169DOffence to carry out work as a building practitioner unless registered

169D Offence to carry out work as a building practitioner unless registered (1) A person must not carry out work that is of a kind prescribed to be carried out by a category or class of building practitioner (other than a builder) unless the person is registered under this Part in that category or class of building practitioner and the registration authorises the carrying out of that kind of work. S. 169D(1A) inserted by No. 43/2024 s. 29. (1A) For the purposes of this Act, carrying out work as a building surveyor includes carrying out any functions conferred on a building surveyor or a relevant building surveyor under this Act or the building regulations or under any other Act or other regulations. (2) Subsection (1) does not apply to the following persons who carry out a kind of work prescribed for the purposes of subsection (1)— (a) a person who is authorised under this Act or the building regulations to carry out that kind of work on behalf of a building surveyor; (b) a natural person who is registered as an architect under Part 3 of the **Architects Act 1991**, if the carrying out of that kind of work is an architectural service; (c) a member of an approved partnership (within the meaning of the **Architects Act 1991**), if the carrying out of that kind of work is an architectural service; (d) an approved company (within the meaning of the **Architects Act 1991**) or a director of such an approved company, if the carrying out of that kind of work is an architectural service; (e) a person who is working under the supervision of a person who is registered as an architect under Part 3 of the **Architects Act 1991** to obtain experience on practical architectural work in order to meet the requirement in section 10(b) of that Act, if the carrying out of that kind of work is an architectural service; (f) an endorsed building engineer, if the carrying out of that kind of work is a professional engineering service. S. 169E inserted by No. 21/2017 s. 7, repealed by No. 11/2023 s. 41. S. 169EA inserted by No. 46/2018 s. 10. 169EA Offence to carry out certain types of building work unless registered or licensed S. 169EA(1) amended by No. 40/2021 s. 14(1). (1) A person must not carry out a type of building work that is prescribed for the purposes of this section (the ***relevant building work***) unless the person— (a) is registered under this Part and that registration authorises the carrying out of that building work; or (b) is licensed under Part 11A and that licence authorises the carrying out of that building work and the person is carrying out the building work in the course of the person's employment. S. 169EA(2) amended by No. 40/2021 s. 14(2). (2) A person does not commit an offence under subsection (1) if the person is employed under a training contract to carry out relevant building work by an employer who has been approved under section 5.5.7 of the **Education and Training Reform Act 2006** by the Victorian Registration and Qualifications Authority to employ that person under the training contract. S. 169EA(3) inserted by No. 40/2021 s. 14(3). (3) A person does not commit an offence under subsection (1) if the person applies for a registration under section 171(1)(ab) or a licence under section 187F, which authorises the carrying out of the relevant building work, before the person completes a training contract referred to in subsection (2) to carry out that relevant building work, during the period beginning after the completion of the training contract and ending on whichever of the following days occurs latest— (a) the day on which the Authority determines the person's application for the registration or licence; S. 169EA(4) inserted by No. 40/2021 s. 14(3). (4) A person is exempt from an offence against subsection (1) in relation to the carrying out of relevant building work if— (a) the person has been granted an exemption by the Authority under section 169EB in relation to the carrying out of the relevant building work; and (b) the person carries out the relevant building work while employed by a builder registered under section 171(1)(a) or a registered builder subcontractor, whose registration authorises the carrying out of the relevant building work and who is the employing builder referred to in the exemption including an exemption as varied by the Authority; and (c) at the time of carrying out the relevant building work the exemption is in force. Note to s. 169EA inserted by No. 40/2021 s. 14(4). See also transitional provisions in section 282(1) and (2) which provide that in certain circumstances the offence against section 169EA does not apply to a person who is not registered or licensed to carry out relevant building work. S. 169EB inserted by No. 40/2021 s. 15. 169EB Authority may grant exemption from offence against section 169EA(1) (1) A natural person may apply to the Authority for an exemption from an offence against section 169EA(1) in relation to the carrying out of a type of building work prescribed for the purposes of that section (the ***relevant building work***). (2) An application under subsection (1) must— (a) be in writing in a form approved by the Authority; and (b) state the relevant building work that the exemption applies to; and (c) be accompanied by the appropriate application fee— (d) include or be accompanied by the following— (i) a recent photograph of the applicant that is of a size and form specified by the Authority; (ii) a statement by the applicant that the applicant intends to carry out the relevant building work while employed by a builder registered under section 171(1)(a) or a registered builder subcontractor, whose registration authorises the carrying out of the relevant building work (the ***employing*** ***builder***); and (e) include a statement by the employing builder that the employing builder intends to employ the applicant during the period of the exemption; and (f) include evidence that the applicant— (i) holds, or is enrolled in a course to obtain, the prescribed qualification for registration under section 171(1)(ab) in a class of builder that authorises the carrying out of the relevant building work; or (ii) holds, or is enrolled in a course to obtain, the prescribed qualification for a licence under section 187F(1) in a class of building employee that authorises the carrying out of the relevant building work; and (g) include a statement by the applicant that the person does not have the prescribed experience for registration under section 171(1)(ab) or a licence under section 187F(1), which would authorise the carrying out of the relevant building work; and (h) include any other information required by the Authority; and (i) include the prescribed information (if any). (3) The Authority may grant an exemption referred to under subsection (1) if— (a) the application complies with subsection (2); and (b) the Authority is satisfied that the statements and evidence provided in or with the application are true and correct; and (c) the applicant has provided any other information required by the Authority. (4) In deciding whether to grant an exemption under subsection (3), the Authority may take into account any matters that it thinks fit, including any particular circumstances that apply in relation to the exemption application. (5) The Authority may grant an exemption under subsection (3) for a period of no more than 3 years. (6) A person granted an exemption under subsection (3) may apply to the Authority to vary the exemption to change the details of the employing builder. (7) The same requirements for an application for an exemption under subsection (1) apply to an application to vary an exemption under subsection (6), except the requirement under subsection (2)(d)(i). (8) The Authority may vary an exemption under subsection (3) to change the details of the employing builder if— (a) the application for the variation complies with subsection (7); and (b) the Authority is satisfied that the statement by the new employing builder provided in the application is true and correct. (9) An exemption granted under subsection (3), including as varied under subsection (8), ceases to have any force— (a) for any part of the period of the exemption during which the person granted the exemption— (i) is not employed by the employing builder; or (ii) has ceased to be enrolled in a relevant course referred to in subsection (2)(f) without completing that course; and (b) immediately after the period of the exemption expires. S. 169F (Heading) amended by Nos 46/2018 s. 11(1), 40/2021 s. 16(1), substituted by No. 11/2023 s. 42(1). S. 169F inserted by No. 21/2017 s. 7. 169F Offence to carry out domestic building work under a major domestic building contract S. 169F(1) amended by Nos 46/2018 s. 11(2), 40/2021 s. 16(2). (1) A person must not carry out domestic building work under a major domestic building contract unless the person is a registered builder or a licensed building employee. S. 169F(2) amended by No. 11/2023 s. 42(2)(a). (2) Subsection (1) does not apply to an unregistered person or an unlicensed person who carries out domestic building work under, or in accordance with, a major domestic building contract if— S. 169F(2)(a) amended by Nos 40/2021 s. 16(3)(a), 11/2023 s. 44(2)(c). (a) the person carries out that work in partnership with a builder registered under section 171(1)(a) whose registration authorises the carrying out of that work; or S. 169F(2)(b) amended by No. 40/2021 s. 16(3)(a), substituted by No. 11/2023 s. 42(2)(b). (b) the person carries out that work as an employee of a builder registered under section 171(1)(a), whose registration authorises the carrying out of that work, in the course of the person's employment with that builder; or S. 169F(2)(c) amended by Nos 40/2021 s. 16(3)(b), 11/2023 s. 44(2)(c). (c) the person carries out that work as a subcontractor of a builder registered under section 171(1)(a), whose registration authorises the carrying out of that work, in accordance with a subcontract with the registered builder; or S. 169F(2)(d) inserted by No. 40/2021 s. 16(3)(c), amended by No. 11/2023 s. 44(2)(c). (d) the person carries out that work as a subcontractor or employee of a subcontractor referred to in paragraph (c), in accordance with a subcontract with that subcontractor, or in the course of the person's employment with that subcontractor (as the case applies). Note to s. 169F(2) inserted by No. 46/2018 s. 11(3). See section 169EA(1) for an offence against a person carrying out building work prescribed for the purposes of that section if the person is not registered under Part 11 or licensed under Part 11A to carry out that building work. S. 169F(3) amended by No. 11/2023 s. 44(3). (3) If the registered builder in a partnership specified under subsection (2)(a) dies or becomes insolvent and work under the major domestic building contract remains to be carried out, the person specified in subsection (2)(a) may arrange for another registered building practitioner who is authorised by that registration to carry out work under that major domestic building contract to carry out that work. S. 169F(4) amended by No. 11/2023 s. 44(4). (4) A person specified in subsection (3) does not commit an offence under subsection (1) because the person continues to carry out work under that major domestic building contract if an arrangement of a kind specified in subsection (3) has been made and the work is carried out in accordance with that arrangement. S. 169F(5) def. of *licensed building employee* inserted by No. 40/2021 s. 16(4), amended by No. 11/2023 s. 42(5)(a). ***licensed building employee*** means a person who carries out domestic building work under a major domestic building contract and whose licence authorises the carrying out of that building work; S. 169F(5) def. of *registered builder* amended by No. 11/2023 s. 42(5)(b). ***registered builder*** means a person who carries out domestic building work under a major domestic building contract and is— (a) registered under this Part; and (b) authorised by that registration to carry out that work; ***unregistered person*** means a person who is not registered under this Part. S. 169FA inserted by No. 46/2018 s. 12. 169FA Offence to engage an unregistered subcontractor (1) A person must not engage another person as a subcontractor (the ***proposed subcontractor***) to carry out building work if the building work is or includes building work of a type prescribed for the purposes of section 169EA (the ***relevant building work***), unless the proposed subcontractor is registered under this Part and that registration authorises the carrying out of the relevant building work. (2) Subsection (1) does not apply to a person if the person took reasonable steps to ensure that the proposed subcontractor was registered to carry out the relevant building work, including any of the following steps— (a) the person provided a written statement to the proposed subcontractor setting out— (i) the requirement that the proposed contractor be a registered builder and that the registration must authorise the carrying out of the relevant building work; and (ii) the requirement that any person engaged by the proposed subcontractor to carry out the relevant building work be so registered; (b) the person inspected the certificate of registration of the proposed subcontractor at the time of engaging the proposed subcontractor and the certificate of registration appeared to authorise the proposed subcontractor to carry out the relevant building work; (c) the person, at the time of engaging the proposed subcontractor, checked whether the proposed subcontractor was listed on the Register of Building Practitioners; (d) the contract between the person and the subcontractor contains a clause requiring the subcontractor— (i) to be a registered builder and that the registration must authorise the carrying out of the relevant building work; and (ii) to ensure that any person engaged by the subcontractor to carry out the relevant building work is so registered. Note to s. 169FA inserted by No. 40/2021 s. 17. See also the transitional provision in section 282(3) which provides that in certain circumstances section 169FA does not apply to a person who engages a person as a subcontractor to carry out relevant building work who is not registered to carry out that work. S. 169FB inserted by No. 46/2018 s. 12. 169FB Offence to direct or require a person to carry out certain building work (1) A person must not direct or require another person (the ***directed person***) to carry out a type of building work prescribed for the purposes of section 169EA (the ***relevant building work***) unless the directed person— (a) is registered under this Part and that registration authorises the carrying out of the relevant building work; or (b) is licensed under Part 11A and that licence authorises the carrying out of the relevant building work and the person is carrying out the building work in the course of the person's employment. 2500 penalty units, the case of a body corporate. (2) A person does not commit an offence under subsection (1) if— (a) the directed person is employed by a person under a training contract to carry out the relevant building work and the employer has been approved under section 5.5.7 of the **Education and Training Reform Act 2006** by the Victorian Registration and Qualifications Authority to employ the directed person under the training contract; and (b) the person directing the directed person is that employer or a person acting on behalf of that employer. S. 169FB(2A) inserted by No. 40/2021 s. 18(1). (2A) A person does not commit an offence under subsection (1) if— (a) the directed person has been granted an exemption under section 169EB in relation to carrying out the relevant building work and the exemption is in force; and (b) the person is the employing builder (within the meaning of section 169EB) or a person acting on behalf of that employing builder. (3) Subsection (1) does not apply to a person if the person took reasonable steps to ensure that the directed person was registered under Part 11 or licensed under this Part to carry out the relevant building work, including any of the following steps— (a) the person provided a written statement to the directed person setting out the requirement that the directed person— (i) be a registered builder whose registration authorises the carrying out of the relevant building work; or (ii) be a licensed building employee whose licence authorises the carrying out of the relevant building work; (b) the person inspected the certificate of registration or the licence certificate of the directed person before directing or requiring the directed person to carry out the relevant building work and the certificate of registration or the licence certificate appeared to authorise the directed person to carry out that relevant building work; (c) the person, before directing or requiring the directed person to carry out the relevant building work, checked whether the directed person was listed on the Register of Building Practitioners or the Register of Building Employees. Note to s. 169FB inserted by No. 40/2021 s. 18(2). See also the transitional provision in section 282(4) which provides that in certain circumstances section 169FB does not apply to a person who directs a person to carry out relevant building work who is not registered or licensed to carry out that building work. S. 169G inserted by No. 21/2017 s. 7.