Building Stronger Foundations Discussion Paper · 2019-08-16 · Building Stronger Foundations...

Building Stronger Foundations Discussion Paper

NFIA – contractors at the front line of fire protection 2

TABLE OF CONTENTS

The Australian Fire Protection Industry ................................................................. 3

The National Fire Industry Association (NFIA) ...................................................... 5

The Problem .............................................................................................................. 5

Building Stronger Foundations Discussion Paper – Implementing the NSW Government Response to the Shergold Weir Building Confidence Report ........ 6



EXECUTIVE SUMMARY

On 9 February 2018 the Shergold -Weir Report entitled ‘Building Confidence: effectiveness

of compliance and enforcement systems for the building and construction industry across

Australia’ (the BC Report) was released. The Report produced 24 recommendations to

improve the national best practice model for effectively implementing building regulation and

the National Construction Code (NCC). The first recommendation went to occupational

licencing and highlighted fire protection practitioners as an occupation that should be

registered.

In February 2019, the NSW Government responded to the BC Report and committed to

strengthening the building sector through a suite of reforms. This Response covered four

areas: compliance reporting, registration of building practitioners with reporting obligations,

appointment of a Building Commissioner and ensuring there is an industry-wide duty of care

to homeowners.

The NSW Government has, this month, released the Building Stronger Foundations

Discussion Paper - Implementing the NSW Government Response to the Shergold Weir

Building Confidence Report. This discussion paper examines the next steps in implementing

the Response and has called for industry feedback on 30 separate questions for comment

covering 3 broad areas:

Introducing ‘building designers’ into NSW legislation;

Registration of ‘building designers; and

Duty of care of building practitioner

INTRODUCTION

Besides the human risk, there is also a substantial financial cost to the community due to

building fires. Fire costs Australian business millions of dollars due to property damage, fines,

compensation, and insurance premiums. Many businesses find that they are not able to recover

from the effects of a fire.

The Australian Fire Protection Industry

Fire protection in Australia is typically achieved via three means:

Active fire protection (fire sprinklers, fire hydrants and fire alarm systems);

Passive fire protection (fire rated walls, floors and ceilings and fire sealing); and

Education.

The Fire Protection Services industry contributes over $2.4 billion to the Australian economy

every year. Over 2000 businesses pay nearly $700 million in wages each year and industry

revenue is projected to increase at a compound annual growth rate of 3.4% over the five years

through 2022-23, to reach $2.8 billion.



The IBISWorld Industry Report OD5424 Fire Protection Services in Australia (February 2018),

claims that despite the presence of vertically integrated multinational giants, the industry has a

low level of market share concentration as the top four players are estimated to account for

about 27.4% of industry revenue. The two major companies have a combined market share of

only 20% and are both part of large multinational companies operating globally across several

related industries. Twenty years ago, the two major companies are estimated to have had 80%

of the market.

There are now a large number of State, regional and local players that construct, install and

service fire protection systems to small, medium and major buildings across the full scope of

class 2 to 9 buildings as well as higher risk facilities such as fuel depots, harbours and similar

developments. Over half the industry enterprises employ between one and 19 people (53.1% in

2014-15) and a further 44.4% have no directly employed labour. As the minor players have

increased their share of the total market, the industry has become more diverse, while also

growing substantially.

Where twenty years ago, the two major companies offered a form of institutionalised but

limited “industry” training to their people, it could be argued that the industry was less in need



of regulation. However, as the industry has grown substantially and its make-up evolved it is

now predominately made up of many more, smaller independent contracting companies. That

market growth and diversification has provided customers with better contractor choices, better

outcomes and better pricing but, at the same time, raised the need for more over-arching

regulation.

The National Fire Industry Association (NFIA)

The National Fire Industry Association (NFIA) is an Australia-wide community of commercial

fire protection contractors, their people, suppliers and industry stakeholders representing a wide

and varied membership from the smallest sub-contractor through to large Australia-wide

construction and service businesses. Our members work at the frontline of fire protection with

an estimated 80 per cent of the fire protection work undertaken in Australia is completed by

members of NFIA.

NFIA utilises the resources of other Australian and International industry organisations and

associations.

NFIA is committed to the delivery of quality fire protection practitioners across all aspects of

fire protection safety. To this end, NFIA has sponsored and supported the growth of the world

leading fire industry Registered Training Organisation, Fire Industry Training, which now

delivers fire industry required training for all of Australia at its campuses in Brisbane,

Melbourne and Sydney.

NFIA believes that an appropriate regulatory framework should be one that protects the safety

of the community and property, provides adequate consumer protection, recognises and

accommodates industry practice and standards, requires registration of practitioners and is

linked to the national training package framework.

The Problem

Fire Protection systems and their correct design, installation and maintenance are critical for

protecting people, buildings and assets in the event of a fire. Therefore it is imperative that all

aspects of fire protection work carried out by competent practitioners with the appropriate

qualifications and credentials.

However, based on historical data it can be said that fire safety systems in numbers of buildings

in NSW are non-compliant and are at high risk of not protecting the occupants of a building in

the event of fire.

NFIA has been at the forefront of the issue of fire protection non-compliance for the last 20

years and has provided many submissions to various reviews during this time which have

examined non-compliance, self-certification, accreditation and licensing within the Australian

building and construction industry.

Some of these reviews include, but are not limited to:



The NSW Independent Review of the Building Professionals Act 2005 (The Lambert

Report);

COAG National Licensing System for Specified Occupations 2008;

Queensland Building Services Authority Amendment Regulation (No. 2) 2008;

Fire Protection Systems Working Party Report: October 2010;

Planning White Paper: April 2013;

Maltabarow Report: Building Certification and Regulation - Serving a New Planning

System for NSW: May 2013;

Review of Western Australian Plumbing Laws (ACIL Allen Consulting) 2013.

Building and Planning Legislation Amendment (Governance and Other Matters) Bill

2013;

Draft Home Building Regulation 2014 and Regulatory Impact Statement July 2014;

IPART Final Report, Reforming Licensing in NSW, Review of Rationale and Design:

August 2015; and

Shergold-Weir Report, Assessment of the Effectiveness of Compliance and

Enforcement Systems for the Building and Construction Industry across Australia

2018.

These reviews have all made similar recommendations regarding fire protection – that there

should be stronger fire protection regulation in place, supported by a regulated and licenced

certification process, which can enable informed and qualified assessment and sign off of fire

safety systems.

Despite these reviews and the industry’s expert input, very little has changed and we continue to

tolerate non-compliant systems which could result in a higher risk to people and property in

Australia in the event of a fire. This sad reality exists because of a legislative framework in

some states which enables unqualified practitioners to design, install, maintain and test essential

fire safety systems.

Building Stronger Foundations Discussion Paper – Implementing the NSW

Government Response to the Shergold Weir Building Confidence Report

On 9 February 2018 the Shergold -Weir Report entitled ‘Building Confidence: effectiveness

of compliance and enforcement systems for the building and construction industry across

Australia’ (the BC Report) was released. The Report produced 24 recommendations to

improve the national best practice model for effectively implementing building regulation and

the National Construction Code (NCC). Importantly, Recommendation 1 of the report

recognises that fire protection practitioners should be registered.

The Report was commissioned by the Building Ministers’ Forum (BMF). In March 2019 the

BMF released an Implementation Plan which contains a report card on how each of the states

are going. In February 2019, the NSW Government responded to the BC Report and

committed to strengthening the building sector through a suite of reforms. The ResponseThe

Response covers 4 areas: compliance reporting, registration of building practitioners with



reporting obligations, appointment of a Building Commissioner and ensuring there is an

industry-wide duty of care to homeowners.

The NSW Government has, this month, released the Building Stronger Foundations

Discussion Paper - Implementing the NSW Government Response to the Shergold Weir

Building Confidence Report. This discussion paper examines the next steps in implementing

the Response and includes 30 questions for comments covering 3 broad areas:

Introducing ‘building designers’ into NSW legislation;

Registration of ‘building designers; and

Duty of care of building practitioners

NFIA is pleased to provide comment on the 30 questions for comment.

1. What kinds of plans should be signed off and declared by a statutory declaration?

Plans and specifications for relevant fire safety systems should be signed off by a CFSP in

accordance with Clauses 136AA and 146B of the EP&A Regulation before work

commences and (importantly) at practical completion. NFIA is of the view that the

Regulation should be changed to require CFSP endorsement of the relevant fire safety

systems on the Fire Safety Certificate.

In relation to the concept of a statutory declaration, we are of the view that a statement of

compliance signed by an accredited CFSP and witnessed should be sufficient. A Stat dec.

signed by a JP or solicitor would be, in our view, an unnecessary impediment.

2. Could plans be statutorily declared at the CC/CDC stages? If not, why not?

We are of the view that the plans and specification endorsement of relevant fire safety

systems required under the EP@A Regulation clauses 136AA and 146B is sufficient at the

CC/CDC stage (or before work commences). The design of these systems is generally

impacted (through design development) during the course of construction which in our

view makes it essential that the plans and specifications are re-endorsed at the conclusion

of the project.

Also, and most importantly we believe it is essential for the CFSP to provide an

endorsement that the relevant fire safety systems were installed in accordance with the

plans and specifications and endorse the Fire Safety Certificate.

3. To what extent should changes to plans be submitted to the regulator?

Clauses 136AA and 146B of the EP&A Regulation requires plans and specifications to be

provided that show the layout, extent and location of key components. These items are



normally able to be locked in very early in the design process (at CC/CDC stage) so it is

unlikely that they will change during the course of construction. If however there is any

change to the layout, extent and location of the key components proposed during

construction which differs from the information provided in the original plans and

specifications, then the revised information must be shown on the plans and specifications

and re-endorsed by a CFSP. These modified plans and specifications would then be issued

to the regulator for their approval before work commences.

4. Should a statutory declaration accompany all variations to plans or only major

variations?

Firstly, it is important in our view for this issue to address both plans and specification,

not just plans.

Clauses 136AA and 146B do not require detailed layout drawings of the relevant fire

safety systems, so in our view it is not necessary to re-issue plans for the components of

the system that are not key components. That said, a change to any of the key components

should require the plans and specifications to be revised, re-endorsed and submitted to the

regulator for approval.

We do not believe that this should require a Stat. Dec. Our preference is for a simple

declaration signed by a CFSP and witnessed.

5. Are there any obstacles that would prevent a person from submitting a statutory

declaration for variations? If so, what are those obstacles?

The biggest obstacle is that a Statutory Declaration requires witnessing by a JP or

Solicitor. We support the concept of a declaration in principle but would prefer a

declaration signed by a CFSP and witnessed.

6. What other options could be workable if there are variations to plans?

A simple declaration signed by a CFSP and witnessed.

7. How could the modifications process be made simpler and more robust?

Industry has responded well to the Regulation change which requires plans and

specifications endorsed by a CFSP to be provided before work commences. Anecdotally

however it is unclear to what extent changes to these plans and specifications should be

notified to the regulator during and after construction. NFIA believes that there should be

a requirement for changes to the information shown on the plans and specifications to be

re-endorsed by a CFSP and approved by the regulator before work commences.



We also believe that it is essential that a CFSP sign off the relevant fire safety systems on

completion of work and endorse the Fire Safety Certificate.

8. How should plans be provided to, or accessed by, the Building Commissioner?

On request.

The original plans which are provided at CC/CDC stage, endorsed by the CFSP and

stamped by the regulator would be available at the initial stage and held by the regulator

and could be easily provided to the Building Commissioner upon request.

9. What types of documents should ‘building designers’ provide to the Building

Commissioner?

NFIA believes that the documents that should be provided to the Building Commissioner

are the plans and specifications required under Clause 136AA and 146B along with any

changes to the information during the course of construction.

We are also of the view that the works should be signed off by a CFSP on completion and

the Fire Safety Certificate endorsed by the CFSP.

10. In what circumstances would it be difficult to document performance solutions and

their compliance with the BCA?

We are not aware of any scenario where it would be difficult to document a performance

solution and its compliance with the BCA. We are of the view that non-DTS (performance

based) solutions should always be endorsed by a CFSP who is a Fire Engineer.

11. Would a performance solution report be valuable as part of this process? If not, why

not?

A performance solution report is essential to this process.

12. Are there any other methods of documenting performance solutions and their

compliance that should be considered?

No, it is the preference of NFIA and its members that performance solutions (non-DTS

solutions) should always be provided and endorsed by a Fire Engineer.

13. What would the process for declaring that a building complies with its plans look

like?

Firstly, it is important that this question extends to specifications and not just plans. In

relation to the plans and specifications for relevant fire safety systems, the As-Installed



drawing and technical specifications would be endorsed by a CFSP and the CFSP would

inspect and certify that the systems were installed to the plans and specifications.

In NFIA’s opinion, anything short of this will not fix the problem.

14. What kind of role should builders play in declaring final building work?

The builder’s role would be to ensure that a CFSP has inspected and signed off the system

upon completion.

If the CFSP sign-off was missing from the process then the builders would continue to

seek confirmation from their contractors who may or may not be competent. This is the

same situation that currently exists.

We understand that it is possible (even probable) that the CFSP who would sign-off the

works at the end of the project is an employee of the contracting company. Independent

sign-off of course for this reason would be an improvement, but we believe that the

obligations placed on a properly accredited CFSP will go a long way to ensuring that the

works comply to the BCA.

15. Which builders involved in building work should be responsible for signing off on

buildings?

All builders should be responsible for signing off work on their buildings, but that sign-off

should not require them to personally endorse compliance to specialist elements of the

works.

In the case of fire services in general and the relevant fire safety systems in particular we

believe the builders role should be to ensure that a properly accredited CFSP has inspected

the works on completion and endorsed the Fire Safety Certificate.

16. Are there any circumstances which would make it difficult for builders to declare

that buildings are constructed in accordance with their plans? If so, what are those

circumstances?

The only impediments to a builder being able to inspect and confirm that the building is

constructed in accordance with the plans is:

The plans were not as-installed

The works included hidden detail which was not able to be verified

We repeat our earlier comments that in our opinion it is necessary for a CFSP to be

engaged to endorse the initial plans and specifications, carry out any inspections and tests



as they determine may be necessary during and after construction and sign-off and

endorse the Fire Safety Certificate at the end.

A CFSP is a specialist who will know what needs to be inspected and when. The builder is

not.

17. Are existing licensing regimes appropriate to be accepted as registration for some

builders and building designers, such as architects, for the new scheme?

NFIA has no issue with the co-regulatory scheme for the accreditation of CFSP’s to

design relevant fire safety systems and assess essential fire safety measures for an AFSS.

In relation to other professional organisations (Engineers Aust and the like) we believe it

is appropriate to consider registration with those bodies as providing a basis upon which a

licensing or registration scheme could be developed.

18. What occupations or specific activities are involved in ‘building design’ and should

be in scope for the registration scheme?

Fire Services – Relevant Fire Safety Systems are covered by CFSP regulation

Other Essential Services – extension of CFSP to include other fire systems (similar to

measures incorporated in Fire Safety Schedules)

Structural

Electrical

Water proofing

Architecture

Building services

19. What should be the minimum requirements for a registration scheme?

A registration scheme should be government run. NFIA cannot support the privatisation

of regulatory oversight. A robust registration system should be underpinned by an

independent registration authority and only Government should be performing this role.

20. What form of insurance should be mandatory for ‘building designers’? Why?

Professional indemnity, public liability – up to $10 - $20m depending on size of project.

21. What kinds of minimum requirements should be prescribed for the insurance policy

(for example, value, length of cover, etc.)?



Professional indemnity has to extend for 7 years after completion of project.

22. What skills should be mandatory for ‘building designers’?

Technical skills commensurate with the field of expertise.

Demonstrated competence

Ongoing professional development

P.I. Insurance

23. Should specific qualification(s) be required?

Yes, nationally recognised trade and university qualifications. NFIA believes that any

robust accreditation or licensing scheme must align national training packages with

accreditation categories, scopes and prescribed activities, contain a comprehensive audit

regime and a CPD process.

NFIA believes that only trade and post trade qualifications are based on training that covers

a broad range of job knowledge, verification of job performance, and an evaluation of work

experience. These qualifications represent a job outcome and career profile and not just a

course outcome. With a strong focus on practical learning, trade and post trade

qualifications can never be gained by attendance alone. A full trade outcome also gives the

practitioner a complete understanding of the systems that they will be working on.

Assessment is independent, rigorous and based on national standards. Qualifications that

simply cover individual units of competency representing distinct skill sets which are

narrow in their focus carry an inherent limitation of their purpose.

23. Should there be other pre-requisites for registration?

Demonstrated experience assessment and evidence of ongoing professional development.

24. What powers should be provided to the regulator to support and enforce compliance

by registered ‘building designers’?

To receive any information that they deem necessary in relation to the design and

installation of the works.

To call meetings with the building designers who would be obliged to attend within a

reasonable time frame.

To request the builder to carry out tests and inspections at the regulators discretion (within

regulated or legislated limits).



25. Which categories of building practitioners should owe a duty of care?

Our comment relates only to our area of expertise – Fire Services

The duty of care obligations for a fire services contractor should not extend beyond the

duty of care implied under the contract.

NFIA believes that the duty of care should belong to the licensed, registered or accredited

person or entity who endorsed the design of the system and signed off the work at hand

over.

26. What should be the scope of the duty of care? Should it apply to all or certain types

of work? If so, which work?

No comment

27. How will the duty of care operate across the contract chain?

No comment

28. What types of consumers should be owed a duty of care?

No comment

29. On what basis should a particular consumer be afforded the protection?

No comment

Prepared by:

Ms Anita Campbell

Executive Officer

National Fire Industry Association

Authorised by:

Mr Wayne Smith

Chief Executive Officer

National Fire Industry Association

Building Stronger Foundations Discussion Paper · 2019-08-16 · Building Stronger Foundations...

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