The Currency of Registration: Why it’s Critical for Engineers in Construction to be Registered
By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers
What is a “building practitioner”?
- Building Surveyor / Inspector
- A Builder including domestic builder
- An Engineer engaged in the building industry
- A draftsperson (in building industry)
The category does not include Engineers, Draftspersons etc. who do not work in the building industry. For e.g., a marine engineer is not included. A civil engineer would be included.
Who can apply to be registered as a building practitioner?
A ‘natural person’ may apply to the BPB to be a registered building practitioner. (Section 169, Building Act 1993).
Natural persons who carry out the functions of a registered building practitioner must in fact be registered.
“Natural person” refers to a human being, not a company or partnership. This means that a company or partnership carrying out the relevant business of a building practitioner must have a director or partner who is registered.
Certain conditions apply:
- the person carries appropriate insurance cover;
- is suitably qualified and experienced;
- has complied with the conditions applying to that class of practitioner;
- is of good character.
What if you are not registered?
Literally, section 176 of the Act says it is an offence for a person who is not registered in the appropriate category or class under Part 11 to take or use the title of “Engineer”, if the use of the title relates to the Building industry.
It is also an offence to “hold out” as being a qualified or registered Engineer, if the Engineer is involved in the Building industry and the Engineer is in fact not so qualified or registered (section 176, Building Act 1993). Persons who breach section 176 may be prosecuted before the Building Practitioners Board (BPB). Penalty: 50 penalty units (currently $5,841, or $116.82 per unit).
What does “take or use [a title]” mean? In plain English it means to describe yourself as a building practitioner. This can be done verbally, or in writing. It can include advertisements on business cards or letterhead.
“Holding out” is not defined by the Building Act. It means to cause a reasonable belief in another person’s mind that you are a registered building practitioner, or qualified to practise as such.
Holding out can be by conduct also e.g. issuing a permit, performing an inspection, or giving advice or rendering the services of a registered Engineer.
Liability of businesses / Employers
A company can be liable if it employs practitioners who are not registered. For example if such an employee carries out functions that should only be carried out by a qualified, registered practitioner.
Conversely, a court examining a claim of negligence against that person would expect a higher standard from someone who is registered and qualified. By not being suitably qualified and registered you are taking on a higher onus of care.
An Insurer may be able to deny coverage where work has been carried out by an unregistered person, if the legislation requires them to be registered. This is similar to Insurers denying coverage where an unlicensed driver has an accident.
An employer needs to ensure that employees should not only be suitably qualified, but also registered, if performing the work of a building practitioner.
An employer who is knowingly concerned with the conduct of unregistered practitioners in their employ, may also be ‘vicariously liable’.
Similarity to other professions
Section 176 is modelled on registration requirements for lawyers in Victoria.
To practise as a lawyer in Victoria, one must have:
- An LLB degree or recognised equivalent;
- One year’s experience as an articled clerk at a firm;
- Must be admitted to practise in the State;
- A practising certificate for each year;
- Must be covered by professional indemnity coverage.
It is illegal to hold out or represent you can practice as a lawyer, if you do not hold a current practising certificate.
Building Surveyors / Inspectors
The registration requirements are tight for Building Surveyors / Inspectors, because they are performing a statutory function of upholding building standards.
It is not enough to say that an unregistered person is acting under the supervision of a registered building practitioner, if those functions should only be preformed by a registered building practitioner.
Lovegrove & Cotton Lawyers to the building industry
For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing firstname.lastname@example.org.