Part 6AA of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) defines what constitutes a non-conforming building product (NCBP). Put simply, a NCBP is a building product that is either not safe, not compliant with building regulations (eg. NCC) or otherwise not fit for the use, or to the standard, it is said to perform.
Section s74AE of the QBCC Act describes who is a person within the chain of responsibility, namely a person that designs, manufactures, imports, supplies or installs a building product, any architect or engineer, in designing a building, that specifies the use of the product, and anyone else who knows, or is reasonably expected to know, that the product is, or is likely to be, associated with a building.
The chain of responsibility was legislated to make sure that everyone involved in the supply chain can be held accountable for NCBP’s. This is particularly important when potential health and safety risks or environmental incidents arise from the use of a building product.
Duty to Report
Under s74AE of the QBCC Act, all persons in the chain of responsibility have a duty to report a NCBP to the QBCC if the person becomes aware, or reasonably suspects, the product is unsuitable for an intended use. The person is required to notify the QBCC ASAP, but within two (2) days after becoming aware or reasonably suspecting a NCBP, unless the person has a reasonable excuse.
If there is also a notifiable incident, the person must also give the QBCC notification of the incident within two (2) days after becoming aware or reasonably suspecting the incident.
The failure to comply with these duties attracts civil penalties of 50 units (for failure to notify of a NCBP) and 100 units (for failure to notify of a notifiable incident), which equates to maximum fines of $7,187.50 and $14,375.00 respectively.
Duty regarding Representations
Under s74AK(2) of the QBCC Act, all persons in the chain of responsibility have a duty not to make representations about a product and its use which complies with regulations if the person knows, or ought reasonably to know, that the product or its use does not comply.
This provision imposes a significant civil penalty of up to 1,000 penalty units, which equates to a maximum fine of $143,750.00.
All persons in the chain of responsibility need to be aware of these duties. Suppliers, manufacturers and importers in particular need to be aware of the duty regarding representations, ensuring their product descriptions and product information comply with that duty, and that their employees and agents do not make representations concerning their products in breach of that duty.
Persons in breach of the representation duty may also be liable under consumer guarantees in the Australian Consumer Law (C’th) which creates an offence for the supply of products that are not fit for the purpose they are said to perform (to a value of $100,000).
Troy Legal regularly provides expert advice to construction businesses in respect of their duties under the QBCC Act (Qld) and Australian Consumer Law (C’th). Contact julian@troylegal.com.au for more information.
