Most engineering and architectural firms would be familiar with “fit for purpose” warranties in construction contracts. But how many have considered their responsibilities under the Queensland Building and Construction Commission Act 1991 (QBCC Act) when selecting or designing building products?
From September 2018, amendments to the QBCC Act place engineering and architectural professionals squarely within the category of professionals liable for non-conforming building products.
Professional engineers registered under the Professional Engineers Act 2002 (Qld) and architects registered under the Architects Act 2002 (Qld) join suppliers, installers and builders, who already owe a duty under the QBCC Act to ensure:
- any product, or range of products specified in their advice are not non-conforming building products;
- the prescribed information under the QBCC Act, about the suitability and use of a product, must be given with any design incorporating the product;
- they consider relevant recalls; and
- they comply with the reporting requirements.
Engineers and architects who don’t meet this standard could face a maximum fine of 1,000 penalty units or $133,450.
What is a non-conforming building product?
Section 74AB of the QBCC Act defines a building product as any material or other thing associated with a building. A non-conforming building product is a product that is not safe, does not comply with relevant regulatory provisions or does not perform to the standard that it was represented to perform at by a person in the chain of responsibility for the product.
For example, a plumbing or drainage product required to have a WaterMark Certification by the regulation is a non-conforming building product if it is being offered for sale in Queensland without the certification.
Who is a person in the chain of responsibility?
Section 74AE of the QBCC Act broadly defines a person in the chain of responsibility for a building product to include:
- someone who designs, manufactures, imports or supplies the product, and who knows, or is reasonably expected to know, the product will be associated with a building;
- someone who installs the product in the building, such as a tradesperson; or
- an architect or engineer who, in designing a building, specifies that the product be associated with the building.
When does an engineer or architect owe the duty?
Falling under the third category of persons in the chain of responsibility, an architect or engineer will be responsible when they specify, in the design, any product which will be associated with the building. This imports an obligation to, as far as reasonably practical, ensure the products are not non-conforming building products.
For example, when an architect specifies a particular door to be used, there is a duty on the architect to ensure, as far as reasonably practicable, the product they have recommended complies with relevant fire codes. Failure to do so will amount to a breach of this duty.
Section 74AK of the QBCC Act makes responsible anyone who knows, or ought reasonably to know, a building product does not comply with relevant regulatory provisions. This section requires that a person must not make a representation, or even allow a representation to be made, that the association of the product with a building for the use complies or will comply with the relevant regulatory provisions. The maximum penalty is 1,000 penalty units.
This may result in an architect being liable for a representation made by an employee that a product is compliant.
What about a company director?
Section 74AI of the QBCC Act states an executive officer of a company must exercise ‘due diligence’ to ensure the company complies with the duty in s74AB. The section defines due diligence to include taking reasonable steps to be informed of matters regarding the safe use of building products and understanding the nature of the activities relating to the building product, including safety and non-compliance risks.
Understanding risks includes a duty to ensure the company has the necessary resources to reduce risks of providing non-compliant products; implement procedures to remove and respond to risks of installing non-compliant products; and comply with the other duties under the QBCC Act.
The amendments are welcomed by consumers, as they should help make Queensland buildings safer. However, they may affect the market for those in the ‘chain of responsibility’, including reducing competition, increasing the cost of insurance, and create a general reluctance to use new products on the market until they have been adopted safely elsewhere. It is recommended that those affected by the legislation familiarise themselves with these new provisions, to avoid attracting the penalty.
If you are concerned that you or your business are in breach of the QBCC Act or require advice from us as to how best to protect your business from being in breach of these requirements, you can contact the Romans & Romans Lawyers Construction team on (07) 3847 3333, or send an enquiry email to email@example.com.
The above information is intended only as a general guide and should not be interpreted or relied upon for legal advice.