As the Christmas period grows near, this update serves as a timely reminder of the impending effects of the colloquial “Christmas blackout period” on the timeframes within which the building and construction industry participants must apply the provisions of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act).
For this Christmas/New Year period, the Christmas blackout period under the BIF Act will run from Tuesday, 22 December 2020 through until Sunday, 10 January 2021.
What this means is that timeframes under the BIF Act will not run between 22 December 2020 and 10 January 2021, as those days are not a “business day” under the BIF Act.
The Christmas blackout period may also impact your rights under your construction contracts, with some contracts defining business day as to “have the same meaning as under the BIF Act”.
As such, industry participants are strongly encouraged to consider any significant deadlines which fall on or around this period, including due dates for payment and the delivery of payment claims and payment schedules to ensure that a Christmas delivery does not result in New Year spoils.
‘Business Days’ under the BIF Act
The term ‘business days’ is used to impose a number of significant timeframes in the BIF Act, such as:
- the time for responding to a payment claim (s 76);
- due date for payment (s 73); and
- the time to applying for (and respond to) adjudication (s 79).
Schedule 2 of the BIF Act provides that a business day does not include any of the following days:
- Saturday or Sunday;
- a public holiday, special holiday or bank holiday (in the relevant place for service); and
- any day occurring within any of the following periods –
-
- 22 to 24 December;
- 27 to 31 December; and
- 2 to 10 January.
Accordingly, all days between 22 December 2020 and 10 January 2021 (inclusive) are ‘non-business days’ under the BIF Act.
What this means, for example, is that if you issue a payment claim on Monday, 21 December 2020:
- under the BIF Act, the respondent will still have 15 ‘business days’ to provide you with a payment schedule (on the assumption that the relevant contract does not provide for a shorter period);
- with the Christmas blackout period running from 22 December 2020 through until 10 January 2021, the respondent will have until Monday, 1 February 2021 to provide you with a payment schedule under the BIF Act (taking into account the Australia Day public holiday on 26 January 2021).
Christmas blackout period may also apply to the due date for payment
A progress payment under a construction contract becomes payable on the day that is 10 business days after the payment claim, or on the day on which the payment becomes payable under the contract pursuant to section 73 of the BIF Act.
If the contract is silent, or the relevant payment provision under the contract is void under the BIF Act or the Queensland Building and Construction Commission Act 1991 (Qld), then the default payment terms for a progress claim under the BIF Act is 10 business days.
In those circumstances, the Christmas blackout period will again apply. For example, if a payment claim is issued on Monday, 21 December 2020, then the payment claim will not fall payable under the BIF Act until 22 January 2021.
Key Takeaway
This update is a friendly reminder to not be complacent as Christmas draws near. Failing to comply with the BIF Act within the legislated timeframes can have serious consequences, including fines.
Stay diligent and stay safe over this Christmas and New Year break.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
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