Non-Conforming Building Products

NCBP and the building industry

What are my responsibilities?

Under the National Construction Code - by which all buildings must adhere to - building products, and plumbing and drainage products, must be fit for their intended purpose. However, prior to these new laws, there was greater accountability to uphold this requirement on people at the end of the supply of chain, such as installers or certifiers.

The new laws increase accountability for everyone in the building product supply chain, including designers, importers, manufacturers, suppliers and installers, to ensure that all building products are fit for their intended purpose.

Part of this increased accountability is the new requirement for building products to have appropriate information that outlines the purpose they’re intended for, and for this information to be supplied throughout the supply chain.

Workplace Health and Safety changes

The new laws also place greater responsibility on all QBCC licensees to report unsafe situations on building sites. Licensees must notify the QBCC of a notifiable incident where the death or serious injury or illness of a person occurs, or where an incident exposes a person to a risk of serious injury or illness . In serious incidences where a licensee is convicted of a work health and safety offence the QBCC now has the power to suspend or cancel the licensee’s QBCC licence. Under the new laws, the QBCC and other regulatory agencies can share information to assist with workplace health and safety matters

Increased investigative powers

The new laws have expanded the investigative powers of the QBCC. Previously, QBCC inspectors could only enter active building sites to gather evidence, but there are now provisions for the QBCC to enter any place as part of investigations into suspected non-conforming building product use. The changes also enable the QBCC to seize samples for testing.

How will the QBCC determine who has a duty and therefore accountable?

The QBCC will conduct an investigation to determine who in the chain of responsibility has contravened their duty.

It is possible for more than one person in the chain of responsibility to have the same duty concurrently.

The new laws are consistent with other legislation such as Work Health Safety and Electrical Safety that also apply duties regimes.

What information can a person in the chain of responsibility rely on from others higher up?

The new requirements are additional to the current building regulatory framework whereby the building certifier, builder and subcontractor work together to collect and assess documentation to ensure that a building complies with the building assessment provisions.

There is now an obligation on the installer to provide ‘accompanying information’ (new section 74AG(4)) to the owner of the building. The accompanying information will be prescribed by regulation.

The intent of this section is to ensure that manufacturing instructions or any other information relevant to the product are provided to each person in the chain of responsibility so that they may ascertain the product designer’s or manufacturer’s intended use and installation to avoid the product from being non-conforming.

An example of information may be the manufacturer instructions for external cladding or a product statement describing its use.

What information will the installer (building contractor) need to provide for a completed building? Will it relate to the building certification?

The new requirements are additional to the current building regulatory system whereby the building certifier, builder and subcontractor work together to collect and assess documentation to ensure that a building complies with the building assessment provisions.

There is now an obligation on the installer to provide ‘accompanying information’ (new section 74AG(4)) to the owner of the building. The accompanying information will be prescribed by regulation.

The intent of this section is to ensure that manufacturing instructions or any other information relevant to the product are provided to each person in the chain of responsibility so that they may ascertain the designer or manufacturers intended use and installation to avoid the product from being non-conforming.

An example of information may be the manufacturer instructions for external cladding or a product statement describing its use.

Suspension and Cancellations

If it has been established that there has been a breach of duty, disciplinary action can be undertaken which may involve the suspension or cancellation of a licence.

How does it affect the Queensland Home Warranty Scheme and Domestic Building Contracts?

How will the new laws affect the current requirements for the Queensland Home Warranty Scheme?

The Scheme provides consumers with insurance cover for residential building work where a licensee fails to complete residential construction work or performs and then fails to rectify defective residential building work.

A consumer is not currently entitled to assistance under the Scheme for loss caused by or contributed to by a defective product and this will continue to be the case under the legislative changes.

However, for incomplete and defective work claims, a consumer would not necessarily be excluded from receiving assistance solely due to the presence of an NCBP – it would depend on all circumstances giving rise to the claim.

Consumers can continue to seek reparations through a number of other avenues.  A person who claims under the Scheme may also pursue the builder or at-fault party civilly e.g. where a pay-out under the Scheme does not meet the cost of rectification.  

Also, schedule 1B of The QBCC Act provides for an implied warranty in all domestic building contracts that the building materials used are good and suitable for purpose. Breach of a warranty (which has a duration of six (6) years and six (6) months for structural defects and one year for non-structural) gives a right to claim damages and the consumer may start proceedings in court. 

If you are concerned about a non-conforming building product you can make a complaint about it to the QBCC.