Information on amendments to the Building
and Construction Industry Payments Act
2004 (BCIPA) which commenced 15
December 2014
Subsequent to the passing of the Building and Construction Industry Payments Amendment Act 2014
(Amendment Act) on 11 September 2014, concerns were raised that the transitional provisions were
uncertain in some respects.
1) With the introduction of an amended definition of “business day” (which will create a Christmas shut
down period between 22 December and 10 January), the Amendment Act was not clear as to whether
the new definition of “business day” will apply to the calculation of time for taking various steps under
BCIPA for existing contracts entered into before the commencement of the Amendment Act. With the
Christmas and New Year period approaching, this had the potential to become a significant issue for
the construction industry impacting principals and contractors alike.
2) Clarifying whether new section 35B (express right for claimant to withdraw from adjudication) and
section 100(4) (treatment by court of a decision affected by jurisdictional error) in the Amendment Act
apply to existing contracts.
In response the Government decided that it was very important to put beyond any doubt how the
transitional provisions would apply. Consequently, on 26 November 2014 the following amendments to the
Amendment Act (not exhaustive) were passed by the Queensland Parliament.
1) The new procedures of the Amendment Act, including the new definition of “business day”, apply to all
payment claims (and any subsequent adjudications) made after commencement of the Amendment
Act which occurred on 15 December 2014, regardless of whether the contract was existing at the date
of commencement. This saves the problem of dual systems for new and existing contracts and reduces
red tape. It also eliminates the problem of jumping between different definitions of business day for
existing contracts.
2) Where a payment claim was served on a respondent before commencement of the Amendment Act, a
transitional version of BCIPA applies to any outstanding matter in the recovery process. The transitional
version applies to the former BCIPA Act as it was prior to commencement. However, this transitional
recovery process differs from the arrangements prior to commencement, including in the following
ways:
a) All functions of authorised nominating authorities (ANAs) are assumed by the QBCC Adjudication
Registrar. In particular, this means that all adjudication applications are to be lodged with the
Adjudication Registrar;
b) Any adjudication application already lodged with an ANA but not referred to an adjudicator must be
referred by the ANA to an adjudicator.
c) Application of new section 35B BCIPA, by the Amendment Act, which deals with the withdrawal of
an adjudication application;
d) Application of new section 100(4) BCIPA, by the Amendment Act, which deals with treatment by
court of a decision affected by jurisdictional error;
e) The new definition of “business day” applies.
3) There are two transitional provisions applying to the time in which claimants under existing contracts
can lodge a payment claim under BCIPA:
a) The new six month maximum period for serving the payment claim under section 17A(2)(b) or (3)(c)
will be extended to twelve months, but only for a period of six months after commencement of the
Amendment Act 15 December 2014. This means that a claimant who at the commencement has an
existing valid payment claim more than six months after the work was carried out will not be
disadvantaged.
b) If a contractor’s right to a payment claim has expired at the commencement (15 December 2014) it
will be not be revived by the application of the new provision in section 17A(3)(b). Under this section
a contractor can make a payment claim 28 days after the expiry of the end of the last defects liability
period under the contract.
These changes mean that the new BCIPA procedures apply from commencement for all new payment
claims and will very quickly eliminate the dual system of different timeframes and procedures.
Important Notice: The above information is provided by way of general information only and the
Queensland Building and Construction Commission gives no warranty about its accuracy or currency.
Industry participants should refer to the legislation and regulations for details of their application to
particular circumstances and obtain independent legal advice as necessary.
15 December 2014