Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2020 (BIFOLA Regulation)
The BIFOLA Regulation supports the recent changes to Queensland’s security of payment laws via the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (BIFOLA Act).
The BIFOLA Regulation was approved by Governor in Council on 1 October 2020.
Building Industry Fairness (Security of Payment) Regulation 2018 (BIF Regulation)
The BIFOLA Regulation amends the BIF Regulation by:
- providing inclusions and exclusions for the definition of ‘project trust work’ contained in the BIF Act
- providing key definitions such as ‘residential construction work’ which are used to determine eligibility for the new trust framework
- prescribing the information to be included in notices or directions to be given to trustees, beneficiaries, the QBCC, principals and/or financial institutions under the amended BIF Act.
The BIFOLA Regulation also provides the supporting detail for trust records and auditing and reporting requirements for the new trust framework.
The BIFOLA Regulation amendments prescribe what records a trustee must keep, including key documents relating to the trust account such as contracts, payment claims, payment schedules and notices given to beneficiaries.
The amendments also provide how trust records must be kept by the trustees such as:
- including certain information in the trust account ledger and records of deposits and withdrawals for the trust account
- preparing a monthly trust account ledger trial balance statement showing the amounts held in trust for each beneficiary.
Additionally, the BIFOLA Regulation amendments set out the process for completing a bank reconciliation.
Auditing and reporting
Under the new trust account framework, trustees must engage an auditor to carry out a review of the trust account. The amendments to the BIF Regulation generally require a retention trust account to be reviewed annually, however there is flexibility for trustees to change when a review is started.
An account review report prepared by an auditor must include:
- details of any identified non-compliance with the requirements for the trust account under the Act
- an explanation of the review methodology used to complete the review.
These amendments to the BIF Regulation will commence on 1 March 2021.
Building Regulation 2006 (Building Regulation)
The BIFOLA Regulation amended the Building Regulation (PDF, 146.14 KB).
Building Regulation amendments that commenced on 1 October 2020 include:
- a new schedule which prescribes the demerit offences and assigns demerit point values for each offence as follows:
- The demerit point scheme for building certifiers under the Building Act 1975 commenced on 1 October 2020.
- A building certifier’s licence will be disqualified if they accrue 30 demerit points within a 3-year period
- a replacement ‘Code of Conduct for Building Certifiers’ (PDF, 189.45 KB) clarifies the certifier’s primary duty is to act in the public interest.
- a change to the record keeping period for a decision about a competent person from five years to seven years
- listing all mandatory parts of the Queensland Development Code (QDC) in the Building Regulation to improve clarity about and accessibility of legislative arrangements for industry and consumers.
- prescribing all accreditation bodies for building certifiers.
Other amendments to the Building Regulation include the pending amended QDC 4.1 version published on 15 September 2020. The QDC 4.1 is proposed to commence on 1 March 2021 and updates QDC 4.1 to include separate cooling and heating load limits as part of the energy efficiency (star energy rating) of new residential dwellings.
To facilitate compliance with the new and amended Building Act and Building Regulation provisions that commenced on 1 October 2020 the department has published updated Guidelines and new and amended building forms.
Queensland Building and Construction Commission Regulation 2018 (QBCC Regulation)
The BIFOLA Regulation also amends the QBCC Regulation.
Amendments to the QBCC Regulation since 1 October 2020:
- enable sharing of information between the QBCC and relevant investigating and prosecuting authorities throughout Australia
- require applicants for a licence, including executive officers for a company, to provide formal proof of identity
- require the licensee register to include, where applicable, the licensee’s Australian Business Number (ABN) and Australian Company Number (ACN)
- prescribe the Acts under which an ‘occupational licence’ may be granted, including the Acts that regulate occupational licensing for plumbing, gas-fitting and pest control
- allow fire protection and plumbing and drainage occupational licensees to perform relevant work on their homes up to $11,000 without the need for a separate contractor’s licence.
The QBCC Regulation will be further amended on 1 May 2021 to provide exclusions to the definition of ‘fire-protection work’ under the QBCC Act.
Building Industry Fairness (Security of Payment) (Transitional) Regulation 2020 (BIF Transitional Regulation)
The BIFOLA Act made amendments to Chapter 3 of the BIF Act which provides for progress payments for the building and construction industry.
The BIFOLA Act amended the definition of ‘complex payment claim’ under section 64 of the BIF Act to remove reference to GST. It also extended the period in which a claimant must notify a respondent about their intention to start court proceedings to recover a debt, from 20 business days to 30 business days after the due date for payment.
The BIF Transitional Regulation clarifies these amendments and provides that the:
- amended definition of ‘complex payment claim’ where the reference to GST has been removed will only apply to payment claims made on or after 1 October 2020
- requirement of 30 business days, rather than 20 business days, to notify the respondent about intended court proceedings to recover amounts owed, will only apply where the payment claim was due for payment on or after 1 October 2020.
The BIF Transitional Regulation commenced on 1 October 2020.
- Last updated:
- 16 December 2020