Q&A with Technical Manager David Kyburz

Posted 30 August 2019

Q&A with Technical Manager David Kyburz

Q. In the news this year ACT Government has issued stop notices on building sites over Canberra. Could you advise what action the Government takes against builders?

 

A. As advised in previous a Q&A Member Update the Building ACT 2004, requires that building work must:

  • be carried out in accordance with approved plans;
  • the materials used in the building work must comply with the standards under the
  • building code for buildings of the kind being built or altered;
  • the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered; and
    • the building work must be carried out in a proper and skilful way.

 

Licensed builders must ensure that they operate according to the Building Act 2004, the Construction Occupations (Licensing) Act 2004 and any other relevant laws applying to the work.

Builders who employ or sub-contract other people to carry out building work, and other work such as electrical, plumbing and gasfitting, must make sure these people are appropriately qualified and, if required, licensed.

 

ACT Government has increased inspections as part of its improvements to the ACT building regulatory system and has proactively been undertaking inspections of building sites across Canberra.

As you have mentioned Government have been undertaking compliance audits on residential and commercial building sites

Government has advised that they have put industry on notice that they will take action for non-compliant and poor quality work.

Regulatory action taken this year include the issuing demit points, rectification orders and stop notices.

 

Occupational disciplinary action

Grounds for the Government to issued occupational disciplinary action may include:

  • where there is a contravention of the Construction Occupations (Licensing) Act 2004 or an operational Act
  • false or misleading information in relation to a construction service is given
  • the licensee or a director, partner or nominee of the licensee, is found guilty of an offence involving fraud, dishonesty or violence that is punishable by imprisonment for at least one year
  • the individual licensee has compounded with creditors or made an assignment of remuneration for their benefit
  • the licensee is a corporation and enters into a scheme of arrangement, or a receiver, manager, receiver and manager or administrator is appointed over the licensee or any of its assets
  • a licensee that is a corporation or partnership operates without a nominee
  • the licensee's licence has been automatically suspended and the cause of the suspension still exists.

Government review minor disciplinary matters and investigate complaints against licence holders however more serious matters are referred to ACT Civil and Administrative Tribunal (ACAT).

An application for occupational discipline is made at ACT Civil and Administrative Tribunal (ACAT).

ACAT may make orders for occupational discipline against a licensee, such as:

  • reprimand the person
  • require the person to give a written undertaking
  • require the person to complete a stated course of training to the satisfaction of the regulatory body or another stated person
  • give the person a direction (see s 67)
  • cancel or suspend the person’s licence or registration
  • disqualify the person from applying for a licence, or registration, of a stated kind for a stated period or until a stated thing happens
  • direct the Registrar to:

- put a condition on the person’s licence or registration, or - remove or amend a condition put on the person’s licence or registration

  • require the person to pay a stated amount.

 

The disciplinary register maintained by the Construction Industry Registrar contains specific information which is made public when disciplinary action has been taken against a builder or tradesperson.

This is the link to the disciplinary register

https://www.accesscanberra.act.gov.au/app/services/licence/#/disciplinary-register

 

Infringement notice

An infringement notice may be issued for:

  • working while not holding a licence required for that work

pretending to be licensed

  • advertising to provide construction services, but the advertisement contravenes relevant law
  • allowing an unlicensed or inappropriately licensed person to do work that requires a licence.

An entity issued with an infringement notice can choose to pay the fine amount stated in the notice or challenge the notice in the ACT Magistrates Court.

 

Licence demerit points

The grounds for demerit points for occupational discipline are the same as the grounds for occupational discipline excluding those for which an infringement notice may be issued.

If the grounds for demerit points exist, the Construction Occupations Registrar records in a demerit points register the number of demerit points the licensee has incurred for the relevant construction occupation. A demerit point is incurred on the day when the Registrar first becomes aware of the disciplinary incident.

A demerit point exists for three years, which does not include time when a person was unlicensed. If a licensee incurs demerit points while unlicensed and then becomes licensed within three years, the remainder of the three years attaches to the new licence. The demerit points that were taken into account in a licence disqualification or suspension or other disciplinary action are deleted from the register when the period of the action begins.

Licensees are advised if a demerit point has been recorded and in the previous three years the licensee has had at least 10 demerit points. The only circumstance in which the registrar is not required to write to the licensee is when a notice has been sent within the previous three months.

If a licensee incurs 15 or more demerit points in a construction occupation within the previous three years, a notice of licence suspension, disqualification or other disciplinary action will be issued.

Disqualifications

Disqualified licensees are not entitled to apply for or be issued with a licence for the entire time of the disqualification. If a licensee applies for a new or renewed licence and has, within the previous three years, incurred 15 or more demerit points within the construction occupation in which they are applying, the Registrar may refuse to issue the licence.

 

For further information on regulatory matters and building enquiries, including contacting the Construction Occupations Registrar you may contact Access Canberra on 13 22 81.

 

 

If you have any technical questions you may contact me on 6175 5954, mobile 0419 866 796 or via email dkyburz@mba.com.au

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