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 loophole that has allowed products that aren't fit for purpose to be sold and installed.
The legislation also creates a ‘chain of responsibility’ 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 won't be safe
- Doesn’t comply with the regulations (eg. National Construction Code)
- Doesn’t perform to the standard to which it is represented to perform.
'Chain of responsibility' & duties
Each person in the ‘chain of responsibility’ has duties under the legislation.
These duties sit with the individual and not the company. There are significant 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 that a product is not non-conforming for its intended use
You can do this by learning how to select the right product.
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’s accompanied by the ‘required information’, including 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 web address 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.
3. Product recalls
A person mustn’t supply or install a product if they know, or ought reasonably to know, that it's 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 that it's being implemented effectively
- Retain evidence that you have done all of the above indefinitely.
A person in the ‘chain of responsibility’ can't make false or misleading claims about the use of a building product that would mean that is was a non-conforming product if used in that way. This duty will most often fall to suppliers.
For example, a tie down rod that doesn't 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 two days and be made with an approved, QBCC form.
The QBCC has been given a range of new powers to enforce the legislation, including powers that will enable them to target all of the parties in the supply chain, and not just licensed contractors.
Their powers will allow them to:
- Enter and investigate places other than active building sites
- Remove samples for testing, the cost of which may be recovered from a person who has failed to comply with their duty
- Publish information about building products
- Accept an enforceable undertaking when a non-conforming product is found.
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.
The Minister will also have the power to issue a product warning statement and/or recall.
The QBCC will have a role to play in workplace health and safety and will need to be notified in the event of a notifiable incident, using an approved, QBCC form. They will then have the power to cancel or suspend licences for offences under 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 key information
The legislation provides no role for those who specify products, including architects, building designers and engineers. Master Builders believes this is 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 they provide.
It’s 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’ll 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'.
It’s important to finetune your product procurement processes to ensure you’re not bringing non-conforming products onto your site.
Implement a review system to ensure that your process is working as intended and always document it and retain all ‘evidence of suitability’, so you’re covered in the event of a QBCC audit.
Master Builders recognises the onerous responsibility that is on builders and contractors to ensure that they comply with the requirements, so we’re continuing to lobby government for better tools to support industry. Specifically we are asking:
- For a central store of product compliance information to ease the process of establishing ‘evidence of suitability’ and increase certainty
- That the government facilitate improved and more consistent product labelling, such as Product Technical Statements
- Local authorities be required to keep the documents provided by the certifier for each building in their jurisdiction.
Further information on the legislation is available from the QBCC’s website.
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. Please get in touch with us if you have something to say.