The Battle of Brigalow — a victory for common sense or a lost opportunity for common sense?
By Gerald Arends
As has been widely reported, the Queensland Government brought into effect section 73A of the Electrical Safety Regulations 2013 (Qld). This rule required that as of 13 May 2019 the work of locating, mounting and fixing a photovoltaic (PV) module on its mounting structure or tracker must be performed by a licensed electrician. The cost of hiring licensed electricians in remote locations is high, particularly due to the competition from the mining sector. This regulation would impose significant additional costs on large-scale solar projects.
Internationally, the solar contracting industry distinguishes between “mechanical” and “electrical” module installation. Section 73A leads to the odd and internationally unique position that even the “mechanical” mounting of photovoltaic modules requires an electrical licence.
On 29 May 2019, Bradley J of the Supreme Court of Queensland handed down the judgment in Maryrorough Solar Pty Ltd v The State of Queensland declaring that the new regulation was not covered by the powers of the Electrical Safety Act 2002 (Qld).
The decision of the Supreme Court could, of course, only deal with the legal issues. There are wider issues in the structure of the solar industry that need to be addressed. The rush in which the government passed the new regulation and the legal challenge to it are a missed opportunity to discuss these wider issues.
QLD Government’s arguments and why they failed
The Queensland Government argued that setion 73A was covered by section 5(a) of the Electrical Safety Act 2002 (Qld), “imposing duties on persons who may affect the electrical safety of others”. This argument was not accepted as section 73A did not impose duties. Rather, it acted as a prohibition that prevents persons other than licensed electrical workers to perform module mounting. It addressed the “who” rather than the “how” of managing electrical safety risk.
The Queensland Government further argued that section 73A established a “benchmark” as envisaged by section 5(b)(i) of the Electrical Safety Act 2002 (Qld). This argument was also not accepted. The establishment of “benchmarks” through codes of practice and ministerial notices only allows to regulate the “how” of the performance of electrical work. It does not allow regulation of the “who”.
Electrical safety can be achieved by either regulating the “how” of the performance of electrical work or through the licensing of the “who”. If licensing requirements are imposed, it limits the performance of electrical work to those that are formally qualified to conduct such work. Given that licensing requirements have an impact on competition, they must be treated with greater restraint and care than the regulation of the “how”. Restrictive licensing requirements fail to recognise that in certain circumstances, an experienced yet unqualified worker might be better suited to perform the work than a less experienced but formally qualified person.
The argument that was not made
The Queensland Government did not raise an argument that section 73A was covered by section 5(c) of the Electrical Safety Act 2002 (Qld), as “providing for the safety of all persons through licensing and discipline of persons who perform electrical work”. So why did the Queensland Government not rely on its express licensing powers?
The answer is simple: licensing requirements under the Electrical Safety Act 2002 (Qld) are limited to “electrical work”. The locating, mounting and fixing of photovoltaic modules does not amount to “electrical work”.
First, photovoltaic modules are typically not “electrical equipment”, as they operate at “extra low voltage” and are thereby excluded under section 14 of the Electrical Safety Act 2002 (Qld). Extra low voltage is defined (as is relevant here) as 120 VDC or less. Most photovoltaic modules will, individually, operate at significantly less than 100 VDC. Several photovoltaic modules are then of course connected to strings that step up that voltage level to, these days, typically 1,500 VDC, requiring licensed electricians to do a significant amount of work on solar farms.
Secondly, section 18 of the Electrical Safety Act 2002 (Qld) expressly excludes from the scope of electrical work the “locating or mounting [of] electrical equipment or fixing [of] electrical equipment in place, if this task is not performed in relation to the connection of electrical equipment to an electricity supply”. In short, as long as modules are only mounted “mechanically” but not connected “electrically”, mounting is not “electrical work” at all.
An activity that is not “electrical work” does not fall under the licensing regime of the Electrical Safety Act 2002 (Qld).
The real issues at stake
The author believes that the true reason for the introduction of section 73A was not the need for module mounting to be performed by licensed electricians. If this was the case, why would it only apply to solar farms above 100 kW and not for smaller systems that are often installed on electrically conducting sheet metal roofs?
Rather, it was the upset caused in the communities by the failed promise of solar farms to deliver jobs to regional Queensland. Queensland (and Australia more broadly) has developed a large-scale solar industry that operates at a significantly larger scale than in most other industrialised countries. The delivery of these projects poses an enormous challenge in Australia’s vast geography, in particular where unskilled labour can earn significant salaries in the mining industry.
Through subcontracting and labour-hire arrangements, a significant amount of work was performed by foreign workers, often on working holiday visa holders and short-term subclass 400 (Temporary Work (Short Stay Specialist)) visas. Why?
Looking at the subclass 400 visa holders, these were often Bulgarian, Romanian and Polish workers. Due to the free movement of labour within the European Union, these very workers have a tremendous wealth of experience in building solar farms around Europe, experience gained over the last 10 years and giving them a high labour productivity. In a new market such as Australia, workers lack this experience and would likely deliver a lesser quality and lower labour productivity. The evolving labour productivity in solar installations has been noted, for the US context, by the National Renewable Energy Laboratory (NREL) in its report on “Solar Installation Labor Market Analysis” (2011).
What could we have done better? Rather than promoting large-scale solar projects that are difficult to resource, the federal government and state governments should have implemented policies that encourage a far greater number of smaller utility-scale solar farms. These would allow local businesses to gain repeat business in the solar industry and build a local skill set. No-one would contemplate hiring international workers for a 1 MW solar farm, especially if there is a capable and well-trained local workforce available.
The administering agency for section 73A is the Department of Education. From our point of view this is very appropriate, but the policy measure should not be a restriction on who can mount photovoltaic modules. Common sense dictates that Australia should seek a more sensible policy setting that leverages the modularity of solar installations for regional small to mid-scale deployment.
Pegasus Legal is a boutique law firm with an exceptional level of expertise in the renewable energy sector. Our lawyers have worked on a large number of solar, battery, biomass and wind projects in a wide range of countries. For further information please contact Director Gerald Arends or Director Swati Johri.
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