Pinto v Plumbing Industry Council
[2012] QCAT 249
•19 June 2012
| CITATION: | Pinto v Plumbing Industry Council [2012] QCAT 249 |
| PARTIES: | Paul De Pinto |
| v | |
| Plumbing Industry Council |
| APPLICATION NUMBER: | OCR157-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 19 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. 2. The applicant pay to the Plumbing Industry Council a monetary penalty in the sum of $6,000.00 by 12 July, 2012 or have his licence suspended for three months commencing on 13 July, 2012. 3. No order as to costs. |
| CATCHWORDS: | Review of penalty Plumbing and Drainage Act 2002, s 129(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr De Pinto seeks a review of a decision of the Plumbing Industry Council (PIC) made on 23 June, 2011 to impose a disciplinary order upon him.
Mr De Pinto is entitled pursuant to section 129(2) of the Plumbing and Drainage Act 2002 (PDA) to seek a review of the decision under the review jurisdiction provisions of the Queensland Civil and Administrative Tribunal Act 2009.
Mr De Pinto seeks an order that the monetary penalty imposed by the PIC be waived.
Background
The legislative background to this matter is that prior to 31 December, 2010, plumbers who did not have an endorsement to their licence to install solar and heat pump hot water systems, were required by s 83 of the PDA, not to carry out regulated work or on-site sewerage work unless a compliance permit from local government for the work had been obtained and the person had complied with any conditions of the permit. They were then required to request a local government to assess the work within 7 days after it had been completed, pursuant to s 19(2) of the Standard Plumbing and Drainage Regulation 2003, by Form 1.
Since 1 January, 2011, plumbers and provisional plumbers must hold on their licence the appropriate endorsement to install, replace, test, repair and maintain solar and heat pump hot water systems. They are then required, within 40 business days after completing work, to notify the local government of the work, by Form 4.
Between 14 April, 2010 and 3 September, 2010 Mr De Pinto installed at 58 locations solar or heat pump hot water systems.
It is not denied that he did not first apply for a local government permit in relation to the work performed.
It is not denied that he did not request a local government to assess the work within 7 days after it had been completed, nor was any notification of the work given to the relevant local authority within 40 business days after completing the work.
Mr De Pinto attended the Solar Hot Water and Heat Pump training course with the Master Plumbers’ Association of Queensland on 16 and 17 June, 2010. He successfully completed the course and was entitled to have his licence endorsed with the Solar and Heat Pump endorsement from 28 June, 2010. However, Mr De Pinto did not obtain the endorsement until 10 March, 2011.
By letter from the Plumbing Industry Council, dated 24 March, 2011, Mr De Pinto was asked to show cause as to why disciplinary action should not be taken against him, under section 64 of the PDA, on the grounds that he performed regulated plumbing work for the installation of solar hot water and heat pump systems without a permit, as required by section 83 of the PDA, and did not request an assessment of the work at each of the applicable stages, under section 19(2) of the Standard Plumbing and Drainage Regulation 2003.
By email sent on behalf of Mr De Pinto the following submissions were made in response to the show cause letter:
·Mr De Pinto was employed by Solahart Mackay as a senior plumber;
·He completed the approved course for solar endorsement on his licence on 16 and 17 June, 2010. He holds a QBSA licence;
·The Mackay City Council has been contacted and all the correct paperwork will be submitted;
·All administrative paperwork in the office is behind due to bereavement leave;
·Systems are now in place to ensure correct lodgement of forms in a timely manner.
The PIC considered the response, however, on 23 June, 2011 it issued a disciplinary order requiring:
(a)Payment of a monetary penalty in the sum of $6,000.00 by 25 July, 2011 or three months suspension of licence; and
(b)Enrolment and completion of a Standards and Legislation course; and
(c)Proof of lodgement to the PIC of any outstanding applications for compliance assessment (Form 1) or if applicable Form 4, notifiable minor work, for the 58 installations relating to the disciplinary action.
The reasons for the decision include the number of installations performed without a permit or requesting an assessment of the work; the fact that the local government has not captured the work for its records and purposes; there was no opportunity for inspection of the work which may not be safe or fit for use by the public; and there is a risk to public health and safety. There may be problems with ongoing maintenance and rectification of work if the local government does not have appropriate records to contact Mr De Pinto.
The PIC considers the penalty imposed must be significant in order to be a proper deterrent. The PIC denies that the penalty is intended to punish. It considers 60 penalty units to be an appropriate penalty to deter Mr De Pinto and others from exposing the public to a risk of death or grievous injury. The penalty is less than a possible maximum penalty under section 83(1) of the PDA of up to $165,500.
In his application for review filed 27 July, 2011, Mr De Pinto has said that:
(a)He has actioned the course and proof of lodgement of the correct Forms, however he considers the fine to be excessive, punitive in nature and unreasonable.
(b)The PIC did not take all reasonable steps to inform the plumbing industry in general of the ramifications and consequences of not completing and submitting complicated paperwork in the time frames provided.
(c)Further, the Form 4 has no specific lodgement date on the Form itself.
(d)Many other plumbing organizations received show cause notices.
(e)Keeping informed about legislation and amendments is burdensome especially for a small business.
(f)There has been insufficient communication from the PIC in relation to the legislation.
(g)Individual councils have different procedures and processes adding to the difficulty for small business.
Mr De Pinto has expanded on these points in his submissions.
Conclusion
I have had regard to all the material filed in the Tribunal by both parties.
I conclude that the disciplinary order with respect to penalty made by the PIC should be confirmed.
I have reached this decision for the following reasons:
(a)Mr De Pinto is employed in a business which is solely engaged in installation of solar hot water systems. It is imperative that he understand the legislative requirements applying to the business.
(b)The requirement to obtain permits before undertaking each of the 58 jobs in question and to request a local government assessment within 7 days was not a new obligation, and should have been well known to him. The obligation is set out in section 83(1) of the PDA and section 19(2) of the Regulation.
(c)It is not to the point to refer to the new arrangements as to endorsement of the licence and lodgement of a Form 4 within 40 business days of completion of the job, as being a new requirement, inadequately explained to the plumbing industry. None of the 58 jobs performed related to a period of time when the new arrangements were in place. In any event, at least half way through completion of the 58 jobs Mr De Pinto should have known of the new arrangements as a result of his attendance at the training course in June, 2010.
(d)Although I recognize the pressures on small business when a key employee responsible for the administration of paperwork is absent for reasons such as the illness of a close relative and subsequent bereavement, the failure to obtain permits and to lodge the appropriate Forms 1, went on for a period of approximately 5 months. I find that is an unreasonably long period of time given the statutory obligations. This is not just a failing of the plumber’s employer over which the plumber has no control. I accept the submissions of the PIC that in accordance with section 17 of the Regulation an employer may submit a form on the plumber’s behalf, however, the plumber who carried out the work is responsible for signing the form and ensuring that the form has been received by the local government. Over the period of time involved Mr De Pinto should have required his employer to correct the backlog and not take new work without obtaining the relevant permits given his level of personal responsibility.
(e)I accept the submissions of the PIC that it took into account the issues raised in Mr De Pinto’s response to the show cause notice. I do not think there has been any lack of natural justice which would affect the PIC decision. I have in any event taken the submissions into account in coming to this decision.
(f)The penalty imposed is not, in my opinion punitive, given the large number of jobs affected by the lack of permits and lodgement of Forms 1. I accept the submissions of the PIC that the penalty should have a deterrent effect and consider the penalty of $6,000.00 to be fair in light the public health and safety objectives underscoring the PDA. Further, it falls within the range of penalties which may be ordered under the Act.
(g)I acknowledge the steps taken by Mr De Pinto’s employer to identify a Standards and Legislation course he may attend and to lodge the appropriate documentation relating to the 58 jobs. However these are steps taken in response to the disciplinary order made against Mr De Pinto, long after the jobs in question were completed.
The application seeking an order that the monetary penalty be waived is dismissed. In accordance with section 24 of the QCAT Act I confirm the decision of the PIC to order payment of a monetary penalty in the sum of $6,000.00. I order that the penalty be paid by 12 July, 2012.
The alternative to non-payment of the penalty, being suspension of Mr De Pinto’s license for a period of 3 months has not been addressed by Mr De Pinto nor by the PIC. For completeness and to make sense of the disciplinary order which has been confirmed, I order that if the penalty is not paid by 12 July, 2012, Mr De Pinto’s license will be suspended for 3 months commencing on 13 July, 2012.
No party has sought costs. Accordingly I make no order as to costs.
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