4.0 Administrative Arrangements
4.1 Background
Roles in safety management need clearer definition
226. Legislation covering electrical and gas work needs to be much more explicit about where the accountability lies for different kinds of safety (e.g. safety of the worker, safety of the completed work, and the ongoing safety of electrical and gas services and equipment).
227. The role of central government in the safety regime for electrical and gas work should be to:
- set the framework in legislation;
- monitor overall levels of safety;
- administer and enforce legislation;
- promote public awareness of safety; and
- ensure the interests of consumers and the public are taken into account.
228. The role of individual employers, employees, and workers is to take responsibility for their own and others' safety within the framework set by legislation. There should be an explicit requirement in the legislation for all individuals to do work safely, and to leave work in a safe condition.
There is a confusion of jurisdictions in electrical and gas workplace accident reporting and investigation
229. The overlap in the jurisdictions of the Ministry of Economic Development and OSH causes particular problems in the notification and investigation of accidents that occur in places of work. Each agency involved in safety collects and analyses its own data using whatever criteria are relevant to its specific purposes. Although agencies co-operate so that there is normally only a single investigation and prosecution of significant non-compliance, there is confusion within the industry about the scope and responsibilities of each agency and uncertainty about the agency to notify when accidents occur.
230. The law requires serious accidents to be reported to the Secretary of Commerce (and to the Secretary of Labour if the accidents involve employees), but actual reporting is very uneven. It appears that only serious accidents to workers employed by the larger companies are reported consistently and reliably. Accidents to members of the public are rarely notified. This means that accurate total accident figures do not exist.
The current range of penalties and remedies needs review
231. The Review considered that the penalties and remedies currently available under legislation need reviewing in order to be effective.
232. There are problems with the scope, range and level of penalties and remedies available to disciplinary bodies.
233. If the approach in the Review is adopted, the emphasis moves in some areas, particularly in electrical work, to a less prescriptive, more performance-based regime that allows more scope for judgement. This would be consistent with the principles embodied in the HSE Act. Experience elsewhere suggests that a performance-based regime needs to be backed up with significant penalties to promote compliance and deter unsafe behaviour.
234. The Review also suggested that more flexibility was needed to accommodate the spectrum of behaviour that breaches safety. For instance, under the Electricity Act there need to be penalties for minor offences that have a less serious impact than, for example, suspension that prevents a person from carrying on their livelihood.
Processes associated with complaints and discipline are not completely effective
235. The Review (and many of those who made submissions) considered that some of the existing processes are less effective than they could be, and take too much time. Top of the list for processes that need improvement was the electrical complaints and disciplinary regime, in which the delays involved are substantial. In many cases the legislation prevents speedier and more effective solutions to problems that have been identified for some time.
4.2 Responses to 1999 Cabinet Decision
4.2.1 Monitoring Safety in the Energy Sector
Review Recommendation 18
An agency of Central Government should have a continuing responsibility for the overall monitoring of the supply and safe use of electricity and gas, and the safety and maintenance of electrical and gas appliances and fittings. It shall also be responsible for ensuring public input into competency and technical Standards. At present MoC has this role.
Review Recommendation 19
There will be a need for Central Government to continue to facilitate the development of technical Standards on electricity and gas matters and provide public education about electrical and gas safety.
The Energy Safety Service is developing technical standards
236. This need is being met through the Energy Safety Service of the Ministry of Economic Development, which was established in December 1999.
Legislative Implications
237. None.
4.2.2 Licensing Authorities
Review Recommendation 20
Licensing for both electrical and gas work should be undertaken through independent self-funded statutory boards, removed from but accountable to, the relevant Minister.
Changes are proposed to the Electrical Workers Registration Board
238. The EWRB's location within the Ministry of Economic Development causes some confusion of roles and locks the Board into an administrative and management structure that is not well suited to the Board's role, and limits its flexibility in the way it manages its resources. If the EWRB were a stand-alone Board, it could choose the range and level of services it wished to purchase.
239. The Review considered that the EWRB should be separated from the Ministry of Economic Development and operate as a stand-alone, self-funding statutory body. Questions of location and staffing would need to be negotiated between the Ministry and the EWRB. There would be set-up costs to this change, for such things as a stand-alone computer system, but there is likely to be a saving in long-term operating costs to the EWRB. This should flow on as savings to the industry.
240. As a stand-alone statutory body, the EWRB would also be expected to fund the complaints assessment function currently met by the Ministry of Economic Development. This costs approximately $400,000 per year.
241. The Plumbers Gasfitters and Drainlayers Board is already a stand-alone Board and requires no further structural change.
Changes have been made to the PG&D Act
242. The Ministry of Health reviewed the PG&D Act as part of a review of all health sector occupational regulation in 1996.
243. The occupational regulation review covered:
- increased focus on certification and monitoring of practitioner competency and less focus on registration;
- changes to the membership of the Board to remove Ministry of Health staff;
- separation of the registration and disciplinary functions of the Boards through establishing a separate complaints assessment committee; and
- a joint disciplinary tribunal hearing cases relating to plumbers and gasfitters.
244. The Plumbers, Gasfitters and Drainlayers Amendment Act 1999, which came into effect on 24 October 1999, changed the current structure of the Board from representatives of industry groups and the Ministry of Health to a mix of lay and trades members appointed by the Minister of Health. It also raised the maximum level of fine the Board could impose as a result of disciplinary action to $10,000, as well as a fine exceeding $10,000 the courts may impose for offences against the Act.
245. The Ministry of Health has proposed that the responsibility for administering the PG&D Act should be passed to the Ministry of Economic Development since the Ministry of Health now has few operational functions. The Review approved of having the licensing authorities for both gas and electricity reporting to the same government agency.
EWP Recommendation 14
246. It is recommended that:
- the direction contained in 1999 amendments to the Health Occupational statutes provides the overriding principles for the energy sector occupational legislation;
- the electrical licensing authority should move to body corporate status and all that that implies; and
- ITOs and licensing authorities should be required to develop some formal mechanism to ensure that appropriate consultation/ communication between the organisations is achieved.
Legislative Implications
247. Amend the energy sector Acts to establish revised conditions for the establishment, administration and funding of licensing authorities.
Administrative Issues
248. As previously noted, there may be substantial set-up costs associated with establishing licensing authorities and initiating a revised licensing regime.
4.2.3 Functions of Licensing Authorities
Review Recommendation 21
The primary functions of the licensing boards are recognising competency, facilitating on-going competency and disciplining workers where incompetent or unsafe work is found.
Licensing authorities must ensure workers are competent and completed work is safe
249. The prime function of any licensing authority should be to ensure, as far as practicable, that persons carrying out work are competent to produce a safe product at the time the work is done.
250. It is appreciated that the licensing authority would generally be able to judge a person's competency from the evidence of registered industry qualifications.
Competency must be current
251. Auditing the maintenance of current competency is more difficult. While the industry may agree and require that its workers periodically attend short refresher courses designed to ensure that finished work is safe, the content of general refreshers may not suit every sector of the industry.
252. It is suggested that, as employers are required by the HSE Act to be responsible for the competency of employees to identify hazards in the workplace and satisfactorily manage these, they be also required to ensure that the persons they employ are competent to produce safe products. As employers, they are in a better position than the licensing authority to judge employees' competency.
253. This approach would share the principal responsibilities for safe products among the licensing authority, the employer and the licensed employee. The principal or owner of the assets on which work is carried out would have less responsibility for safe products and, in general, would be expected only to have engaged a reputable contractor with an employer licence or to have employed licensed persons.
Relicensing must include a requirement for proof of current competency
254. The licensing authority should re-licence only persons for whom they have evidence of current competence. (Under the existing system licensing only happens once but to be able to continue to practise, an annual licence fee must be paid.)
255. The licensing authority should conduct its own audits of the employment of licensed persons, and of regular competence reviews by employers. It should also conduct or initiate investigations of breaches of regulatory competency requirements to determine which of the possible parties, i.e. the asset owning principal, the employer, the employee or the licensing authority itself (or some combination) was responsible.
256. The electrical and gas industries, acting through their ITOs, would specify the qualifications required for licensing and the nature of any general refresher courses that help ensure safe product competence. However, the licensing authority may be in a better position than the ITO to give feedback to each industry as regards the success of the qualifications and the refresher courses and of any need for increased emphasis in refreshers on particular aspects of competency.
Licensing authorities have an advisory role
257. In general, the licensing authority should act in an advisory role to the industry and to the responsible government department and, from time to time, make recommendations to both as regards any apparent need for any amendment of the relevant Act or regulations. Such recommendations may then be debated by all interested parties.
Licensing authorities have a disciplinary function
258. The licensing authority should have a disciplinary function but only in respect of the failure of licensed persons to produce safe (and enduringly safe) products. The disciplinary function would be exercised in parallel with any internal action taken by the employer against his/her employee for the same failure where this has led to a conviction or has caused the employer financial loss or public embarrassment. If breaches of legislation are made by the principal or employer, then the administering government department, not the licensing authority, should have the responsibility of issuing a warning, imposing an instant fine or taking a prosecution.
259. The PG&D Act sets out disciplinary procedures for dealing with written complaints against gasfitters who have a current practising licence. This Act also requires the PG&D Board to consider the imposition of penalties provided in the Act in relation to cancellation and suspension of licences, and additional fines where any licensed gasfitter has been convicted of an offence relating to gasfitting, or drainlaying, against the Act or the Health Act 1956, or against any regulations made under this Act or either of those Acts or under the Gas Act 1992.
260. In all cases, the employer should be held responsible in the first instance for any deficient and hazardous work and have to show in mitigation that a currently competent person was employed to perform the work. This would focus employers' minds on the need to ensure that employees are truly competent.
Licensing authorities would be primarily accountable to industry and funded through a fee-for-service
261. Funding of the licensing authority's administration and activities should be covered completely by the licensing fees and any other income that the licensing authority might generate through the imposition of fines on licensed persons, sale of publications, and educational joint ventures with relevant ITOs and providers.
262. The licensing authority should be accountable to the public, the responsible Minister, and the industry for all of its actions and for the completion of its annual business plan. Licensing authority accountability should not necessarily include the current product safe competency of electrical/gas workers since the licensing authority cannot ensure this unconditionally. It can only encourage and take all reasonable steps to examine available evidence offered in respect of each licence renewal application.
EWP Recommendation 15
263. It is recommended that:
- the functions of the licensing Boards be to recognise competency, facilitate on-going competency, and discipline workers where incompetent or unsafe work is found;
- the licensing Boards also advise industry and the responsible Government Department on changes needed to the regime;
- licensing Board funding be entirely self funding; and
- transitional arrangements be developed for those currently registered but not licensed, and for transfer of current licences.
Legislative Implications
264. The functions of the Boards would need to be written into the legislation.
Administrative Issues
265. Transitional arrangements would need to be developed.
4.2.4 Accidents
Review Recommendation 30
One lead agency should have the responsibility for collecting, analysing and publishing [accident] data for information and monitoring purposes.
Review Recommendation 31
OSH should have the primary responsibility for investigating accidents in the workplace and should be the contact point for the industry notifying workplace accidents. OSH might then delegate the investigation to technical experts in other agencies, but there would be only one notification point for the industry or public.
Review Recommendation 29
The agencies involved in aspects of data collection in relation to electrical and gas accidents should develop a common approach to collecting data that would improve the comprehensiveness and usefulness of the data.
Current arrangements for the investigation of electrical and gas accidents
266. The Electricity and Gas Acts require that accidents that cause either serious injury or property damage be notified to the Secretary of Commerce. There is a similar requirement under the HSE Act for accidents causing serious injury to employees within the place of work to be notified to the Secretary of Labour, although there is no requirement to notify the Secretary in the case of property damage that poses no risk of injury (with the exception of accidents involving pressurised equipment).
267. For workplace accidents, the legislation requires companies to complete two separate forms with substantially similar information and dispatch them to the two different government agencies, the Ministry of Economic Development (the Energy Safety Service) and the Department of Labour (OSH). Results from investigations are also held separately by the two agencies.
268. OSH collects information on workplace accidents and analyses it to determine trends and identify safety problems for the purpose of planning and targeting its safety promotion and enforcement activities. The results of OSH's analyses are not usually published but may be included in more general publication material.
269. The Energy Safety Service maintains a database that records gas accidents and incidents including some non-reportable matters such as minor gas escapes. This is used to identify safety problems. Information from this database is not currently published, but there are plans to publish summaries in future.
270. The Energy Safety Service also maintains a database of reported electrical accidents.
271. Information for both electrical and gas accidents is incomplete as minor incidents and those involving the public are often not reported. Attempts have been made to improve the collection of information and some companies are now providing all information on all accidents involving third party damage.
272. Data on fires collected by the New Zealand Fire Service includes fires believed to be caused by electrical or gas faults, but the statistical categories used differ from those used by the other agencies. Accidents to people or property through fires are not usually included in the electrical or gas accident and incident databases held by the Ministry of Economic Development.
A number of improvements could be made to current arrangements for accident investigation and documentation
273. Each agency involved in accident investigation needs data for different purposes and each agency has a different scope. For instance, OSH has no legislated interest in data on accidents that occur outside the place of work. However, the Government through the Secretary of Commerce, has a responsibility for monitoring the overall level of safety of the use of electricity and gas. This cannot be done effectively without comprehensive data.
274. The Review considered that all agencies involved in collecting data relating to the use of electricity and gas need to work together to agree on the data that the different agencies collect. One form should then be developed so that businesses do not have to report twice on the same accident.
275. Once data collection criteria are agreed, a lead agency, statutory body, or private organisation should collect and analyse all the data, with responsibility for publishing summaries and analysis for public information and monitoring purposes. Current technology would enable this to be achieved simply and efficiently, and would support an early release of basic information to industry.
276. The Review proposed that OSH have the primary responsibility for investigating accidents in the workplace. However, OSH does not currently have sufficient experience in electrical or gas safety. It is likely that another government agency would need to maintain some specialist expertise in order to carry out functions related to the public safety of gas and electricity use. It would be logical for OSH to obtain the specialist expertise it requires from that agency rather than duplicate it.
Investigations into cause of accidents may need to be clearly separated from investigations identifying any non- compliance with the law
277. Another issue identified by the EWP has been the tension between investigations to identify and remedy problems, and investigation for the purpose of identifying any non-compliance with the law. Fear of prosecution or other penalties can often inhibit the flow of information key to reducing the risk of recurrence.
278. The transport industry has clear separation of these functions with, for example, information used to determine cause not being available for prosecutions. Air New Zealand has a well defined "no blame" policy determining how such information will be used.
279. Where the cause of an accident is such that there is a potential for penalty (e.g. an "instant" fine) or prosecution it is essential that the site is formally secured and that a chain of custody for physical evidence is established and maintained. There is a risk that a "non-prosecuting" agency investigating an accident to identify and remedy problems may contaminate the site and the physical evidence. It is essential, therefore, that legislative provisions do not disadvantage compliance investigators and that protocols are formalised between "prosecuting" and "non-prosecuting" investigative agencies, to ensure that the integrity of the site and the physical evidence are protected.
279a. The cost of establishing and maintaining any "non-prosecuting" agency needs to be weighed against the benefits that may accrue from witnesses' freedom from prosecution. While it is alleged that such witnesses are less likely to conceal culpability under the relevant Acts, no clear evidence exists to support this view. It might be offered in counter-argument that it is human nature to avoid any appearance of blame, whatever the audience, and that the perceived benefit is, at best, marginal.
EWP Recommendation 16
280. It is recommended that:
- the classes of accident required to be recorded and notified, and the forms to be used for reporting accidents, be made as consistent as practicable between the HSE, Electricity and Gas Acts, and designed in such a way as to ensure that interests under the Electricity and Gas Acts (e.g. property damage) are met;
- the notification of an accident under one Act be deemed to constitute reporting of that accident under the other Acts (if relevant);
- OSH and the ESS develop administrative procedures to ensure efficient and effective investigation of accidents, compatible and consolidated reporting, and effective data analysis;
- OSH be the lead agency for publishing summaries and data analyses for all workplace accidents including those involving electricity or gas; and
- ESS be the lead agency for publishing summaries and data analyses for all non-workplace accidents including those involving electricity or gas.
Views are sought on the merits of a "no blame" investigation process separate from an enforcement investigation.
Legislative Implications
281. The definitions of notifiable accident would need to be amended, and provision would be required for the recognition of notifications under alternative legislation.
Administrative Issues
282. OSH and ESS would require agreed administrative procedures for the management of accident notifications, investigations, and reporting.
4.2.5 Penalties for Non-Compliance
Review Recommendation 34
The level of fines possible under the HSE Act should be reviewed and the results of this review fed into changes to the Electricity and Gas Acts.
Review Recommendation 35
The maximum level of penalties in the Electricity and Gas Acts should be increased to provide stronger deterrents for unsafe behaviour.
Review Recommendation 36
A wider range of penalties and remedies, including instant fines, should be made possible in the legislation.
Review Recommendation 41
The use of demerit points along the lines of the Singapore Contractors Improvement Points system should be considered.
The current penalties under energy sector legislation need to be increased, to enforce compliance
283. The maximum penalties under the Electricity and Gas Acts are too low to match the seriousness of some offences. Currently the maximum fine for both Acts is $10,000. By contrast, the maximum penalty under the HSE Act is currently $100,000 in a case where the offender knew that non-compliance was likely to cause serious harm, $50,000 for offences where serious harm was caused, and $25,000 for other offences where there was no serious harm. These penalties were set in 1992, and are being reviewed.
284. The maximum penalties under the Electricity and Gas Acts should be maintained in line with the revised penalties under the HSE Act.
Some other penalty provisions are required
285. In some cases the Acts preclude effective remedies from being applied. In particular,
- the EWRB cannot require a person to do remedial training unless they have also suspended the person's licence.
- the PG&D Board cannot suspend an unsafe worker without first initiating an inquiry.
An infringement offence notice (instant fine) system should be introduced
286. There should be a fast and efficient system for dealing with minor infringements that are not significant enough to justify a formal, and expensive, disciplinary process. Infringement offence notices (instant fines) are proposed.
287. The use of infringement offence notices was created by sections 20A and 21 of the Summary Proceedings Act 1957, and guidelines for their use are laid down by the Ministry of Justice and bodies such as the Law Commission.
288. The Law Commission, in a report on Criminal Prosecution published in 1997, stated that a good case exists for enlarging the infringement notice procedures. It believes the procedures should be used more widely in legislation, to limit the use of the formal court process to cases where it is justified by the importance of the issue, and set some guidelines for that use.
289. The Commission recommended (amongst other things) that:
- the infringement notice procedure should only be used when the infringement is clearly measurable and not disputable (i.e. no judgement is involved) and there is no element of negligence;
- the infringement notice procedure should not be used where it is desirable that the Court should retain a discretion as to sentencing;
- infringement notices should be reserved for non-imprisonable offences; and
- the infringement notice procedure should be restricted to offences punishable by no more than $2,000.
290. Infringement notices are for the payment of fees not fines and acceptance of the infringement, by the payment of the infringement fee, does not lead to criminal record; i.e. the offence is not a criminal offence.
291. A number of pieces of legislation provide for the use of infringement offences, for example the Weights and Measures Act 1987, and transport legislation such as the Land Transport Act 1998, Maritime Transport Act 1994, and the Civil Aviation Act 1990. In addition, OSH is currently developing a policy for instant fines.
292. Applicability of infringement offences to the Electricity, Gas, and PG&D legislation needs to be considered in the context of the issues raised above. In particular:
- would the breach be clearly measurable and not disputable; and
- would the fee be high enough to provide an effective deterrent (this would preclude offences as serious as operating a distribution system or appliance in an unsafe manner.)
Offences proposed under the infringement offence notice procedure are:
- failure to mark a gas or electrical appliance or fitting where marking is required;
- failure to complete a Supplier Declaration where a Declaration is required; and
- failure to complete and supply a Certificate of Compliance as required.
293. The accused would retain the right to opt for the normal court process. Detailed procedures would be developed in line with the guidelines and other legislative examples.
The Singapore Contractor Improvement Points system would not work well in the New Zealand context
294. Singapore's contractor improvement points system has been in operation in Singapore since 1984. This model provides a way of dealing with minor misdemeanours and infringements so that the perpetrator is discouraged from repeating them but not punished until offending has reached a critical point.
295. Under this system violations are divided into three categories which incur different demerit points. The points remain on the worker's record for one year. A person who has accumulated 25 points or more has his or her licence suspended for a minimum period of three months. Any second suspension incurred within two years from the date of the lifting of the first suspension will be for a further period of six months. Workers who are awarded demerit points are informed in writing and given two weeks to appeal and seek reconsideration.
296. The Public Utilities Board of Singapore believes that, since the implementation of the Contractor Improvement Points system, the standard of electrical installation work has improved with a drop in the number of inspections failed from ten percent in 1984 to around four percent for 1996.
297. In New Zealand, a similar system is operated for driving misdemeanours.
298. The EWP does not support this scheme because:
- the Singapore version is based on an inspection regime; and
- the probability of a person reaching 25 demerit points under the existing audit system is extremely remote (unless compulsory inspection of all work was reintroduced);
therefore, the scheme is not considered appropriate for operating in the New Zealand context.
The time limit on initiating enforcement should be six months from discovery
299. The HSE and Gas Acts have a limit on when enforcement can be initiated; six months from the date an alleged non-compliance occurred. The Electricity Act has a three-year limit and the PG&D Act has a five-year limit.
300. Given the nature of the hazards involved and that problems may lie undetected for many years, it is considered preferable that the limit be six months from the date of discovery of the alleged non-compliance.
EWP Recommendation 17
301. It is recommended that:
- the maximum penalties under the Electricity and Gas Acts be maintained in line with the revised penalties under the HSE Act;
- the EWRB be able to require a person to do remedial training without first having to suspend the person's licence;
- the PG&D Board be able to suspend an unsafe worker (if circumstances warrant) without first having to initiate an inquiry;
- no further consideration is given to the introduction of a system similar to the Singapore contractors improvement points system;
- an infringement offence notice system be introduced, to cover failure to comply with requirements for marking a gas or electrical appliance or fitting, completion of a Supplier Declaration, or completion and supply of a Certificate of Compliance;
- further work be done on the possibility of the Board's issuing infringement offence notices; and
- all relevant legislation be amended so that the six month limit on initiating enforcement action begin on the date a non-compliance is identified rather than on the date it occurs.
Legislative Implications
302. Legislation would be required to address the size of penalties, the ability of the Board to require remedial training without suspending the licence, and to introduce an instant fine system.
4.2.6 Administration of Legislation
Review Recommendation 4
The agencies involved in administering all relevant legislation must develop clear procedures to ensure there is a seamless interface between the Acts, and consistent information and advice for the public and industry.
Effective administration of legislation would involve OSH and the ESS
303. Implementation of this recommendation would require on-going co-operation between OSH and the ESS.
EWP Recommendation 18
304. It is noted that consistency would need to be addressed at the administrative level.
Legislative Implications
305. Consistency of legislation would need to be addressed during drafting of amendments.
Administrative Issues
306. Procedural agreements would be required.
4.2.7 Joint Administration of Functions
Review Recommendation 38
The boards should be invited to explore the possibilities of joint administration of some functions.
Merging the electrical and gas licensing authorities may be useful but there are several unresolved issues
307. The Review considered whether this opportunity should be taken to merge the EWRB and the PG&D Board as a means of encouraging a consistent approach and reducing administration costs through more joint operations.
308. This idea was not supported by either Board, as they considered that the technical issues for electrical and gas were too different for one Board to deal with competently. It was also pointed out that PG&D Board covers plumbers and drainlayers as well as gasfitters. Consequently, a Board able to cover those trades and key sectors of the electrical industry, and including lay representatives, would be too large to manage efficiently. It may also be so costly to operate that any savings in having a merged Board would be eliminated.
309. Another view of the Review was that a compulsory merger when both parties have objections is unlikely to be successful. The suggestion was that Government encourages both Boards to consider joint administration of functions (e.g. licensing) and shared location. These were recognised as possibilities by both Boards. Any changes to legislation should be worded so as not to preclude joint administration or an eventual merger.
310. It should be noted that as part of the process of avoiding confusion and overlap, the processes under the Electricity, Gas, and PG&D Acts are to be aligned as far as possible. This would make it easier for joint administration both within the Government and through the licensing authorities.
EWP Recommendation 19
311. It is recommended thatthe possibility of merging administrative bodies or combining certain functions be reviewed three years after the implementation of the changes recommended in this paper.
Legislative Implications
312. No legislative provisions considered necessary.
Administrative Issues
313. The two Boards would need to maintain close liaison throughout the period leading up to the review.
4.2.8 Complaints
Review Recommendation 27
The conclusions of the work done by MoC and EWRB on expediting and streamlining the complaints process should feed into the implementation process and be shared with the PG&D Board.
The complaints process in the electrical industry is complex
314. Anyone undertaking electrical work may be investigated and prosecuted by the EWRB or the Secretary of Commerce and fined up to $10,000 for breaches of the Electricity Act. Members of the public are also able to initiate prosecutions for breaches of the Electricity Act.
315. Registered electrical workers and authorised persons can be disciplined by the EWRB. (Authorised persons include those with a provisional licence, and trainees or people from related trades who have been given an exemption from the requirement to be licensed.) The EWRB has the power to impose fines of up to $5,000 under its disciplinary process, de-register workers, and suspend workers either for a specified length of time or until certain conditions, such as re-training, are met.
316. Workers are not usually prosecuted by both organisations since it would be unfair to punish a worker twice for the same incident.
317. The Electricity Act prescribes the steps to be followed in the disciplinary process. The EWRB has its own standing orders that complement the Act's requirements.
EWRB costs for complaints' hearings
318. In addition to the $400,000 required to fund the complaints assessment process (see 4.2.2) the Board has determined that it costs approximately $1,250 per complaint where a registered worker has been found guilty of a disciplinary offence.
319. Complaints in writing are referred by the Registrar of the EWRB to the Secretary of Commerce, who appoints a Complaints Assessment Committee (CAC) to find out whether or not a complaint should be considered by the EWRB. The CAC investigates the complaint, obtains information from the parties involved and reports to the EWRB on whether or not, in its opinion, the complaint should be heard by the EWRB. If the complaint is proceeded with, the EWRB then holds a disciplinary hearing. There is a right of appeal against the decision of the EWRB to the District Court. In the year ended December 1998 the EWRB held 49 disciplinary hearings and resolved 42 complaints.
320. In the year ending December 1998 there were 57 formal complaints against registered electrical workers or workers authorised to do electrical work. In the same period there were also 75 "informations" lodged. "Informations" are complaints about people breaching the Electricity Act who are neither registered nor authorised. These are also investigated.
The electrical disciplinary regime is costly and lengthy
321. The legislative requirements of the current regime impose unnecessary costs and delays in the complaints process. For example, neither the Registrar of the EWRB nor the CAC are able to short-circuit the complaints process where there is an admission of guilt.
322. The EWRB and Registrar have no power to lay complaints even if unsafe or incompetent work is detected during audits.
323. A Complaints Review Group formed by the Ministry and the EWRB has established that the complaints procedures and disciplinary process can take 32 weeks or more from the time a complaint is lodged to the disciplinary hearing. There is provision for complaints to be fast-tracked where dangerous work is discovered, but this can still take up to 14 weeks. In some cases the time taken from the beginning to the end of the process has been 12 months.
324. The Complaints Review Group has carried out work on ways in which the process can be sped up and made more effective. The group has identified the changes needed. Most involve changes to legislation and the Ministry of Economic Development is seeking to have these changes included in a Statutes Amendment Bill to be introduced in the 1999/2000 Parliamentary year. It is acknowledged, however, that the changes are necessarily "mechanism ones" based on the present system.
325. Further work has been done by a group comprising seven electrical industry groups and the EWRB and this work has contributed to the recommendations in this report.
The complaints process in the gas industry is complex and may discourage complainants
326. The processes for complaints and disciplinary hearings relating to registered gas workers are defined in the PG&D Act. Complaints are made to the Registrar of the PG&D Board, which decides whether the complaint is within the Board's jurisdiction and if the complaint has sufficient substance to be referred to the Board for investigation and disciplinary measures. The PG&D Board currently has a three-person complaints committee, which includes the Board's Chairperson.
327. On average the PG&D Board receives between 12 and 15 complaints about gasfitting per year. In the year ended March 1998, the Board's Complaints Committee investigated 34 written complaints about plumbing, gasfitting, and drainlaying work and activated four prosecutions. Fourteen of these complaints, and all four prosecutions, related to gas work.
328. The PG&D Board considers that the present process for handling complaints presents no problems, although they would like to see a speedier resolution of some issues.
329. However, industry representatives have been concerned that uncertified and unsafe work may be going unreported because there is no simple complaints reporting procedure.
Alternative complaints procedures
330. The review of the complaints handling process has focussed on providing justice that is seen to be fair and that reaches decisions as quickly as reasonably practicable. The chart set out below outlines the proposal, based on a "standard investigation/prosecution" model.
Chart 1: Proposed Complaints Assessment Process
331. This proposal would:
- come under the auspices of the relevant Board;
- introduce an audit and investigation team concept, in which a person or group not involving the Registrar or any Board member would investigate and present the case to the Board;
- ensure that complaints, the outcomes of audits and accident investigations could be used to trigger investigations, where appropriate, into worker competency;
- allow the Registrar to make general enquiries of the complainant to ensure that the complainant has a genuine desire to make a complaint in terms of the Act, and for the complainant to withdraw a complaint that lies outside the scope of the Act;
- require the Registrar to correspond with the registered person who has had the complaint made against them advising that person of the nature of the complaint, the complaints procedure, and the rights of that person;
- involve delegation of certain powers to the Registrar; and
- require the Board to determine and publish an assessment and investigation policy, and outcome assessment and prosecution policy.
332. It is expected that the procedure could be completed in twenty to ninety days from receipt of the complaint by the Registrar.
There is some industry support for an independent disciplinary authority, but the cost would be high
333. The EWP discussed the advisability of establishing an independent disciplinary tribunal, operating in association with but administratively and legally separated from the licensing authorities. Some participants felt that licensing authorities were not sufficiently removed from their industries to make completely impartial judgements. It was appreciated, however, that the costs of establishing and maintaining a tribunal are high, and that the level of disciplinary activity across the energy sector industries neither warrants nor offers potential support for such a body. It is, therefore, considered that there is little interest in pursuing the issue further.
Prosecutions of non-authorised workers should in the first instance be taken by the Boards
334. The responsibility for the prosecution of non-authorised workers has been considered. The EWP concluded that this responsibility should rest in the first instance with the Boards, who are the agencies most likely to first become aware of problems and have the greatest interest in having action taken.
EWP Recommendation 20
335. It is recommended that:
- the present electrical complaints process be replaced by the system outlined in section 4.2.8 which is based on a "standard investigation/prosecution" model;
- the new complaints process be managed entirely by the relevant Board;
- the new complaints process require the appointment of an investigator to investigate the case and conduct the prosecution before the Board;
- the new complaints process provide that no Board member may be involved in the bringing of a complaint where they would have a conflict of interest;
- the new complaints process contain appeal provisions; and
- the responsibility for the prosecution of non-authorised workers rest in the first instance with the Boards.
336. It is also noted that introduction of any instant fine system (refer section 4.2.5) could go some way to alleviating the pressure on the complaints handling system.
Legislative Implications
337. The complaints process would need to be written into legislation.
Administrative Issues
338. The Boards would need to develop administrative procedures to address the complaints process. The costs of this proposal in present terms would be the $1,250 per complaint referred to in 4.2.8 plus the cost of the audit investigation team concept. It is anticipated that the audit investigation costs would be in the order of $160,000 per annum. This is included in the final projections (see 3.2.1).
Back to Top