1Building Work Contractors Regulations 2011

South Australia Building Work Contractors Regulations 2011 under the Building Work Contractors Act 1995

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Definitions of building work etc (section 3 of Act) 5 Exemptions 6 Fees—waiver, reduction and refund Part 2—Licensed building work contractors 7 Entitlement to be licensed as building work contractor—qualifications (section 9 of Act) 8 Annual fee and return (section 11 of Act) 9 Notification of change in circumstances 10 Return etc of licence Part 3—Registered building work supervisors 10A Certain people registered under other Acts taken to be registered 11 Entitlement to be registered as building work supervisor—qualifications (section 16 of Act) 12 Annual fee and return (section 18 of Act) 13 Notification of changes in circumstances 14 Return etc of certificate of registration Part 4—Requirements relating to domestic building work contracts 14A Requirements for domestic building work contracts that contain a charging clause 15 Forms 16 Unliquidated amounts under contracts (section 29(5) of Act) 17 Authorised payments (section 30(1)(b) of Act) 18 Limitations on insurers' liability (section 35 of Act) Schedule 2—Performance criteria and kinds of work Part 1—Building work contractors licences performance criteria 1 Building work contractors licences performance criteria Part 2—Building work supervisors registration performance criteria 2 Building work supervisors registration performance criteria Part 3—Kinds of work 3 Kinds of work Schedule 3—Forms Legislative history

Part 1—Preliminary 1—Short title These regulations may be cited as the Building Work Contractors Regulations 2011. 3—Interpretation (1) In these regulations— Act means the Building Work Contractors Act 1995. (2) For the purposes of these regulations, a reference to a qualification, course or subject conferred or offered by a particular institution includes a reference to a qualification, course or subject of a different name conferred or offered by that institution and certified by that institution to be an equivalent qualification, course or subject. 4—Definitions of building work etc (section 3 of Act) (1) For the purposes of paragraph (c) of the definition of building work in section 3(1) of the Act, the following is building work: (a) the on‑site construction, alteration, repair or improvement of a swimming pool or spa; (b) paving; (c) fencing (excluding post and wire fencing); (d) the installation, maintenance, repair and removal of insulation; (e) painting a building or part of a building; (f) the installation of air-conditioning in relation to a building; (g) the installation of solar panels in relation to a building; (h) plumbing, gas fitting and electrical work within the meaning and application of the Plumbers, Gas Fitters and Electricians Act 1995. (2) For the purposes of paragraph (c) of the definition of domestic building work in section 3(1) of the Act, the following is domestic building work: (a) the construction, alteration, repair or improvement of a swimming pool or spa within the external walls of a house, within the curtilage of a house or on the boundary of the curtilage of a house; (b) any other building work carried out within the curtilage of a house or on the boundary of the curtilage of a house; (c) the installation, maintenance, repair and removal of insulation; (d) painting a house or part of a house; (e) the installation of air-conditioning in relation to a house; (f) the installation of solar panels in relation to a house; (g) plumbing, gas fitting and electrical work within the meaning and application of the Plumbers, Gas Fitters and Electricians Act 1995 in relation to a house. (3) For the purposes of the definition of house in section 3(1) of the Act— (a) in relation to the period before 1 June 1996, house does not include a building not included within the meaning of that term under the repealed Builders Licensing Act 1986 or regulations made under that Act; (b) in relation to any period commencing on or after 1 June 1996, house does not include hotels, motels, youth hostels, residential camps, boarding or lodging houses, university halls of residence, boarding school dormitories, barracks, nurses homes or residential facilities for workers or for training purposes. (4) For the purposes of paragraph (a) of the definition of minor domestic building work in section 3(1) of the Act, the prescribed sum is— (a) in respect of a domestic building work contract made before 15 October 2001—$5 000; (b) in respect of a domestic building work contract made on or after 15 October 2001 but before the prescribed day—$12 000; (c) in respect of a domestic building work contract made on or after the prescribed day—$20 000. (5) For the purposes of paragraph (b) of the definition of minor domestic building work in section 3(1) of the Act, the prescribed sum is $20 000. (6) In this regulation— prescribed day means the day on which the Building Work Contractors (Building Indemnity Insurance) Amendment Regulations 2025 come into operation. 5—Exemptions (1) A person who is authorised by licence under the Plumbers, Gas Fitters and Electricians Act 1995 to carry on business as a gas fitting contractor or an electrical contractor is exempt from the requirement to be licensed under Part 2 of the Act as a building work contractor subject to the condition that any building work performed by the person is limited to work authorised by the person's licence under the Plumbers, Gas Fitters and Electricians Act 1995. (2) A person who is authorised by licence under the Plumbers, Gas Fitters and Electricians Act 1995 to carry on business as a plumbing contractor is exempt from the requirement to be licensed under Part 2 of the Act as a building work contractor subject to the condition that any building work performed by the person is limited— (a) to work authorised by the person's licence under the Plumbers, Gas Fitters and Electricians Act 1995; or (b) if the person's licence under the Plumbers, Gas Fitters and Electricians Act 1995 is not subject to conditions limiting the work that may be performed under the authority of the licence—to minor roof plumbing work. (3) A person who is authorised by licence under the Controlled Substances (Pesticides) Regulations 2003 to carry on business as a pest controller is exempt from the requirement to be licensed under Part 2 of the Act as a building work contractor subject to the condition that any building work performed by the person is limited to work authorised by the person's licence under the Controlled Substances (Pesticides) Regulations 2003. (4) A person who is authorised by a security agents licence or a restricted security agents licence to install or maintain security alarm or surveillance systems under the Security and Investigation Agents Act 1995 is exempt from the requirement to be licensed under Part 2 of the Act as a building work contractor subject to the condition that any building work performed by the person is limited to work authorised by the person's licence under the Security and Investigation Agents Act 1995. (5) The following are exempt from the requirement to be licensed under Part 2 of the Act as a building work contractor: (a) the Minister responsible for the administration of the South Australian Housing Trust Act 1995; (b) South Australian Housing Trust. (6) The South Australian Housing Trust and the Minister responsible for the administration of the South Australian Housing Trust Act 1995 are exempt from the application of Part 5 Division 3 of the Act. (7) Registered architects are exempt from the application of section 18 of the Act. (8) A building work contractor is exempt from the application of Part 5 Divisions 1, 3 and 4 of the Act in relation to a contract for the performance of domestic building work consisting solely of demolition work. (9) A building work contractor is exempt from the application of Part 5 Division 3 of the Act in relation to— (a) a contract for the construction of a multi‑storey residential building in respect of the performance of domestic building work for the construction of that building; (b) a contract for the performance of domestic building work if the work is performed by a building work contractor as a contractor for the South Australian Housing Trust. (10) A building work contractor is exempt from the application of sections 28, 29 and 30 and Part 5 Division 4 of the Act in relation to a contract for the performance of domestic building work if— (a) the work is performed by a building work contractor as a contractor for the South Australian Housing Trust or the Minister responsible for the administration of the South Australian Housing Trust Act 1995; or (b) the building owner is a body corporate that is a public company within the meaning of the Corporations Act 2001 of the Commonwealth or that is a subsidiary within the meaning of the Corporations Act 2001 of the Commonwealth of such a public company. (11) The Act does not apply to the installation, maintenance, repair or removal of a floating floor under a contract entered into on or after 1 April 2010. (12) The Act does not apply to the installation, maintenance, repair or removal of carpet or of vinyl floor covering in circumstances in which it is not used for water proofing. (13) In this regulation— floating floor means a floor covering comprised of boards designed to be laid over a floor without being fixed to the floor; minor roof plumbing work means building work connected with the installation, renovation, replacement, alteration, repair or maintenance of flashings, guttering, downpipes, roof flashings or roof coverings on a building, where the cost of the work is less than $3 000; multi‑storey residential building means a building that— (a) has a rise in storeys of more than 3; and (b) contains 2 or more separate dwellings; storey means a space within a building situated between 1 floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include— (a) a space that contains only— (i) a lift shaft, stairway or meter room; or (ii) a bathroom, shower room, laundry, water closet or other sanitary compartment; or (iii) accommodation intended only for vehicles; or (iv) a combination of any of the facilities referred to in 1 or more of the above subparagraphs; or (b) a mezzanine. (14) For the purposes of subregulation (13)— (a) the cost of roof plumbing work is to be determined as if— (i) the work were performed under a contract between the plumbing contractor and another person; and (ii) the contract included the supply by the plumbing contractor of all materials necessary for the work; and (b) if a plumbing contractor and a person make an arrangement under which roof plumbing work at a site is to be performed in stages by the contractor, the cost of the roof plumbing work will be the sum of the cost of the work performed at each stage. 6—Fees—waiver, reduction and refund The Commissioner may waive, reduce or refund a fee (or part of a fee) prescribed for the purposes of the Act if satisfied that it is appropriate to do so in a particular case. Part 2—Licensed building work contractors 7—Entitlement to be licensed as building work contractor—qualifications (section 9 of Act) (1) For the purposes of section 9(1) of the Act, to be entitled to be granted a building work contractors licence authorising— (a) plumbing; or (b) gas fitting; or (c) electrical work, (as defined in the Plumbers, Gas Fitters and Electricians Act 1995), a natural person must have the same qualifications or experience, or qualifications and experience, as would be required for the person to be granted a licence under the Plumbers, Gas Fitters and Electricians Act 1995 for the kind of work that would be authorised by the building work contractors licence. (2) For the purposes of section 9(1) of the Act, to be entitled to be granted a building work contractors licence authorising work other than work of a kind referred to in subregulation (1), a natural person must have qualifications or experience, or qualifications and experience, such that the person meets the performance criteria set out in Schedule 2 Part 1 to the satisfaction of the Commissioner in relation to that kind of work. (3) The kinds of work in relation to which qualifications or experience, or qualifications and experience, are to be determined by the Commissioner under subregulation (2) are to be as set out in Schedule 2 Part 3. (4) If the kind of work to be authorised by the licence is— (a) — (i) plumbing; or (ii) gas fitting; or (iii) electrical work, (as defined in the Plumbers, Gas Fitters and Electricians Act 1995); and (b) in addition, other building work, the person must have qualifications or experience, or qualifications and experience, such that the person meets the requirements of subregulations (1) and (2). 8—Annual fee and return (section 11 of Act) (1) For the purposes of section 11(2) of the Act, a licensed building work contractor must pay the fee and lodge the return on or before— (a) the last day of the month in each year nominated in writing to the contractor by the Commissioner; or (b) if the Commissioner does not nominate a month—the last day of the month in each year that is the same month as the month in which the contractor's licence was granted. 9—Notification of change in circumstances (1) If there is any change in— (a) the residential address of a licensed building work contractor; or (b) the business or trading name under which a licensed building work contractor carries on business; or (c) the address at which a licensed building work contractor carries on business; or (d) the address of the registered corporate office of a licensed building work contractor that is a body corporate, the contractor must, within 14 days after that change, give written notice to the Commissioner of the new address or name (as the case may be). Maximum penalty: $2 500. Expiation fee: $160. (2) A licensed building work contractor must, within 14 days after ceasing to carry on business as a building work contractor, give written notice to the Commissioner of that fact. Maximum penalty: $2 500. Expiation fee: $160. (3) If a person is appointed as a director of a body corporate that is a licensed building work contractor, the contractor must, within 14 days after the appointment— (a) notify the Commissioner in the manner and form approved by the Commissioner of the appointment of the new director; and (b) provide the Commissioner with any information required by the Commissioner for the purposes of determining whether the new director meets the requirements for directors under section 9(2) of the Act. Maximum penalty: $2 500. Expiation fee: $160. 10—Return etc of licence (1) If a building work contractor's licence is surrendered, suspended or cancelled, the contractor must, at the direction of the Tribunal or the Commissioner, return the licence to the Commissioner. Maximum penalty: $2 500. Expiation fee: $160. (2) If, on an application under section 8 of the Act, a licence has been issued to a building work contractor but the fee payable in respect of the application has not been paid (whether because of the dishonouring of a cheque or otherwise), the contractor must, at the direction of the Commissioner, return the licence to the Commissioner. Maximum penalty: $2 500. Expiation fee: $160. (3) The Commissioner may issue to a licensed building work contractor a licence in replacement of a current licence if satisfied that— (a) the current licence has been lost, destroyed or damaged; or (b) any photograph of the contractor on the current licence should be replaced with a more recent photograph of the contractor; or (c) any particulars appearing on the current licence are incorrect. (4) If the Commissioner issues to a licensed building work contractor a replacement licence, the contractor must, at the direction of the Commissioner, return the original (or previous duplicate) licence to the Commissioner. Maximum penalty: $2 500. Expiation fee: $160. Part 3—Registered building work supervisors 10A—Certain people registered under other Acts taken to be registered The building work supervisors registration of a person who is, under section 14(b) of the Act, taken to hold that registration for the purposes of Part 3 of the Act is limited to the supervision of the type of work for which the person is registered (without a condition requiring supervision or technical direction) under Part 3 of the Plumbers, Gas Fitters and Electricians Act 1995. 11—Entitlement to be registered as building work supervisor—qualifications (section 16 of Act) (1) For the purposes of section 16 of the Act, to be entitled to be granted registration as a building work supervisor authorising the supervision of— (a) plumbing; or (b) gas fitting; or (c) electrical work, (as defined in the Plumbers, Gas Fitters and Electricians Act 1995), a natural person must have the same qualifications or experience, or qualifications and experience, as would be required for the person to be granted registration under the Plumbers, Gas Fitters and Electricians Act 1995 for the kind of work that the building work supervisor's registration would authorise the person to supervise. (2) For the purposes of section 16 of the Act, to be entitled to be granted registration as a building work supervisor authorising the supervision of work other than work of a kind referred to in subregulation (1), a natural person must have qualifications or experience, or qualifications and experience, such that the person meets the performance criteria set out in Schedule 2 Part 2 to the satisfaction of the Commissioner in relation to that kind of work. (3) The kinds of work in relation to which qualifications or experience, or qualifications and experience, are to be determined by the Commissioner under subregulation (2) are set out in Schedule 2 Part 3. (4) If the kind of work that the registration would authorise the person to supervise is— (a) — (i) plumbing; or (ii) gas fitting; or (iii) electrical work, (as defined in the Plumbers, Gas Fitters and Electricians Act 1995); and (b) in addition, other building work, the person must have qualifications or experience, or qualifications and experience, such that the person meets the requirements of subregulations (1) and (2). 12—Annual fee and return (section 18 of Act) (1) For the purposes of section 18(2) of the Act, a registered building work supervisor must pay the fee and lodge the return on or before— (a) the last day of the month in each year nominated in writing to the building work supervisor by the Commissioner; or (b) if the Commissioner does not nominate a month—the last day of the month in each year that is the same month as the month in which the building work supervisor's registration was granted. (2) However, a registered building work supervisor who is also a licensed building work contractor— (a) must, instead of lodging the return as required by subregulation (1), lodge the return at the same time that he or she lodges a return under regulation 8; and (b) is, on payment of a fee under regulation 8, exempt from paying the fee referred to in subregulation (1). 13—Notification of changes in circumstances If there is any change in the name or residential address of a registered building work supervisor, the building work supervisor must, within 14 days after that change, give written notice to the Commissioner of the new name or address (as the case requires). Maximum penalty: $1 250. Expiation fee: $80. 14—Return etc of certificate of registration (1) If registration of a person as a building work supervisor is surrendered, suspended or cancelled, the building work supervisor must, at the direction of the Tribunal or the Commissioner, return the certificate of registration to the Commissioner. Maximum penalty: $1 250. Expiation fee: $80. (2) If, on an application under section 15 of the Act, a certificate of registration has been issued to a building work supervisor but the fee payable in respect of the application has not been paid (whether because of the dishonouring of a cheque or otherwise), the building work supervisor must, at the direction of the Commissioner, return the certificate of registration to the Commissioner. Maximum penalty: $2 500. Expiation fee: $160. (3) The Commissioner may issue to a registered building work supervisor a certificate of registration in replacement of a current certificate of registration if satisfied that— (a) the current certificate has been lost, destroyed or damaged; or (b) any photograph of the building work supervisor on the current certificate should be replaced with a more recent photograph of the building work supervisor; or (c) any particulars appearing on the current certificate are incorrect. (4) If the Commissioner issues to a registered building work supervisor a replacement certificate of registration, the building work supervisor must, at the direction of the Commissioner, return the original (or previous duplicate) certificate to the Commissioner. Maximum penalty: $2 500. Expiation fee: $160. Part 4—Requirements relating to domestic building work contracts 14A—Requirements for domestic building work contracts that contain a charging clause (1) For the purposes of section 28(1)(d) of the Act, a domestic building work contract that contains a charging clause must include the following information: (a) that the clause seeks to establish an interest in the property to which the contract relates for which a right to lodge a caveat over the property will exist; (b) that, in the event that a caveat is lodged over the property, the rights of the owner of the property to deal with the property and have such dealings registered in the Lands Titles Office will be restricted; (c) that the interest in the property created by the clause entitles the building work contractor to apply to a court for the sale of the property for the purposes of recovering any debt that may be outstanding in relation to the contract; (d) that the person entering into the contract is advised to seek independent legal advice in relation to the clause. (2) In this regulation— charging clause means a clause in a domestic building work contract that gives the building work contractor the party to the contract a legal right to lodge a caveat over the property on which the building work contractor is performing work under the contract. 15—Forms (1) The forms in Schedule 3 are prescribed for use for the purposes indicated in the form. (2) A form must— (a) contain information and be completed as required or indicated by the form; and (b) not contain any particulars or statements other than those required or indicated by the Act or these regulations; and (c) be printed or typewritten in a type that is not smaller than 10 point Times New Roman font; and (d) not include any printing or handwriting (other than a signature) that is not clear and legible. 16—Unliquidated amounts under contracts (section 29(5) of Act) (1) For the purposes of section 29(5)(a) of the Act, 15% is prescribed. (2) For the purposes of section 29(5)(b) of the Act, a domestic building contract may include a provision entitling the building work contractor to recover, if the contract specifies an hourly rate of charge, the amount determined by applying the rate to the work actually performed. 17—Authorised payments (section 30(1)(b) of Act) For the purposes of section 30(1)(b) of the Act, the following payments are authorised: (a) payments to a third party for engineering, drawing, surveying or other professional services; (b) payments to reimburse the cost of building indemnity insurance or the amount of any fee required to be paid under an Act in respect of the work performed or to be performed under the contract; (c) in the case of a domestic work building contract made before 1 September 2011—a payment as a deposit of not more than $1 000; (d) in the case of a domestic building work contract made on or after 1 September 2011— (i) if the price stipulated in the contract for the performance of the building work is less than $20 000—a payment as a deposit of not more than $1 000; (ii) if the price stipulated in the contract for the performance of the building work is $20 000 or more—a payment as a deposit of not more than 5% of the price. 18—Limitations on insurers' liability (section 35 of Act) (1) The following are the only permissible limitations on the liability of the insurer under a policy of insurance under Part 5 Division 3 of the Act: (a) a limitation under which the insurer is not liable for the first $400 (or some stipulated lesser amount) of each claim; (aa) in relation to a policy entered into before the prescribed day—a limitation under which the total amount that the insurer is liable to pay in relation to building work or the non‑completion of building work by the building work contractor in respect of a single dwelling is fixed at not less than $80 000; (b) in relation to a policy entered into on or after the prescribed day—a limitation under which the total amount that the insurer is liable to pay in relation to building work or the non‑completion of building work by the building work contractor in respect of a single dwelling is fixed at not less than $250 000. (2) A policy of insurance under Part 5 Division 3 of the Act— (a) must contain a clause allowing a claimant at least 90 days (from the date on which the claimant becomes aware of the grounds for the claim) in which to make the claim; and (b) must not confer any right on the insurer to avoid liability on the ground of misrepresentation or non‑disclosure on the part of the building work contractor or on any similar ground. (3) In this regulation— prescribed day means the day on which the Building Work Contractors (Building Indemnity Insurance) Amendment Regulations 2025 come into operation. Schedule 2—Performance criteria and kinds of work Part 1—Building work contractors licences performance criteria 1—Building work contractors licences performance criteria Regulation 7(2) provides that for the purposes of section 9(1) of the Act, to be entitled to be granted a building work contractors licence, a natural person must have qualifications or experience, or qualifications and experience, such that the person meets the performance criteria set out in the table below to the satisfaction of the Commissioner in relation to the kind of work to be authorised by the licence.