In a recent decision of the Queensland Court of Appeal, the Court held that a worker did not need to hold an electrical work licence to undertake work on a photovoltaic module at a solar farm.
In May this year, the Queensland Government introduced an amending Regulation and a code of practice regarding the construction of solar farms.
The Electrical Safety (Solar Farms) Amendment Regulation 2019 (QLD) (Regulation), amended the Electrical Safety Regulation of QLD by requiring that the:
"locating, mounting, fixing in or removing from a place of a photovoltaic module at a solar farm could only be performed by a person who held an electrical work licence, pursuant to the Electrical Safety Act of Qld."
The stated object of the amendment to the Regulation was to ensure that only electrically licenced workers would undertake the work of mounting, fixing or removing solar panels on solar farms that exhibited a total rated capacity of at least 100kW. This was to ensure that no backpackers or labourers were exposed to the risk of an electrical incident at a solar farm.
The respondent to the Court of Appeal proceedings, Maryrorough Solar Pty Ltd, which has proposed to construct a solar farm in the Fraser Coast Council area in Queensland, argued that the amending regulation would increase the cost of the project by approximately $2.6M.
This cost was an additional burden to use workers that held an electrical work licence for the locating, mounting and fixing in of a photovoltaic module on the solar farm. Such work could be safely undertaken by a competent worker. It was argued that the amending regulation was inconsistent with the Electrical Safety Act.
The State of Queensland argued that the amending regulation was required to fill a gap to ensure that only those workers that held an electrical work licence could undertake such work to ensure the safety of persons in the construction of the solar project.
The Court of Appeal found for the respondent and confirmed the May 2019 amending regulation to be void.
The Queensland State Government will now consider its next move.
One option is that the government may seek to amend the Electrical Safety Act or drive compliance through the Work Health and Safety Act of Queensland.
In the interim, it is recommended that a complete legal risk assessment is conducted to ensure that your solar construction project has identified the hazards and taken reasonably practicable steps to eliminate or control the identified risks.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.