumbing should be modified to remove certain identified problems and extend the potential reach of the plumbing regulatory regime. Broadening the definition would bring certain ‘branches’ of plumbing that are currently outside the regulatory definition of plumbing within that definition. If this was done with no further change it would require people currently working in those branches to obtain plumbing licences, which may require training. It would also require them to participate in the plumbing regulatory regime by submitting notices of intention and certificates of compliance etc. This would increase the regulatory burden for businesses in the ‘branches’ brought within the regulatory regime. The increase would probably be substantial and, as discussed in section 5.5 of Part I of this report, it would result in a net cost to society. Therefore, as the regulatory definition of plumbing is increased, offsetting changes to the licensing system must also be made to ‘carve out’ those branches of plumbing that are currently not subject to the regulatory regime but would be brought within it by the changed definition.


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For the purposes of licensing ‘carve out’ those branches of plumbing that are not currently subject to the regulatory regime but would be brought within it by the changed definition. Disagree. The adoption of the PCA will allow future licensing requirements. Make provisions for further changes to be made in the future if need be. Agree in principal. Include a contractor level licence. Disagree. Drop the requirement that contractors undergo business training. Disagree. Add a requirement that plumbing contractors to carry public liability and professional indemnity insurances. Agree in principal. Remove ‘subjective’ fit and proper test and replace with a list of factors that would disqualify a person such as convicted of an offence against plumbing regulations. Similar to national licensing proposal, factors should be limited to those necessary to achieve the objective of plumbing regulation. This would need clear policy procedures and industry consultation. ‘Carve out’ urban irrigation, limited plumbing work in remote areas and plumbing in a person’s own home. Provide flexibility for other ‘carve outs’ to be made in the future. Disagree. A clear definition of urban irrigation in order to clarify grey water etc is required. ‘Migrant plumbers’ ‘licensing’. There should be the ability to: ‘make it possible for licences of different lengths’ with conditions or limitations. This is a licensing issue which will cause problems moving forward.


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Setting of conditions on licensing, by the licensing authority that determine the scope of plumbing that requires a license to perform work. Disagree. No actual costing and consideration to what actually occurs at this point in time. In relation to the ‘carve out’ in relation to quantitative and qualitative outcomes for the community. For the purposes of licensing ‘carve out’ those branches of plumbing that are not currently subject to the regulatory regime but would be brought within it by the changed definition. Do not agree in principal that adoption of the PCA will allow future licensing requirements. It would also be prudent to allow further changes to be made in future as the need arises. Agree in principal as it allows for broadening the scope of plumbing. Include a contractor level licence ‐ to be maintained.

(a) Vertical separation – plumbers, tradespersons and contractors.

First, we recommend that the regulations be amended to allow contractors who are not plumbers. MPGA totally disagree with this as the licensing system is providing this in the industry already and there would need to be a provision that the business owner has direction and control through the licensed person and be able to understand that the work has been completed in line with the technical rules. Second, we recommend that the Government drop the requirement that contractors undergo business training and introduce a requirement that they carry public liability and professional indemnity insurance. These exceptions are discussed below. The reviewer states to ‘Drop the requirement that contractors undergo business training’. MPGA does not agree as it would not align with national training and mutual recognition and would make WA completely out of step with the rest of Australia. We support introducing a requirement that plumbing contractors are to carry public liability and professional indemnity insurances.


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Similar to national licensing proposal, factors should be limited to those necessary to achieve the objective of the plumbing regulations. This would need clear policy procedures and industry consultation. Not sure is this the best practice to provide ongoing protection for consumers and also supports the drumming down of the licensing system. MPGA totally disagrees with this and it does not support the current national training package rules, national mutual recognition and migration.

1. Contractors need not be plumbers

This is occurring, but by engaging a licensed person to administer the compliance aspects of plumbing work.

It was pointed out during the consultations that the current regime does not permit corporate structures in the plumbing industry. In particular, a plumbing business can only be run by a contractor, who must be a natural person. The fact that a person cannot operate a plumbing business unless they are a plumber themselves represents a barrier to entry to the plumbing market. According to the best practice regulatory approach that barrier to entry should be removed unless there is a reason to retain it. We were unable to identify any such reason. We see no reason why a plumbing business could not be operated by a non-plumber or a company. This is not to suggest that plumbing work should be done by an unlicensed person. Of course the person doing the plumbing work must have the necessary technical skill to do so, but this need not be the person running the business. This is the role of the ‘nominated person’ in the proposed approach to national licensing. In our view this approach should be adopted in WA. An extension of this is that a plumbing contractor need not be associated with any particular branch of plumbing. Therefore, the same contractor’s licence could span across the scope of plumbing work for which a licence is required. Disagree. This currently occurs in the industry. This would expose the consumer to increased risk of having a person who is not a plumber attend and charge for work undertaken. No direction and control mechanisms to support compliance outcomes.


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2. Contractors should not be required to undergo business training, but

they should have insurance.

However, we note that plumbing contractors in WA are not required to carry indemnity insurance. In other jurisdictions they are required to do so. We expect that many plumbers maintain this type of insurance and that it is often a requirement placed on them by their clients, at least when they work for larger clients. We see this as a useful consumer protection measure and recommend that it should be introduced in WA. Disagree. This does not support the national training package and causes issues with the mutual recognition process.

(b) The fit and proper person test.

In our view the subjective ‘fit and proper person’ test in regulation 17(a) should be removed and replaced with a list of factors that would disqualify a person based on regulation 27(c). Remove ‘subjective’ fit and proper test and replace with a list of factors that would disqualify a person such as convicted of an offence against plumbing regulations. Similar to national licensing proposal, factors should be limited to those necessary to achieve the objective of plumbing regulation. This would need clear policy procedures and industry consultation. Regulation 27(c) speaks of being convicted of a plumbing breach. The fit and proper test is about the person. Set a minimum bench mark with a complete code of conduct.

(c) Horizontal separation – matching licensing and risks.

As noted above, the appropriate objective of plumbing regulation is to ensure that plumbing work is carried out with sufficient safety to protect the public health. It is recommended in chapter 2 of Part II of this report that plumbing is defined broadly for regulatory purposes. Plumbers are highly trained people with a broad range of technical skills. However, not all aspects of plumbing are as technically challenging, especially when plumbing is defined broadly. One consequence of broadening the regulatory definition of plumbing is that work would be brought within it that does not require as high a skill level as other work. Further, there would be aspects of plumbing, when defined broadly, that do not require the full range of plumbing skills.


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As noted in the Decision RIS for the National Licensing regime, a best practice approach to licensing would ensure that licence eligibility criteria are linked directly to the risk to be mitigated. Where the risks are lower it follows that the criteria required for a licence would be lower and vice versa. Therefore, some aspects of plumbing should be ‘carved out’ of the regulatory regime. In the next three sections we discuss three ‘carve outs’ that should be made, namely:

1. urban irrigation (section 4.3.1); 2. limited plumbing work in remote areas (section 4.3.2); 3. plumbing in a person’s own home (section 4.3.3).

We recommend that the licensing system be modified to provide the flexibility for these carve outs to be made along with others that might be identified in future. The same approach would allow the way that migrant plumbers are introduced to the WA industry to be improved, as discussed in section 4.3.4. During the review several arguments were made against the notion of horizontal separation. We acknowledge the sincerity and positive intentions of those who made these arguments but we were not persuaded. Those arguments and brief responses to them are discussed in section 4.3.5.

1. Urban irrigation.

As discussed in section 2.1 and Box 4, urban irrigation work would be captured by the broad regulatory definition of plumbing work. However, the skills required to install an urban irrigation system are less than those needed to perform the full range of plumbing work. For example irrigation systems do not deal with hot water or sanitary waste. ‘Carving out’ urban irrigation, limited plumbing work in remote areas and plumbing in a person’s own home will provide flexibility for other ‘carve outs’ to be made in the future. The MPGA does not agree with any carve outs of this nature and the terminology of remote areas. Urban irrigation is not as simple as a ‘carve out’ as some systems are complex. A clear definition of’ urban’ would be a starting point. The MPGA does not support unlicensed plumbing in a person’s home. Plumbing is a licensed trade for the ongoing protection of public health and safety.


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2. Limited plumbing licences for use in remote communities.

The definition of ‘remote’ needs to be clarified. Consideration also needs to be given to a risk analysis vs. cost benefit.

3. Plumbing at home.

Our review of plumbing legislation and regulations in other jurisdictions indicates that there is typically some form of ‘carve out’ of the plumbing regime to permit people to do plumbing work for themselves in their own home. The details vary from jurisdiction to jurisdiction. We recommend that WA introduce a similar carve out. There are several ways that this could be achieved. One would be to use the horizontal separation mechanism and have the licensing authority determine that plumbing work that is not done for payment is not subject to the licensing regime. The definition of payment would need to be broad enough to discourage avoidance through devices such as bartering. Another approach would be to write the regulatory definition of plumbing to carve out the relevant tasks. A third approach, which would allow commercial ‘handymen’ to provide minor plumbing services would be to define simple plumbing tasks that should be ‘carved out’ of the regime entirely. In our view this approach would provide the greatest benefit to Western Australians because it would maximise their freedom to choose.

4. Migrant plumbers.

As WA has been through the mining boom in recent years many people, including plumbers have migrated from many different countries. Notwithstanding this, Australia, and WA in particular, has experienced a skills shortage in recent years. One way to alleviate that skills shortage is to make efficient use of the skills of plumbers who immigrate to Australia. This was discussed by WA Farmers, which said that:

“is concerned to ensure that regional areas are not disadvantaged by additional regulatory compliance for these critical service providers”


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While we accept that (migrant plumbers) may have undertaken different training to plumbers in Australia it is imperative that these skills should not be lost to the market, especially for rural regions. WA Farmers supports a flexible approach to determining the merit of overseas plumber’s training by allowing the regulator to assess applications on a case by case basis. However, the current licensing regime does not give the PLB any more flexibility in respect of plumbers arriving in WA from other countries than it does other plumbers. Therefore, the PLB can either grant a migrant plumber a water supply, sanitary and/ or drainage licence, at either the contractor or tradesperson level, or not. It can only grant those licences for three years at a time. In other jurisdictions licences can be granted for different time periods and with various conditions or other limitations. This can be used to introduce migrant plumbers into the market gradually. For example, they can be limited to a subset of plumbing work to correspond with their training. They could then supplement their training and return to the relevant licensing authority to have the limitation altered or removed. This is not possible in WA, though it would be made possible by horizontal separation. The MPGA provided extensive comment on the migrant plumbers in a recent submission to the Building Commission’s ‘Provisional Plumbing Licenses for Overseas Trained Applicants’ consultation paper (Attachment 3).

5. Arguments against horizontal separation.

The preceding sections summarise arguments that were made in favour of horizontal separation and examples where it could be helpful. However, in the consultation sessions many stakeholders argued against horizontal separation. It is fair to say that most plumbers did not support the idea. Three main arguments were put. The first argument against horizontal separation was that it would create plumbers who were unemployable. The argument was that if plumbers were licenced to do only some work contractors would not hire them because it would be too difficult for the contractor to ‘keep track’ of which plumbers could do which work. It was argued that, therefore, contractors would only hire fully trained plumbers.


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This might very well be correct but we do not see it as a reason to disallow horizontal separation. In fact we see this as none of the licensing authority’s concern. The second argument, which is related to the first, was that the licensing authority would not be ‘doing the right thing’ by prospective plumbers if they give them partial licences knowing (or suspecting) that they will find it difficult for them to find employment. This might also be correct. However, in our view providing this type of advice is beyond the proper role of the licensing authority or, for that matter, the Government. We see this as no reason to disallow horizontal separation. In our view, these are matters for the plumber seeking partial licensing. If that person decides that it suits them to pursue part of a trade and they are sufficiently skilled that they can do so safely then they should be permitted to do so. Rather than making the Government responsible for protecting the interests of prospective plumbers it is well within the market mechanism’s capacity to address these two concerns. Further, some submissions suggested that consumers may prefer easier access to a less well qualified plumber to the current situation. For example, WA Farmers expressed the concern that regional areas should not be disadvantaged by a regulatory regime that is so strict regarding the licence criteria for plumbers that there are not enough plumbers to service regional areas. This is also closely related to the discussion of EHWs in remote areas. The third argument was that if people had ‘partial licences’ they might start to do work that was beyond the scope of their licence. The argument was that this would make it difficult to ensure that plumbing work was done by properly licenced people. We acknowledge that it would be a concern if people with ‘partial’ licences worked outside the scope of those licences. However, in our view this should be managed within the compliance regime. We do not see it as a reason to disallow horizontal separation, but we do see it as a reason to ensure that the compliance regime is effective. We see it as no different to the risk in the existing model that unlicensed plumbers will do work they are not permitted to do.

(e) Implementing horizontal separation

Under the licensing model we propose, the licensing authority would have the ability to introduce, or remove, licensing requirements for different branches of plumbing. However, we recommend that this ability should not be unfettered.


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The appropriate approach to this is to balance the regulatory risk introduced by:

1. the chance that regulations might be tightened, which would be

costly to industry sectors whose activities would be made illegal if changes were made.

2. the risk of public health problems if changes are not made.

This is a matter of balancing the cost of changes with their benefits. Rather than ‘hard coding’ these in the regulations the changes we recommend would give licensing authority greater flexibility over the way that plumbing licensing is administered in WA. This would facilitate the implementation of National Licensing and would give the licensing regime the flexibility to apply horizontal separation to adapt to:

1. the different risks involved in different branches of plumbing work. 2. other circumstances that may arise from time to time.

However, that discretion should not be unfettered. Increases in the scope of plumbing work that requires a licence should only be made based on evidence that the following three conditions are met:

- condition 1 – allowing work in the branch of plumbing being considered to be done by unlicensed persons is placing the public health in WA at an unacceptable risk.

- condition 2 – bringing the branch of plumbing work in question within the scope of work which requires a licence is the lowest cost way of ameliorating that risk.

- condition 3 - the benefit of increasing the breadth of the licensing regime, and thereby reducing the risk to the health of Western Australians, is greater than the cost that would be imposed, including the cost of retraining that would be imposed on businesses currently operating in the branch of plumbing to be brought within the scope of work for which a licence is required.

The licensing authority should be required to provide evidence for changes it proposes to make before making them and to have regard to the costs and benefits of any such changes. In the immediate term we do not anticipate that any changes would be made. As noted in the NOLS decision RIS and discussed in chapter 6 of Part I of this report, on the evidence at the moment there is no case for introducing mandatory licensing requirements into branches of plumbing where they do not currently exist.

Disagree.

The MPGA disagrees with the author’s understanding of introducing mandatory

licensing requirements, given that NOLS is no longer being considered nationally,


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The mutual recognition process that currently applies to issuing of licenses will

need a set of conditions that the licensing authority must follow in order to align

licensing for the national plumber that trans‐boarder crosses. The scope of a

plumber in WA will be less than that of other states like Victoria. The person

transferring to WA from other states are disadvantaged by the limited plumbing

licensing in WA and WA is seen nationally as the lowest level of plumbing

licensing.

Elements such as backflow testing and temperature valve testing are excluded

which exposes the compliance system to increased non‐ compliance activities.

This is then a clear link to licensing and technical compliance.

Setting of conditions on licensing, by the licensing authority that determine the scope of plumbing that requires a licence to perform work in line with the definitions provided in the PCA will provide clear direction for mutual nationally accepted licenses.

(f) Implementing National Licensing.

Through the COAG process the Government has decided, in principle, to implement National Occupational Licensing, which will begin with the plumbing and gasfitting trades. The purpose of this review is not to revisit those decisions, but the mechanism recommended here should be capable of giving effect to those agreements. The proposed model for National Licensing in the plumbing industry is described in the NOLS Decision RIS. In terms of the regulatory framework discussed in this report there is both horizontal and vertical separation as follows:

- horizontal – plumbing licences would be available for (any or all of) water and sanitary plumbing, draining, fire protection, mechanical services, with endorsements possible for urban irrigation and other aspects of plumbing.

- vertical – licences would be available at plumber, tradesperson and contractor levels.

This framework could be implemented using the framework described above. In practice, if the Government is satisfied that National Licensing should be implemented for plumbing we recommend that the Minister either implement the framework or direct the licensing authority to do so. This direction would overcome the need for the licensing authority to satisfy itself that it was in the interest of Western Australians to so implement national licensing, which would be repetitive given the consideration that has already taken place.


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(g) Conclusion – licensing regime.

Given the broadened regulatory definition of plumbing recommended in chapter 2 of Part II of this report it is essential to alter the licensing regime. This would allow the Government increased flexibility to allow people with skills to make full use of them while still protecting the public health in WA. It would also allow the Government to give effect to decisions it has made in relation to National Licensing for plumbers as well as any decisions it may make in future. The key change that is recommended to the licensing regime is to introduce flexibility. The Government should give prospective plumbers the right to be licensed to conduct work that they are sufficiently skilled to conduct safely regardless of whether they are also skilled to do other work. Therefore, horizontal separation should be allowed and placed at the discretion of the prospective plumber. The licensing regime should be constructed on a ‘shall issue’ basis, similar to the WA electrical licensing regime. In other words, when a person applies for a license that would authorise them to do plumbing work of whatever kind the licensing authority should ascertain whether they can do so safely and, if so, the regulations should require the licensing administrator to issue the licence. The MPGA disagrees with the licensing administrator issuing licenses as this is the role of the PLB.

5. Compliance regime. Make it illegal for unlicensed persons to advertise for plumbing work. Agree in principal, challenges the proposal to allow contractors with out licenses to operate businesses. Extend the penalties/fines that can be enforced with an infringement notices. These notices can be issued to include commissioning plumbing and undertaking unlicensed plumbing work. Agree. Enable disciplinary matters to be dealt with summarily with fines enforcement. Agree in principal. Allow disciplinary actions to be resolved by enforceable undertaking. Agree in principal.


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Remove Regulation 27(b) which makes ‘the licensee or permit holder no longer a fit and proper person to hold the licence or permit’ a disciplinary matter. Disagree. This should be a condition of licensing and a process and policy guideline applied. This should remain in the event of removing a person’s license. Amend Regulation 27(f) to add committing an offence of dishonesty to the lists of grounds for disciplinary action. Delete Regulation 28 that implies the PLB can only take action about a disciplinary matter unless it first receives a complaint.

Disagree. This needs to remain under the control of the PLB and not allowed to be part of any other regulatory control. The PLB should retain its regulatory controls over plumbing work. Clarify Regulation 29 to make it clear that the relevant decision maker can take action in SAT if it considers it appropriate to do so regardless of how it reached that view.

As there is no defined decision maker other than the Minister it would be appropriate to retain this and reword to allow for fines and infringements.

Broaden Regulation 66 to allow a person with plumbing skills to be designated as a plumbing compliance officer. The MPGA supports Energy Safety’s policy to engage independent gas inspectors to monitor compliance. This process is clear and transparent and allows harmonisation with the regulations. This is not to be considered as persons with out plumbing skills being designated as plumbing compliance officers.

Alter Regulation 75 to remove the distinction between authorisation to issue infringement notices and designation as a plumbing compliance officer. Maintain the preserved separation between a person who can issue an infringement notice, and a person who can vary or withdraw an infringement notice. Disagree. This implies that a generalist regulator would be responsible for plumbing compliance.


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5.1.4 Information gathering.

Regulations should be made to allow the technical regulator to require information to be provided to supports its compliance activities. If this was to occur, extensive industry consultation would be required. Any generalising or broadening of compliance designation to other persons is not accepted by industry as best practice.

5.1.5 Alternate means of securing compliance.

Increasing the use of ‘soft’ compliance. The MPGA agrees with this as the use of soft compliance allows for broader targeted communication. This is supported by industry to increase consumer awareness and the consumer’s compliance obligations

5.2 Operational aspects of compliance.

Compliance regime to be administered by a technical regulator. The MPGA agrees with this providing this technical regulator is not a generalist regulator controlling multiple disciplines. Plumbing compliance activities remain in the PLB’s charter and regulations are to be developed to support the broader compliance activities associated with plumbing only. Technical regulator to develop compliance objectives and priorities – Annual / strategic plan and make readily available in a published format like E/S’s annual business plan. The MPGA supports the compliance objective providing it is linked to all risks associated to plumbing. Reporting is only one of the functions of a compliance objective. Supporting this with trained staff, extensive communications and 5 year planning will achieve outcomes greater than present activities. By developing a risk based approach and targeting regions of poor compliance will lead to further protection of health and safety in WA

6. Key decision makers The Minister is to be responsible for determining the minimum standards to be met. Agree. The adoption of the PCA will provide the Minister with clear guidelines for administering a compliance framework.


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The Minister is to be responsible for determining regulatory definition of trade. Agree. The MPGA supports the definition of plumbing contained within the PCA and will align WA with the rest of Australia. Licensing criteria to be determined by Minister by Ministerial Order or delegated to a licensing authority/technical regulator. Disagree. It shall only be the Minister that sets the licensing criteria as this will then link to other regulatory controls that the PLB currently has in place. The PLB should remain as the licensing authority.

Department or technical regulator to have responsibility for administering licensing. The PLB currently possesses this power under the current legislation. The author is suggesting that licences could be administered by a licensing commissioner of a generalist regulator. The MPGA disagrees. The status quo shall remain in reference to a decision maker that is clearly defined in current legislation and regulatory controls. A key part of the regulatory model is the decision maker, or makers, that will administer it. The MPGA does not support this layered approach to the compliance regime.

7. The technical regulator

The author suggests that the technical regulator should be multi-trade. Disagree. As noted, the MPGA does not support a generalist regulator monitoring plumbing compliance and licensing.


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The plumbing legislation should be kept separate. Agree. The current legislation should stand alone to protect the Government from unquantifiable risk. The author suggests an improvement in the level of reporting to and by the technical regulator. The reporting requirements need to be defined further to accountability and other key strategic directions. The review recommends that the compliance regime should be administered by the technical regulator. It also suggests that it should be a statutory office holder or group thereof with members of the technical regulator appointed using a skills matrix and for a fixed term. Disagree. This goes against the current legislation and is not supported by industry. The number of members not to be fixed. Disagree. The number of members could be diminished by the generalist regulator and lose its effectiveness in delivering best practice outcomes to protect the health and safety of the community. The technical regulator should be independent of government of the day and the plumbing industry. As the PLB is under its current legislation this shall remain the same. Chairperson to continue to be a person from outside the industry. Agree. Deputy Chair to act in the Chairperson’s absence. Agree.


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The author suggests that the technical regulator could be a single person/ public servant and it may be appropriate they have a plumbing background. Disagree. The MPGA does not support the technical regulator being a single person/ public servant. The author recommends abandoning the existing model of referring to individual appointees nominated by individual groups. Disagree. The MPGA believes that the current make up of the PLB consisting of consumer representatives, licensed plumbers and regulators should remain. The author suggests it is difficult to appoint Board Members if an organisation winds up. The MPGA does not agree with this statement as the Minister has the power to appoint Board Members as they see fit under the current legislation.

7.3 Date gathering and reporting. The author suggest to developing detailed statistics regarding the full range of compliance related information. Report publicly. The MPGA agrees that this should be public but questions whether it is currently occurring. The author suggests publishing regular publications that provide statistics relating to amount of plumbing work done and number of inspections undertaken. Agree. The MPGA sees this as a positive initiative and looks forward to its implementation.

8. Who should pay for plumbing regulation

The author recommends that a process for funding payment to be developed similarly to the Energy Safety model. If this was to occur it would make practical sense for plumbing regulatory controls to come under the regulator for gas and electrics as the author describes that there would be benefit in this harmonisation.


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As with electrical and gas not all regulatory activities are determined as new building work so therefore (like electrical and gas) it places a much greater requirement on compliance for the ongoing protection of the service provider’s assets. This has a direct link to consumers and has a high level of risk associated with ongoing protection of all water and sewerage system users. The author recommends a business plan be developed each year setting out planned activities and budget. The MPGA agrees to this providing there is a requirement on service providers to ensure ongoing compliance by owner / occupiers to maintain plumbing systems in accordance with regulatory controls. The report suggests that the budget for the activities to be undertaken by the Director in the year be derived from levy amount to which the MPGA agrees however ring fencing may result in these funds being used outside of the plumbing industry. Legislation is required to ensure that the funds are used to maintain levels of compliance and enforcement. The report suggests that the Minister will consider the plan, compiled by licensed service providers and when approved, the levies will be set according to consumption and risk profile of property levies to be applied to water service providers. The MPGA agrees with this process but queries how compliance activities in areas where there are no water meters will be funded. Mine sites etc will still need a link to perhaps the new installation.

9. The Plumbing Code of Australia

As NOLS is no longer relevant, this places more emphasis on the need to expansion of the scope of plumbing to align with other states of Australia that have a more broad scope of plumbing licensing plumbing than WA. The author informs the reader that WA treat the question of adopting the PCA independently of the licensing regime. Disagree. Licensing still relates to the underlying principles of the PCA, so it shall not be treated separately. As the industry implements the PCA in full there will be an ongoing requirement to link this document to licensing outcomes. The MPGA sees this as the direct link to the regulation review recommendations to allow flexibility in the licensing of the ‘plumbing designer’.

There is a direct link to self certification outcomes and areas of the PCA. Currently the WA licensing regime is restricted to Water, Sanitary and Drainage. Areas of the PCA have links to other regulatory outcomes and the whole licence system is reliant on this direct link to the PCA. By way of reason, it is clear after the author puts a case forward for a ‘plumbing designer’ that this in its own right forms that intransient link to cold water services, heated water services, non‐drinking water


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services and fire‐fighting services. This will then extend to the broader definition of plumbing and the plumbing designer having regard for roof drainage systems, surface and sub‐surface drainage systems. The person signing off on an ‘alternative solution’ should have appropriate expertise in design – usually found with engineers and hydraulic designers. Agree. Certain levels of designer qualifications could also be located in simple plumbing installations. Appropriate expertise is described in the PCA as a person with qualifications and experience in the area of plumbing and drainage in question recognised by the authority having jurisdiction. Therefore, it would need this person to be recognised in the Plumbing Services Act 1995 and supporting regulations Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000. This will then provide a clear link to a licensing body, satisfy indemnity insurance requirements and harmonise with regulations that control plumbing outcomes. The licensing authority should determine the particular expertise necessary to determine whether alternative solutions are appropriate, or licence people with that expertise. Agree. This matter will need to be included in current legislation. The PLB’s functioning under the Plumbers Licensing Act 1995 has provisions in:

Schedule 3 ‐ Purposes for which, or matter about which, regulations may be made – (10). The regulation and control of plumbing work. By developing a process to determine the level of expertise to allow ‘Alternative Solution’ in Plumbing Services Act 1995, the PLB would be able to determine the expertise appropriate and licence persons with that expertise. The comment “that there is no link to a licensing authority” is flawed as the Plumbers Licensing Act 1995 allows for this in Schedule 3.

Additional category of licence is introduced named ‘plumbing designer’ Yes, the Plumbers Licensing Act 1995 allows for this to occur and will enable certification of design based on a qualification outcome. This would need to be broad to allow the capturing of skills possessed by the high level qualifications of an engineer / hydraulic design consultant. For example: a product certification of a glass pipe or a different recycled material that would fall outside of a hydraulic engineer’s skills would require specific engineering qualifications to provide evidence of suitability.


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If a system fails due to the design, responsibility should fall on the designer. A designer has responsibilities, as well as the owner. The installation would be undertaken with the design process requirements in consideration. Therefore the designer would have indicative requirements to ensure appropriate outcomes are achieved by the installer to satisfy the owner’s requirements. Professional indemnity insurance provides assurances. This should not be transferred to the installing plumber and the designer should be prevented from seeking indemnities or similar from a plumber to protect against design flaws. In practice, designers (hydraulic designers) will specify compliance with standards, codes and guidelines that are mandatory although the licensed installer ultimately becomes responsible. Excerpt from the PLB website:

“In keeping with the national trend to place greater accountability on industry members, self‐certification forms the basis of the regulatory framework. This means that licensed plumbing contractors are responsible for all plumbing work that they perform for a period of six years from the time the work is completed. Plumbing Contractors must certify that work is complete and complies with all of the relevant regulations and standards.”

This statement would need to be changed within the regulations to place some accountability on the certifying designer.

Documents

REVIEW OF PLUMBING REGULATION IN WESTERN AUSTRALIA · s February 2014 REVIEW OF PLUMBING REGULATION IN WESTERN AUSTRALIA Response by Master Plumbers and Gasfitters Association of