A question of cladding and shared responsibilities

By Michael Selinger on August 10th, 2017

As we reported this week, there has been a flurry of activity from the government as it looks to manage the thorny issue of non-conforming building products.

Audits in Victoria and NSW have determined that a large percentage of buildings may contain non-conforming building products such as ACP, the product that was involved in the fires in the Lacrosse building in Melbourne in 2014 and the recent Grenfell Tower in the UK.

The question on the minds of many building owners (and those occupying those buildings) is what should be done about it? And if you are an importer or supplier of building products, what are your obligations? Designers of structures that contain potential non-conforming building products are also nervous as to whether there may be liability issues involved in their design.

So what is the position?

The scenario can be something like this:

The market is tight and in looking to secure cost savings, your building business has sourced some material for a construction job but the building’s designers have alerted you to the fact that they are not comfortable with the lack of traceability on the product. This is because it comes from an overseas supplier via an Australian importer.

In this scenario, there are a couple of points to note:

  • The duty on both the importer and the supplier is to ensure, so far as reasonably practicable, that the building product is without risks to the health and safety of persons who, at a workplace, use the structure for a purpose for which it was designed or manufactured.
  • Importantly, both the importer and supplier have duties about carrying out any analysis, testing or examination of the building product (or ensuring they are carried out) which may be necessary to ensure the building product is without risks to the health and safety of persons. Not only that, but they have to give adequate information to any end users of the product about necessary conditions to ensure its safety.
  • And for the designer, the question is more complex because it will depend on the level of their involvement in actually specifying the type of building product to be used.
    • In some cases, designers will not specify a particular product for their design. In that case, there will a question as to whether they need to warn the end-users of their design about the dangers of sourcing certain products such as ACP, or whether there is an obligation to ‘check on’ the implementation of their design? A lot will depend on the level of control or influence the designer has on the particular project in question.
    • If designers specify the product, then they are obliged to make sure it is safe and so, if they are obtaining products and are not certain of their origins or compliance with Australian standards, they will be exposed to liability. That is, unless they can demonstrate that they took steps to obtain information about the analysis, testing or examination of the building product that demonstrates that the building product is safe.
  • Also, builders must be able to demonstrate that they took steps to obtain information about the analysis, testing or examination of the building product that demonstrates that the building product is safe. This could come from information supplied by the importer or designer.
  • And finally, the owner of the structure. What do they do now if, after many years of construction, there is little contact available from the builder about the building products used in the construction?
  • Well, firstly, take all steps possible to get the information from the builder and, if that fails, look at undergoing testing for potential non-conforming building products. The obvious one being ACP. It may then require remediation work or other modifications to eliminate or reduce the risk of injury.

This is a challenging area and, because of the potential widespread use of non-conforming building products, it is a matter that impacts on a large number of organisations and individuals.

Audits, inspections and reviews

If you suspect your building might be affected by non-compliant product, you can arrange an audit of the material to determine its suitability. A list of fire safety professionals can be found at www.fpaa.com.au/provider

While you consider an external audit of your building, it might also be timely to review the safety systems for your workers inside the building.

The Health & Safety Handbook has a newly updated chapter on Audits, Inspections and Reviews among its 70-plus chapters. It contains comprehensive information, including detailed checklists and step-by-step instructions on how you can conduct your own audits, inspections and reviews, or how to organise professional assistance.

Accompanying this chapter are others on fire safety, first aid, asbestos, hazard identification, health and wellbeing programs, mental health and workplace design.

Every chapter is written in plain English by the health and safety experts at Holding Redlich. You can even ‘test drive’ the Health & Safety Handbook on an obligation-free trial.

Let your workers know that their health and safety is an integral part of your business.



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