I always pay my subbies on the day that their invoices are due - do I need to give a Payment Schedule?

This is a difficult question to answer unfortunately and depends on a number of factors. If the invoice you have been given is a valid payment claim that has been given properly under chapter 3 of the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act), then you must give a valid Payment Schedule within time otherwise you risk a maximum fine of $13,345. If you are a QBCC licence holder, the QBCC may also take disciplinary action against you.

However, you are not required to give a Payment Schedule if you make payment to the subcontractor in full by the due date for payment. This seems straight forward …. pay your subcontractor on time and there is no 'disputed payment' and, therefore, no breach of the legislation. The problem is that the 'due date for payment' under chapter 3 of the BIF Act does not necessarily match the due date that is shown on your subcontractor's invoice/payment claim. Therefore, if you pay by the date on the invoice and that date is after the date that the legislation considers to be the 'due date for payment', then you will have committed an offence. You will also now be unable to give a payment schedule and now become liable for the full amount of the payment claim regardless of whether or not you have a valid reason to withhold payment or make part payment. If the subcontractor makes an application for adjudication for that payment claim, you will also be unable to submit a response to the application. 

Having said that, if in fact you have made full payment by the date shown on the invoice, it is unlikely that the subcontractor will even be aware of the BIF Act issues and will not make a complaint about the fact that payment was later than it should have been, and will not make an application for adjudication because you have actually paid the invoice. So this would become a technical breach of the BIF Act without any problem with payment to the subcontractor so just be aware of this issue, and ensure that you understand when the 'due date for payment' is under the BIF Act.  However, if payment in full was not made, you must be aware of the issues created by not giving a valid Payment Schedule.

So what is the due date for payment under Chapter 3 of the BIF Act?

It is the date that the contract states in writing that payment is due or if nothing is stated in the contract, or it is in the contract but the provision is a void provision, then it is 10 business days after the payment claim is given.

What is a void payment provision in a contract under Chapter 3 of the BIF Act?

If the payment claim is a valid payment claim under chapter 3 BIF Act, then the following are void provisions in the contract:

  • Provisions that provide a time for payment that exceeds 15 business days from when the claim is given for a head contractor doing 'building work' under the QBCC Act;
  • Provisions that provide a time for payment that exceeds 25 business days from when the claim is given for a subcontractor doing 'building work' under the QBCC Act;
  • Provisions that provide a right to be paid that depends on whether payment is received under another contract;
  • Provisions that provide a due date for payment dependent on the date that payment is made under another contract;
  • Provisions that provide a right to be paid that depends on the operation of another contract;
  • Provisions that provide a due date for payment that depends on the operation of another contract.
Do I have to give a payment schedule to a supplier like Bunnings?

Yes you do if you are not going to make payment in full of each payment claim that you have received. Things like refunds are unlikely to be considered included in a payment claim unless the statement you receive at the end of the month is considered the chapter 3 payment claim.

However, supply agreements typically state that the supplier can invoice you when you purchase something. Therefore, there is likely to be a reference date every day that you purchase something from that supplier. Their invoices are almost always in writing, describe the goods provided, state the amount claimed and include the word 'invoice'. They are always given after the reference date so are likely to be valid payment claims. This means that the statement at the end of the month that includes refund/credit notices is a second claim for the same reference date so is not a valid payment claim and all credit notes will require a payment schedule to be given against one of the payment claims received in that month if you intend to apply the credit note that month i.e. short pay an invoice by the amount of the credit note.

Similarly, if there is a discount to be applied to a supplier's invoice for paying on time or early, then you will need to give a payment schedule to reflect the short payment of the claim/invoice.

My subcontract says that I can withhold 10% retention from my subbie so do I need to give a payment schedule for that deduction?

Yes you still need to give a payment schedule noting the reason for withholding that amount is because of clause xx in the subcontract for retention. Unfortunately, you must give a payment schedule if you are withholding any money whatsoever from a payment claim – including an amount the contract allows you to withhold/deduct.

I want to engage a subcontractor to carry out some minor painting work for me. Do I need to have a written contract?

Yes if your head contract is for more than $3,300 including GST, all subcontracts for building work must be in writing no matter how small the value of the subcontract is. 

My client has asked me to construct a small garden shed for her but she will buy the shed so my installation costs will be less than $3,300. Do I need a licence to do this work?

If the total value of the work exceeds $3,300 including GST, then you must hold the appropriate licence to carry out this work. It does not matter whether you purchase the shed or your client does….the total value of work includes the cost to supply and install including all labour and materials and GST. It is basically the value that the industry would pay to supply and install the shed.

I have a contract that I copied from someone else years ago, can I still use it? I'm a house builder.

It will depend on what terms are included in the contract, however, the legislation that applies in Queensland to domestic building work changed in July 2015 so it is possible that that contract does not comply with the current legislation or that some provisions in that contract are not permitted now. It is best to have a lawyer review the contract to confirm that it does comply or to amend it so that it does comply. There are serious penalties that apply to breaches of the domestic building contracts legislation – both fines and demerit points against your QBCC licence. It is also possible that you may take action under that contract that you are no longer permitted to take which could put you in serious breach of the contract. If the breach is serious enough to permit your client to terminate the contract, they may be able to make a claim under the QBCC Home Warranty Insurance Scheme for incomplete work. Any payments under the HWI Policy can be recovered by the QBCC from you i.e. you may have to reimburse the QBCC for any payments it makes under the HWI Policy to have the incomplete work carried out by someone else. That will almost always cost more than it would if you did the work yourself.

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