Sep 29, 2018

Winds of change in construction law

Winds of change in construction law

Column by Janelle Kerrisk

The only constant in relation to laws that support the construction industry in Queensland is – change.

The Building Industry Fairness (Security of Payment) Act 2017 was passed by the Queensland Parliament on 26 October 2017 and is designed to achieve Security of Payment for subcontractors working in Queensland.  The key changes are:

  1. the introduction of Project Bank Accounts;
  2. repealing the Building and Construction Industry Payments Act 2004 (BCIPA);
  3. repealing the Subcontractors Charges Act 1974 (SCA) and in the process make some minor changes;
  4. the imposition of new and tough minimum financial requirements for licensing of contractors;
  5. further regulating contracts between contractors and subcontractors by mandating certain provisions and prohibiting others in relation to the carrying out building work; and
  6. increased ability of the Queensland Building and Construction Commission to provide regulatory oversight to the building and construction industry through significantly enhanced compliance and enforcement powers.

This is not the first time government, on both sides of politics, has introduced legislation to improve payment outcomes.

The first piece of major reform was in 1974 with the introduction of the Subcontractors’ Charges Act.

Inquiries into payment problems in the construction industry in Queensland date back to before I was born and I have personally faced many devastated business owners over my time as a lawyer for this industry.

There is no doubt that there is a very real problem but is more regulation the answer?

The construction industry in Queensland is one of the most heavily regulated in the world and the legislation, policy, and paperwork for the average business to keep on top of is growing more and more overwhelming.

I guess there would not be many lawyers around who would call for there to be a hold on regulation but just a short pause could give industry time to catch up and to really make the most of the tools (including legislation and policy) that exist for making Queensland one of the best places to build.

For my part, I believe that the following are key to improved outcomes for the construction industry:

  • education and training;
  • good, reliable commercial information and advice; and
  • technology support to alleviate the compliance burden.

The current wave of change for the industry needs to be supported by all of these things in order to have any prospect of achieving the desired outcomes.  Helix Legal has been built from the ground up to meet these key needs.  For us, being a lawyer for the construction industry is about:

  • Collaborating with other industry professionals to come up with the very best solutions which may be a legal action but may also be an internal education program to make sure you never have the same problem again.
  • Providing information and advice in a format that is easy to consume and at a price that is said upfront and followed – no question.
  • Working with digital disruptors like Fair and Square who are using technology to make compliance easier, not harder.

Given the change happening in the construction and infrastructure sector you need to do what you can to wise up and keep up to grow profits up.

  • Ms Kerrisk is a construction lawyer of 14 years’ experience, the director of Helix Legal and the 2017 winner of the NAWIC award for achievement as a businesswoman.

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