Easy and Transparent Trading Consultation Paper Regulatory Policy, BRD Department of Finance, Services and Innovation Level 5, McKell Building 2-24 Rawson Place SYDNEY NSW 2000 Email: policy@finance.nsw.gov.au ABOUT SPASA

The Swimming Pool and Spa Association of Australia (SPASA) is the peak industry body representing the interests of the swimming pool and spa industry. As the voice of the industry, SPASA represents pool builders, manufacturers, suppliers, retailers, technical servicemen, subcontractors, installers, consultants and other allied trades, all of whom set themselves apart from the rest of the industry by setting standards of skill, workmanship and ethical business behaviour in the best interests of pool and spa owners. SPASA is also a Registered Training Organisation (RTO) that provides training and assessment to the swimming pool and spa industry. Our courses are designed in consultation with key industry stakeholders and our qualifications and accreditations are highly valued by government, employers and the wider community. The Swimming Pool and Spa Industry is diverse and includes but is not limited to the following sectors:

Manufacturers of Equipment & Chemicals Suppliers of Equipment & Chemicals

Pool Builders Pool and Spa Service Technicians

Pool Shops Consultants

Online Retailers Portable Spa Retailers

Prefabricated Pool Manufacturers & Retailers Tiling/Paving Suppliers & Retailers

Pool & Spa Heating Manufacturers/ Retailers Pool Cover Manufacturers & Retailers

Ancillary Retailers Other Sub Trades

LACK OF NOTIFICATION OF CONSULTATION

SPASA was only made aware of this consultation by another key stakeholder who themselves was made aware by another.

Additionally, the title of the consultation paper – “Easy and Transparent Trading - Empowering Consumers and Small Business” does not properly reflect the contents of the consultation paper. For many, it would be easy to assume that the consultation paper does not relate to them on first reading, resulting in some stakeholders not responding.

Effective industry consultation and engagement is central to the development of ‘good governance and policy’. To enable ‘good governance and policy’ it is encumbered on government and regulators to inform industry, seek input and stimulate debate. This process helps achieve effective and responsive decision-making and assists government to meet policy, planning, leadership and advocacy objectives and outcomes. The lack of notification is unfortunate. Consequently, SPASA’s submission has been drafted under time pressure whilst working on other planned projects. Comments are only made to areas considered relevant.

Although an isolated and specific topic may be important, SPASA does not believe that obtaining points in this manner provides the intended benefit to the licence holder, industry and the consumer.

SPASA strongly believes that it would be more beneficial to have license holders achieve a proper spread of CPD point activities across the entire topics listed in the guidelines to make up the required 12 points.

Possible Solution: A builder would need to obtain 12 CPD points that are relevant across 6 of the topics listed in the guidelines and at least 8 CPD points would need to be achieved via a face to face activity.

Mandatory CPD Topic

A dedicated Dispute Resolution “Continual Professional development” (CPD) topic could be made mandatory as part of the CPD Scheme and could cover:

▪ Introduction to building and construction contracts ▪ Building and Construction Industry Security of Payment Act ▪ Court Processes ▪ Non-court processes ▪ Common building and construction disputes ▪ Timing and sequencing issues ▪ Liquidated and other damages ▪ Termination breaches and events ▪ Contractual remedies ▪ Negotiation ▪ Communication

Benefits of a mandatory Dispute Resolution CPD Training include:

▪ Disputes being dealt with quickly ▪ Overall less costly form of settling disputes. ▪ Compliance/risk avoidance mechanisms (better education) ▪ Encouraging license holders to develop dispute resolution strategies ▪ May allow for more creative remedies and outcomes compared with alternative ▪ Support approach which relies on consensus.

Surplus CPD Points

Currently, license holders can accumulate and carry forward up to 11 surplus CPD points for 12 months.

SPASA is of the view that the accumulation of up to 11 points does not promote current and regular updating of skills and knowledge and this practice of accumulating points should cease. CPD License Categories - Expansion SPASA strongly SUPPORTS the CPD system being expanded across all license categories. Trades not only work with consumers directly but also sub-contract with license holders. In this regard, SPASA sees their omission from the CPD system as an unnecessary risk and there can be no justification not to require them to obtain CPD. Builders and Swimming Pool Builders alike currently require 12 points to be achieved every 12 months to maintain their licences. The real concern is that the Subcontractors that they may employ are not required to attain 12 CPD points annually to maintain their license. Their exclusion may in fact reduce the effectiveness in what the CPD system was initially intended to do.

INDUSTRY NOTE: RED TAPE - Non- Payment to Builders Prompt payment is an important issue for pool builders and other contractors, as delays in payment and non-payment can have a dramatic impact on the financial viability of a business and their associated industries. Pool Builders like other contractors are placed in significant risk positions daily, when they rely on the final payment from the homeowner to cover expenses and make a profit. SPASA and other respected associations do not support bad behaviour or practices by builders and contractors that negatively impact homeowners, but we do support and advocate for decent hard-working builders and contractors being paid for good work they undertake and complete. Many of our members work directly for homeowners that undertake pool and spa construction work, renovations, repairs and servicing. Feedback from these members highlights that non-payment from homeowners is a major issue which has significant flow on effects to their subcontractors, suppliers and to their business. Whilst the Home Building Compensation Fund (HBCF) is part of a comprehensive consumer protection regime for homeowners, a prominent major cause of builder financial stress and insolvency is non-payment by homeowners for works carried out. In stark contrast to a homeowner’s consumer rights, the means to recover progress claims from homeowners by contractors is expensive, time consuming and riddled with red-tape. NCAT orders against a builder who does not perform can lead to license suspension and HBCF restrictions whilst NCAT orders against consumers who do not perform requires the builder to invest in legal actions that protract the matter and can cost as much or more as the order they are pursuing…..Extraordinarily, the builder is then interrogated by HBCF as to why the amounts remain outstanding and asked to provide a detailed explanation as to why/how the legal costs accumulated. Ironically, the very thing that is required from a builder by HBCF (financial stability/viability) is the very thing that will negatively affect their eligibility by spending a significant amount of time chasing progress claim payments they are entitled to – alone and with no regulatory assistance. SPASA submits that the Security of Payments Act or some other similar mechanism needs to be also geared to include residential building works contracted directly with the

homeowner to protect the builder…………………This would ensure that the balance of power between the homeowner and the contractors is in fact - Balanced.

For further information: Spiros Dassakis - COO Swimming Pool and Spa Association of Australia (SPASA)