Date of Forum : 23 October 2008
Venue : PKNS Seminar & Conference Centre, Petaling Jaya
Organized by : PPC’s Sub-committee on the New Engineers Act
Panel Members :
a) Y. Bhg Dato Ir Chew Swee Hock
b) Engr P.E.Chong
c) Ir Dr. Abdul Majid bin Dato’ Abu Kassim
d) Ir Chen Thiam Leong
e) Engr Rocky H.T.Wong
Facilitator : Y. Bhg Dato Paduka Engr Hj. Keizrul bin Abdullah
Rapporteur : Ir Lai Sze Ching
No. of Participants : 130
Objective of the Forum
a) To review the effectiveness of the Registration of Engineers Act;
b) To identify weaknesses and problems in the operation of the Act;
c) To obtain feedback and suggestions from stakeholders to improve the Act
2. Opening remarks by the Facilitator
The Facilitator opened the Forum by explaining the objectives of the forum, history of the Registration of the Engineers Act 1967 (hereinafter referred to as “the Act”) and stipulations and relevant sections of the Act.
The Facilitator then proceeded to explain the framework of the review which are broken down into ten (10) sections, namely:
a) Purpose of the Act;
b) What Engineering Services need to be regulated
c) Who should be registered;
d) Exclusive rights of professional engineers;
e) Code of professional conduct;
f) Classification of engineering discipline;
g) Disciplinary power of the Board;
h) Offences and Penalties;
i) Functions of the Board;
j) Composition of the Board
3. Purpose of the Act
3.1 The Facilitator presented the following information:-
a) The Act is silent as to the purpose of the Act
b) The Professional Engineers Act 2002 of Australia stipulated that the purposes of the Act are:
- To protect the public by ensuring professional engineering services are provided by a professional engineer in a professional and competent way;
- To maintain public confidence in the standard of services provided by a registered PE; and
- To uphold the standard of practice of registered PE.
c) The Association of Professional Engineers of Manitoba, Canada is established under “The Engineering and Geoscientific Professions Act 1998” and the 1998 Act provides the purposes of the Association as follows:
i) Govern and regulate the practice of professional engineering and professional geoscience in Manitoba;
ii) Promote and increase by all lawful means and in public interest, the knowledge, skill and competency of its members and students in all things relating to the professional engineering and geoscience; and
iii) Advocate when the public interest is at risk.
d) The Canadian Council of Professional Engineers provides following policy statements:
i) Level 1
In Canada, the protection of the public requires that the practice of engineering be regulated by the engineering profession. The public shall not be confused pr misled by the misuse of words engineer and engineering.
ii) Level 2
The protection of the public requires that the practice of engineering in emerging areas be regulated. The profession shall identify and recognize when basic science emerges as the practice of engineering.
e) Comments from the Rapporteur:
i) In Singapore, the Professional Engineers Act 1991 does not state the purpose of the 1991 Act;
ii) In the UK, there is no similar Act to regulate the registration of engineers. Council of Engineers UK is set up by the Royal Charter as an organization to regulate the engineering profession in the UK. Its mission is “to maintain internationally recognized standards of competence and commitment for the engineering profession, and to license competent institutions to champion the standard”.
f) The Facilitator then opened to the floor to discuss on what the floor think should be the purpose of the new Act; ie whether to protect the public or the engineers or both.
3.2 The panel members submitted the following views:
a) Should the purpose of the new Act is to protect public interest, then it should be targeted at Practicing Engineers;
b) The purpose of the new Act should be to protect public interest rather than the Engineers’ otherwise every profession or trade would require the Parliament to enact specific Act to protect them. This is unhealthy to the country;
c) Malaysia follows the UK in that the purpose of an Act is normally not stipulated in the Act itself;
d) The Act is also indirectly protecting the Engineer as a PE cannot claim for the fees for work done if he is not registered under the Act;
e) Most of the Mutual Recognition Arrangements (“MRA”) including MRA on Engineering Services involve essential elements such as safety and welfare of the public.
3.3 Comments from the floor:
Generally the participants agreed that the Act is enacted to protect the public interest.
3.4 a) One participant raised the question that it is more appropriate for the law to regulate only certain branches of engineering, for example under the Uniform Building Bylaw, only Civil, Mechanical and Electrical Engineers are permitted to submit plans. There is no such allowance for other branches of engineers such as Chemical Engineers;
b) The panel members commented and replied as follows:
i) An engineer is allowed to submit plans for the discipline that he is registered with for example a mechanical PE may only submit plans for mechanical works.
ii) This appears that we are ‘overly’ regulating ourselves. For example, for fire fighting services, only civil engineers are allowed to submit passive fire plans under the current practice.
iii) In Singapore, S.2 of the Professional Engineers Act 1991 defined “professional engineering work” to include any professional service in connection with any public or privately owned public utilities, buildings wherein “the public interest and welfare, or the safeguarding of life, public health or property is involved”.
Therefore, the Singapore Act only registers three (3) branches of Engineering ie. Civil, Mechanical and Electrical.
Comment from Rapporteur: S.10(8) of the Singapore Act stipulates that “prescribed branches of professional engineering work” means civil, electrical, mechanical and such other branches of engineering as may be prescribed.
Thus it appears that Singapore Act does allow registration of other branches of engineering.
If the Act is aimed to protect public interest, it may be said that the registration of engineers from these 3 branches is sufficient. (c.f. Currently the registration by BEM has now reached 86 disciplines such as Aeronautical & Space Engineering and Software Engineering).
3.5 a) There was a comment from the participant that registration of engineers should cover all engineering disciplines. Engineers who, besides providing the principal engineering services (ie. civil, mechanical or engineering) could be also involved in some other type of engineering services such as design of automobiles (which is under automobile engineering) in which the issue of public safety and consumers’ interest are also involved.
b) The Panel Members commented as follows:
i) Cars manufactured and sold to the public are not prototypes and have been well tested for safety before being launched to the market. As for building work, every service is a prototype and is not tested until it is completed, tested and commissioned.
ii) The Registration of Engineers Act 1967 applies to all branches of engineers and there is no qualification or restriction of eligibility for registration. Thus it appears that engineers from other branches of engineering eg. chemical engineers need to be registered under the Act as well.
The Facilitator concluded that all participants agreed that the Act shall be enacted to protect the public interest instead of the interest of engineers.
4. What Engineering Services need to be regulated to protect the public interest?
4.1 The Facilitator clarified that the existing Act covers all branches of engineering. One, so long as he practices engineering, must be registered with BEM and failure to do so is an offence under the Act.
4.2 a) A participant expressed his opinion that only engineering services that affect public safety need to be regulated; otherwise it seems to be too wide a coverage.
b) The Panel Members commented as follows with regards to this:
i) An aeronautical engineer who is responsible to maintain aircrafts is therefore responsible for public safety as well.
ii) However if the aircraft is improperly maintained, it is the airline that may be sued for negligence and not the maintenance engineer.
iii) It must be noted that there is more than one regulator to protect the public interest. Thus public interest may be protected by different Authorities such as DCA and the Court of law.
4.3 Categorization of Engineers
a) One of the Panel Members commented that in other profession such as legal and medical field, there is no distinction between the members. For example, a lawyer can practice in any field of legal work whether family law, contract law or Intellectual Property Law whereas a mechanical engineer is not allowed to be the submitting person for civil engineering design work.
b) Below is the comments of other Panel Members and some participants :
i) There was one school of thought that we should follow the practice of lawyers and doctors and with no categorization required. If a mechanical engineer wishes to take the responsibility and risk by submitting a civil engineering design work, he should be allowed to do so.
ii) Some were of the view that we should only allow those engineers who are qualified and trained in a specific field of engineering to practice in that particular discipline only. Hence a mechanical engineer who is not trained in civil engineering should not be allowed to be the submitting person for civil design.
iii) There is a need for us to categorize the registration of different disciplines of engineering; however, this need not be over-categorized. We may reduce it to 4 basic disciplines ie. Civil, Mechanical, Electrical and Chemical. One example to illustrate this is that as automobile is considered part of mechanical engineering; the engineers involved in automobile engineering could be allowed to be registered under Mechanical Engineering.
4.4 Is it necessary to register all Engineers?
a) One of the Panel Members raised the issue of whether there is a necessity to register all Engineers as the Act requires all engineers who practice engineering services to register with BEM. On this issue, there were also queries from the floor on the need for engineers who work in private sector eg. SHELL to register with BEM as after all, they work for the company.
b) This was echoed by one participant who expressed that her employer does not require her to be registered with BEM.
c) The Panel Members replied as follows:
i) It is a contravention of the Act if a company employs unregistered engineers. Upon hearing this the floor responded with surprises however it was reiterated that the Act requires all engineers to be registered and companies which are expected to practise good corporate governance must comply with the requirements of the law.
ii) We should register all engineers including graduate engineers. This is done not only for statistical purposes but also to ensure that they are bona fide engineers.
iii) There were those who believe in otherwise. Reason being out of 11,500 PE, there are only 2,000 to 3,000 PE are Submitting Persons hence they do not see the need to regulate those who are not Submitting Persons.
iv) It appears that some areas are under-regulated, for example in a petrochemical complex, only building services eg. a small building that house the compressors need to be approved whilst other services are not regulated. In contrast, some areas are over-regulated, such as the registration of those maintenance engineers who are not Submitting Persons. Therefore, the question here is how do we streamline the regulation and make it more efficient.
v) It would be a more balanced exercise should the Act only regulate certain disciplines such as civil, mechanical and electrical engineering only and not others such as oil & gas etc.
4.5 Submission by PE or the Engineering Consultancy Practice (“ECP”)?
a) A question was raised as to whether the PE or ECP should be the Submitting Person. Currently under the Act, both are permitted to submit plans and drawings.
b) The Panel Members and participants expressed their views as follows:
i) The Act has created some confusion by allowing either a PE or ECP to submit plans and drawings. Initially, the Act only permitted PE to submit plans however the Act was amended later to include ECP as the Submitting Person. There is no distinction between a PE and ECP to be the Submitting Persons if the ECP is a sole proprietorship or a partnership. However the situation will be different if the ECP is a private company registered under the Companies Act 1965 as then the liability is limited. In such a case, the interest of the public is seriously affected as the remedy that an innocent party can seek against the Submitting Person for any negligence will be limited. Therefore the Act in this respect is outdated and needs to be amended.
ii) The question then one need to ask is whether the Act should require a PE or the ECP be registered. Currently only the Uniform Building By-law (UBBL) regulates the construction work. Do we require law for building industry and other types of engineering work such as maintenance?
iii) If the Act is to protect public interest and not Engineers, the ECP should be held responsible for negligence committed and not the PE who endorses the plans. However, the issue of limiting liability of an ECP will grossly affect the remedy that the aggrieved party is entitled to seek.
iv) Thus should the liability of a Submitting Person be limited? If so, should it be limited by the number of years or by amount? The current law is that the liability of a Submitting Person is unlimited in both amount and period, even if the Submitting Person has died when the negligence is discovered ie. the aggrieved party may still bring a claim against his estate in order to recover damages.
v) It is understood that BEM and the AG Chamber are now discussing on the possibility of limiting liability as to the amount (and not to the period) for all professionals including the Engineers.
vi) In addition to being liable to fines and other disciplinary actions by BEM, the Engineer may be subject to actions brought under UBBL or the Street, Drainage and Building Act 1974 and any other relevant law.
c) The Facilitator then concluded the discussions as follows:
i) The Act should regulate all disciplines of engineering professions.
ii) The Act should register all engineers including Graduate Engineers who practice professional engineering services.
iii) The Act should provide a three-tier registration:
1. Graduate Engineer
2. Professional Engineer
3. Licensed Professional Engineer
5. Who should be registered?
a) The Facilitator clarified that the current Act only requires all ECP, PE and Graduate Engineers to be registered if they practice professional engineering services. However, question arises as to whether do we need to register the para-professionals? If so, should they be regulated under the same Act (ie. REA) or a different Act?
b) The comments from the Panel Members and the participants were:
i) It is a globally well accepted practice that engineering services include the work carried out by other engineering service providers such as the para-professionals. Therefore the Act should also regulate the para-professionals such as technologists, clerk-of-works etc. It is noted that the clerk-of-works is to be regulated by CIDB and not the REA.
ii) The Engineers are not working alone; there are other members in the team such as the clerk-of-works and other para-professionals. Therefore it seems reasonable for para-professionals to be regulated as well.
iii) The REA only refers to the registration of “Engineers” and not other parties such as the para-professionals vis-à-vis the Architects Act 1967 now includes registration of other professions such as interior designers, building draftsmen and landscape designers.
iv) Should the registration of these para-professionals is not allowed, they may resort to forming various associations in order for them to request the government to enact parliamentary Act to cater for their needs. This will certainly create confusion.
v) In relation to this issue, it is noted that BEM is of the opinion that REA should only be meant for engineers and not other para-professionals.
vi) Should we wish to register para-professionals, the Act should be amended to “Registration of Engineering Services Act”.
The Facilitator then concluded that the new Act should include registration of para-professionals as they constitute part of the engineering team as well.
6. Exclusive Rights of Professional Engineers
6.1 One of the Panel Members explained that the entitlements of Engineers and ECP are now regulated by S.7A of the REA. The questions raised are whether that should be maintained under the new Act or to be amended. If it is so what are the issues need to be amended?
6.2 Entitlement of Engineers
a) It takes almost one year for BEM to register a Graduate Engineer. Therefore, should a graduate engineer start to practice once he submits his application or only do so upon approval by BEM? It will be a more practical approach for BEM to respond within certain timeframe upon receipt of application.
b) Upon deliberation, it was agreed that the current entitlements should remain unchanged.
6.3 Entitlement of ECP
a) It is noted that if an ECP is not registered under the REA, the company is unable to recover any fees not paid by his client.
b) An ECP may only provide professional engineering services in the branch of engineering in which the sole proprietor partners/directors are qualified to practice (S.7A (4A) REA).
c) If an ECP carries out professional engineering services without registration with BEM under the REA, then he is liable to a fine not exceeding RM50, 000 (S.7A (5) REA).
The Facilitator concluded that the current entitlement of the Engineer and ECP under the REA shall be changed ie. the submission of plans should only be made through an ECP. The Submitting Person should practise his engineering services through a ECP.
7. Code of Professional Conduct
7.1 The Facilitator explained that the Code of Professional Conduct is laid down in the circular No. 3/2005 issued by BEM on 28/06/2004. Pursuant to S.15 REA, if an Engineer or ECP conducts misconduct, he is liable to be deregistered by BEM and a fine of not exceeding RM50, 000.
7.2 The Panel Member and participants commented as follows:
a) Currently there is no guideline as to the advertisement on web sites. However, BEM is now reviewing this issue and guidelines will be issued in due course. One Panel Member opined that web page may be considered as catalogue and should be regulated as such.
b) An Engineer is allowed to practice in other professions simultaneously and the situation is different for legal profession where it is strictly prohibited under the Legal Profession Act 1976.
c) Clause 2.1 of the Code stipulates that a PE shall not affix signature to any plan in which he lacks competence or not prepared under his direction or control. If he contravenes this rule then he has committed misconduct and is subject to disciplinary action under S.15 REA.
d) Clause 5.6 of the Code stipulates that a Registered Engineer shall not directly or indirectly supplant another Engineer. Hence the issue here is what amounts to ‘supplanting’? It was clarified that it is a situation where an Engineer intervenes in engineering work which to his knowledge has already been entrusted to another Engineer. An Engineer shall not take over any work of another Engineer acting for the same client unless he has obtained a letter f release from the other Engineer or has been formally notified by the client that the services of that other Engineer have been terminated in accordance with the provisions of the contract entered into between that Engineer and the client.
e) However this must be differentiated from the situation whereby the Employer engages another Engineer to re-design the project and in such a case, this is not classified as ‘supplanting’ and hence it does not contravene the Code.
It was concluded that there is no necessity to add, delete or amend any of the provisions in the Code of Professional Conduct issued by BEM.
8. Classification of ECP
8.1 The Facilitator invited comments on whether ECP should be classified by expertise and capability (size of ECP etc), similar to that of classification of contractors?
8.2 Following are the comments of the Panel Members and participants:
a) One Panel Member provided some background information as to this and stated that the Government discovered that some of the government projects were awarded to ECP who are not qualified either technically or financially. Hence the Treasury Department requested BEM to prepare guidelines on classification of ECP in terms of their expertise and capability.
b) It was proposed by a participant that these guidelines (on classification) be applicable to government projects only and not to projects initiated and funded by private sectors.
c) The Forum was informed that the Association of Consulting Engineers Malaysia (ACEM) currently provides a system of classification of consulting engineers, albeit rather simple classification.
d) One Panel Member explained that the Government has studied this proposal in great details with few reports being submitted to them on the findings. Therefore, he was of the view that we need to tackle this issue seriously with some supporting facts if we wish to disagree on this issue, otherwise the Government will proceed on the classification of ECP as planned.
e) IEM has made a stand on this issue ie. to oppose to the proposed classification as this could be subject to abuse for example whether Class A ECP could be awarded smaller projects.
f) One Panel Member also classified that ACEM has adopted the stand that this is not a good idea as the classification may be implemented by BEM as a mandatory policy. ACEM has already set up a working group to improvise the proposal of BEM. They also queried whether it is BEM’s duty to classify ECP. If the Government wishes to implement these guidelines, it should be done in the form of internal means to all Governmental departments and not to enact in the new Act.
g) The classification of ECP is also practiced in Singapore but it is only applicable to Government departments.
The Facilitator suggested that IEM and ACEM should form a joint working group to work on this.
9. Disciplinary Power of the Board
9.1 The Facilitator explained that the current disciplinary powers and procedures of BEM under the REA 1967 and sought views from the floor whether any changes are to be made to the disciplinary powers and the disciplinary procedures.
9.2 The Forum unanimously agreed that this shall remain status quo and the current practices shall continue to be applied.
10. Offences and Penalties
10.1 The Facilitator explained the current offices and corresponding penalties imposed under the REA 1967. The Forum is requested to comment on whether these existing provisions are good to serve as deterrent purposes.
10.2 The Panel Members and participants commented as follows:
a) Some of the penalties appear to be ridiculous and are overly severe, for example under S.14, if an Engineer fails to notify BEM on the change in their business address, under S.25(1), he is liable to a fine not exceeding RM10,000 or imprisonment not exceeding one year or both.
Similarly under S.15(1)(f), if an Engineer is found to be of unsound mind then he is liable under S.15(1A) to a fine not exceeding RM50,000
b) As an Engineer is a professional, then he should not be criminalized for the offences which will subject him to custodial sentences.
It was unanimously agreed that custodial sentences shall not be applicable to any offences committed by Engineers.
11. Functions of the Board
11.1 The Facilitator explained that the implicit functions of the Board are:
- To ensure that engineering practices in Malaysia are of high standards
- To protect the public from malpractices
11.2 The participants were of the view that as the purpose of the Act is to protect the public interest, the function of the Board should also protect the public by ensuring no malpractice by the Engineers.
It was unanimously agreed that the functions of the Board shall be more explicit and be clearly stated.
12. Compositions of the Board
12.1 The Board is currently comprised of 17 members, five out of whom are appointed from a list nominated by the IEM and the appointment is made by the Minister of Works.
12.2 The Panel advised the forum that in Singapore, half of the Members of the Board is elected by the fee-paying registered engineers while the other half is appointed by the Government. The President is elected by all Board Members.
Upon deliberation, the forum agreed to adopt the model from Singapore and to amend the composition and the nomination procedures as follows:
a) the Board should appoint nominees from ACEM
b) The President and the Members of the board are to be selected or elected by the fee-paying registered engineers.
13.1 It was unanimously agreed that the REA should be revamped in totality and a new Engineers Act be enacted in order to incorporate the latest developments in engineering profession.