The Building and Construction Industry Payments Amendment Act 2014 (Qld) (the Amending Act) was passed in Queensland Parliament on 11 September 2014. The Act introduces amendments to the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) which seek to level the payment playing field in Queensland’s building and construction industry.
The Building and Construction Industry Payments Act provides a person with the ability to recover and receive progress payments if they undertake to carry out construction work, or supply related goods and services, under a construction contract. The key areas of reform designed to address issues raised by stakeholders are:
1. Establishment of an Adjudication Registry
The Queensland Building and Construction Commission will establish an Adjudication Registry,
instead of the current Authorised Nominating Authorities, to handle the appointment and performance monitoring of Adjudicators, based on their skills, knowledge, and experience; and taking into consideration the type of Adjudication Application and the issues in dispute.
2. Amendment of timeframes
• Unless the contract provides a longer period, the time in which a Payment Claim can be made is reduced to 6 months (instead of 12 months) after the construction work was last carried out or the related goods and services were supplied.
• If the Payment Claim is in relation to the recovery of a Final Progress Payment (including for the recovery of retention and/or the return of security) a Final Payment Claim may be served within the period calculated pursuant to the contract. Or if the contract does not provide a timeframe then 28 days after the expiry of the defects liability period, whichever is the later. If neither of these alternatives apply, a Final Payment Claim must be served within 6 months after the construction work was last carried out.
3. Extended timeframes for large or complex claims
The Amending Act distinguishes between standard and complex claims. Large or complex claims are where the claim is for more than $750,000 or is for damages for defects that are not readily apparent or for costs which accrue with the
passage of time such as wages and depreciation of machinery.
• Extended timeframes are introduced for a Payment Schedule of up to 15 business days for responding to large or complex claims and 30 business days for a Payment Claim served more than 91 days after a reference date;
• The timeframe for providing an Adjudication Response will be extended from 5 business days to 10 business days, unless it is a large or complex claim when the timeframe will be up to 15 business days, with the potential for the Adjudicator to grant an additional 15 business days; and
• Extended blackout periods for Easter and Christmas apply when counting business days. The definition of business days will exclude the 3 business days before Christmas and up to 10 business days after New Year’s Day to reflect industry shutdown.
4. Provision of additional information
• Respondents will be able to raise all relevant reasons for withholding payment in Adjudication Responses, whether or not they were raised in the Payment Schedule, with Claimants given a right of reply;
• Claimants may be able to withdraw Adjudication Applications if they desire; and
• Claims may be made for the return of security, not only the return of retention.
These provisions are likely to come into force early November 2014, but will only apply to construction contracts entered into after commencement of the Act.
Further information can be obtained by visiting www.qbcc.qld.gov.au or www.bcipa.qld.gov.au or you can email any queries directly to info@bcipa.qld.gov.au
