Pulling Apart the Construction Occupations (Licensing) Act – What it means to you:
The Construction Occupations (Licensing) Act 2004 is the Act which governs the registration and supervision of practitioners working within the building industry in the ACT. It is probably the most important piece of legislation for ACT construction practitioners to have regard. The following is a part by part analysis of the basic tenets of the Act.
Part 1 of the Act simply sets out some of the preliminary matters which assist in the interpretation of the Act. One of the most important things to note is that section 5 of the Act states that Chapter 2 of the ACT Criminal Code applies to define the terms used in the offence provisions of the Act.
In this part of the Act, the application of the Act is clarified, with definitions of to who the Act applies. Pursuant to section 6 a Construction Practitioner is defined as an entity that provides, has provided or proposes to provide a ‘Construction Service’. A Construction Service is then defined to include either the doing of or supervision of, work in a ‘Construction Occupation.’
This concept of ‘Construction Occupation’ becomes the key element. If the work which an entity does or proposes to do meets the description of a Construction Occupation, then a the practitioner involved will need to obtain and then maintain their license under the Act.
- Building Surveyor;
- Plumbing Plan Certifier;
- Asbestos Assessor;
- Asbestos Removalist.
A 2010 amendment has broadened the definition to include ‘Works Assessor’ as being a construction occupation. These occupations are defined further in the rest of Part 2 of the Act, to flesh out exactly to whom the Act applies.
For example a ‘builder’ is defined under section 8 as being ‘an entity that provides, has provided or proposes to provide a building service.’ A ‘building surveyor’ is an entity that provides, has provided or proposes to provide a building certification service, an exemption assessment service, or a works assessment service.
The Construction Occupations (Licensing) Regulations 2004 also play a role in designating the application of the Act. The Regulations nominate specific classes of construction occupations. For example Schedule 1, Part 1.3 of the Regulations describes five different classes for the construction occupation of ‘builder‘. A license is not issued simply for the occupation of ‘builder’. Instead a practitioner may obtain a license in one or more of the specific classes of ‘builder’.
The definitions are relatively straightforward, and are presented as far as possible in plain English. However there are clearly some technicalities in determining whether a particular role is a construction occupation or fits into a given class. In the event of any uncertainty, a concerned party should seek the assistance of a legal advisor, knowledgeable in this area of law.
Either an individual, a corporation or a partnership can apply to be licensed in a construction occupation pursuant to section 17 of the Act. The application will be decided by the Construction Occupations Registrar, who must either issue or refuse to issue the license.
Section 19 of the Act also allows the Registrar to issue a license which is for the same construction occupation, but a different occupation class than the license applied for, if the applicant is eligible for that license, but not the license applied for.
The Construction Occupations (Licensing) Regulations set out the eligibility requirements for registration in a particular construction occupation or class of construction occupation. As noted above, a construction practitioner may be issued with licenses in multiple different construction occupations or multiple different classes of occupations.
A corporation or partnership is eligible to be licensed only if it has a single nominee appointed to supervise its construction services. A corporation or partnership is allowed to appoint multiple nominees if each is responsible for the supervision of different construction services carried out by that body.
The Registrar’s approval is required under sections 29 and 30 of the Act if a nominee wishes to resign, or if the corporation or partnership wishes to revoke the authority of that nominee. Generally the Registrar will only approve such an application if another nominee has been arranged to take over.
Under section 31 of the Act, a nominee has a duty to supervise the relevant construction services and to ensure that the relevant construction services comply with the Act and other relevant ACT Acts, defined as ;Operational Acts.’ If the nominee fails to perform this duty adequately, they are guilty of an offence, and liable for a maximum fine of over $5,000.
Part 4 deals with rectification orders, which play a role where a an entity performing or supervising a construction occupation is deemed to have breached the Act or one of the Operational Acts. A rectification order is the tool available to the Registrar to compel compliance from the entity.
Section 34 allows the Registrar to give notice of an intention to make a rectification order. This section applies if the Registrar believes on reasonable grounds that a licensee or former licensee has provided a construction service otherwise than in accordance with this Act or an Operational Act.
Under section 34(2) the Registrar may give the entity and the land owner a written notice giving details of the rectification order that may be made and explaining why the Registrar intends to make the order. The notice must invite submissions in response.
The Registrar may proceed to make a rectification order under section 38 if he/she believes it to be appropriate after considering any submissions made in response to the notice of intention, and are still satisfied that the entity involved has contravened the Act or an Operational Act. A rectification order under section 38 must give the entity at least 1 month to undertake the actions instructed by the order.
The Registrar also has the power to issue an emergency rectification order, which may be issued where a rectification order would be appropriate, but prompt action is required to protect the health and safety of people, or public or private property. An emergency rectification order can require the entity to take action in no less than 24 hours, and can be issued without notice of intention having been given.
Pursuant to section 40 of the Act, a person commits an offence if they intentionally fail to comply with a rectification order. The maximum penalty in this case is hefty, being over $20,000 for an individual or over $110,000 for a corporation. In This event where an entity does not comply, the Registrar has the power to allow access to the land in question for another license holder to perform the required works.
Before providing a construction service, a licensee must give the client evidence of what insurance the licensee holds (s 47). Such evidence can be provided by way of advertising that includes reference to the insurance. The licensee may ask the client to sign an acknowledgment that the client has been told about the licensee’s insurance.
Division 5.1 of Part 5 deals with circumstances where a practitioner’s license will be automatically suspended. This may include where the entity involved becomes bankrupt, or required insurance cover is not maintained.
Division 5.2 covers Occupational Discipline. Section 55 sets out the grounds on which the Registrar may take action. These include the following:
- the licensee, or a nominee or employee of the licensee, contravened, or is contravening, this Act or an operational Act (including a direction given to the licensee under an operational
- the licensee, knowingly or recklessly, gave someone information in relation to a construction service provided, or to be provided, by the licensee that was false or misleading in a material
- the licensee or a director, partner or nominee of the licensee, has been found guilty, whether in the Territory or anywhere else, of an offence that—
- involves fraud, dishonesty or violence; and
- i. is punishable by imprisonment for at least 1 year;
- if the licensee is an individual—the licensee executes a personal insolvency agreement;
- if the licensee is a corporation—
- the licensee enters into a scheme of arrangement; or
- i. a receiver, manager, receiver and manager or administrator is appointed over the licensee or any of its assets;
- if the licensee is a corporation or partnership—the licensee has, or had, no nominee;
- the licensee’s licence has been automatically suspended under division 5.1 (Automatic licence suspension) and the cause of the suspension still exists.
The Registrar has certain disciplinary powers under section 56 in the event that a ground for discipline arises. The Registrar may apply to ACAT for an occupational discipline order, or alternatively may take action to reprimand the license holder, or impose a condition on the license. The Registrar may alternatively require the entity holding the license to undergo a specific training course.
Part 7 of the Act outlines certain offences, which relate to conduct of construction practitioners. Construction practitioners can face fines as well as other penalties including suspension and los of license.
Offences include the following:
- Pretending to be a license holder in a particular construction occupation or class of occupation;
- Being a Corporation that provides or advertises a service in a particular construction occupation or class of occupation, when the corporation does not have a nominee who holds a license in the
relevant occupation or class of occupation;
- Advertising a service within a particular construction occupation or class of occupation when one does not hold a license in that occupation or class;
- Hiring a person to perform a construction service knowing that the person is not licensed, or being reckless as to whether the person is license.
However the seriousness of these offences varies dramatically. For example advertising a service when one doesn’t hold the required license can attract a maximum fine of around $500. However pretending to be a license holder when not holding a license can attract a maximum fine of over $5,000.
The Registrar is required to keep a register of demerit points, which are incurred by a construction practitioner where that practitioner is impugned for disciplinary offences. If a construction practitioner accrues 15 or more demerit points within 3 years, the Registrar may suspend the practitioner’s license under section 97 or cancel the practitioner’s license under section 98 of the Act.
Complaints may be made against a license holder or a former license holder by any person who believes they may have contravened the Act. A complaint must be made to the Registrar, who is then obliged to make sure that the complaint is investigated pursuant to section 121 of the Act.
After undertaking the investigation the Registrar may either refer the mater to ACAT or personally institute disciplinary action, or may dismiss the complaint by taking no further action if not satisfied that the grounds of the complaint have substance.
The Construction Occupations (Licensing) Act 2004 provides the basis for the licensing and control of construction practitioners in the ACT. All practitioners, or corporations which work in related areas should familiarise themselves with the Act and take appropriately qualified legal advice regarding their obligations to comply with the Act.
Front-end compliance will help protect individuals and companies from fines as well as protecting their licenses, and by extension, their livelihoods.