With the recent Greenfell tragedy and the 2014 Lacrosse fire in Melbourne, considerable attention has turned to the issue of ensuring that products used in building projects meet the requirements of the National Construction Code in Australia or in New Zealand’s case, the New Zealand Building Code.
For a range of parties, the growing incidents of products which are either non-compliant with standards required in the Building Code (i.e. faulty or not meeting performance standards) or non-conforming (i.e. products which are not fit for the purpose for which they ae are used) has resulted in considerable uncertainty – especially when it comes to the uptake of new and innovative products.
One scheme which aims to provide greater certainty is the CodeMark scheme, developed jointly by the Australian Building Codes Board (ABCB) in Australia and the Ministry of Business, Innovation and Employment in New Zealand (MBIE). The scheme enables accredited Conformity Assessment bodies (CABs) to issue Certificates of Conformity which are deemed to be evidence that the product in question complies with the requirements of the National Construction Code (in Australia’s case) and the New Zealand Building Code (in New Zealand’s case) as long as the product is used in compliance with the scope of the building code and the conditions and limitations as detailed on the certificate. Although the scheme was developed jointly, the two countries’ schemes now operate separately and are separately administered. This is to reflect the difference in building codes and regulatory systems which operate in each country.
In Australia, the system is undergoing change following a three-year review. A new format to provide greater clarity and depth of information about products which have been certified and how they are to be used has been introduced whilst a register of certified products has been updated.
To differentiate between different schemes that will operate in Australia and New Zealand, the Australian scheme is to be renamed CodeMark Australia, whereas in New Zealand, the scheme will be known as CodeMark New Zealand.
MBIE has commissioned international consultancy firm Deloitte to conduct a detailed review. Consultations with major stakeholders including CABs and industry groups have taken place, but no firm proposals for change are have been put forward as of yet.
Speaking particularly of Australia, Australian Building Codes Board general manager Neil Savery said the changes were the result of feedback received throughout the review process, which had identified concerns about the level of discretion available to CABs in their certification process. He says the changes aim to make the rules more directive and to establish a common approach as well as to provide greater clarity for end-users of certificates. The changes were also about providing greater simplicity to the scheme’s administration, Savery said.
John Thorpe, chief executive officer of CertMark International, said an important area of change revolves around the format of the CodeMark certificate.
First, he says, there is greater detail provided with the certificate. Whereas previous certificates were one page long, the new ones are now up to 15 pages and essentially represent a complete report on the product. This provides greater certainty for certifiers and others who rely on these certificates as they are not only able to see that the product in question meets relevant aspects of the Building Code but also how the certification body arrived at that conclusion.
Take for example, the case of CSR (Hebel) – a proprietary wall system which encompasses various elements such as Hebal wall, CSR insulation, and Hebel renders. The new format references not just the system as a whole but also each of the individual products, enabling people to go back and ensure they are getting exactly what they want.
In addition, certifying bodies are now required to list the tests and reports upon which their decision is based. For example, if someone had a test report from the CSIRO which was given a fire rating level of 90-90-90, and the certifying body had relied upon that within its decision, the certifying body would include details about who conducted the test along with the number and result of this in the report. This, Thorpe says, will deliver better transparency in certification decisions and better visibility about the reports upon which the decision has been based.
A further area under review revolves around a requirement to identify the manufacturing facility at which the products were made.
According to Thorpe, this is both problematic and unnecessary. Whilst not affecting local manufacturers, Thorpe says the requirement to list the manufacturing facility is problematic for those whose business relies upon sourcing products from offshore and importing them into the Australian market under their own name. From such a party’s point of view, Thorpe says, the disclosure of the point of manufacture jeopardises their commercial interests by enabling both their competitors and their clients to learn where they are sourcing materials from and the type of margins they are earning.
It is also unnecessary, he says, courtesy of a requirement at general law in both Australia and New Zealand which dictates that those importing products into the country under their own name are deemed to be the manufacturer of the product and assume all of the relevant legal responsibilities associated with this. Even not disclosed on the certificate, moreover, information about the point of manufacture will still be on the file of the certifying body and would be available to the ABCB if necessary.
Outside of the content of the certificate itself, Thorpe says an area of change involves the removal of a requirement to audit the manufacturer of the product and the addition of a requirement for increased surveillance of the product in the marketplace. Under these changes, certifying bodies will no longer be required to audit the product at the point of manufacture but instead will need to do so at the point at which the product in question is used.
Take for example, a product sold at Bunnings. During the course of the annual audit of the certificate holder, certification bodies will send their inspectors into the store, take the product back and verify its compliance with the sample audited for compliance at the initial inspection and certification of the product.
Whilst this at first appears to be counter-intuitive, Thorpe says there is a danger in relying only on manufacturing audits as manufacturers tend to produce ‘golden samples’ for testers. By instigating a Scheme of Testing and Inspection that applies to market sampling a more realistic assessment of the final product that is going into the market place is gained, he said, though this will likely result in additional cost from the viewpoint of product suppliers.
Although firm proposals for change in respect of the scheme in New Zealand are yet to be released, Thorpe says it is likely that a number of not all those enacted in Australia will be included – albeit with due consideration being granted to the specific requirements of the New Zealand Building Code.
At the moment, some commentators suggest there are substantial problems with the current scheme.
Louise Swann, director of building compliance consultancy firm The Building Business, says the current system suffers from a number of problems.
First, she says, there is a lack of accountability in respect of the performance of the some of the certification bodies as well as the content of a number of the certificates being issued. In this regard, Swann talks of a lack of action on the part of either MBIE of JAS-ANZ (the body which accredits certifiers in Australia and New Zealand to hold certifying authorities to account in respect of poor quality certificates.
In one case, Swann says she has contacted the Commerce Commission about a particular certificate which she believes (on legal advice) breaches the FairTrading Act. Despite both MBIE and JAS-ANZ being aware of this, Swann says the certificate in question remains in force.
Another issue revolves around aluminium composite panels. Swann says she has asked certification bodies to provide evidence as to whether or not their certificate was based on the panel only or the panel in assembly, but has been told that this information would not be given out. As a result, she says there is no way of knowing whether or not the panel was tested as part of a wall construction test or as a single product on its own. Anyone who presumed the former may unwittingly use the product in a non-conforming way if the latter indeed turns out to be the case.
Going forward, Swann says New Zealand needs a scheme with its own specific rules which relate more directly to that country and which take account for of New Zealand’s own building code, legislation and regulations. She would also like to see more emphasis with CodeMark not only to ensure that products are free from fault but to ensure that they are in fact used suitably and appropriately on site.
Beyond CodeMark, meanwhile, Thorpe says action is also needed at a broader level to address the issue of non-compliant products. He says one possibility to come out of the current Senate Inquiry into non-conforming products is an expansion of mandatory certification similar to that which applies to plumbing products through the Watermark Scheme to other critical product categories like weatherproofing and fire protection. Tougher penalties could also be imposed for use of non-complying products, he said.
Thorpe takes issue with arguments – particularly in respect of China – which suggest our Free Trade Agreement with the Chinese means we should allow the importation of products which have been manufactured in ways which are acceptable in China but not in Australia, such pipes which contain lead or materials which contain asbestos. That argument, he says, does not hold sway.
Finally, Savery says it is important that those using CodeMark products check the contents of certificates carefully before relying upon them as evidence of compliance with the BCA. Certificates, he said, are likely to be subject to limitation or conditions which mean that the project may not be suitable for use in some circumstances, whilst the CodeMark certification may be undertaken in respect of only some of the NCC requirements which could apply to a product.
“For example, if a compliance claim on a certificate is only made for a product’s fire-resisting properties, but it is to be used in a circumstance where the BCA requires it to also have sound insulation properties (such as a separating wall between apartments), separate evidence of compliance with those sound insulation properties would need to be sought,” Savery said.
It is also important to remember that products will carry manufacturers warranties and specifications for things like installation and maintenance. These are quite different from the certificate, which makes claims about what the product can be used for, but could nevertheless result in product failure if overlooked, he said.
“The basic message is, ‘accept the certificates as evidence of compliance, but don’t blindly accept them’” Savery said.
“All the changes to the scheme rules and improvements to certificates won’t amount to much if practitioners don’t adequately scrutinise certificates when intending to rely on them as evidence of a product’s compliance with the BCA.”