Compliance and enforcement framework

• Enforcement policy
• Key principles
• Options for enforcement
• Investigations policy
• Investigations priorities
• Prosecution and disciplinary policy
• Enforceable undertakings
• Appeals
• Administrative matters
• Definitions

The Queensland Government is committed to healthier and safer workplaces. To achieve this, the Electrical Safety Office Queensland (ESO) administers the Electrical Safety Act 2002 (the Act) and other legislation.

This enforcement framework outlines the options used by the ESO as well as investigation and prosecution policies. The range of enforcement strategies encourages better compliance with prevention of death and injury.

Enforcement Policy

The ESO may use a number of options to increase compliance with the Act.

When people or organisations fail to meet their obligations, inspectors may use the most appropriate options.

The ESO uses promotion, education and advice to encourage compliance with the legislation.

Where these methods do not get compliance, formal notices and directions are given with other enforcement methods.

Prosecution is considered if formal notices and directions do not get compliance.

Sometimes prosecution will be the only appropriate response and the only way to deter others from contravening the legislation.

An inspector may visit a workplace with or without an appointment. While some visits may be arranged with the employer there are circumstances when warning will not be given. These circumstances may include but are not limited to:

• target audits or inspections
• investigations of complaints with an alleged breach of the electrical safety legislation
• dangerous occurrences
• incident or accident.

Rationale

The main goal of any enforcement strategy is to find and deal with non-compliance. Compliance prevents death and injury of people, destruction or damage to property and eliminates the human cost to individuals, families and the community.

A full, consistent and transparent enforcement strategy improves compliance with electrical safety legislative requirements with better prevention of injury and property damage.

Key principles

Key principles for Queensland’s electrical safety enforcement efforts are:

• enforcement targeting
• consistency
• transparency
• proportionality.

Targeting

To effectively administer electrical safety throughout Queensland, resources must be used for the greatest impact.

The ESO may target the following activities which create the most serious electrical safety risks:

• where hazards have poorest control
• where an enforcement outcome is important in preventing reoccurrence
• raising awareness in industry or the wider community.

Consistency

The ESO aims to ensure that similar circumstances at workplaces lead to similar enforcement outcomes.

Transparency

The ESO is committed to fair, open and transparent dealings with obligation holders.

The ESOs transparent approach aims to assist obligation holders and others to understand what is expected of them and what they should expect from the ESO.

Proportionality

Enforcement action will be proportionate to electrical risks and the seriousness of an injury when it occurs.

More serious risks will get more severe enforcement action. An organisation’s electrical history and previous interventions may influence the enforcement choices.

Options for enforcement

If people fail to meet their obligations under the Act, electrical safety inspectors may use enforcement options to get compliance including:

• advice
• verbal direction
• improvement notices
• electrical safety protection notices
• unsafe equipment notices
• court order to secure compliance with notices
• seizures
• infringement notices
• disciplinary action for licensed workers and contractors
• electrical safety notification
• prosecutions
• enforceable undertakings.

Inspectors are skilled in deciding the best enforcement options to use for the best electrical safety outcome. The most appropriate response can be a combination of these.

An example would be providing information and advice at the same time as:

• issuing a notice or multiple notices
• issuing notices followed by prosecution.

The ESO will decide which enforcement tools are appropriate after assessing:

• the extent of the risk
• the seriousness of the perceived breach and the actual or potential consequence
• whether a target issue, target hazard or specific priority is involved
• the impact of the regulatory action, especially its impact on promoting compliance and or deterrence
• the compliance history of the obligation holder
• if the incident or nature of the non-compliance is of considerable public concern
• the need to highlight a common hazard or risk to deter other obligation holders from continuing particular practices.

Verbal direction

A verbal direction of the enforcement policy can only be given in situations where the minor breach can be rectified and inspected before the electrical safety inspector leaves the site.

Improvement notice

An electrical safety inspector can issue an improvement notice if they see a contravention that is not likely to be an immediate electrical risk. If the improvement notice is not complied with, the inspector has the following options:

• issue another improvement notice providing the person with further time to remedy the contravention
• issue an infringement notice for failing to comply with the improvement notice and issue another improvement notice giving further time to fix the contravention
• instigate legal proceedings in the Industrial Magistrates Court.

An inspector may return to a workplace to check an obligation holder’s compliance with an improvement notice.

Electrical safety protection notice

Electrical safety inspectors issue electrical safety protection notices to people controlling any activity or electrical equipment if they reasonably believe that circumstances are causing or are likely to cause immediate electrical risk to people or property.

Person in control is the person who has or reasonably appears to have authority to control the activity. It is not a requirement that the person in control has contravened or is likely to contravene the Act.

The inspector may also disconnect or direct the person in control to disconnect electrical equipment from its supply of electricity to eliminate electrical risk.

Unsafe equipment notice

An unsafe equipment notice will be issued to the owner of electrical equipment if the inspector reasonably believes the equipment defective or hazardous and likely to cause a serious electrical incident (as defined in section 11 of the Act). The notice may direct the owner to make the equipment harmless or incapable of operation.

An unsafe equipment notice and an electrical safety protection notice will be issued for one item of equipment where the person in control is not the owner.

Infringement notices

An infringement notice or on-the-spot fine may be issued for offences against the Act or the Electrical Safety Regulation 2002 (PDF File, 1.02 MB) (the Regulation) listed in Schedule 5 of the State Penalties Enforcement Regulation 2000.

An infringement notice has an immediate punitive effect. Infringement notices are not intended as a substitute for electrical safety protection notices or improvement notices.

In most cases infringement notices will be issued along with other notices.

Seizure

The Act allows electrical safety inspectors to seize a thing if they believe it may be evidence of an offence under the Act or if it has just been used in committing an offence.

They can also seize unsafe electrical equipment if it places persons or property at electrical risk. Alternatively, a notice of requirement may be issued to direct the person in control to take the thing to a place by a time.

Electrical safety notification

The chief executive may issue notifications if there are reasonable grounds that supplying or using the equipment or the type of equipment is putting or will put people or property at risk. Notifications may be issued to designers, manufacturers, importers or suppliers.

A request from the ESO may be for voluntary action to remove the risk. The electrical safety notification may stipulate repair, replacement, removal or recall of the electrical equipment.

Issuing the electrical safety notification creates an enforceable obligation under section 35 of the Act which can only be appealed through the Industrial Court.

Prosecution

Action to prosecute may be taken if an electrical safety inspector has enough evidence for a case to answer, there is reasonable chance of a conviction and it is in the public interest.

For further information refer to the prosecution and disciplinary policy.

Investigations Policy

Investigations of reported electrical incidents, targeted events and complaints are undertaken to:

• determine their cause and direct correction of electrical work that is not electrically safe
• prevent recurrence of similar incidents
• prosecute offences against the Act and the Regulation or protect members of the public through disciplinary action against license holders
• meet the public expectation that breaches of legislation will be investigated and enforced in a transparent and consistent manner.

Investigations priorities

Type one event

Type one electrical incidents will be subject to a comprehensive investigation unless there is a valid reason not to undertake the investigation. Examples of when a comprehensive investigation may not proceed are:

• the incident does not fall within the jurisdiction of the Act
• another agency is taking the lead investigation role such as Department of Transport, Maritime Safety.

Type two event

Type two electrical incidents require a comprehensive investigation and a prosecution in the Industrial Magistrates Court and or the matter referred to the Electrical Licensing Committee for disciplinary action.

Type three event

Intervention occurs for complaints with significant risk to electrical safety to find if the complaint is valid and help resolve the matter. This may include appropriate enforcement action.

Type four event

The ESO will contact the workplace and or the person who has made the complaint to see if any intervention is needed to relovle the matter.

Other non-compliances

Inspectors deal with minor non-compliances with appropriate enforcements like improvement notices or electrical safety protection notices.

Timeframes

The ESO aims to complete comprehensive investigations within the time limits. Less serious or complicated investigations will be dealt with more quickly.

Prosecution and disciplinary policy

Prosecution assists prevention by deterring others from committing electrical safety offences. Publishing successful prosecutions draws attention to consequences of electrical safety violations and the need for real improvements.

The ESO aims to ensure prosecution activity is targeted for maximum impact. There is a focus on high value, high profile and high impact cases.

Decision to prosecute

A decision to prosecute is based on an assessment of the non-compliance, the obligation holder’s performance and the ESO’s priorities.

The three key issues to be considered before legal action is taken are:

• the case to answer
• the prospect of conviction
• the public interest.

Prosecution action is likely for a Type one or two electrical event or a targeted investigation.

Other circumstances where prosecution action may be considered are:

• where a person has repeated the same or a similar offence
• the person has failed to comply with an improvement, electrical safety protection or unsafe equipment notice
• the alleged contravention is of an offence provision in Part 11, and Part 13 – Division 3 of the Act relating to inspectors’ powers. Examples are obstruction and providing false or misleading documents or information.

Infringement Notice

A person issued with an infringement notice may elect to have it heard in the Industrial Magistrates Court.

Case to answer

Before starting a prosecution, it will be reviewed to ensure there is enough evidence to support a case.

Two key issues will be considered in determining if a case exists:

• if the evidence shows all elements of the offence are able to be proved
• if the inferences drawn from the circumstances are logical and supported by fact when a case relies on these.

Reasonable prospect of conviction

Being charged with an offence may cause emotional and economic stress. It is neither fair nor just to instigate or continue a legal proceeding with little or no prospect of conviction.

A prosecution ESO believes has no reasonable prospect of resulting in a conviction will not be instigated without more investigation to provide the evidence. This does not mean that only those cases perceived as being strong are prosecuted.

It is the Court that should decide the resolution of disputed facts, not the ESO. The ESO have a responsibility to use discretion and judgement to assess the prospect of conviction.

The public interest

It is in the public interest that the safety of workers and the public be protected and improved. A decision to prosecute involves principled consideration of factors to decide to prosecute.

Factors that may be considered include:

• seriousness of the alleged offence
• punishment and deterrence
• circumstances of the alleged offence
• impact on electrical safety strategies
• maintenance of public confidence in the rule of law
• maintenance of public safety
• alleged offender's previous history
• relationship of victim to alleged offender
• co-operation by the alleged offender in the prosecution of others
• penalties already imposed on the alleged offender.

Disciplinary action

Section 88 of the Act sets the functions of the Electrical Licensing Committee. A major function is taking disciplinary action against holders of electrical licenses and previous holders of electrical contractor licenses.

Sections 106 and 107 have the framework for taking disciplinary action. Where an inspector believes grounds exist for disciplinary action it can be referred to the ESO for Electrical Licensing Committee for consideration.

Deciding to refer a licence holder for disciplinary action is based on assessing if ground exists and if each element of the ground can be proven. Before referring the licence holder to the Electrical Licensing Committee, the ESO will consider:

• the key issues of a case to answer
• the prospect of the Committee finding grounds for disciplinary action against the person
• the public interest.

Disciplinary action may be the best use of enforcement resources to protect workers and the public from continued dangerous work practices.

Taking disciplinary action does not prevent prosecution. It is possible for a matter to proceed to prosecution as well as to disciplinary action.

Enforceable undertakings

The Act's alternative to prosecution is electrical safety undertakings or enforceable undertaking. This is a written, legally-binding document signed by a person who the chief executive alleges has contravened the legislation.

The undertaking states facts and circumstances of the alleged contravention with an assurance from the person about future behaviour. For example, a company might agree to provide publicity to deter other offenders or introduce programs to prevent future breaches.

Maximum penalties of up to $500 000 are provided for contravening an enforceable undertaking.

Appeals

Appeals ensure that offence provisions are justly and correctly applied and the decision is appropriate. Sections 172 - 177 of the Act set down the conditions of appeals. The main issue for appeals is if the law has been correctly stated and applied.

If it appears there is legal error or the penalty imposed appears to be inadequate, the ESO will consider an appeal against the decision. Appeals are heard in the industrial court. This action will only be taken when:

• the advice from a legal officer presents a basis for the appeal
• there is a reasonable prospect that the appeal will be successful
• the issue under appeal may set a precedent.

Section 186(2) of the Act is about appeals against prosecutions for offences. If a person is dissatisfied with an industrial magistrate’s decision they can appeal against that decision to the industrial court.

Administrative matters

The prosecution for an offence must be commenced by complaint of an inspector or someone authorised by the Minister or chief executive.

For further information call the Electrical Safety Infoline.

Definitions

Bodily harm Bodily harm means any bodily injury which interferes with health or comfort. Comprehensive investigation

A comprehensive investigation is one where the potential outcome may be prosecution or disciplinary action.

Grievous bodily harm

Grievous bodily harm means:

• the loss of a distinct part or an organ of the body
• serious disfigurement
• any bodily injury of such a nature that if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

Type one electrical event

Electrical incident causing death or grievous bodily harm.

Type two electrical event 

• Electrical incident causing bodily harm
• An electrical incident involving high voltage where persons or property are not electrically safe
• Dangerous electrical events:
• • which cause significant property damage
  • where electrical work or electrical equipment is so dangerous or occurs to such an extent that the matter warrants prosecution or disciplinary action
  • where the obligation holder has previously committed offences where the repetition warrants prosecution or disciplinary action
  • any targeted events through an industry blitz or other program.

Type three electrical event

• Electrical incident involving an electric shock
• Unsafe electrical equipment made available by designer, manufacturer, importer or supplier
• Dangerous electrical events:
• • which result in an electric shock or cause property damage
  • where electrical work or electrical equipment poses an immediate electric risk or prescribed equipment without approval
  • breaches of exclusion zones or live work
  • any targeted events through an industry blitz or other program
  • unlicensed electrical work or electrical contracting
  • electrical incidents involving high voltage equipment if the incident involves a person being electrically unsafe
  • repeat offenders involving consumer protection issues such as complaints involving failures of persons who perform electrical work to properly perform and complete the work or failure of licensed electrical contractor to publish electrical contractor licence number in advertisements.

Type four electrical event

• Suspected unsafe electrical equipment
• Electrical incident involving high voltage electrical equipment where persons or property are electrically safe;
• Licensed electrical work which does not pose an immediate electrical risk
• Unlicensed electrical work by a homeowner at their property with no significant outcomes
• Consumer protection issues such as complaints involving failures of persons who perform electrical work to properly perform and complete the work; or failure of licensed electrical contractor to publish electrical contractor licence number in advertisements.