The Queensland Building and Construction Commission, or the QBCC, is unique. It is the building industry regulator which deals with QBCC disputes and the licensing authority. However, somewhat uniquely it is also the provider of Home Owners Warranty insurance to consumers entering into contracts for residential construction. Additionally, it is the home of the Registrar for the Building Industry Fairness (Security of Payment) 2017 Act (BIFA) which is a topic for another day.
So, is the centralisation of all of these different parts working?
How do these different functions come together under one umbrella? Is the QBCC providing a service to the industry and the general public which adds value, or is it broken and in desperate need of repair?
As, primarily, a building and construction lawyer I interact with the QBCC frequently. My dealings with them cover a wide spectrum. They range from representing builders aggrieved by a decision made by the QBCC to consumers in the same boat. Interestingly, there is one constant, whichever side of the divide you might be on; the QBCC is difficult to deal with and all too often escalates QBCC disputes rather than solving them.
Building is a complicated, demanding process. The work carried out must comply with all the relevant Australian Standards as well as the National Construction Code. To successfully construct any class of building, a team of experienced and skilled people are needed. Ensuring that anybody holding themselves out as being able to undertake construction work is suitably skilled is the role of the QBCC. The QBCC assess each applicant’s ability to hold the license. In doing that they are assuring the general public that the license holder is able to undertake the work they are licensed to undertake. While problems and disputes arise in any walk of life, why does there seem to be far more disputes in the building industry? Is it the nature of the industry or a result of the regulation of the industry? Sadly, I fear that it is the latter.
The “Cowboy Builder”
We have all heard the term ‘cowboy builder’ and from personal experience I know that as an industry, the building and construction industry wants to see this term made redundant. These ‘cowboy builders’ give the industry a bad name. They make the general public somewhat defensive when dealing with a builder. But given that we have the QBCC, how do these ‘cowboy builders’ exist, and how are they allowed to continue to exist? It is upon the QBCC to ensure that the general public have confidence when dealing with the building industry. As the industry regulator, they have a duty to identify these ‘cowboy builders’ and remove them from the industry.
The QBCC walks a wafer-thin path. They occupy the ground between the home owner and the building industry. They should present the professional and experienced face of a regulator that can speak with authority and manage the needs of the home owner and the expectations of the industry. The home owner needs the assistance of the QBCC when a problem with their construction project arises. The industry expects to deal with professionals who are experienced and have a high level of technical expertise. Sadly, both parties are often let down.
Home owners are given conflicting and incorrect advice. The industry often must deal with a one size fits all approach to technical building issues. As an example, a builder engages an engineer to design various aspects of a building. When reviewing one of those aspects, it would seem logical that the engineer’s details are reviewed for compliance with design. But, sadly that is not always the case and reliance upon general guidelines of industry associations, rather than a review of the specifics of a purposeful design can lead the QBCC to issue unnecessary directions. Blindly applying general rules of thumb does not service either the industry or the home owner.
For the home owner, dealing with the QBCC is a series of frustrations. Files and complaints move from one QBCC officer to another resulting in different interpretations of the same issue. The internal review process is a case in point. Upon receiving a complaint, the QBCC will arrange for the homeowner, the builder and a QBCC technical representative to meet, review the QBCC issues and discuss their resolution. Any perceived defects result in the issuing of directions to the builder for the rectification of that defect. Upon receiving a direction, a builder can request an internal review of the decision. The QBCC internal review is done by a separate unit within the QBCC. Now, if the decision to give a direction was a careful process which considered all the evidence, internal reviews would overturn or change very few decisions. Sadly, that is not the case.
The Internal Review
Often, when presented with all the relevant information, an internal review will result in a changed decision. But how can that be? Surely, we should be able to rely upon the quality of the original decision? Why are we as tax payers allowing this to happen? The QBCC has an entire unit dedicated to undertaking the internal review of their own decisions which originate from QBCC disputes.
The internal review system is the canary in the coal mine. Each time an original decision is overturned because the review officer is able to consider all the information, it shows a system broken beyond repair. Why does the QBCC rush to issue decisions? Why does it not engage fully with the builder? Is this head long rush the result of attempting to reassure the homeowner that the QBCC has taken control of their problem and all will be righted? So, where is the homeowner left if the direction is overturned? What is left behind is a fractured relationship between the builder and the home owner. How does this assist anybody? Why does black turn to white and then grey? Surely the way forward is to improve the quality of the original decision? Engagement with the industry must be the catch cry of the QBCC. It must become instructor and motivator as well as disciplinarian. It has to engage with industry for the benefit of the general public who rely on the QBCC to safeguard them while often making one of the single biggest investments of their lives.
I have a natural aversion to the use of the word ‘stakeholders’. It conjures up images of committees inventing processes such as stakeholder engagement. But, would it not be to the benefit of all the stakeholders if, after an initial review of the home owner’s complaint, a proper review of the builder documentation was undertaken and then an informed position was taken by the QBCC. If the process was a rigorous one, internal reviews by builders would fail. That should be the goal, but I lament that it is not.
Home Owners Warranty scheme
The existence of the Home Owners Warranty scheme is the home owner’s security blanket. If all goes wrong, then the insurance will step in to provide relief. But does it? What the home owner does not know is the detail of the extensive body of rules, regulations and legislation that govern access to the scheme.
Should a home owner need to access the Home Owner Warranty Insurance, they are dealing with yet another arm of the QBCC. The reporting of defects has timeframes, as does the ability to access monetary assistance from the scheme. A claim, under the scheme, must be lodged within three months of noticing a structural (more serious) defect or within seven months of noticing a non-structural (less serious) defect. To be able to access the scheme in the first instance, the claim must be lodged within two years of the date of payment of the insurance premium. Of course, all this important information is contained within the easy to read 48 pages of the Insurance Policy Conditions guide edition 8. Anecdotal evidence suggests that consistently, the QBCC seeks to restrict access to the Home Owners Warranty insurance scheme. One of the ways of doing that seems to be a persistent failure to provide concise accurate information to the home owner.
Avoiding QBCC Disputes
Within a properly regulated industry the QBCC would actively engage with builders to ensure their ongoing viability. Within a properly regulated industry ‘cowboy builders’ would be identified and removed from the industry. Within a properly regulated industry appropriately skilled and experienced people would be responsible for issuing necessary directions to builders. Within a properly regulated industry the need to access the Home Owners Warranty insurance would be reduced. Within a properly regulated industry if the home owner needed access to the Home Owners Warranty insurance scheme, they would be offered support and guidance which would reduce QBCC disputes.
The state of the regulation of the building industry in Queensland has a long way to go before it can be said to achieve any of these goals. Perhaps a good start might be setting some measurable goals, goals that would assist both the industry and the general public.
Interestingly, we have not even touched upon the legal issues surrounding the entering into of contracts and how the QBCC deals with this aspect of the industry and further into QBCC Disputes, That is also for another day.