Reporting Requirements to the ABCC for Building Code 2016 Covered Entities under the Building and Construction Industry (Security of Payment) Act 2009

Code Covered entities are reminded of their reporting obligations for Security of Payment (SOP) disputes and delayed payments.

Reporting to the Australian Building and Construction Commission (ABCC) is a strict requirement and must be done as soon as practicable after a payment falls due. Guidance on when disputed or delayed payments are reportable to the ABCC is provided on their website here and can arise where:

• an amount is certified by a Principal (or Superintendent) under a contract and not paid within the contractual timeframe.
• an amount is specified in a payment schedule/notice of dispute issued under the SOP laws and not paid by the date prescribed by those laws.
• no payment schedule/notice of dispute is issued in response to a valid payment claim and the full amount of the payment claim is not paid by the date prescribed by the SOP laws.

Recently, the ABCC took Court action against Auscare Constructions Pty Ltd (Auscare) for its alleged failure to comply with a compliance notice. The notice required Auscare to provide a report into its SOP obligations on the Goodhew Gardens retirement village project in Taren Point, NSW.

On complaint from a subcontractor that Auscare had delayed payment for completed works by 72 business days, the ABCC initiated an audit of Auscare to assess its compliance with its SOP obligations under the Code for Tendering and Performance of Building Work 2016.

Auscare failed to comply with the notice and the ABCC is alleging Auscare has contravened the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act). The maximum available penalty for a contravention of the BCIIP Act in this case is $22,200 for a body corporate and $4,400 for an individual with legal costs payable under the BCIIP Act.