Are You Building A Compliant Retaining Wall?
New Non-Conforming Building Products Laws
In the wake of recent concerns about the use of unsafe building products in construction, the Queensland Government has made amendments to the Queensland Building and Construction Commission Act 1991 (Qld) (“Act”) to improve the regulatory response.
The new laws seek to ensure the use of safe quality building products in the construction of buildings. The Act requires that those in the supply chain for a building product, ensure that the product is “not a non-conforming building product for an intended use”.
Aussie Concrete Products prides itself on providing our customers with top quality concrete retaining wall systems that conform with all Australian Regulations.
However, we like to keep our customer updated on new regulations bought in to combat poorly designed and dangerous retaining wall practices used by price cutters within our industry.
Here’s what you should know about these new regulations:
What is a non-conforming building product?
Broadly, a “Building Product” is a material or thing associated with the construction of a building. Products that are not incorporated into the building are not captured (eg stoves and other appliances).
A building product will be considered non-conforming for an intended use if the product is not safe, does not comply with the relevant regulatory provisions or is not capable of performing to the standard represented by a person within the supply chain for the product.
To whom does the Act apply?
The Act applies to a “person in the chain of responsibility for a building product” which includes a person who:
- designs manufacture, imports or supplies the building product and knows or is reasonably expected to know that the product will be associated with a building; or
- installs the product in a building.
The primary duty of a person in the chain of responsibility is to, as far as reasonably practicable, ensure that the building product is not a non-conforming building product for an intended use.
Providing Product information
A person in the chain of responsibility must provide product information to the next person within the chain of responsibility. This information must:
- describe the suitability of the product for its intended use and, if the product is only suitable for that use in particular circumstances, then describe those circumstances; and
- provide instructions about how the product should be associated with or used in a building to ensure that it is not a non-conforming building product (eg cladding only for use on low rise buildings).
In addition, a person in the chain of responsibility must not make or permit a representation to be made that the use of the product will comply with the relevant regulatory requirements, when the person knows or ought to know that that is not the case (eg false claims that the product complies with Australian Standards).
Reporting Non-Conforming Building Products
People in the chain of responsibility are required to notify the QBCC of non-conforming (or suspected non-conforming) building products or safety-related incidents within 2 days after becoming aware of the issue, except where they have a reasonable excuse.
QBCC forms for reporting such issues can be accessed at http://www.qbcc.qld.gov.au/non-conforming-building-products/lodge-form-non-conforming-building-product-or-notifiable-incident%C2%A0
Due Diligence by Company Executives
If a company has a duty under the Act, then an executive officer must exercise due diligence to ensure that the company complies with the duty – or risk being held personally liable. Companies need to develop procedures to show how they are exercising the required due diligence.
Penalties and QBCC Remedial Orders (which can extend to past projects)
The Act provides for monetary penalties for failure to comply with a duty under the Act. The current maximum penalty is $126,500.
The QBCC also has the power to stop work, revoke licences and issue recall notices for non-conforming products. Recall orders can include removal, repair or modification of non-conforming building products. Importantly, recall orders can be issued for building products that have been incorporated into buildings completed before the commencement of the Act.
Addressing the new requirements
People in the supply chain for building products now have serious new obligations and liabilities which must be addressed. Some key matters to implement include:
- familiarise yourself with the new obligations – the government’s Code of Practice can assist http://www.hpw.qld.gov.au/SiteCollectionDocuments;
- amend contracts (including building contracts and subcontracts) so that the supplier indemnifies you for damage if it supplies you a non-conforming building product;
- audit existing suppliers and orders for building products;
- implement procedures to audit new products from suppliers (existing or new);
- keep current on product recalls and adopt procedures to exclude them from your projects;
- executives must ensure that their companies develop procedures for compliance with the new laws or face personal liability;
- develop procedures for employees/contractors to notify suspected non-compliant products to management and for management to notify the QBCC;
- maintain insurance policies for liability associated with non-compliant building products, recognising that insurers may in the future move to exclude such cover.