On a Proper Construction Issue 19: WA Engineers Registration System on the Horizon

INTRODUCTION

Engineers are constantly looking for better ways to do things.

Likewise, the WA government is looking to improve regulation of WA’s building industry by introducing the Commerce Regulations Amendment (Building Services) Regulations 2022 (Draft Regulations). In a WA first, the Draft Regulations will require engineers to be registered to carry out building engineering work.

This article summarises key proposals in the Draft Regulations. The Draft Regulations and accompanying Consultation Paper are available here.

KEY PROPOSALS

Registration levels and classes

The Draft Regulations propose two classes (practitioner and contractor) and three levels (professional, technologist and associate) of registration, similar to other building services providers registered under the Building Services (Registration) Act 2011.

Practitioner registration will apply to civil, structural, mechanical and fire safety engineers. Notably, the Draft Regulations exclude electrical engineers from the requirement to be registered.

Except for fire safety engineers, contractor registration will be by 3 levels:

1. Professional, which permits contractors to do professional or technical engineering work on any building¹;
2. Technologist, which permits contractors to do technical engineering work for medium-rise buildings²; and
3. Associate, which permits contractors to do technical engineering work for low-rise buildings³.

Fire safety engineering contractors (technologists and associates) will be subject to different regulated scope of work. Fire safety contractors (technologists) will be permitted to do technical work on any building, and fire safety contractors (associate) will be permitted to do technical work on medium rise buildings⁴.

Engineering contractors will be responsible for ensuring it employs at least one nominated supervisor who is a practitioner registered at an appropriate level to manage and supervise works.

Multidisciplinary engineering firms will have the flexibility to have a single contractor registration which will not need to be updated if individual practitioners change or leave. Unregistered engineers (ie graduates) do not need to be registered, provided they work under the supervision of a registered practitioner.

Qualification and experience

To be eligible for registration as a building engineering practitioner, applicants must demonstrate minimum qualification level requirements for their relevant field (ie structural, mechanical, civil or fire safety)⁵.

Applicants must also demonstrate minimum experience level requirements, being:

1. 5 years of full-time experience in the previous 7 years; or
2. the equivalent of 10 years full-time work in the previous 15 years.

Applications for registration must be supported by a certificate of compliance issued by an assessment entity approved by the Building Commissioner.

The purpose of this regulation is to restore public confidence in engineer work, and to bring our registration scheme in line with those recently implemented in Queensland, New South Wales and Victoria.

Disciplinary procedures

Registered practitioners and contractors will be required to notify the Board when disciplinary actions are being taken against them under specified Acts⁶. A code of conduct is also being drafted with the aim of ensuring that building quality, standards and integrity are met.

Implementation

Implementation of the registration scheme will occur in two stages. The first stage will see structural and fire engineers registered, followed 12 months later by civil and mechanical engineers. Each stage will have a two-year transition period to allow time for everyone to become registered.  We expect the legislation will be introduced to parliament before December 2023.

WHY REGISTER ENGINEERS?

Engineers are among the few professions which remain unregulated in WA. The 2018 Building Confidence Report prepared by the Building Ministers Forum showed that there are gaps in the accountability of practitioners with key responsibilities for compliance with the National Construction Code across Australia.

Fire safety engineers, for example, are not registerable in WA despite the critical role that fire safety systems play in commercial buildings. This can have (and has had) significant liability and insurance implications for fire safety engineers involved in construction with combustible cladding. For example, in a recent decision of the Victorian Civil and Administrative Tribunal,⁷ a fire engineer was ordered to pay $2.2 million in damages to the building owner for failing to exercise due care and skill in the selection, approval and installation of combustible cladding which enabled the rapid spread of fire throughout the building.

The registration scheme is intended to:

1. improve building compliance;
2. reduce rectification costs;
3. increase public confidence; and
4. provide a formal process for recourse of defective engineering work.

Registration provides benchmarks for competence and experience, which enables the public, employers and clients to have confidence in a registered person’s skills.

WHAT’S NEXT?

Overall, the Draft Regulations have been positively received from industry groups.

Public consultation on the Draft Regulations closed on 24 October 2022. We can expect to see some changes to the Draft Regulations based on feedback received during the consultation process.

This article was written by Kate Morrow, Partner, Ra’d Qandour, Solicitor, and Caitlin Grehan, Solicitor.

¹Draft Regulation 28N(2)(a)
²Draft Regulation 28N(2)(c)
³Draft Regulation 28N(2)(d)
⁴Draft Regulation 28N(2)(c)(iv)-(v)
⁵Draft Regulation 28O(2)
⁶Draft Regulation 11
⁷Owners Corporation No.1 of PS613436T, Owners Corporation No. 2 of PS613436T, Owners Corporation No. 4 PS613436T & Ors v LU Simon Builders P/L, Stasi Galanaos, Gardner Group & Ors [2019] VCAT 286