12 Jan Direct supervision – consideration for engineers
BPEQ’s Senior Principal Legal Officer Mathew Cuskelly expands on the concept of direct supervision.
The subject of direct supervision accounts for a significant proportion of enquiries made to the BPEQ’s Legal, Compliance and Investigations Unit (LCIU). It is undeniably a significant issue that has the potential to impact on unregistered engineers because to practice without direct supervision from a RPEQ, in the specific field of engineering, may lead to a breach of section 115 of the Professional Engineers Act 2002 (Qld) (PE Act).
Section 115 PE Act
Section 115 of the PE Act is an offence section prescribing a significant liability upon those guilty of carrying out a professional engineering service/s when not registered as a RPEQ. The maximum penalty for the offence is 1000 penalty units [with each penalty unit as of 1 July 2021 valued at $137.85]. Therefore, the maximum financial penalty available for a court to apply to a person found guilty of a section 115 offence is $137,850.
Other Potential Implications
Those who are found guilty of an offence section of the PE Act may also be subject to an award of costs against them to compensate the BPEQ for the costs of the investigation.1 Investigation costs can be very high because the investigations undertaken generally require the appointment of expert/s, costs associated with identifying and collecting evidence and the hours involved in preparing the requisite material for production in court. In addition to the matters already referred to in this article section 141(2) of the PE Act negates the requirement for the purchaser [of the engineering service/s] to pay for those service/s. In circumstances where a professional engineering service/s has been provided by a non-RPEQ this statutory provision makes unlawful any contract requiring payment and, moreover, renders the receipt of monies [in those circumstances] also unlawful. This has the potential to expose the offending [breaching] party to significant litigation risk.
The Professional Engineers Bill 2002 – Explanatory Notes – provides some guidance around how direct supervision should be carried out. Clause 116 of the Bill requires, inter alia, the following:
The supervising RPEQ should be located at the same
office from where the services are offered.
- The supervising RPEQ should be registered in the same area of engineering for which the services are offered.
- The supervising RPEQ must take responsibility for the professional engineering service.
- The supervising RPEQ must be conferred with the authority and responsibility to supervise, direct, and provide such professional engineering services.
- The consumer of the professional engineering service must be informed of the location where the professional engineering service is being conducted.
- The supervising RPEQ must see the final results of the work performed and actually take responsibility for it.
The critical learning from the above points is that of the last – requiring the supervising RPEQ to see the final results of the work performed and take responsibility for it. Therefore, remote supervision is acceptable – provided it is understood [by the consumer] that the supervising RPEQ is located at another office and that office [the location of the supervisor] is where the professional engineering service will be finally produced with that supervisor taking responsibility for that professional engineering service.
The Professional Engineers and Other Legislation Amendment Bill 2014 – Explanatory Notes – referencing extraterritoriality of the PE Act states:
Clause 4 provides for the extraterritorial application of the Act. The clause provides that the Act applies both within and outside of Queensland. This provision clarifies that engineers who provide professional engineering services outside of Queensland for Queensland projects must be registered under the Act or directly supervised by a registered professional engineer.
The following elements are required to be satisfied:
- the provision of a professional engineering service
- outside of Queensland for Queensland project/s
- the engineer/s must be registered under the PE Act; or
- the engineer/s must be directly supervised by a RPEQ
It is the BPEQ’s position that a sufficient connection with the Queensland jurisdiction and the PE Act will apply if an engineer is providing a professional engineering service from Queensland to interstate. The BPEQ recommends that engineers who have a connection with Queensland, whether that be providing a professional engineering service into Queensland or from Queensland, should be registered or directly supervised.