When CertMark International advised industry in February that it had withdrawn nine of its certificates, it brought a spotlight onto the problems with CodeMark Certificates as an avenue for the provision of evidence of suitability. AIBS says there are significant grey areas arising from certificate status changes and that this impacts community and industry confidence in the construction industry as a whole.

Media interest related to composite aluminium panel products stemming from high rise cladding fires has been significant.  So, when Wayne Liddy, Vice President of AIBS told ABC TV and radio news this problem is now also out in the suburbs, the national media payed attention, this time without a fire to show everyone, the interest was fleeting.

Mr Liddy noted that no-one knows if the countless houses with walls constructed using products that have withdrawn certificates are compliant or even if they are safe.

The ABCB has released a statement advising industry and the community that withdrawal of a certificate means that it can no longer be used as a way of providing evidence of suitability.  But that is not the whole story.

As of February 20, the JAS ANZ website reported there are 32 certificates, counting nine that were withdrawn by CertMark International recently, with either a withdrawn or suspended status, many of those related to high rise cladding products, but some are related to products often seen in low rise domestic type construction.

Industry and the community had no warning that the certificates were about to be withdrawn.  There was no announcement prior to the withdrawal – this happened after the certificates had been withdrawn, days afterwards, with the earliest alert issued by the Victorian Building Authority in the afternoon of February 22, 2019 and the general advice from the ABCB soon afterwards.  Other regulators were slower to advise industry and the community of the withdrawal.  So, the implication is, that to avoid inadvertently using a withdrawn certificate, everyone must check the status of certificates, frequently.

A list of products involved and the organisations that have certified them and who supplies them can be found on the JAS ANZ website (tip: sort the list by status; suspended and withdrawn certificates will then be found at the end of the list).

Having decided a certificate for a product is valid, a designer should feel confident in specifying it. The choice of one product over another will dictate other choices so that the design process is iterative – a decision will impact other earlier and subsequent decisions in an interdependent building design – until you get a final design where everything fits together.  So, certificate validity might be checked several times during the design process, at initial investigation of suitability, at each pass of review of decisions and perhaps again at the final design completion stage.

With the final design completed inclusive of a set of valid certificates, building surveyors will then be given the design documents and begin to assess the proposal for compliance and they too will need to check that certificates remain valid. This might happen on initial review before detailed review is undertaken – any invalid certificates would make further detailed assessment potentially futile.  It might also happen at the completion of the assessment process as part of a final quality review process before they will issue an approval.

Then a builder will need to price the product and, in jurisdictions where chain of custody or supply chain legislation related to non-conforming building products applies, to avoid costly litigation potential down the track, the builder might also check the validity of certificates before submitting their price.  If all of this is ok, the builder’s suppliers will all need to do the same when it comes time to send the product to site in order to comply with supply chain requirements.

With each of these steps, it is not hard to see that by the time a product has made it to site, the cost of checking the validity of certificates could be considerable, both in terms of time spent checking certificate validity and also for the product manufacturers or suppliers who have arranged for the certificate to be issued in the first place.

If a certificate is withdrawn, suspended or terminated pursuant to the scheme, what then?  Clearly, during the design phase, an alternative source of evidence must be found for the product or a different product with appropriate evidence used.  As described above, this can impact other parts of the design also meaning that many changes might be required because reliance on a single product certificate can no longer be had.

During the approval stage, the same applies where assessment would be delayed pending resolution of a revised design.

During the construction phase, the problem gets more expensive as it will not only require the design to be revisited and approvals to be amended, but there will also be a need for contracts to be varied before proceeding so that work on site may be held up as well.

Neither the ABCB nor individual regulators have provided advice to industry and the community about the implications of a change in the status of a certificate post construction.  This is particularly interesting as there are provisions within the scheme that allow for the recall of products where defects in information behind a certificate are fatal to the certificate’s validity.

Legislation in various jurisdictions provides that where an Australian Standard, the Building Code or other technical requirements change post approval / construction, the status of any approval is not invalidated, and the compliance status of the building is maintained.  Evidence of suitability may not fit within such provisions though because evidence of suitability is not a technical requirement. The retrospective implication for changes in status of certificates might then be that parts of a building become non-compliant.

The Australian Institute of Building Surveyors is very concerned that fundamental changes in the nature of evidence of suitability of any construction materials could occur without prior advice to industry.  Additionally, if there will be a need to issue product recall notices as a consequence of the withdrawal of any certificates, the need for the earliest possible release of information about this is acute.

The impact of the withdrawal of a certificate, let alone several at once, are multiple as follows:

• Projects that are designed using affected products will need to be re-designed with alternative products so that progress toward implementation of design work will be halted until new designs have been completed;
• Projects already under construction may need to delay work until an alternative product or products have been found, designed, approved and then retrofitted, and it may be necessary for products already used to be removed and replaced; and
• The legal status of existing buildings with products that no longer have a valid certification is not clear, nor are the implications of any change in legal status for building owners, designers, building surveyors, product suppliers, product manufacturers or contractors.

The stability of this scheme is crucial in supporting industry confidence in achieving compliance. The CodeMark Australia pathway of providing evidence of suitability is seen as the gold standard in evidence pathways.  It is crucial that evidence of suitability pathways of such status be stable as instability undermines the whole legislative scheme that underpins the delivery of safe compliant buildings in Australia.

How many more certificates might suddenly have a change in status without warning for anyone?

Can the Australian building industry have confidence in CodeMark Australia certificates?

Is industry prepared for the additional cost of demonstrating product or material suitability by means other than via a CodeMark certificate for each and every project?

There is a real need for a solution to this issue and the sooner the better.