Registered builders and disciplinary matters
Some critical changes are happening in the field of building practitioner disciplinary matters. Paul Cott takes Plumbing Connection through the details.
The position in all states will be examined in this article but at present the bulk of the changes are occurring in Victoria, arguably due to the increased consumer protection focus the government has currently in that state.
That is certainly not to say that some or all of the changes won’t occur in the other states. Broadly speaking, New South Wales often tends to follow Victoria as does South Australia, with Queensland and Western Australia often ‘out on their own.’ That is the position anyway among the ‘major states’ in this respect.
Review of decisions
Registered building practitioners, in one of the changes, can now apply to the Victorian Building Authority (VBA) by way of requesting the VBA to review a decision refusing registration (for example because of a ‘disciplinary matter’ past or current) or imposing a condition on the builder’s licence, because of a ‘disciplinary matter’. In the case of the building practitioner being dissatisfied with the VBA’s review decision, they can apply to VCAT (the Victorian Civil and Administrative Tribunal) for VCAT to undertake another review.
In the Building Act, some signiﬁcant change has occurred. The relevant part of the Act has been rewritten. A critical thing for many readers to know is that building practitioners will now be held to a much higher standard of conduct.
As is the same, broadly, in other states, the grounds for which an action for disciplinary sanction can occur are much the same. They are that the builder allegedly failed to maintain required insurance, engaged in unprofessional conduct, was grossly and or repeatedly negligent or incompetent in what they did (or didn’t do), not being a ﬁt and proper person to hold a registered builder’s licence, doing work in a class of work outside which the practitioner is permitted to do, breaching the relevant domestic building or building legislation or regulations, not abiding by a direction of a relevant home warranty insurer, and obtaining a registration as a builder when you shouldn’t have (i.e. through fraud or false statements and or documentation).
Now, however, as a key example of the changes this article is concerned about, the grounds or bases upon which disciplinary action can be brought have been widened to now include a failure to abide by a condition which may have been imposed on registration (for example because of a previous disciplinary matter), importantly, a failure to comply with an order of direction of a building surveyor, or the VBA or VCAT (these last two perhaps being less controversial).
Other possible bases for disciplinary action can include a failure to abide by a direction or an order of the new dispute resolution body (which is to be largely conciliation based) which is planned to exist in Victoria and perhaps surprisingly, a failure to complete or undertake CPD (continuing professional development) requirements in the form usually of courses or training many professionals must undertake to keep themselves acquainted with developments in their chosen ﬁeld.
Show cause notices
These are deﬁned as written notices, issued relevantly for present purposes by the VBA, which commence the disciplinary action procedure and which ask the registered practitioner to explain why the current circumstances and/ or facts as alleged should not lead to action against them. A time period within which a written and or oral response is to be given is provided, which is usually 14 days. Then, once the ‘show cause response’ is in, a further period elapses within which the VBA considers the response.
This new procedure is a bit diﬀerent to the old process where a ‘notice of inquiry’ was issued by the (now abolished) Building Practitioners Board after which, at the BPB’s option, a formal hearing may ensue. Now, a formal hearing is not required in every case and the VBA may now decide, even if not satisﬁed completely that the allegations have been answered in the ‘show cause response’ to not hold a formal hearing.
In a serious case of certain breaches, the VBA can now immediately suspend a registration before a show cause notice is issued! Such a drastic step would only be taken where the builder or practitioner becomes insolvent, breaches a building act or other law, doesn’t hold required insurance, breaches a registration condition, or is convicted of certain oﬀences.
As to what many of you may be wondering, the issue of the consequences of disciplinary action, the possibilities are ﬁrstly, and hopefully more often, no further action. Then, a reprimand is possible, a ﬁnancial penalty (of up to $15,167) conditions on registration can be imposed, the practitioner can be required to undertake a speciﬁed training course, and in the worst case scenario, suspension or even cancellation of registration can occur. As part of the changes which lead to this article being written, now the VBA can direct or compel the practitioner to do a certain thing, or not do it, such as being ordered to rectify and or complete certain building work. Finally, an undertaking can be given by the practitioner to do or not do a certain thing, which undertaking can be accepted in lieu of other action against the builder.
As to other states, it is Victoria which is at present the state undergoing the most signiﬁcant changes. However, other states may well follow suit in respect at least of some of the changes, as stated above. All other states have broadly equivalent authorities (such as the Building Professionals Board in NSW) and procedures as in Victoria in regards to disciplinary matters. The speciﬁc situation in each state should be examined if further detail is desired.
The ‘devil can be in the detail’ in relation to these changes and this article is more meant to be a ‘primer’ or a ‘call to action’ to those involved who are, or who in the future become somehow embroiled in a disciplinary matter. As always, it is best to avoid the temptation to attempt to resolve a ‘disciplinary matter’ yourself if you are a registered builder and it is therefore generally best to seek professional advice earlier rather than later.