In the likes of Victoria, all members of the the front line of the building practitioner community are required to be registered with the Building Practitioners Board.
The categories of registrants are prescribed under Part 11 of the Building Act and they are are:
- Commercial builders
- Quantity surveyors
- Residential builders
- Building surveyors
- Building inspectors
There is, however, a very important second line of flank of key contractors that slip through the net and these are the subcontractors (sometimes referred to as "subbies") or the trade contractors. These are contractors that the builders and construction managers contract with by way of sub-contracts.
Many building disputes are characterised by problematic workmanship generated by members of the subcontractor fraternity that are engaged by builders. It may be shoddy brick work, compromised structural form work, inadequate fit out and so on. The builder, however, is always accountable to the owner for the acts, error or admissions of the trade contractor fraternity, particularly in the residential sector where there are statutory warranties that dictate the builder must generate fitness for purpose product.
If the subby does a “runner” or refuses to rectify defective workmanship, the builder cops the liability and has to pay for the rectification out of his/her own pocket. That is the law, period. Woe betide the builder who deserts his post, because there will be a law suit and disciplinary censure courtesy of the building Practitioners Board. That’s OK - that’s the law and the consumer must be protected, but the person that generates the defect regardless of whether that person is a builder, a subcontractor or a building surveyor should be accountable and should rectify the defect.
If the subcontractor occasions the defect, then the subby must account, but if the subcontractor harbours no fear because there is no independent body do take issue with a failure to account then he or she may just say, "see you in court, buddy" or "I'll just wind up the company and its your look out, mate."
Absent a centralised registration system where the independent umpire can use the threat of disciplinary censure, common law redress can have its limitations. When a builder has no resort to the subcontractor then the subcontractor has effectively migrated a responsibility.
It is also problematic that subcontractors do not come within the jurisdiction of professional competency jurisdictions. This creates a double standard. On the one part, front line practitioners such as engineers and building surveyors are expected to behave in a professional fashion in an environment where if they fail to do so, they can be fined, reprimanded our "rubbed out."
Yet the subcontractor fraternity is effectively exonerated from professional misconduct accountability because it escapes the jurisdiction of bodies like the BPB. In NZ, they do things differently; the sub trades are caught up in the registration scheme under the NZ Building Act. In NZ, practitioners involved in design, site work, carpentry, roofing, external plastering, brick work, block laying and foundations are required to become licensed building practitioners.
Maybe it's time for Australian jurisdictions to give consideration to the registration of the “second flank” of the building trade contracting fraternity. This second flank may well include the likes of carpenters and joiners, brick layers, fit out contractors and electricians. They too should come within the jurisdiction of the regulated regime, with the view to lifting the bench mark of subcontractor competencies.
The net effect would be an overall improvement in construction process integrity and the quality of the as built environment. Furthermore, the system would be more balanced because there is something fundamentally disquieting about a concept where a bloke can do a job, get paid, stuff up and expect another poor devil to “cop the hospital pass.” This has never really been the Australian way.