In Queensland, the performance of building work is controlled by the QBCC – Queensland Building and Construction Commission (formerly the Queensland Building Services Authority) (“the QBCC”). The QBCC’s legislative background is the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCC Act”) which requires persons performing building work to be properly licensed to carry out building work.
As you may be aware, the Building Industry Fairness (Security of Payment) Act 2017 (“the BIF Act”) was passed by the Queensland Government. A substantial amount of the BIF Act is not in force at this time as it awaits proclamation by the Governor.
However, one provision which is in force is an amendment to section 42 of the QBCC Act, which now provides:
“(1) Unless exempt under schedule 1A, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act. Maximum penalty—
(a) for a first offence—250 penalty units; or
(b) for a second offence—300 penalty units; or
(c) for a third or later offence, or if the building work carried out is tier 1 defective work—350 penalty units or 1 year’s imprisonment.
(2) An individual who contravenes subsection (1) and is liable to a maximum penalty of 350 penalty units or 1 year’s imprisonment, commits a crime.
(3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
(a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b) does not include allowance for any of the following—
(i) the supply of the person’s own labour;
(ii) the making of a profit by the person for carrying out the building work;
(iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.” (amendments in bold)
Building work under the QBCC Act means:
“(a) the erection or construction of a building; or
(b) the renovation, alteration, extension, improvement or repair of a building; or
(c) the provision of lighting, heating, ventilation, airconditioning, water supply, sewerage or drainage in connection with a building; or
(e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or
(f) the preparation of plans or specifications for the performance of building work; or
(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or
(g) fire protection work; or
(h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
(i) carrying out a completed building inspection; or
(j) the inspection or investigation of a building, and the provision of advice or a report, for the following—
(i) termite management systems for the building;
(ii) termite infestation in the building;
but does not include work of a kind excluded by regulation from the ambit of this definition.”
Whilst a “building” means:
“(a) generally, includes any fixed structure; or
Examples of a fixed structure—
- a fence other than a temporary fence
- a water tank connected to the stormwater system for a building
- an in-ground swimming pool or an above-ground pool fixed to the ground
(b) for part 6AA, see section 74AA; or
(c) for schedule 1B, see schedule 1B, section 1.”
Accordingly, it is increasingly important that all contractors hold a building licence of a relevant class before commencing any building work.
In addition to the potential criminal liability, the ramifications of undertaking or performing unlicensed building work can be disastrous to an unlicensed builder.
The outcomes can include:
- An inability to enforce the Building Contract’s payment terms;
- A requirement to seek reasonable remuneration excluding amounts characterised as profit.
We would recommend that contractors and individuals seeking building work be done confirm that their contractor or builder hold appropriate licensing from the QBCC. A free licence search can be conducted at:
If you have any concerns as to your entitlement to seek payment, we recommend you contact your building lawyers at WGC Lawyers.
Joshua McDiarmid – Phone – 07 40461184