Building Block #1 – The basics
Much of the work we do for clients in the area of building disputes is as a result of work that has been completed by a person who is either not properly qualified or does not hold the correct building licence for either the work contracted to be done or to supervise the work contracted to be done.
The Consumer and Business Services website has a useful search tool that enables a public user to search the National Register for details of licenses held by builders. However navigation of the website to find other useful and important information can be tricky and time consuming.
Consequently we thought it might be helpful to put together a series of BLOG’s to assist you in understanding the basics BEFORE you engage the builder, contractor or supervisor or sign a building contract
(Please note: words in italics indicates content taken directly off the CBS website or their published guidelines or directly quoted from the Legislation).
Building work means the whole or part of the work of site preparation, constructing, erecting, underpinning, altering, repairing, improving, adding to or demolish a building/structure.
For clarity, building work includes all of the following:
(a) the on site construction, alteration, repair or improvement of a swimming pool or spa;
(c) fencing (excluding post and wire fencing);
(d) the installation, maintenance, repair and removal of insulation;
(e) painting a building or part of a building;
(f) the installation of air-conditioning in relation to a building;
(g) the installation of solar panels in relation to a building;
(h) plumbing, gas fitting and electrical work within the meaning and application of the Plumbers, Gas Fitters and Electricians Act 1995.
[Source: Building Work Contractors Regulations 2011]
Note: the term ‘building’ also includes a wall or structure and part of a building or structure.
A builder is any person, or company, who
a) Carries on a business as a building work contractor.
b) Does building work to sell or let land/buildings.
c) Does demolition or site preparation for new works.
d) Does restoration or repairs of buildings/structures – internal or external – including such tasks as:
• installation of robes/cupboards
• fencing/stone masonry
• air conditioner installation.
as such, they must be licensed as a [building] contractor under the Builders Work Contractors Act 1995 with a nominated Supervisor. This includes sub-contractors.
A building work contractor’s licence may allow [a licence holder] to contract for this work, but any plumbing, gas fitting or electrical work (including work done privately by a home owner) must be performed by a person holding a worker’s registration under the Plumbers, Gas Fitters and Electricians Act 1995.
Having defined what is building work and who is a builder some of you DIY home renovators may be starting to panic. The legislation makes it clear that not every person who is performing building work (like painting for example) is a Building Contractor and therefore required to be licensed with a nominated supervisor.
A Building Contractor
The Building Work Contractors Act 1995 defines a building contractor as:
(a) a person who carries on the business of performing building work for others;
(b) a person who carries on the business of performing building work with a view to the sale or letting (whether by lease, licence or other agreement) of land or buildings improved as a result of the building work;
Note: any person or entity that carries on the business performing building work for others as a subcontractor is still required to hold their own building work contracting licence.
“Performing” building work includes causing building work to be performed or organising or arranging for the performance of building work.
A Building Supervisor
The Building Work Contractors Act 1995 defines a building supervisor as:
A registered building supervisor is responsible for ensuring that all building work performed is properly supervised and meets required building standards. A building supervisor registration alone does NOT allow [a person] to contract or subcontract for building work.
To enter into a contract to perform building work [the holder] must hold an individual building work contractor licence.
Yes. All work performed by Licenced Contractors (individuals and companies) must be supervised by a Registered Supervisor. If a Licenced Contractor is not also a Registered Supervisor then the Licenced Contractor must nominate a Registered Supervisor.
The nominated Registered Supervisor must have the same conditions (or better class) than that of the Licenced Contractor. A licenced building company contractor may nominate multiple Registered Supervisors to ensure they have sufficient expertise to cover the whole of their licence conditions.
A building work contractor’s licence may be suspended if the nominated Registered Supervisor is no longer licensed and they have failed to nominate a new Registered Supervisor.
If you are about to engage a person (or entity) to perform building work on your behalf it is important that you understand the difference between a Licenced Contractor and a Registered Supervisor and the need for both. If you are unsure we encourage you to contact Consumer and Business Services in the first instance for help.
In our next BLOG (available here) we will be discussing the need to check for correct licencing and registration of both building contractors and supervisors as well as how to do so. If you require any further information or legal assistance, then do not hesitate to contact us at Tri-meridian and we can help.
For further information, please contact the author.
This article is posted in Adelaide, South Australia by Tri-meridian Corporate & Commercial Law and is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. We do not accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your professional adviser.