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The Electrical Safety Act has the express purpose of trying to prevent people being injured and killed, and property being damaged or destroyed, by electricity. It does this in a range of ways, including by licensing persons who perform electrical work. Specifically, section 56(1) of the Electrical Safety Act says that, “[a] person must not conduct a business or undertaking that includes the performance of electrical work unless the person is the holder of an electrical contractor licence that is in force”. A failure to comply with the above requirement can result in a significant financial penalty. Section 56(2) of the Act applies this prohibition broadly, because it says that a person will be conducting a business or undertaking that includes the performance of electrical work if, among other things, the person: “(a) advertises, notifies or states that, or advertises, notifies or makes a statement to the effect that, the person carries on the business of performing electrical work; or (b) contracts for the performance of electrical work, other than under a contract of employment; or …” There are some exceptions to the above prohibition. One such exception applies if the only electrical work that the person contracts to do is intended to be subcontracted to someone else who does hold an electrical contractor licence, and is authorised under that licence to perform the relevant electrical work. The court decided that the Contractor’s behaviour was caught by both sections 56(2)(a) and (b) of the Electrical Safety Act. The behaviour that triggered section 56(2) (a) was that: • the name of the Contractor company implied that the Contractor performed electrical works; • the Contractor’s representative made statements to Agripower that the Contractor carried on a business of providing electrical engineering and electrical works; and • the Contractor agreed to perform electrical works. The behaviour that triggered section 56(2) (b) of the Electrical Safety Act was that the
JANUARY/FEBRUARY 2016 - ECD SOLUTIONS 5
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here is a range of building works, engineering services and electrical works that can only be carried out in Queensland by persons who hold the appropriate licences and accreditations. If you enter a contract to perform such works, or offer to perform them, or even in some cases just advertise for them, and you don’t hold the appropriate licence or accreditation, the consequences can be severe. Your contract may be illegal, you may not be insured for the work you do, you may lose your contractual rights to payment, and you may also lose any statutory rights to payment that you might have had under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA). You could even be liable for a significant financial penalty. A Queensland Supreme Court decision in September 2015 dealt with some of these issues. An electrical contractor company (Contractor) had been engaged by Agripower Australia Ltd (Agripower) to provide electrical engineering works for a powder hopper, granulation plant and conveyor at Agripower’s site in Queensland. The Contractor exercised its rights under the BCIPA, and went to adjudication over money that it considered was payable under its contract with Agripower. The adjudicator decided in favour of the Contractor. Agripower then went to the Supreme Court to overturn the adjudicator’s decision, and succeeded. The court decided that the adjudication decision was void, and that the contract under which the Contractor had been engaged was illegal, because at the relevant times neither the Contractor nor its representative were licensed to carry out electrical works for the purposes of the Electrical Safety Act 2002 (Qld) (Electrical Safety Act), and the Contractor’s representative was not at the relevant time a registered professional engineer for the purposes of the Professional Engineers Act 2002 (Qld) (Professional Engineers Act). It is worth noting that the Contractor’s representative did have a bachelor’s degree in electrical engineering technology.