Written by Fionna C Aitchison Reid, Director at Aitchison Reid Building and Construction Lawyers.
For those of you who don’t know, I was appointed by the Queensland government to the BIF Panel [1] in early 2018 to assess the implementation of the BIF Act [2] with three other lawyers (Bronwyn Weir, Jennifer Robertson and Troy Lewis).
In March 2019, we provided the report to the government and on 28 November 2019, it was released to the public. [3] On the same day the government released:
Its response to our report, which was to accept or accept in-principle all 20 recommendations; [4] and
The Special Joint Task Force report [5] and the government’s response to the Special Joint Task Force report [6].
So it is great news to finally be able to talk about our recommendations.
In a nutshell, our recommendations covered:
Managing the financial transition
Although as subbies, the thought that your retentions are currently being used to help fund a head contractor or higher subbies’ business cash flow is maddening, it is still a fact of the current situation. For those businesses to prepare, so that they no longer use your retentions and are unable to dip into the funds of one project to help another, is going to take some time.
As a result part of the work we carried out and provided recommendations on was how the project bank accounts can be rolled out to the private sector.We recommended that project bank accounts be rolled out in stages so that people in the industry have time to prepare and also get educated.
Simplifying the Project Bank Account framework so it is easier to operate
By ironing out some of the quirks of project bank accounts we were able to retain the intent of project bank accounts while reducing the administrative burden. This means under our recommendations, it will be easier to have a project bank account, however it will still have the same protections.
One of the ways we have done this is to reduce project bank accounts to one account per project and then a single retentions account per head contractor. This will reduce bank fees and the number of transactions.
Improving protections
As a subbie lawyer, I am excited about some of the additional protections we have recommended in our Panel Report. These include:
auditing of retention trust accounts;
money held in a retention trust account being secured by a charge;
compulsory training for anyone who holds retention money; and
retention trust accounts to be held by anyone who holds retention money (that includes higher subcontractors).
One of my favourite protections is the payment withholding request. A payment withholding request is a bit like a subbies' charge, because it charges the funds held by the owner or higher up subcontractor. The difference is that it can be used in conjunction with adjudication applications. This means that no longer do we need to make the choice of whether to charge the funds held or to adjudicate the dispute.
Often the reason subbies don’t get paid, is because the builder hasn’t received payment. Under the additional recommendations we have recommended, builders will also have the ability to either charge funds held by the financier or place a charging order on the land to secure payment if they are not paid the adjudication award by the due date for payment. This will mean that builders will have more power to get paid themselves, which should improve subbies chances of getting paid too.
As stated above, the government has agreed or agreed in principle with all of the recommendations in the Panel’s report. This means that there will be more law changes rolled out soon. Through our Aitchison Reid updates, we will keep you informed as to when these changes happen and what exactly they mean.
If you need to call on our expertise at Aitchison Reid to help you understand BIF’s impact on your subcontracting or trade contracting business, contact us on 07 3128 0120 or email us at subcontractors@arbuildinglaw.com.au.
Endnotes
[1] Building Industry Fairness Reforms Implementation and Evaluation Panel
[2] Building Industry Fairness (Security of Payment) Act 2017 (Qld)
[3] https://www.hpw.qld.gov.au/__data/assets/pdf_file/0011/9200/buildingindustryfairnessreforms.pdf
[4] https://www.hpw.qld.gov.au/news-publications/legislation/building/panel-review
[5] https://www.hpw.qld.gov.au/__data/assets/pdf_file/0012/9201/special-joint-taskforce-report.pdf
[6] https://www.hpw.qld.gov.au/__data/assets/pdf_file/0014/9203/response-to-special-joint20taskforce-report.pdf
