AIRAH Presentation

20 October 2015

David Brotchie Senior Legal Officer

Legislative requirement

• The Professional Engineers Act 2002 (the Act) requires anyone carrying out professional engineering services in Queensland or for a Queensland project to be either registered as a registered professional engineer (RPEQ) or carrying out the service under the direct supervision of an RPEQ who is responsible for the service.

• The Act applies even when engineering services are provided by an employee for an employer. It is not limited to where engineering services are only provided to a client by a consulting engineer.

What is a “professional engineering service”

professional engineering

service

an engineering service that requires, or is based on, the application of engineering principles and data to a

design, or to a construction, production, operation or

maintenance activity, relating to engineering, and does not

include an engineering service that is provided only in

accordance with a prescriptive standard

Amendments to the Act

• Came in to effect in early November 2014

• Expands the definition of a professional engineering service to include “operation” and “maintenance”

…means a professional engineering service that requires, or is based on, the application of engineering principles and data to a

design, or to a construction, production, operation or maintenance activity relating to engineering

Professional engineering service

• This includes work undertaken in other States, Territories and overseas for Queensland

• Almost 1,000 RPEQs – 25% reside interstate or overseas

• Amendments to the Act have clarified extraterritorial application of the Act to read:

This Act applies both within and outside Queensland

RPEQ “sign-off”

• The Act does not require an RPEQ to sign off on design or the engineering service. It is the carrying out of “services” that is the focus

• Clients or third parties may require professional engineering services to be “certified” by a RPEQ

Practice Note 4.1 – Project Certification

Design and supply from overseas

Professional engineering services carried out outside Queensland on the design, construction, and maintenance systems for any building, plant, machinery, or product for use in Queensland must be undertaken by an RPEQ

OR

An RPEQ must be in a position to take responsibility for all professional engineering services provided. In this case, the RPEQ must have in place documented mechanisms and quality assurance systems to ensure the standard and appropriateness of the services

Prescriptive standards

prescriptive standard means a document that states procedures or criteria:

(a) for carrying out a design, or a construction, production, operation or maintenance activity, relating to engineering; and

(b) the application of which, to the carrying out of the design, or the construction, production, operation or maintenance activity, does not require advanced scientifically based calculations.

1. it is a document

2. it states procedures or criteria

3. the procedures or criteria are for carrying out a design, or a construction activity, relating to engineering, and the document explains how to apply those procedures on criteria to the particular task to which the document relates

4. the application of the procedures or criteria stated in the document must not require advanced scientifically based calculations

5. the service is carried out only in accordance with the standard

Five Elements

Obligations on practice of engineering under the Act

A person who is not an RPEQ must not carry out professional engineering services—section 115(1) PE Act

A person does not commit an offence under section 115(1) if they carry out the services under the direct supervision of an RPEQ who is responsible for the services—section 115(2)

An RPEQ must not carry out professional engineering services in an area of engineering other than one in which they are registered—section 115(3)

Direct supervision

the supervising RPEQ must

oversee and evaluate the

carrying out of the service by

the person.

have sufficient knowledge of professional engineering

services being carried out

have sufficient control over outputs of

professional engineering

services being carried out

take full professional

responsibility for professional

engineering services being

provided

Five elements

1. the supervision must be direct

2. the supervising RPEQ must direct the person in the carrying out of the service

3. the supervising RPEQ must oversee the carrying out of the service by the person

4. the supervising RPEQ must evaluate the carrying out of the service by the person

5. the supervising RPEQ must take full professional responsibility for the service.

Regulation

The Board has legislative powers underpinning regulation of engineers which differentiates it from professional organisations

five

elements

registration

compliance

complaints

prosecutions

appeals

Co-regulation of the engineering profession

• the professional bodies determine the competency standards that are required of engineers seeking registration.

• the professional bodies determine the areas of engineering.

advantages to the

profession

Joint administration of the registration process by the engineering profession and the Board.

Co-regulation of the engineering profession cont’d

As at October 2014 the assessment entities are:

Professionals

Australia

(APESMA)

Institute of Public Works Engineering Australasia (IPWEAQ)

Royal Institute of Naval

Architects (RINA)

Institute of Chemical Engineers (ICHEM-E)

The Institution of Fire

Engineers (IFE)

Australian Institute of Mining and Metallurgy (AusIMM)

Engineers Australia

Assessment entities

Engineers Australia has been approved to assess competencies in the following areas of engineering

General Areas of Engineering

•Environmental

•Information, Telecommunications and

Electronics

•Management

•Marine

•Mechanical

•Naval Architecture

•Aerospace

•Petroleum

•Biomedical

•Structural

•Building Services

•Chemical

•Civil

•Electrical

Assessment entities cont’d

Engineers Australia has been approved to assess competencies in the following areas of Engineering

Specific Areas of Engineering

•Fire Safety

•Heritage and Conservation

•In-Service Inspection of Amusement Rides and Devices

•Pressure Equipment Design Verification

•Subdivisional Geotechnics

Assessment entities cont’d

AusIMM (the Australian Institute of Mining and Metallurgy) has been approved to assess competencies in the following areas of Engineering • Mining • Environmental • Geotechnical (Mining) • Metallurgical

Assessment entities cont’d

Institution of Fire Engineers – Fire Engineering

Institute of Chemical Engineers - Chemical engineering

Institute of Royal Naval Architecture - Naval Architect

Institute of Public Works Engineering Australasia- Civil- Public Works

Professionals Australia - Civil

Mechanical

Electrical

Structural

Management

Information and Telecommunications

fitness to practice

registration

advise applicant NO YES

assessment: qualifications and

experience

application to assessment entity

application to BPEQ

NO

appeal QCAT YES

Overview of the registration process

Fitness to practice

In deciding whether an applicant for registration is fit to practise as a registered professional engineer, the board may have regard to each of the following:

• an indictable offence; or

• an offence against this Act or the repealed Act;

• another offence, relating to the practice of engineering.

(a) conviction, other than a spent conviction, for:

(b) registered and the registration was suspended or cancelled - the reason for its suspension or cancellation.

(c) if registered - any order about the applicant.

Fitness to practice cont’d

• is affected by bankruptcy action; or

• is an executive officer of a corporation affected by control action.

(d) if registered — any order about the applicant:

• whether the applicant underwent the assessment; or

• whether the applicant cooperated with the doctor.

(e) if health assessment required under section 35E:

(f) any other issue relevant to the applicant’s ability to competently practise as a registered professional engineer, including, for example, the applicant’s mental or physical health.

fitness to practice

renewal

advise applicant

NO YES

assessment: CPD

participation in continuing professional development scheme of

assessment entity (membership or payment

to belong)

application to BPEQ

assessment: CPD

participation in continuing

professional development scheme

of BPEQ

YES

YES

NO

appeal QCAT

Overview of renewals process

NO

Registration renewal

Renewal occurs from 1 April to 30 June annually

– RPEQ’s received renewal forms in March

– obligation on RPEQ’s to advise Board of any change in contact details.

– an offence under s32 of Act…if you fail to advise Board of change of

contact details.

– if RPEQ’s fail to renew then can apply for restoration within 2 months of

expiry, BUT must apply by 31 August.

Applications for restoration after 31 August will require evidence of CPD with the application. Each application will be considered on its merits.

Continuing professional development (CPD) requirements

Audits of CPD compliance will be undertaken to ensure current competency to practice.

the expectation is 150 hours over 3 years.

CPD will include:

• External and internal courses

• Attendance at technical presentations

• Publications

• Preparation and delivery of conference papers

• Private reading

• Audits of CPD compliance will be undertaken to ensure

• current competency to practice.

engage investigator

advise all parties no

further action

prepare case for submission to

QCAT or Magistrate

is complaint frivolous, vexatious or trivial?

complaint received

advise all parties no

further action

YES

NO

Indicative complaints process

does investigator’s report indicate that there is a case?

NO

YES

Unsatisfactory professional conduct

…for a registered professional engineer, includes the following…

conduct that is of a lesser standard than that which might reasonably be expected of the registered professional engineer by the public or the engineer’s professional peers.

conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of engineering.

misconduct in a professional respect.

fraudulent or dishonest behaviour in the practice of engineering.

other improper or unethical conduct.

Existing registration requirements

Northern Territory - Building Practitioners Board

• Register - Mechanical, Hydraulic and Structural Engineers

South Australia

• No registration requirements for engineers, considering structural

Western Australia

• No registration requirements in place; but are looking to register fire engineers

New South Wales - accreditation under Building Professionals Board

• Structural, civil, mechanical, fire safety, building

Victoria - registration with Building Practitioners Board • Civil/Structural, Mechanical/ Hydraulics, Electrical and Fire Safety Tasmania - accreditation under Building Act 2000 • Building services, Fire Safety, Civil/Structural and Geotech ACT • No registration requirements.

Existing registration requirements

Code of Practice

The Code of Practice for Registered Professional Engineers provides guidance on the standards of practice expected of registered engineers

It can also be used as evidence in disciplinary proceedings bought by the Board

Benefits of registration

protecting the status of the profession by restricting the title of registered engineer to those who have demonstrated the required level of qualifications and skills.

maintaining professional standards by having a common set of standards, skills and continuing professional development requirements.

providing certainty in the workplace for practicing professional engineers.

a registration system provides a reliable means to confirm a professional engineer’s competence

it provides government, industry and individual consumers the ability to engage the appropriately qualified engineer to perform the required engineering services

Benefits of registration cont’d

registration of engineers provides a system for the engagement of the appropriately qualified professional engineer for the performance of the required engineering services

risk is mitigated by

registered professional engineers committing to keeping up to date through continuing professional development.

registered professional engineers undertaking responsibility to accept the outcomes of the services they perform.

Risk Mitigation

by having a registration system the engineering outcomes provided by registered professional engineers will minimise any adverse social, economic and environmental consequences

Risk Mitigation

Completing another’s work

• Engineers will regularly need to take up an “in-progress” design by another engineer.

• Board jurisdiction relates to RPEQs conduct in carrying out professional engineering services.

• Board looks at conduct against the standard of conduct reasonably expected by the public and professional peers; and competent conduct demonstrating adequate knowledge, skill, judgement, and care in the practice of engineering.

• Board looks at what the RPEQ did or should have done in the circumstances.

• The general principle is that an RPEQ is only liable to the Board for what he or she did or should have done. However, there is an expectation that an RPEQ taking up an “in-progress” design will undertake appropriate evaluation of the work done to date to determine its appropriateness.

• What is appropriate will be dependent on the facts and circumstances of each situation.

• Often, RPEQs will assist with the design as part of a team and will not be solely responsible for the design.

• Again, the Board will examine what the RPEQ did or should have done in the circumstances against the standard of conduct the public an professional peers would reasonably expect, and with regard to what would have been competent conduct demonstrating adequate knowledge, skill, judgement, and care in the situation.

• If your assistance is a professional engineering service, then you will not necessarily escape disciplinary liability if you are not the person whose name ends up on the design as having “signed off” on it.

Assisting with Design

• The definition of a professional engineering service does not exclude a service not given in writing. Just because your advice or opinion is not written does not mean it cannot be a professional engineering service.

• There will be many situations where you will have to apply engineering principles and data on site, for example, to come up with a solution to a problem on the spot and give advice verbally. That advice will still be a professional engineering service if it satisfies the definition in the Act.

Advice not given in writing

• The Board expects that RPEQs will:

– carry out professional engineering services in a professional and competent way; and

– comply with the Code of Practice.

The Board also expects that RPEQs will maintain public confidence in the standard of services provided by RPEQs by ensuring they maintain a high standard of professional conduct and practice.

Key expectations of RPEQs

• Often a client will ask you to “certify” something.

• “Certify” is an ambiguous term. What you understand it to mean in the circumstances may not be what your client understands it to mean.

• CLARITY is key. Ensure you have a robust discussion with your client about what they intend your “certification” to mean and think about whether you are comfortable with that meaning. Only after you have agreed on what your “certification” will mean should you proceed to give it.

Certification

Common Pitfall 1

• Many RPEQs purport to provide “direct supervision” of professional engineering services by checking their designs on completion.

• That is NOT sufficient to constitute direct supervision. There must be DIRECTION, OVERSIGHT, and EVALUATION throughout the carrying out of the service, not just at the end.

• This can expose an RPEQ to disciplinary action.

• If you do provide direct supervision, it is best to keep notes and diary entries to prove the contact you had with the unregistered person over the course of your supervision of the service.

Common Pitfall 2 Checking a completed design is NOT direct supervision

• Many RPEQs think that because they are registered with the Board they can carry out whatever engineering service they like.

• However, you can only carry out professional engineering services in your area of registration.

• Also, even within your own area of registration, you should practice only within your area of competence.

• A breach of the former can result in you committing an offence against the Act and a breach of the latter can result in a disciplinary proceeding against you.

Common Pitfall 3 Practicing outside area of registration/competence

• Generic “template” designs have become more common in practice.

• In certain circumstances their use will of course be acceptable.

• However, in other circumstances, the nature of the site for which the generic design is being prescribed will require it to be modified to work with certain site parameters.

• Exercise caution when using generic designs. Always check whether the particular site to which a generic design is being applied does not require any amendments.

• Because generic design application is usually delegated to more junior engineers, you must ensure that once a change is identified (likely making the application of the design a professional engineering service) you provide the appropriate direct supervision.

Generic designs

Common Pitfall 4

Board of Professional Engineers of Queensland

Senior Legal Officer

Email: david.brotchie@bpeq.qld.gov.au

Phone: (07) 3198 0006

www.bpeq.qld.gov.au