New legislation - non-conforming products

Published: 10 November 2017

On 1 November 2017 new Queensland laws covering non-conforming products came into force. 

The legislation provides a definition for a ‘non-conforming product’ that links it to its intended use, closing a loop-hole that has allowed products that are not fit for purpose to be sold and installed. 

The legislation also creates a ‘chain of responsibility’ across the building and construction supply chain that includes anyone in Queensland who designs, manufactures, imports or supplies building products and people who install building products.  

What is a non-conforming building product?

Under the legislation a building product is non-conforming if, for its intended use, it is:

  • Not, or will not be safe
  • Does not perform to the standard to which it is represented to perform. 

'Chain of responsibility' and new duties

Each person in the ‘chain of responsibility’ now has duties under the legislation.

These duties sit with the individual and not the company.  There are significant new penalties for a failure to comply with the duties, including fines up to $120,000 and suspending or cancelling a licence.

The duties include:

1. Ensure, as far as reasonably practicable, that a product is not non-conforming for its intended use.  

The National Construction Code already requires ‘evidence of suitability’ for building products and requires that one or a combination of the following be used to establish ‘evidence of suitability’:

  • Report issued by a registered testing authority (registered with NATA or an authority recognised by NATA.)
  • Current 'Certificate of Conformity' issued under CodeMark or WaterMark
  • Certificate from an engineer or other appropriately qualified person
  • Current certificate issue by a product certification body that has been accredited by JAS-ANZ
  • Other documentary evidence.

Establishing ‘evidence of suitability’ for an intended use will therefore be a ‘reasonably practical’ way to ensure that a product is not non-conforming. 

The Australasian Procurement and Construction Council’s Procurement of Construction Products: A guide to achieving compliance is a useful resource that can help in stepping through an appropriate process to determine 'evidence of suitability'. 

In addition, there is a suite of third party certification schemes that can be used to establish conformance.  Schemes which have JAS/ANZ or NATA accreditation can be relied upon.  A summary list of schemes is available on our website.  

2. Ensure that ‘required information’ accompanies a product

A person in the ‘chain of responsibility’ must ensure that when giving a product to the next person in the chain that it is accompanied by the ‘required information’.

The 'required information' must detail the suitability of the product, how to install it and how it must be used.

This information must be on the packaging, promotional material or instructions that accompany the product. This can be a weblink on the packaging or printed material at point of sale.

Each person in the ‘chain of responsibility’ must undertake their own ‘due diligence’ to verify the information that they receive.    

The information which is then passed from the installer to the owner will be different but the government has not yet clarified what form this will take. Master Builders will continue to argue that it is part of the existing building certification process.  

3. Product recalls

A person must not supply or install a product if they know, or ought reasonably to know that it is subject to a recall order.  They must also provide “reasonable help” in the event of a recall.

Master Builders is seeking clarification from government on how this duty will apply in practice, specifically what "ought reasonably to know" and "reasonable help" mean.

4. Exercise due diligence

The executive officer of the company must exercise ‘due diligence’ to ensure that they comply with the duties. This means ensuring that you:

  • Stay up to date with information on the safe, compliant use of building products
  • Understand the safety and non-compliance risks in your business
  • Have an appropriate process in place to manage the risk
  • Regularly check and that it is being implemented effectively
  • Retain evidence that you have done all of the above indefinitely.

5. Representations

A person in the ‘chain of responsibility’ cannot make false or misleading claims about the use of a building product that would mean that is was  non-conforming product if used in that way.  This duty will most often fall to suppliers. 

For example a tie down rod that does not meet the cyclone area requirements under the NCC will either need to be removed from sale or clearly labelled as not being appropriate for a certain use. 

** Important to note.  The government has expressly stated that, as all plumbing products installed in Queensland require a WaterMark any plumbing product sold without a WaterMark is non-conforming and will be considered an offence under the Act.

6. Notification within two days

Each person in the ‘chain of responsibility’ has as duty to report a non-conforming building product if they become “aware or reasonably suspect”.  

Master Builders is seeking clarification how this will work in practice. For example, does the notification need to be provided where there is a first suspicion?  Does there need to be certain grounds for the suspicion or will there be an evidence test? 

The QBCC must also be notified if a person in the ‘chain of responsibility’ becomes aware that a non-conforming building product has caused a death or serious injury or illness of any person, or an incident that exposes a person to a risk of serious injury or illness.  

The notification for both circumstances must occur within 2 days and be made on the ‘approve form’ provided by the QBCC. 

New QBCC and Ministerial powers

The QBCC has been given a range of new powers to enforce the legislation.  These powers enable them to target all of the parties in the supply chain, and not just licensed contractors. 

Powers include being able to:

  1. Enter and investigate places other than active building sites 
  2. Remove samples for testing, the cost of which may be recovered from the builder
  3. Publish information about building products
  4. Accept an enforceable undertaking, issue a product warning statement and/or recall.

The government has advised that liability will be determined on a case-by-case basis and that the focus initially will be on education rather than punitive measures.  

Work health and safety changes

The QBCC will also have a role to play in workplace health and safety and will need to be notified in the event of a ‘notifiable incident’. This is in addition to the requirement to notify Workplace Health and Safety Queensland.  While the government assures us that this will be one email that goes to two places, this is not yet in place.

The QBCC will also have the power to cancel or suspend licences for offences under the work health and safety legislation. Disciplinary action may also be taken if any work on a building site under a licensee’s control results in death, grievous bodily harm or involves a serious risk to health or safety.

Other things to note

The legislation provides no role for those who specify products: architects, building designers and engineers; which we believe to be a significant omission.

Home owners will be brought into the ‘chain of responsibility’ if they supply products for contractors to install. But again, as the installer, you must conduct your own due diligence on the information that they provide.

It has been a common industry practice for suppliers to include clauses in their fine print that remove or limit their liability in the event that their product is found defective.  The government has been clear that these clauses will not limit or remove responsibility under the legislation.  

Under the new system it will be particularly important to be vigilant when procuring building products outside of Queensland as these suppliers will continue to be outside the 'chain of responsibility'.

What you should do now

It is important to look to your product procurement processes to ensure that you have the necessary information to be confident that any product brought to site is conforming for its intended use.

Implement a review system to ensure that your process is working as intended. 

Document your processes and retain all ‘evidence of suitability’ should you become subject to a QBCC audit.

Master Builders recognises the onerous responsibility that is on builders and contractors to ensure that they comply with the requirements. We are continuing to lobby government for better tools to support industry. Specifically we are asking:

  1. For a central store of product compliance information to ease the process of establishing ‘evidence of suitability and increase certainty
  2. That the government facilitate improved and more consistent product labelling, similar to the European "CE system"
  3. Local authorities be required to keep the documents provided by the certifier for each building in their jurisdiction.  

Your feedback on how the new legislation is affecting your business and areas where you would like us focus our efforts going forward is important.