Dris proposal for national licensing of the electrical occupations

3.2Nominees

The Occupational Licensing National Law Act 2010 (the National Law) requires that when a body corporate or an individual who does not hold the relevant licence applies for a contractor licence, they will be required to nominate a nominee. The nominee will be an individual licensed to undertake the regulated work, as shown in Table 3.10. This requirement addresses the issue of a business entity in itself being unable to possess skills and expertise.

It is proposed that the nominee should be a director, a person in the partnership, or an employee who holds a relevant active licence, and agrees to hold the responsibility of nominee (as set out in the relevant jurisdictional conduct legislation). Following discussion between jurisdictions, it is also proposed that individual jurisdictions can choose to allow sub-contractors to fulfil the role of a nominee, however, this arrangement may not be recognised outside the originating jurisdiction. A contractor who has a sub-contractor nominee and who enters into a contract for work outside the originating jurisdiction will be required to meet the nominee requirements in the jurisdiction in which the work is occurring.  

Applicants for a contractor licence determine the scope of regulated work they are applying for and nominate a nominee who holds a licence that corresponds with that scope of work.

Table 3.10: Electrical contractor licence and the applicable licensed technical nominee

Electrical contractor’s licence	Licensed technical nominee
To enter into contracts to carry out electrical work	Electrician’s licence
If the licence states the licensee may enter into contracts to carry out electrical fitting work	Electrical fitter’s licence
To enter into contracts to carry out electrical line work	Electrical line worker’s licence
To enter into contracts to carry out electrical cable jointing work	Electrical cable jointer’s licence

3.3Exemptions

The National Law makes it an offence for an individual or business entity to undertake regulated work unless that individual or business entity holds a licence or is exempt.

Under amendments proposed to the National Law a person must not carry out regulated work unless the person:

• 
  holds a licence to carry out the regulated work; or
  
• 
  is exempt under the National Law from the requirement to hold a licence to carry out the regulated work; or
  
• 
  is exempted by NOLA, in accordance with the National Law, from the requirement to hold a licence to carry out the regulated work.
  

In addition, a licensee must not engage another person to carry out regulated work unless they are licensed or exempt, noting that regulated work includes contracting for regulated work.

The proposed classes of persons who will be exempt from the requirement to hold an electrical licence to carry out regulated electrical work are listed in Table 3.11.

Table 3.11: Proposed classes of person exempt from holding a licence

Classes of person exempt from holding a licence

An individual who is carrying out the regulated work: (i) under a contract of employment and training, or as a student undertaking competency-based training, for the purpose of gaining qualifications necessary for obtaining the licence; and (ii) under the supervision of an individual who is licensed to carry out the regulated work without supervision. The holder of a prescribed authority (by whatever name called) and who, as part of carrying on business under that authority, contracts, for the provision of that regulated work other than under a contract of employment, with another person licensed to carry out that work. a person who, in the person’s capacity as an employee or contractor carries out regulated work on— electrical equipment in or near a mine that is owned, controlled or operated under a declared law for this subparagraph

3.4Non-skills-based eligibility requirements

Regulatory regimes develop criteria to determine an applicant’s or licensee’s suitability to hold a licence in specific occupations. These criteria are designed to minimise risks associated with matters such as incompetent work and public and personal safety, and risks to property and money held in trust. Risks associated with electrical work are summarised at Attachment F.

The issuing or renewal of a licence is premised on reducing these risks by requiring the applicant to meet specific eligibility requirements. For example, an applicant or licensee may be assessed against personal or financial probity conditions, age or health and fitness requirements. The National Law provides for non-skills-based eligibility criteria that include personal and financial probity requirements.

3.4.1Relevant person

The National Law provides for the identification of a relevant person(s) for a body corporate or a person who is a partner in a partnership, and that they are subject to personal and financial probity checks. This aims to prevent a person from hiding behind a corporate structure, for example, where an individual has been banned from undertaking work in a licensed occupation and endeavours to use a corporate structure as a front to continue operating in the industry.

The proposed relevant persons for the electrical contractor licence are described in Table 3.12.

Table 3.12: Proposed relevant persons for the electrical contractor licence

Electrical occupation

Relevant Person

Electrical contractor

It is proposed that relevant persons for the electrical contractor licence are all directors of a body corporate (as defined in the Corporations Act 2001), any other individual who is in effective control of the business of the body corporate, and each member of a partnership. A person in effective control of a business is someone who is regularly or usually in charge of the business, and has control or influence over how the business is managed.

3.4.2Personal probity eligibility requirements

The National Law, and the Amendment Bill for the National Law, provides for the personal probity requirements that will apply to individual occupational licensees and contractor licences.

For all applicants and licensees, NOLA will have regard to whether the person has within the previous five years been convicted of an offence under sections 9, 10 or 11²³ of the National Law or a provision of a corresponding prior Act that corresponds to sections 9, 10 or 11.

For contractor licensees (which includes a relevant person for a body corporate or a member of a partnership), it is proposed that NOLA have regard to the following additional personal probity requirements :

• 
  matters relating to the criminal history of the person in relation to:
  

• 
  offences relating to dishonesty
  
• 
  offences relating to misleading or deceptive conduct
  
• 
  offences relating to a person’s obligations under a law relating to occupational health and safety
  

• 
  matters relating to the conduct of persons in carrying out business, including, for example, matters relating to duties as a director of a corporation or the imposition of civil penalties or orders in relation to carrying out business
  

NOLA will need to develop guidelines to ensure consistent application of probity requirements.

The proposed personal probity eligibility requirements for the range of proposed electrical licences and types of applicants are shown in Tables 3.13 and 3.14.

Table 3.13: Personal probity requirements for applicants

Type of applicant	Licence category	Personal probity requirement
Individual	Electrician, electrical fitter, electrical line worker, cable jointer, provisional licences and restricted electrical licences	NOLA must have regard to: Whether within the previous five years, has been convicted of an offence under section 9, 10 or 11 of the National Law or a provision of a corresponding prior Act that corresponds to section 9, 10, or 11^24
Individual	Contractor	NOLA must have regard to: Matters relating to criminal history, including: offences relating to dishonesty offences relating to misleading or deceptive conduct offences relating to a person’s obligations under a law relating to occupational health and safety. Whether within the previous five years, been convicted of an offence under section 9, 10 or 11 of the National Law or a provision of a corresponding prior Act that corresponds to section 9, 10, or 11^25 Matters relating to business conduct. This means any action taken against a person under the Corporations Act 2001 in relation to the following: failure to exercise powers with care and diligence failure to exercise powers in good faith and for a proper purpose misuse of position to gain advantage or cause detriment to a company misuse of information obtained by virtue of the person’s position to gain advantage or to cause detriment to a company breach of the procedures under that Act when giving a financial benefit to a related party of a company failure to comply with financial reporting requirements under that Act breach of the duty not to trade insolvent.

Table 3.14: Personal probity requirements for other persons

Type of applicant	Other person who is required to have a personal probity check	Personal probity requirement
Body corporate	Relevant persons for a body corporate	NOLA must have regard to: Matters relating to criminal history, including: offences relating to dishonesty offences relating to misleading or deceptive conduct offences relating to a person’s obligations under a law relating to occupational health and safety whether the relevant person has within the previous five years, been convicted of an offence under section 9, 10 or 11 of the National Law or a provision of a corresponding prior Act that corresponds to section 9, 10, or 11 of the National Law Matters relating to business conduct. This means any action taken against a person under the Corporations Act 2001 in relation to the following: failure to exercise powers with care and diligence failure to exercise powers in good faith and for a proper purpose misuse of position to gain advantage or cause detriment to a company misuse of information obtained by virtue of the person’s position to gain advantage or to cause detriment to a company breach of the procedures under that Act when giving a financial benefit to a related party of a company failure to comply with financial reporting requirements under that Act breach of the duty not to trade insolvent.
Member of a partnership	Relevant person for a partnership	NOLA must have regard to: Matters relating to criminal history, including: offences relating to dishonesty offences relating to misleading or deceptive conduct offences relating to a person’s obligations under a law relating to occupational health and safety. whether the relevant person has within the previous five years, been convicted of an offence under section 9, 10 or 11 of the National Law or a provision of a corresponding prior Act that corresponds to section 9, 10, or 11 Matters relating to business conduct. This means any action taken against a person under the Corporations Act 2001 in relation to the following: failure to exercise powers with care and diligence failure to exercise powers in good faith and for a proper purpose misuse of position to gain advantage or cause detriment to a company misuse of information obtained by virtue of the person’s position to gain advantage or to cause detriment to a company breach of the procedures under that Act when giving a financial benefit to a related party of a company failure to comply with financial reporting requirements under that Act breach of the duty not to trade insolvent.

3.4.3Financial probity requirements

The National Law provides for the financial probity requirements a person must satisfy to be eligible for a licence. Financial probity eligibility requirements aim to determine whether the financial integrity of the applicant is such that the risk for consumers in dealing with the licensed person is minimised. One of the aims of licensing of business entities is to protect consumers from those who have been involved in the mismanagement of business.

The proposed financial probity requirements for each type of applicant and electrical licence category are shown in Table 3.1 and 3.16.

Table 3.15: Financial probity requirements

Subject to probity check	Licence category	Financial probity requirement
Individual	Electrician Electrical fitter Line worker Cable jointer Restricted electrical licence Provisional licence	NOLA must have regard to: whether the person has failed to pay a penalty, fine or other amount required to be paid under the National Law or a prescribed law.
Individual Body corporate	Contractor	NOLA must have regard to: whether the person is bankrupt, insolvent, compounds with creditors, enters into a compromise or scheme of arrangement with creditors or otherwise applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or whether the person has within the last five years been a relevant person for a another person who, during that 5-year period, was bankrupt, insolvent, compounded with creditors or otherwise applied to take the benefit of any law for the relief of bankrupt or insolvent debtors; or fails to pay a penalty, fine or other amount required to be paid under the National Law or a prescribed law.

Table 3.16: Financial probity requirements for other persons

Type of applicant	Other person who is required to have a financial probity check	Financial probity requirement
Body corporate or a member of a partnership	Relevant person for a body corporate or partnership	NOLA must have regard to: whether a relevant person is bankrupt, insolvent, has compounded with creditors, entered into a compromise or scheme of arrangement with creditors or otherwise applied to take benefit of any law for the relief of bankrupt or insolvent debtors.