The Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFSOP Act) has been amended again. The amendments are wide-reaching and will affect all industry participants.
The key changes to the BIFSOP Act are as follows:
– Project Bank Accounts are now Project Trust Accounts, with new compliance obligations and penalties. However, full implementation of the regime industry-wide has been delayed again. The Queensland Government has indicated a revised stage roll out with full implementation to all eligible building contracts valued at $1 million or more being pushed out until 1 January 2023.
– Security of payment reforms, including:
- Head contractors must now provide a “supporting statement” with every payment claim declaring that all subcontractors have been paid in full or provide an explanation for the failure to pay any amount owed. Failure to do so will be an offence with a maximum penalty of 100 penalty units but will not affect the validity of the payment claim.
- Additional offences have been added for failing to pay the full amount specified in the payment schedule by the due date (maximum penalty of 100 penalty units) and failing to pay the claimant within 5 days after an adjudication determination (maximum penalty 100 penalty units).
- The ability to serve a “payment withholding request” on the party higher in the contracting chain if a successful claimant has not been paid an adjudication amount.
- The ability for a head contractor to lodge a statutory charge over the property where the construction work has been performed, provided the property is owned by the respondent to the adjudication application (or a related entity).
These reforms were set to commence on 1 July 2020. However, this has been changed to a date to be fixed by proclamation due to COVID-19.
– Licensing reforms, including:
- Removal of the head contractor exemption in section 8 of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). Presently, section 8 of Schedule 1B exempts an unlicensed head contractor form holding a building licence provided the head contractor engages appropriately licensed subcontractors. It is unclear when this change will be coming into effect.
- A review of the role of developers in the building and construction industry with a report to be handed down on 1 July 2021 which may lead to further amendments of the QBCC and BIFSOP Act and potentially a licensing scheme for developers.
- Removal of the ability of an excluded individual or permanently excluded individual from holding a site supervisor licence.
If you have a query about these changes or any aspect of the BIFSOP Act, make the expert move and speak to the team at Axia Litigation Lawyers today – because Every Move Matters!
