Explanation of the Amendments
(Note: minor and consequential amendments are not included.)
Restrictions on Doing Work
(EA: clause 12; PGDA: clauses 64 to 79)
Broadly, the Bill continues the existing requirements that a person must not do prescribed electrical work, gasfitting, sanitary plumbing or drainlaying unless licensed or covered by a specific exemption.
The existing exemptions are continued for:
- work done under supervision,
- domestic electrical work and plumbing in some situations,
- maintenance, by the owner, of domestic appliances.
The Bill does not carry over the existing exemptions for tradespersons doing electrical and plumbing work. The Bill provides instead that the licensing Boards will have the flexibility to establish special licences for such work. The existing exemption for gasfitting on installations having a capacity of over 60,000 MJ/hour, section 57(3) of the 1976 Act, is also not carried over (refer to comment on employer licences).
Some particular blanket exemptions (some of which are currently in regulations under the Electricity Act) that are not carried over are:
- for persons who are not working for payment or reward (must currently be registered but need not be licensed).
- for "qualified engineers" - this exemption is similarly considered to be anomalous with "current competence" requirements.
- for work in experimental testing, demonstration, teaching or research situations, because there is no inherent reason why such circumstances should be any less dangerous than similar work under other circumstances, or that persons doing such work are inherently competent. The Bill provides for such situations to be addressed by requiring those doing or supervising the work to be appropriately licensed, or working under an employer licence, or operating under a different legislative environment that would enable the Board to grant an exemption as described above.
The Bill provides however that the licensing Boards will be able to provide exemptions from licensing requirements, for example, to persons who have established competence under other legislation.
Licensing in the Electricity Generation, Transmission and Distribution Sectors
One of the government decisions was to remove the requirement for workers in the electricity generation, transmission, and distribution sectors to be licensed once suitable competency controls under the Health and Safety in Employment Act are in place.
An important pre-condition to implementing this decision is that there must first be suitable competency controls under the Health and Safety in Employment Act. At this stage it has been accepted that this pre-condition has not been achieved and this matter is thus not included in the Bill.
This decision can however be implemented later, once there is adequate assurance that the pre-condition has been met, by regulation rather than by amending the Act.
Boards' Powers to Inspect and Test Work
(EA: clause 12, new sections 80 and 81, GA: existing sections 48 and 49)
The Bill carries over provisions for the testing, certification, and inspection of prescribed electrical work and gasfitting, and provisions that confer a power of entry to premises on persons appointed by the respective Boards to inspect and test prescribed electrical work and gasfitting on those premises.
Worker Licensing
(EA: clause 12; PGDA: clauses 80 to 10)
The Bill replaces the current requirements for both registration and licensing with licensing only regimes. Particular differences from the existing regimes are:
- the Boards are to designate classes of licence that may be issued, instead of having them specified in the Acts, and to specify the work that may be done under those licences (EA new sections 82 and 83; PGDA clauses 82 and 83):
- the Boards are to-
- prescribe the minimum standards for licensing;
- prescribe terms and conditions subject to which licences are issued and renewed (including, as a new provision, conditions that require the completion of a competence programme); and
- prescribe requirements relating to competent and safe work practices and the testing of those practices. (EA new sections 84 and 85)
- the Boards may withhold a licence if there is reason to believe that the individual may endanger the health or safety of members of the public: (EA new section 87)
- the Boards may impose terms and conditions on (EA new section 93), and grant exemptions from licensing requirements and conditions (EA new section 94):
- the Boards may issue certificates that confirm that a person meets the applicable minimum standards for licensing (EA new section 105; PGDA clause 103). Such certificates do not confer any power to the holder to do work requiring a licence, but they do give assurance to a person who does not wish to pay for a licence and start practising immediately that, at the time of issue, the licensing requirements have been met.
Licences must have a term of not more than 2 years (the term is currently not more than 5 years under the Electricity Act, and one year under the PGDA).
The Electrical Workers Licensing Board is given the power to delegate to the Plumbers, Gasfitters, and Drainlayers Board the authority to issue licences to do electrical work, and the Plumbers, Gasfitters, and Drainlayers Board is given an equivalent power in relation to plumbing, gasfitting and drainlaying licences (EA new section 106; PGDA clause 104).
Employer Licensing
(EA: clause 12, new sections 107 to 115; PGDA: clause 105 to 112)
The existing employer licensing regime for electrical work and gasfitting is retained, as an alternative to worker licensing for those employers who are able to maintain a system of operation that ensures employees are competent and adequately supervised. Differences from the existing regimes are that:
- employer licences are to be issued by the Boards rather than the Secretary,
- employer licence requirements must be treated by the Boards as satisfied if a person approved by regulations certifies the compliance of the system of operation:
- a greater range of sanctions is available in the event that an employer licensee has failed to comply with any term or condition of the licence, etc.
Registers
(EA: clause 12, new sections 116 to 133; PGDA: clauses 113 to 130)
As at present, the Boards are required to retain registers of all current or former licensed persons and employer licence holders, to enable members of the public to access information about licence holders and to facilitate the administrative and other processes.
The register must be open for public inspection, except that some of the details may be restricted.
The registers must preserve all of the information on persons registered under the existing Acts, whether or not they are licensed, but the inclusion of this information does not confer any rights or privileges.
Licensing Boards
(EA: clauses 13 to 20; PGDA: clauses 175 to 192)
The existing Electrical Workers Registration Board and Plumbers, Gasfitters, and Drainlayers Board continue, except that the Electrical Workers Registration Board will be re-named the Electrical Workers Licensing Board to reflect the move to licensing only regimes.
The existing governance structures of the Boards also continue unchanged, and the term of office of existing Board members will not be affected by the Bill.
Certification of Work
The existing self-certification regime is to be made more universal and more readily identifiable. However the details are to be addressed in regulations (as they are at present).
A particular obligation in relation to gas suppliers is that relating to the sighting of certification documentation before gas is supplied. The EnergySafe recommendation was that this obligation should apply only to new installations and not to modifications to existing installations (because of the impracticability of meeting the obligation). Adoption of this amendment will bring the gas regime into line with that for electrical installations. It had been expected that this change would require an amendment to Section 47(3) of the Gas Act. However this has been determined to be not necessary; the EnergySafe recommendation will be achieved through an amendment to regulation 26 of the Gas Regulations.
Disciplinary Provisions
(EA: clause 12, new sections 134 to147Y; PGDA: clauses 131 to 162)
The Bill revises disciplinary provisions applying to licensed persons (including provisional licence holders). In particular:
- Complaints that are frivolous or vexatious need not be progressed (EA new section 136 ; PGDA clause 136),
- Otherwise, an investigator must be appointed to investigate complaints and prosecute them before the relevant Board (EA new section 147K; PGDA clause 156). The appointment is to be made by the Secretary under the Electricity Act, and by the Registrar under the PGDA,
- Others may be appointed to assist the investigator (EA new section 147M; PGDA clause 158),
- Investigators have certain new powers to investigate complaints, including the power to enter premises to inspect and test any prescribed electrical work on those premises, and the power to require the supply of information or documents (EA new sections 139 to 145; PGDA clauses 136 to 142 ),
- Complaints Assessment Committees under the Electricity Act are discontinued,
- The Boards may, if necessary to protect the safety of members of the public, order the interim suspension of a licence or the interim disqualification of a person. This is a new provision for the PGDA (EA new sections 147A to 147D; PGDA clauses 145 to 148).
The disciplinary powers of the Boards are broadly similar to the powers under the existing Acts.
Offence Provisions
(EA: clauses 22 to 24; GA: clauses 51 to 54; PGDA: clauses 163 to 174)
Offence provisions relating to electricity and gas supply, use and work, including maximum fines, have, as appropriate, been aligned with similar provisions under the Health and Safety in Employment Act. The maximum fine for the most serious offences has been raised to a fine of not more than $100,000 in the case of an individual, or $500,000 in the case of a body corporate (EA new section 163C, GA clause 51).
The maximum fines relating to plumbing and drainlaying are set lower than the maximum fines relating to gasfitting and electrical work.
The time for laying an information for an offence is set at 5 years after the time when the matter of the information arose, increased from 3 years for the Electricity Act and PGDA, and six months for the Gas Act (EA clause 23, GA new section 57A; PGDA clause 169).
A new infringement offence regime is introduced for offences against various sections of the Act and for breach of any regulation that is prescribed as an infringement offence (EA clause 24, GA clause 53; PGDA clause clauses 170 to 174).
Safety Management Systems
(EA: clause 11 and GA: clause 48)
Owners of electricity and gas supply systems will be required to implement and maintain safety management systems that ensure the electricity or gas supply system does not present a significant risk of-
- serious electrical harm to any member of the public; or
- significant damage to any property.
Note that the original decision was that safety management systems be required only for areas accessible to the public or that may place the public at risk. However on further consideration it was decided that the safety management system should be required of all parts of the electricity of gas supply system to ensure that the question of whether the public is placed at risk is adequately assessed. Risk of property damage has also been added as a consideration.
The precise scope and nature of the safety management systems required will be specified in regulations. (Note that the Bill allows installations, fittings and appliances to be included within the scope of the supply systems, but this is only to ensure some flexibility in defining the boundary.)
Accident Notification
(EA Clauses 8 and 9, GA Clauses 45 and 46)
The Electricity Act, Gas Act and HSE Act all require certain accidents to be notified. The Bill allows notification to either of the administering agencies, Energy Safety Service and Department of Labour, as fulfilment of that obligation. This means that industry will no longer have to notify an accident to more than one agency.
Special Powers of the Secretary
(EA: Clause 7, GA: Clause 44)
The Electricity and Gas Acts give the Secretary special powers (which are delegated to the Energy Safety Service) to do things, or require any person to refrain from doing things as necessary to remove or minimise a danger or potential danger. The Bill sets out three amendments:
- The powers are currently limited to specific places. The Bill will remove this restriction.
- The Bill will give power to require persons to do things as well as refrain from doing things.
- The Bill also gives explicit power to require the production of documents for inspection, and to require the supply of information.
These amendments are to address identified areas where the powers have inhibited the Secretary's ability to address safety concerns.
Other Gas Matters
The original EnergySafe recommendations addressed a number of specific matters in relation to gas quality and gas detection. These are not covered in the Bill but will be addressed through regulations.
Definitions
(EA: clause 6; GA clause 43; PGDA: clause 61)
The Bill includes new definitions of serious harm, introduced into both the Electricity Act and the Gas Act to align with the HSE Act, and significant property damage. The detail of these definitions is to be specified in regulations. The intention is that "serious harm" be based on the definition in the HSE Act, but with modifications to address specific issues relevant to electricity and gas respectively. Note also that the definition of "serious harm" in the HSE Act is separately proposed to be amended and, depending on timing, this may provide further opportunity to better align the definitions.
The definition of prescribed electrical work (PEW) is extended in the Electricity Act to allow for the inclusion of design, testing, inspection and supervision. However the specific scope - and therefore the range of work subject to the licensing regime - will continue to be prescribed in regulations as at present. The definition of gasfitting, which is the equivalent for gasfitters to the term PEW for electrical workers, is to be structured in the same way as prescribed electrical work, with specific details in regulations. (Note that although the Bill allows for PEW and gasfitting to include design, testing, inspection and supervision, it is expected that the regulations that prescribe PEW and gasfitting will not encompass all aspects of design, testing, inspection and supervision. Similarly the proposed amendment of the definition of gasfitting to encompass distribution systems is only to allow some flexibility in defining the boundary to ensure compatibility with the scope of safety management systems.)
Thus the extension of work subject to the gasfitting licensing regime, to encompass work on fixed installations supplied from small LPG cylinders (as agreed under the EnergySafe programme) will be addressed in regulations under the PGDA.
Finally, the definition of distribution system in the Gas Act is amended to refer at the downstream end to the "point of supply", and there is provision for point of supply to be specified in regulations. This allows the downstream end of gas distribution systems to follow the same style as the equivalent "works" under the Electricity Act rather than have it linked to the meter.
Transitional Arrangements
(EA: clauses 2, 28 to 38; GA: clause 2; PGDA: clauses 2, 206 to216)
The Bill provides for different matters to come into force at different times after the Bill receives the Royal Assent, to allow preparation time for the establishment of the new licensing provisions, safety management systems, etc.
Amendments to Ministry of Energy (Abolition) Act 1989
(Clause 59)
An amendment to the Ministry of Energy (Abolition) Act 1989 will allow for electricity and gas levy money to be applied by the Department of Labour, in addition to the Ministry responsible for the administration of the Act.
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