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New South Wales, Tasmania, Northern Territory and now Western Australia have rejected it. Victoria embraced it, but is now back pedaling and Queensland embraced it and is doubling down. Now it is South Australia’s turn to decide. I am talking about the broad application of the Professional Engineers Act. You may not have heard much about it and that suits the protagonists. It threatens a return to closed shops for nearly all manufacturing and technology development – casting experienced and skilled people onto the career scrap heap unless they convince the club to let them in. And for all this pain there is no gain.
There has been little information promulgated to industry about the Professional Engineers Registration scheme and what little information there has been quite misleading. I’d like to share my take on the scheme after quite a lot of research in preparing the EIDA submission to the SA government on this topic and making representation to the government.
The Argument for It.
The protagonists, namely the associations who benefit from the scheme rely on the “Building Confidence Report” [1]. One of the many recommendations in this report is the registration and training of building practitioners
“We recommend a nationally consistent approach to the registration of certain categories of building practitioners and compulsory Continuing Professional Development, which includes mandatory hours/units dedicated to training on the NCC [2] and the establishment of supervised training schemes which provide better defined career paths for building surveyors.”
States like NSW and WA have taken the report to heart and are requiring registration for particular activities and that registration carries with it specific requirements related to those activities that directly address issues raised in the report. If you want to approve a certain stage in a class of building it requires some specific training. That can make sense. And if it stopped there – I would not be writing this article.
Victoria and Queensland though have not limited the application to specific activities in construction. South Australia has also indicated that it intends to introduce the expanded form of the scheme and therefore include manufacturing and technology. The problem is that legislation that is written for an issue in the building industry is being applied to manufacturing and technology areas – and they are very different. And when it applies to everything you can’t make it deal with specific issues. From my understanding the NSW regulations make it clear about what building specific training is required but with the Victorian legislation and regulation almost any continuing professional development will do even if it does not address the identified issues in the building sector.
Regarding manufacturing and technology issues impacting the public safety let’s look at three examples.
“Book cases tipping over and killing children – nearly all imported products.
Lithium batteries catching on fire – nearly all imported products.
Cyberattacks resulting in identity theft – not covered by the act.”
Nothing in the act helps with these. Most electronics products are covered by product standards and are tested for compliance by independent laboratories. And the local manufacturers have a very high compliance with this. However, many products are imported without due regard for compliance – think ebay sellers. That is not an engineering issue – that is an education and accountability issue for the companies putting the products onto the local market.
How it Works or Joining the Club
The way the scheme operates is that if you are applying engineering principles and data then you must be registered to perform that work or be supervised by someone who is registered unless it is according to a prescribed standard (more on that later). Now becoming “registered” sounds innocuous – you just part with the $1118.10 [3] and you can work – like registering your car. If you are already a member of a club it may only cost you $528.10. But the part of registering that should be in flashing lights is that you can only register if you meet the prescribed model of what an engineer should be – this is based on your path not on your competence. The states have hitched their hook on the Washington Accord as the only path to competency for all applications of technology (i.e. engineering). The only people in Australia who can assess your skills as complying with the Washington Accord based on competence is Engineers Australia – basically you either need to make them happy and grease their palms with another $750 in addition to the above or you have to work under the supervision of someone who is registered. In Engineers Australia’s guide for how to apply for assessment [4] it says that you will need to pass an English language test (IELTS $410.00) among many other obstacles.
There are other Assessment Entities that can sign off your entry but only if you have a recognized Washington Accord degree – the costs are about the same. So the end result is that all application of engineering principles and data in Victoria and Queensland must be done by or under the supervision of a person directly or indirectly approved by Engineers Australia.
The process of registration requires an assessment of skills and experience and character to be performed by an Assessing Entity. Of course, you already went through this process to get your current job and when your employer assessed you, they did it in the context of your role – not against a generic engineering role. The generic filter applied for approval will exclude some of the people most suitable to carry out the work (think physicists for example) and include other people who are unsuitable for the particular role.
Some people are also getting their wings clipped through the process in Victoria. Of the 2424 [5] Electrical engineers registered in Victoria 18 are restricted to information technology, telecommunication or electronics. 18 sounds very small but very few engineers outside of construction and utilities even know the scheme exists – expect that number to grow. I have not got to the bottom of how some engineers are cleared to work on everything from submarine power cables to the design of semiconductors but some engineers are limited to electronics. And if limited to electronics does that exclude working on something like a plug pack that involves both electrical safety and electronics? If you’ve had your wings clipped I’d appreciate hearing your side of how it came about. I asked the Assessing Entities for details of their approved schemes as approved by the building license authority. Only one provided it despite the obligation that they are published. I have not seen anything explaining these restrictions.
Application
The next misleading thing is that the proposed scheme only applies to roles traditionally considered the domain of a 4 year degree qualified engineer. Well, here is a major problem – and one that has got Victoria into a real twist and is causing legal issues in Queensland. Someone making a tool – like an injection molding tool will be employing plenty of engineering principles and data so under this scheme they can only do this work under the direct and close supervision of a registered mechanical engineer. There is no prescribed standard at play here. In my experiences of engaging toolmakers to make plastic injection molding tools, they are not degree qualified engineers, the better ones use flow analysis tools and other simulations and apply engineering practices and data in spades but I can’t really see many mechanical engineers adding much value (let alone protect the public) by supervising and signing off on it – it is like putting the doctors in charge of the nurses. Mostly industrial designers engage toolmakers and know a lot about getting the tools performing well – but they won’t be able to register. The poor toolmaker – if it is found they are not correctly supervised they are personally liable for the penalty including refunding all fees paid to him or his company. Now you might think that the government regulator would be a bit pragmatic and sensible and generally they are. But it is not always up to them – the ultimate arbiter is the courts. In Queensland we have the case of “Agripower Australia Ltd v Queensland Engineering & Electrical Pty Ltd”. Here the respondent unsuccessfully relied in part on the exemption from registration for work according to a prescriptive standard for AS3000 – the wiring rules that underpin electrical contracting. To me the judgement makes it clear that trades are not safe to carry on their trade without being supervised by a registered professional engineer. There is a subjective line there and if you find yourself on the wrong side of it, the consequences can be career ending.
This is where Victoria and Queensland have diverged – at least in their rhetoric. Victoria has produced its Guidelines on Providing Professional Engineering Services [6] that suggests a less broad application than Queensland. The problem with this guide is that it draws a conclusion from the legislation that cannot be justified by the legislation. The very different Queensland and Victoria stances are drawn from the same wording in the acts – even the regulators cannot agree on the meaning of the law. Here is the clause from the Victorian legislation.
“an engineering service that requires, or is based on, the application of engineering principles and data –
• to a design relating to engineering, or
• to a construction, production, operation or maintenance activity relating to engineering other than an engineering service that is provided only in accordance with a prescriptive standard;”.
The only thing in the legislation that distinguishes an engineering service from a professional engineering service is that it involves the application of engineering principles and data. It is hard to imagine an engineering service that does not involve engineering principles and data and so in practice every engineering service is a professional one. The guideline proceeds with 7 pages of interpretation of this short piece of legislation which is not even self-consistent let alone justifiable based on the legislation. For example, it states “In a production setting … A professional engineer designs the tools, processes and equipment required to turn raw materials into a desired product in the most efficient and economic manner.”. This is the very definition of manufacturing yet the guideline gives manufacturing as an example of what is NOT a professional engineering service.
The part of this guideline that rings most true to me is
“Responsibility for deciding whether a particular engineering service is a professional engineering service lies with the person responsible for undertaking that activity.”
Teaching STEM and Robotics Clubs
One of the areas of divergence between the rhetoric of Victoria and Queensland is in relation to teaching. The Victorian guidelines gives teaching as an example of something that is not a professional engineering service, whereas Queensland warns teachers to assess what they are doing and register if needed. Presumably teachers at any level of education that design practical STEM activities or run a student robotics club will likely need to be registered or supervised. See Registration for Academics [7]
Why have such confusing legislation
“So what is the point of having a law that cannot be followed – A law aimed at public safety that does not deliver it? The law suits the protagonist’s purpose. It gets them members and fees and increases demand for their members and leaves industry and the regulator with the mess. And for those who have their successful careers ruined – well they were never going to be club members any way. In all this the protagonists do not bear the responsibility for their decisions. Authority without accountability is a recipe for inappropriate behaviours.”
Associations prioritising their own interests and members’ interests is inherently what they are about. It is up to government to act for the community.
Already Regulated
The next tool of deception used by protagonists is that somehow engineering is unusual among professional services in not being regulated. Let’s be very clear here – the results of engineering in manufacturing are heavily regulated by product standards – many of them – and they are overseen by entities like the TGA and FDA and FCC and IEC and the list just goes on. Most technical staff are working in ISO9001 QMS systems that ensure due regard to competency and require shortfalls to be rectified. So, the suggestion that the work of engineers in manufacturing and technology is unregulated is manifestly false.
Other Professions
Further let’s look at other professions like accounting and law. Someone can complete all the accounting requirements for a company without supervision by a ‘registered accountant’. They can be the CFO of a listed company without being an accountant. I don’t have to be a registered accountant (I don’t think there is even such a thing) or be supervised to apply accounting principles and data. There are some specific activities like providing certain type of financial planning advice that requires accreditation – again a specific response to a specific problem.
When it comes to law one does not have to be a practicing lawyer to complete a trademark application or review a supplier contract or write a contract. Anyone can apply legal principles and case law unfettered by any requirement to be registered. There are some activities like representing people in court that does require ‘registration’.
It is worth looking at the registration requirements in medicine. It may be surprising that the scope of coverage is quite narrow and that narrowness again allows useful regulations. Australian Health Practitioner Regulation Agency (APRHA) covers health practitioners pretty much directly interfacing with humans. But it does not cover the people developing or making the drugs or the development and manufacture of medical devices and implants. This work is covered by Therapeutic Goods Administration (TGA) – and not by trying to credential the people who do the work but by assessing the outputs of the whole system making the goods. You see that is a basic premise of regulation around the world – if you can control the output of an industry then do that as it works best. If you can’t control the output then control the practitioners. The outputs of manufacturing lend themselves to control by product standards.
So lets look at the size of APRHA – it is regulating an industry that has a much narrower scope than that covered by the professional engineering act and it has 15 National accreditation boards under it covering from Chinese Medicine to Paramedicine. Each of these boards oversees numerous different occupations. The professional Engineers Act is trying to cover an area larger than this with just 5 disciplines (Civil, electrical, mechanical etc.) and as a self-funded sub office of Consumer and Business Affairs. Also interesting is that the Health Practitioner Regulation National Law protects titles broadly but only restricts practice in dental, prescribing optical appliances, spinal manipulation and some birth practices. Of course, without the accreditation and title that comes with it you’re not likely to get engaged or indemnity insurance. But at least student counsellors do not need to worry that they will be charged for practicing psychology without a license. No such comfort for the tradesman helping the local schools robotics club under the proposed act – he can be done for providing professional engineering services unregistered.
Other Countries have Registration Schemes
Another area of deception in the protagonist arguments is that Australia is some sort of outlier in not having a registration scheme. At face value is seems like fair argument. Many countries do have registration schemes. But what is not said is that the schemes of Victoria and Queensland go way beyond any scheme we have been able to find anywhere in the world.
Most schemes around the world protect titles relating to engineering and some protect specific activities like submitting plans. Some do restrict practice – but those that do, carve out most engineering work – like in industry, defence etc.
Interestingly the schemes have titles held in high regard by industry are based on exams not pathway.
International Collaboration and AUKUS
The law has profound implication for international collaboration. The proposed act applies to all engineering work towards a project in the state regardless of where that work is done. This won’t be a problem for the part of AUKUS destined for Western Australia but will be for the engineers in the US defence force and other companies involved working on parts of the project destined for South Australia. We ask another government to share their technology with us – to collaborate – and then tell them that we are going to supervise them and judge if they are competent or not. It could be a lot easier to just do it all in Western Australia.
What do you think the chances of a semiconductor company setting up in Adelaide will be if their engineers that are based overseas but working on the project have to successfully complete the equivalent of a skilled migration application before they can even start work?
EIDA Advocacy
EIDA has been advocating hard on this for members and frankly for the future of high-tech manufacturing in South Australia. We have reached out to leaders of South Australian companies representing over $1bn in annual revenue and 2000 employees and they have written to Minister Andrea Michaels explaining the issues with the scheme and the adverse impact it will bring – a price made even more painful by the fact that it will not bring the claimed public benefits.
The EIDA position in summary is that the proposal as it stands will
- Make South Australia less competitive due to increased costs based on compliance and the time required to complete compliance matters.
- Make South Australia less competitive due to companies not being able to manage competency and quality in ways that are optimal for their circumstances.
- Make South Australia less innovative due to reducing diversity and specialist skills in the workforce.
- Damage investment in South Australia due to the increased challenges to recruit specialist skills and the requirement that staff in the investing country will need registration in South Australia.
- Cause older staff to leave the workforce as many competent, especially older employees would be forced from the industry by the difficulty in registering.
- Reduce employment opportunities for graduates due to the requirement that they be supervised for 5 years even if they are not undertaking work of particular risk.
- Make the skills shortage worse for the reasons given above.
- Not improve competency in the broader engineering sector.
Dr Susan Close MP, Minister for Industry Innovation and Science has done an excellent job with reaching out to industry to put together South Australia’s Advanced Manufacturing Strategy and is aware of the deep concern in the industry regarding the registration.
As chair of EIDA, I’d like to thank the contributions from many in the industry that have advocated with us.
More to come!
1 Building Confidence, Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia, Peter Shergold and Bronwyn Weir, February 2018
2 National Construction Code
3 $590 for Engineers Australia and $528.10 for Victoria Consumer and Business Affairs.
5 Based on an extract of the Victorian Register received on 22 September 2023
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