The Building and Construction Legislation (Non-conforming Building Products – Chain of Responsibility and Other Matters) Amendment Bill 2017 (the Bill) is currently before Parliament and, if enacted, will establish a chain of responsibility, placing duties on supply chain participants to ensure building products are safe and fit for purpose.
The Bill will predominantly amend the Queensland Building and Construction Commission Act 1991 (QBCC Act).
Purpose
When introducing the Bill, the Minister for Housing and Public Works explained that its creation was to update the compliance and enforcement powers of the Queensland Building and Construction Commission (Commission), which is necessary following a proliferation of cheap, imported and substandard building products causing a health and safety risk in the industry.
The need for such reform, and the need to ensure that building products meet safety requirements, was recently highlighted by the Grenfell Tower tragedy in West London, where a combustible material was used to clad the exterior, tragically leading to multiple deaths.
Objectives
The Bill’s objectives are to:
- confer responsibilities on the building product supply chain participants to ensure a building product, so far as reasonably practicable, is not a non-conforming building product;
- facilitate safety on building and construction sites by requiring licensees to notify the Commission about activities on a site that might present a work health and safety issue; and
- broaden the scope of the Commission’s powers to ensure buildings are safe, report to regulatory agencies about work health and safety issues, share and receive information with other safety regulators, and take disciplinary actions against licensees.
Who will be affected?
The Bill imposes a primary duty on each person in the chain of responsibility of any building product to ensure, as far as reasonably practical, that the product is not a ‘non-conforming building product for an intended use’ – meaning that the product must not be unsafe, non-complying with any relevant regulatory provision or incapable of performing to the standard intended.
In addition, the Bill will further impose duties on the following specific persons/companies in the chain of responsibility of a building product:
- Designers – a duty to ensure, so far as reasonably practical, that when a design is provided to another person, the design is accompanied by the required information of the product.
- Manufacturers, importers and suppliers – a duty to ensure, so far as reasonably practical, that the building product manufactured, imported or supplied, is accompanied by the ‘required information’ before that product is given to another person.
- Installers of building products in a building – a duty to ensure, so far as reasonably practical, that the owner of the building is given the information about the product prescribed by regulation.
- Executive officers of a company – if a company has a duty under the Bill, an executive officer of the company must exercise ‘due diligence’ to ensure that the company complies with the duty. Importantly, the Bill allows for an executive officer of a company to be proceeded against irrespective of any actions being taken against the company.
The Bill will also impose a requirement for those in the supply chain to notify the Commission of a ‘notifiable incident’ such as death or serious injury and of any non-confirming building products.
Penalties and remedial action
The reform will empower the Commission to take disciplinary actions for any duties breached, which, in relation to the duties listed in subdivision 2 (which includes the ‘primary duty’ and the 4 summarised above), may result in a maximum penalty of 1000 penalty units.
The Commission will also be empowered, upon providing written notice that allows at least 28 days, to direct a person (or company) to remedy a contravention or take steps to prevent the contravention from continuing. Failure to comply with such a direction may also result in a maximum penalty of 1000 penalty units.
Conclusion
Following recent events (both nationally and internationally) highlighting the need for stricter regulations for building products, the Bill (if enacted) will hopefully restrict the use of non-conforming building products, without unnecessarily imposing additional red-tape in the industry.
Whilst it sounds as if there will be a host of changes to the operation of day-to-day business, practically speaking, the Bill will not affect those already implementing good practices regarding building products.
The Queensland Government aims to have the Bill passed later this year, pending a report from the Public Works and Utilities Committee.
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