By Dr Samer Skaik
In the complex landscape of construction contracts, the termination for the Principal’s convenience is a critical area for contractors to understand. This post aims to illuminate your rights as a Contractor in such situations and guide you through navigating the process both legally and professionally. …
Termination of Construction Contracts for Owner’s Convenience: Know Your RightsRead More »
By Dr Samer Skaik
The Building and Construction Industry Security of Payment legislation (SoPA) is a vital legal framework for contractors and subcontractors in the construction industry, particularly for the recovery of progress payments. Understanding and effectively utilizing this legislation can safeguard the financial health of businesses and ensure the smooth progression of construction projects. The purpose of this post is to offer a brief guide on navigating the Security of Payment legislation, highlighting its importance and providing practical steps for contractors and subcontractors to effectively manage and recover progress payments.
Incorporating these practices and understanding the significance of the Security of Payment legislation will enable contractors and subcontractors in the construction industry to protect their rights to progress payments, fostering financial stability and operational efficiency.
By Dr Samer Skaik
The Security of Payment (SOP) Act stands as a crucial piece of legislation designed to facilitate timely progress payments in the construction industry. However, complexities arise when contractual preconditions conflict with the objectives of the SOP Act. In this post, we discuss legal issues surrounding the invalidation of such preconditions, drawing insights from various authorities. We will also explore how the SOP Act (Vic) interacts with and potentially supersedes other statutory requirements imposed by the Domestic Building Contracts Act 1995. …
Beyond Contractual Barriers: Maximizing SOP Act Protections for Progress PaymentsRead More »
By Dr Samer Skaik
As a committed advocate and researcher in construction law, I have always been passionate about enhancing the efficiency and fairness of the adjudication process within the building and construction industry. Recently, a significant government report has been released, addressing the ongoing challenges and potential reforms in the adjudication process under the Security of Payment Act in Victoria. This report serves as a critical analysis and reflection of the current state and future directions of the security of payment laws in Victoria. Herein, I share my insights and reflections on the report’s findings and the context of my contribution to this important discourse.
The Report’s Background and Purpose
The comprehensive government report was aimed at, inter alia, investigating the efficacy of the adjudication process as a dispute resolution mechanism, particularly focusing on the timely and fair payment within the construction industry. It sought to address the concerns raised by various stakeholders about the perceived inequities and inefficiencies in the system. My submission to this inquiry was driven by a desire to contribute to a more equitable and streamlined adjudication process, leveraging my experience and research in the field.
The Need for Reform in the Adjudication Process
The report elucidates the growing concerns regarding the adjudication process, including the increasing tendency for judicial interventions due to the adjudication decision-making quality and adherence to legislative requirements. These interventions often result in delaying the dispute resolution process, contrary to the original intent of the Security of Payment legislation. The report cites my views on the need for a senior adjudicator review mechanism as a means to mitigate these challenges. It reflects a shared understanding that introducing such a mechanism could significantly reduce the delays and inefficiencies plaguing the current system.
Advocating for a Review Mechanism and other reforms:
In my submissions and publications cited by the report, I have consistently advocated for the implementation of a review mechanism within the adjudication process. This advocacy is rooted in the belief that an additional layer of scrutiny could lead to more accurate and fair determinations. The report acknowledges these contributions and its impact on the recent reforms in Western Australia and New South Wales, recognizing the potential of a review mechanism to resolve disputes more efficiently and reduce the burden on judicial review systems.
Here are some quotes from the report about my contribution:
“New South Wales adjudicator and academic specialising in security of payment law, Dr Samer Skaik has published extensively on the merits of providing for senior adjudicators to review adjudication determinations. His submission to the Inquiry stated that ‘aggrieved respondents’ are currently using judicial review as a ‘delaying tactic’. He believed that a mechanism for an adjudication review would help resolve this issue. He argued that enabling adjudication reviews would provide ‘a safety net that can capture erroneous determinations away from court system which will improve industry confidence and certainty in adjudication outcomes’. page 124.
“The Committee notes that both the proposed New South Wales and existing Western Australian adjudication review models incorporate many of Dr Skaik’s processes for effective review.” page 126.
“Dr Skaik expressed concern that adjudicators may not be getting regular enough
adjudication work to maintain their knowledge and skills in applying the SOP Act to
payment disputes.” page 135.
“In contemplating the lack of transparency surrounding the fees ANAs charge adjudicators, Dr Skaik suggested empowering the Victorian Building Authority to establish ‘a reasonable fixed fee, or a scale of maximum fees for lodging applications depending on the monetary value of the payment claim’. He felt that such a measure would aid in making the adjudication under the SOP Act more ‘transparent, trustworthy, and cost-effective’” page 142.
“Premier Cranes and Rigging, the National Fire Industry Association, and Dr. Samer Skaik—an academic specializing in security of payment laws—also supported the introduction of trust accounts for retention money.” page 177.
Reflecting on the Report’s Findings and Moving Forward
The findings and recommendations of the report are a testament to the collective efforts of industry professionals, academics, and policymakers to critically evaluate and improve the adjudication process. As we move forward, it’s crucial to continue this collaborative approach, ensuring that any reforms to the adjudication process are well-informed, practical, and aligned with the principles of fairness and efficiency.
By Dr Samer Skaik
Introduction
In the dynamic world of building and construction, the adjudication process stands as a swift and decisive means to resolve payment disputes. However, as this mechanism grows in prominence and utility within Australia’s Security of Payment (SOP) legislation, the competency and decision-making quality of adjudicators have come under increasing scrutiny. Recognizing the pivotal role of these professionals, Queensland has taken a proactive step by mandating Continuing Professional Development (CPD) requirements. This blog post delves into the implications of these requirements and their role in enhancing the adjudication process.
…Upholding Standards: The Crucial Role of CPD in Adjudication CompetencyRead More »
By Dr Samer Skaik
In the intricate dance of construction projects, the roles of superintendents and financier-appointed quantity surveyors (QS) are central yet often enveloped in complexity. These roles are critical in maintaining contractual integrity and financial oversight. However, their independence and impartiality are subjects of ongoing legal scrutiny. This post delves into the delicate balance these professionals must maintain, guided by insights from landmark legal cases. …
Unveiling the Veil: The Complex Role of Superintendents and QS in Construction ProjectsRead More »
The Legislative Assembly Environment and Planning Committee has made 28 recommendations in a bid to ensure subcontractors are paid for completed works.
An eight-month parliamentary inquiry found longstanding poor payment practices in the construction sector are having serious impacts on subcontractors, their employees and families.
‘Payment issues can also lead to the closure of businesses, affect the quality of a build and have negative flow on effects for the broader state economy,’ Committee Chair Juliana Addison said.
The inquiry also determined up to 30 per cent of adjudications are not complied with each year, leaving claimants out of pocket.
Ms Addison said reform of the legal framework, to bring it into line with other jurisdictions is long overdue.
‘Victorian security of payment law is more than two decades old and has only been substantially reviewed and updated once since it was introduced in 2002,’ she said.
‘We heard the effectiveness of this legislation has declined over time and it needs to be simplified to increase industry awareness and understanding.
‘We believe these proposed reforms will help subcontractors be paid properly for the work they complete, in a timely manner.’
The key recommendations are:
As part of the inquiry, the committee received 46 submissions and held public hearings.
‘Thank you to the many peak bodies, unions, trade associations, law experts, academics, adjudicators and government departments who provided evidence,’ Ms Addison said.
To read all of the report’s recommendations and findings go to the Committee’s website.
Source: Parliament of Victoria
By Lachlan Ingram and Madeline Kelly
The Victorian Government’s Environment and Planning Standing Committee (Committee) has made significant recommendations to amend the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) following its inquiry into non-payment of subcontractors.
…2024 forecast: Significant changes to the Victorian security of payment regimeRead More »
By Dr Samer Skaik
This submission responds to a call for stakeholder consultation regarding the Inquiry into employers and contractors who refuse to pay their subcontractors for completed works in Victoria, Australia. The author, an experienced academic and claims consultant specialising in security of payment laws, proposes reforms to the Victorian security of payment legislation.
The submission suggests replacing the existing legislation with a new one aligned with the security of payment reforms in New South Wales (NSW) and Western Australia (WA). The author argues for simplifying the definition of reference dates and eliminating excluded amounts to make the legislation more user-friendly. They also propose establishing trust accounts for retention moneys.
One key recommendation is the introduction of a full review mechanism similar to the one proposed in the NSW Building Bill 2022 and Building and Construction Legislation Amendment Regulation 2022. The review mechanism aims to address issues of quality, industry confidence, and delayed payments by providing an alternative to judicial review.
To ensure the effectiveness of the review mechanism, the submission suggests several essential provisions, including the requirement for aggrieved respondents to pay undisputed amounts and disputed amounts into a trust account. Review adjudicators should have jurisdiction to answer questions of law or fact, and judicial review applications should only be entertained after exhausting the legislative adjudication review process. The submission proposes a monetary threshold of $100,000 for accessing the review mechanism.
The submission also highlights the need for independence and impartiality in the adjudication process. It suggests regulating the financial relationship between Adjudication Nominating Authorities (ANAs) and adjudicators to ensure independence. ANAs should be transparent about their fees, and ANAs and adjudicators should be precluded from exerting influence on each other.
The workload of available adjudicators is another concern addressed in the submission. It suggests measures to ensure ANAs attract sufficient applications and limit the number of ANAs to maintain a proportional number of applications. The regulator should also publish market share data and limit authorisations to competent corporations.
Furthermore, the submission proposes the establishment of an adjudicator code of conduct that covers professional conduct, confidentiality, adjudication fees, and compulsory continuing professional development (CPD) activities. Adjudicators should only accept appointments if they are available and competent to handle the referred matters.
Overall, the submission emphasises the need for comprehensive reforms in the Victorian security of payment legislation to improve industry confidence, promote prompt payments, and ensure fair adjudication outcomes.
The submission
This submission should be read in conjunction with the author’s various publications relating to the necessary reforms in the SOP laws to be fit for purpose.[1] The author recently co-published a study which found that the main causes of the under-utilisation of the SOP Act including affordability, lack of industry confidence, lack of knowledge and awareness, impact on business relationships and limited right to access the regime.[2]
Therefore, in this submission, I propose that the Victorian security of payment legislation to be completely abolished and replaced with a new legislation that is more aligned with NSW and WA legislation. In any future reform, the definition of reference dates should be simplified and excluded amounts should be completely abandoned to make the legislation more user friendly. Trust accounts should also be established for retention moneys. In addition, the reform should address the following critical areas to reinstate the user confidence in the SOP Act and encourage more users to benefit from the regime:
The legislation should implement measures to keep the door closed for aggrieved respondents, who are not happy with the quality of adjudication decision making process to seek other available protracted despite resolution mechanisms including arbitration or litigation which will be inconvenient for both parties. Some other unhappy respondents with deep pockets may find it worthwhile to challenge the adjudication decision by way of judicial review to delay the release of adjudicated amounts to claimants.
Therefore, the introduction of adjudication review mechanism similar to the NSW model proposed in Building Bill 2022 and Building and Construction Legislation Amendment Regulation 2022 is highly recommended. The NSW model is substantially based on the author’s research findings. The introduction of adjudication review mechanism was central to the Author’s research since 2014. The Author published many relevant articles[3] and completed a PhD thesis entitled “Introducing review mechanism into statutory construction adjudication”.[4] The Author included the following statement in the thesis abstract:
The findings of this study, whilst they are very relevant to Australia, they can be applied with minor alterations to suit other jurisdictions operating equivalent security of payment legislation. It is hoped that the recommendations of this study will be considered by concerned policy makers and governmental agencies seeking to apply best practices to improve security of payment laws.
Indeed, the available evidence from the Author’s research revealed that an appropriately devised review mechanism of adjudication determinations could be a solution to many problems. The whole notion of introducing review mechanisms is to facilitate swift cash flow down the construction contractual chain and deter respondents from seeking judicial review as a delaying tactic. It is a safety net that can capture erroneous determinations away from court system which will improve industry confidence and certainty in adjudication outcomes. As such, for the review mechanism to be effective and serve the purpose, on its own right, it must pass the following checklist:
In order to meet the requirements of the above checklist, any proposed model of adjudication review mechanism must include essential express provisions:
In addition, the review mechanism should not be open to all parties and should be restricted by the means of a monetary threshold to ensure that there is sufficient substance in economic terms to make the review process economical and convenient to the parties. It is proposed that $100,000 threshold amount is ideal as established in my review mechanism model,[8] Murray model[9] as well as the two existing review mechanisms in Singapore and Victoria (e.g. $100,000). In the second reading speech of the 2006 Amendment Bill in Victoria, it was confirmed that such limit is given in order not “to disadvantage small subcontractors who rely on prompt payment to stay in business.”[10] In Singapore, the $100,000 threshold requirement helped prevent respondents from routinely exploiting the freely available review mechanism and thereby frustrating the object of the legislation by adding a tier of additional expense.[11] In this regard, Justice Prakash noted:
“The drafters of the [SG Act] must have considered that it would not be convenient or economical to provide a review process for a dispute that did not have sufficient substance in economic terms. In those cases, the respondent’s arguments on principle or facts would have to be taken up subsequently in court or in arbitration proceedings.”[12]
The prescribed threshold of $100,000 was based on an empirical evidence and best practices in the two jurisdictions. It also provides an appropriate indication of the complexity of the relevant adjudication matters. This indication seems to be acceptable in WA as it was evident in the classification provided for senior adjudicators (grade 2) based solely on this amount (see provision 16(2) of the code of practice for adjudicators and review adjudicators). This amount will strike the right balance between facilitating prompt payments to small subcontractors and providing convenient and swift remedy for aggrieved respondents regarding disputed adjudicated amounts between $100,000 and $200,000. As per the WA annual report 2020-2021[13], adjudication applications amounting to less than $100,000 were more than 50% of the total applications. By reducing the threshold from $200,000 to 100,000, the number of reviewable cases would only increase by a maximum of 10%.
The monetary sum of $100,000 seems appropriate considering the fact that disputants rarely go to court for amounts less than that to obtain a final decision for what is meant to be an interim decision. It will also improve the consistency in the approach regarding the classification of complex payment adjudication applications that might be reviewable by senior adjudicators. This threshold will achieve some sort of balance needed for the object of the SOP legislation to be maintained where adjudicating smaller disputes often involving simpler matters in dispute should be final as the comparatively small amounts at stake do not encourage the parties to seek further challenges.
The financial arrangement between ANAs and their respective adjudicators may give rise to a reasonable perception that adjudicators may not be totally independent and objective in performing their statutory functions. Many ANAs do not charge claimants any fees for lodging adjudication applications and instead of that, they charge adjudicators a nomination fee as a percentage of the total adjudicator’s fees. In the 2019-2020 financial year, for example, the reported ANA fees in NSW were AUD 1,056,928 representing around 30 percent of the total adjudicator fees of 542 released determinations.[14] In other words, the ANAs have charged adjudicators an average fee of AUD 1,950 per every adjudication determination (excluding adjudication certificate fees). In WA, some information about the financial relationships between ANAs and adjudicators is published on the relevant government website.[15] As published, Adjudicate Today (e.g. a for-profit ANA) does not charge claimants any application fees and instead charges its respective adjudicators a ‘service fee’ amounting to one-third of the adjudicator’s fees. Such service fee covers the cost of processing and administering adjudication matters, collecting fees, and promoting the legislation. Interestingly, Resolution Institute which is a non-for-profit ANA follows a similar arrangement and does not require claimants to pay any fees for lodging adjudication applications and instead it charges adjudicators a ‘nomination fee’ of 15 percent of the total adjudicator’ fees to support the promotion and use of statutory adjudication and improve the standards of professional practice.
Moving forward, the appointment of independent and impartial adjudicators cannot be achieved unless the financial relationship between ANAs and adjudicators is appropriately regulated. To do so, the regulator should preclude ANAs from charging adjudicators compulsory significant fees as a precondition of appointment. The ANAs should only be allowed to charge reasonable fees provided that the fees are fully disclosed and directly related to specific services requested by adjudicators. ANAs are obliged to provide information about the fees they charge to their respective adjudicators. The WA Act also requires ANAs to charge a maximum fee against performing administrative duties for adjudicators[16] such as sending or receiving documents to adjudication parties, arranging conferences or inspections, and issuing invoices for adjudication fees and expenses.[17] In SA, ANAs are obliged to maintain a website that includes information relating to the fees charged by ANAs to adjudicators for appointment and handling of adjudication matters.[18]
Accordingly, affected ANAs should revisit the application fees to ensure they cover all reasonable costs associated with appointing adjudicators and exercising their statutory functions. As such, the current practice of charging “$Nil” fee should be prohibited as it is inconsistent with the purpose of the SOP legislation that introduced and regulated such application fees. The regulator may establish a reasonable fixed fee,[19] or a scale of maximum fees[20] for lodging applications depending on the monetary value of the payment claim. Those measures may result in a considerable reduction in the total adjudicator fees and a likely increase in application fees. However, the measures will help make the entire process more transparent, trustworthy, and cost-effective.
Furthermore, the regulator should require ANAs to be completely independent and neutral in discharging their functions;[21] and preclude them from exercising any influence on adjudicators[22] or providing any assistance or advice to adjudication parties.[23] The Regulator should require the parties to refer to the SOP legislation or consult relevant professionals if they require clarification or assistance in preparing their adjudication submissions.[24] The regulator should also launch a hotline and develop an online portal to provide support and assistance to the parties who may struggle to understand or comply with the requirements of the SOP legislation.[25]
In WA, a legislative review conducted in 2014 claimed that “the purposes of the Act are best achieved by having the widest pool of adjudicators available.”[26] However, having too many adjudicators may give rise to further problems. Resolution Institute explained one of those problems observed in Queensland by stating: “There was a concern expressed that there are too many adjudicators which is diluting quality as adjudicators are not doing enough adjudication each year to maintain their skills.”[27] Accordingly, it can be argued that affected adjudicators may be commercially driven to accept nominations to adjudicate matters that do not necessarily fall within their areas of expertise.
Such claims indicate that the problem of insufficient adjudicator workload has a significant impact on the quality of adjudication outcomes. They also indicate that the legislatures are familiar with the existence of this problem but unfortunately, none of the recent legislative reviews or reforms attempted to address them. To examine the extent of this problem, an empirical analysis of the annual adjudication data was conducted by the author to examine the actual market share of ANAs and adjudicators.[28] The analysis revealed that ANAs struggled to attract sufficient applications to distribute among their respective adjudicators. The lack of applications will endanger the business sustainability of ANAs and their abilities to cover the expenses associated with performing the ANA functions as per the regulatory requirements. Furthermore, the analysis also demonstrates many adjudicators have received little or no referrals from the appointing body in Queensland and WA for the entire financial year. There is no reason not to believe that this problem also exists in all other jurisdictions.
Another factor contributing to this problem is the fact that the appointing body, whether it is the regulator or the ANA, has no statutory obligation to ensure that all affiliated adjudicators receive appropriate workloads to maintain their skills.[29] Furthermore, adjudicators invest considerable amounts of money in training and compliance with the regulatory requirements. However, the current low rate of referrals makes the payback period too long which may deter many competent adjudicators to engage or maintain registration.
To address this problem, the regulator should set effective measures to ensure that ANAs can attract sufficient adjudication applications to distribute among affiliated adjudicators. For instance, the regulator should link the continuity of authorisation of any ANA with its ability to maintain a reasonable market share. The regulator should publish the data relating to the market share of each ANA for public scrutiny as is currently adopted in SA and WA. In addition, the regulator should limit the number of ANAs operating at any given point of time to ensure that the number of adjudication applications is steadily proportionate to the collective number of affiliated adjudicators.[30] Indeed, there has only been a single non-for-profit ANA operating in Singapore[31] and Malaysia[32] and unlike the situation in Australia, no concerns were reported about the appointment approach.[33] Furthermore, the regulator should only authorise competent and well-established ‘corporations’,[34] and refrain from the current practice of authorising ‘persons’. The corporation should be appropriately resourced and have ready access to a reasonable pool of competent adjudicators.
Nevertheless, the appointing body, whether it is the regulator or an ANA, should ensure that accredited adjudicators receive appropriate workloads regularly. Some accredited adjudicators, however, may not be willing to accept nominations but they opt to maintain their accreditation to advance their own career goals.[35] As such, there should be a mechanism to classify and regularly update the list of ‘available’ adjudicators and avoid making referrals to adjudicators who remain inactive for a long time unless they complete further training to demonstrate competence.[36] To monitor compliance, the distribution of the referrals among available adjudicators should be disclosed regularly for public scrutiny.
The adjudicator code of conduct should be established to set out most of the expectations relating to all circumstances that may give rise to any perception of apprehended bias. The code should set expectations about professional conduct, confidentiality, policy compliance, adjudication fees, etc. The code should provide that adjudicators should also commit to genuinely engage in undertaking compulsory CPD activities similar to the arrangement in NSW and Queensland. Adjudicators should only accept the appointment if they believe they are available[37] and competent[38] to determine the referred matters. Adjudicators should also be obligated by the code to ensure they have jurisdiction to adjudicate before reviewing the merits of the referred matters,[39] and avoid incurring unnecessary expenses.[40] A contravention of the code by an adjudicator should result in suspension or cancellation of adjudicator registration. Having said that, the purported ineligibility of adjudicators should be considered as an invalid basis to challenge determinations.[41]
[1] See, for example, Skaik, S., & Monsalvo, K. F. (2022). Mandating the Continuing Professional Development in Statutory Adjudication: Adjudicators’ Perspectives. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 14(4), 04522023; Skaik S, (2021), Addressing the Elephant in the Room: The Inadequate Adjudicator Regulations in New South Wales, Construction Law Journal, 37(7), 378-391; Skaik S (2020), Security of Payment Reforms in Western Australia: A Critique of the Introduced Adjudication Review Mechanism, Construction Law Journal, 36(8), 592-616; Skaik S, chapters 3-6 in Andrew Burr (ed), International Contractual and Statutory Adjudication (2017), Routledge; Skaik S, “An empirical study: How to introduce effective review mechanisms into statutory adjudication?” (2017) 33(4), Construction Law Journal, 301-320; Skaik S, “Operational problems and solutions of statutory complex adjudication: stakeholders’ perspectives”, (2017) 9(2), International Journal of Law in the Built Environment, 162-175; Skaik S, “Effectiveness of existing adjudication review mechanisms: Views of industry experts”, (2017) 33(3), Construction Law Journal, 233-245; Skaik, Samer, “The tip of the iceberg, jurisdiction of statutory adjudicators”, (2017) 33(2), Construction Law Journal, 102-120; Skaik S, Coggins J, Mills, A, “Towards diminishing judicial intervention in Australia: A pragmatic proposal”, (2016) 32(6), Construction law journal, 659-675; Skaik S “Taking Statutory Adjudication to the next level: A proposal for Legislative Review Mechanism of Erroneous Determinations” (2016) 33(3), International Construction Law Review, 287-311; Skaik S, Coggins J, Mills, A, “The big picture: causes of compromised outcome of complex statuary adjudication in Australia” (2016) 33(2), International Construction Law Review, 123-147.
[2] Khatatneh, A, Skaik, S, Zhao x, (2021, Investigating the Causes of Subcontractors’ Underutilisation of the Security of Payment Legislation in Australia, 44th Aubea 2021: Australasian Universities Building Education Association Conference, Geelong, Australia
[3] See, for example, Skaik, Samer, “An empirical study: How to introduce effective review mechanisms into statutory adjudication?” (2017) 33(4), Construction Law Journal, 301-320; Skaik, Samer, “Operational problems and solutions of statutory complex adjudication: stakeholders’ perspectives”, (2017) 9(2), International Journal of Law in the Built Environment, 162-175; Skaik Samer, “Effectiveness of existing adjudication review mechanisms: Views of industry experts”, (2017) 33(3), Construction Law Journal, 233-245; Skaik, Samer, “The tip of the iceberg, jurisdiction of statutory adjudicators”, (2017) 33(2), Construction Law Journal, 102-120; Skaik S, Coggins J, Mills, A, “Towards diminishing judicial intervention in Australia: A pragmatic proposal”, (2016) 32(6), Construction law journal, 659-675; Skaik, Samer “Taking Statutory Adjudication to the next level: A proposal for Legislative Review Mechanism of Erroneous Determinations” (2016) 33(3), International Construction Law Review, 287-311; Skaik S, Coggins J, Mills, A, “The big picture: causes of compromised outcome of complex statuary adjudication in Australia” (2016) 33(2), International Construction Law Review, 123-147.
[4] Skaik, Samer, “Introducing review mechanisms into statutory construction adjudication”, (2017), PhD thesis, Deakin University, available online: http://dro.deakin.edu.au/eserv/DU:30103435/skaik–introducingreview-2017.pdf
[5] Skaik, Samer, “An empirical study: How to introduce effective review mechanisms into statutory adjudication?” (2017) 33(4), Construction Law Journal, 301-320.
[6] Skaik, Samer, “The tip of the iceberg, jurisdiction of statutory adjudicators”, (2017) 33(2), Construction Law Journal, 102-120.
[7] Exhaustion of alternative remedies before seeking judicial review is an established doctrine in the administrative law. See the High Court’s decision in The Queen v Cook; Ex parte Twigg [1980] HCA 36 [29], [30] and [34]; Re Baker; Martin CJ in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 [128] – [140]. See also, Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172; 42 WAR 35 [64], SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2009] SGHC 257, Comptroller of Income Tax v ACC [2010] SGCA 13; Borissik Svetlana v Urban Redevelopment Authority [2009] SGHC 154.
[8] Skaik, S, “An empirical study: How to introduce effective review mechanisms into statutory adjudication?” (2017) Construction Law Journal 33(4), 301-320
[9] See John Murray, Review of Security of Payment Laws: Building Trust and Harmony, Department of Jobs and Small Business, (December 2017)
[10] Second Reading Speech, Building and construction Industry SOP (amendment) Bill 2006 (Vic), Madden, J. M., p2419, (15 June 2006).
[11] Fong, C. K., Security of Payments and construction Adjudication, (LexisNexis, 2nd ed, 2013), p. 805.
[12] SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2009] SGHC 257 [24].
[13] Available at https://www.commerce.wa.gov.au/sites/default/files/atoms/files/2020-21_cca_annual_report_act_2004.pdf
[14] See Adjudication Activity Statistics, Quarterly report no. 4 (2019-2020), <https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0008/904535/Fair-Trading-ANA-Q4-Statistic-Report-1-April-2020-to-30-June-2020.pdf>.
[15] Available at < http://commerce.wa.gov.au/building-and-energy/find-appointor>.
[16] See WA Act s 51(7).
[17] Ibid, s 4(1).
[18] Code of Conduct for Authorised Nominating Authorities (SA) (April 2017). See also, Wallace Report, p 253.
[19] Building and Construction Industry Security of Payment Regulations 2005 (Singapore) s 12.
[20] See Building Industry Fairness (Security of Payment) Regulation 2018 (Qld) Schedule 2. See also, WA Act s 30(3).
[21] Murray Report, p 174.
[22] Wallace Report, p 145.
[23] See Building and Construction Industry Security of Payment Act Information Kit, Building and Construction Authority (Singapore) (June 2020). Available at <https://www1.bca.gov.sg/docs/default-source/docs-corp-regulatory/sop_infokit.pdf?sfvrsn=62c5f4ab_6>.
[24] Ibid.
[25] See, eg, Security of payment, Australian Building and Construction Commission, available at <https://www.abcc.gov.au/building-code/contractors/construction-phase/security-payment>.
[26] See Philip Evans, Report on the Operations and Effectiveness of the Construction Contracts Act 2004 (WA), (August 2015) p 5.
[27] See Murray Review, p 75.
[28] , Skaik S, (2021), Addressing the Elephant in the Room: The Inadequate Adjudicator Regulations in New South Wales, Construction Law Journal, 37(7), 378-391
[29] See, eg, Adjudicator Grading and Referral Policy 2015 (Qld), Queensland Building and Construction Commission, s 6.2.1.
[30] See, eg, NSW Act s 28 (1A); SG Act s28(2); WA Act s 89 & s 90 (1c); SA Bill s 20 (3c).
[31] Singapore Mediation Centre has been the sole authorised nominating body since the inception of the legislation in 2006.
[32] See Construction Industry Payment & Adjudication Act 2012, s 21(b) & s 32 (Malaysia) where the Asian International Arbitration Centre AIAC (formerly known as KLRCA) was named as the sole adjudication authority.
[33] See, eg, Singapore Academy of Law, Proposals for Amending the Building and Construction Industry Security of Payment Act (September 2015) part 3.
[34] Fiocco Report, p 181.
[35] See Andrew Wallace, Discussion Paper – Payment dispute resolution in the Queensland building and construction industry-Final Report, (May 2013), p 165.
[36] Ibid.
[37] See Code of Practice Governing the Conduct of Adjudicators, Construction Contracts Act 2013 (Ireland) s 6(i).
[38] See, eg, ANAs Conditions of Authorisation (VIC) above (n 36) s 3.2; Adjudicator Standards of Conduct (TAS) Appendix 1 (March 2016); Code of Conduct for Adjudicators (Singapore) rule 4.1 (December 2019).
[39] See Murray Review, recommendation no. 63; QLD Act s 84(2); WA Act s 36(1).
[40] See, eg, SG Act, s 16 (3b); Wallace Report, p 245.
[41] See Expert Adjudication submission.
By Dr Samer Skaik
Recently, the WA Parliament finally enacted new security of payment laws adopting many recommendations of Murray and Fiocco reports. The new WA Act introduced, among other things, the adjudication review mechanism which I have been advocating for in my research for years. I am extremely delighted that my research has finally achieved such a significant impact whereas WA became the first Australian jurisdiction to make such a brave move.https://www.linkedin.com/embeds/publishingEmbed.html?articleId=8263858878640518625
Since 2014, my research has been focused on improving the security of payment laws in the Australian building and construction sector. My research established, among other things, a framework for introducing adjudication review mechanism into the security of payment legislation which was a key finding of my PhD study. To communicate my research findings with the decision-makers, I actively engaged with many governmental agencies and professional bodies and my relevant research was published in more than 20 refereed papers in journals, books and conferences in addition to multiple governmental submissions. My work was cited and thoroughly analysed in two significant legislative reviews on a national & state level and triggered a national debate (e.g. Review of Security of Payment Laws: Building Trust and Harmony by John Murray and the Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry by John Fiocco).
My framework for adjudication review was eventually endorsed by the Commonwealth Government for implementation across Australia. Accordingly, Western Australia became the first state to formally introduce adjudication review via its new security of payment laws (Building and Construction Industry (Security of Payment) Act 2021). It is anticipated that the adjudication review mechanism will provide many contractors with an alternative convenient remedy to appeal erroneous adjudication determinations away from the court system. This will help control the overall cost and improve the quality, finality and informality of statutory adjudication.
The full story of how my research has achieved such impact together with my views about the introduced review mechanism was published in my very recent paper entitled “Security of payment reforms in Western Australia: a critique of the introduced adjudication review mechanism”. The paper was published in Construction Law Journal Const. L.J. 2020, 36(8), 607-631.
By Dr Samer Skaik
With the unprecedented outbreak of the coronavirus across the globe, many universities and schools have been initiating projects to transform their operations from ‘face to face’ to virtual environments aided by various technologies. This call seems to be inevitable since the outbreak will continue to evolve for at least another six months. In this context, three demanding questions come into play:
1) What are the available technological tools that can be fit for this purpose?
2) How to use the tools more effectively in order to provide the same level of quality education and maintain student engagement?
3) What are the success factors of a seamless transformation project?
This article is timely as it addresses the three questions and demonstrates practical tips to help educators transform ‘face to face’ operations into a more swift, effective and integrated online education. The tips can also be applicable to businesses planning for work-from-home arrangement.
There are many tools available to facilitate online education. In this article, five reliable tools are selected to serve this purpose: Zoom, Mentimeter, Asana, Google Drive and Microsoft Team. Many other tools with similar functions are also available. The following section demonstrates how each of the selected tools should be used by educators for effective online delivery that has the potential to mimic the traditional face to face setting:
1- Main classes:
One of the main sources of learning comes from the scheduled ‘face to face’ classes or meetings where the content is taught via a lecture style. Zoom is a great reliable platform to gather all students in a similar space, yet virtual. Zoom offers various plans to suit specific requirements such as large classes but the free version would be enough for many educators. The recording of the presentation can then be made available to students to access online. In addition, Zoom has a few engagement tools such as polls and chatrooms which makes it a bit tricky if the student engagement is a priority for educators. Therefore, a student response system such as Mentimeter can overcome this limitation and boost the engagement of students to its maximum potential.
Mentimeter is an interactive presentation tool that helps an educator upload the static PowerPoint slides into an online platform and add interactive questions in the form of a bar chart, Likert scale, word cloud, quiz format, etc. Students can then connect to the slides using a six-digit code from any device connected to the internet and engage with the content. The tool provides students with the opportunity of posing anonymous questions at any point of time during the live presentation. The tool can also be used to develop forms to collect certain information such as taking attendance.
2- Tutorials and group activities
Regular tutorials or workshops are usually offered as additional support to reinforce learning and encourage collaboration among students. As such, group activities are the most common pedagogical strategy to serve that purpose. In an online environment, Zoom’s Breakout Rooms can help organise those sessions. The educator, who will be the host of the Zoom session, can provide a brief about the activity at the beginning then split the attendees into random or customised groups. Each group will be assigned a separate session. Then, the host can join each group in their private sessions upon request to provide them with assistance. At the end of the group sessions, attendees will automatically go back to the main session.
3- Assessment tasks
It is challenging to stimulate students to genuinely undertake coursework assessments in an online setting unless measures are put in place to mimic the on-campus learning experience. Online tutorials, as explained above, are a good avenue to engage and support students in undertaking assessments. Many assessments are devised as group-based assessments to foster collaboration and polish interpersonal skills. Therefore, Asana can be used as an effective online platform for group management. The free version of the tool is enough to engage basic project management processes. The tool helps the team plan work, assign activities, manage progress and hit deadlines. Educators can be invited to join each group within Asana platform to monitor progress and provide feedback if needed. Google Drive can also be used to develop the collaborative assignment whereas a folder can be created and shared amongst group members so they can contribute their parts in one space. An educator may request a group to join the collaborative folder if there are concerns about academic integrity.
Other forms of summative assessments, such as exams, would attract more rigorous and expensive measures to move online in order to maintain academic integrity. Face recognition technology may be suitable to serve this purpose.
4- Learning content
Many learning management systems such as Moodle and Blackboard include course learning materials and discussion forums but none of them provides real-time communications and dynamic content that would be a basic feature in an online setting. Therefore, Microsoft Team can keep students informed of all ongoing activities in a certain course and support real-time conversations with their educators and peers in a friendly and informal environment. This tool boosts up collaboration and communication that are key success factors for effective pedagogy.
Success factors
All those tools are user-friendly, affordable and fit for purpose. Students can access and use them via their mobile phones. They can also receive instant notifications of updates if applicable. The tools can significantly help educators mimic the ‘face to face’ learning environment and overcome the traditional challenges of online delivery such as student disengagement, poor communication and compromised attainment of learning outcomes. That being said, the tools may experience temporary glitches, especially with the unprecedented demand in the wake of the coronavirus. This would require a contingency plan in place.
Before moving online, the digital literacy skills of both educators and students remain as a critical success factor. Therefore, a mandatory induction would be needed. Afterwards, tailored training for educators should be scheduled to provide continual professional development to improve their digital literacy. For an average user, it may take one hour of self-training online to get started with each tool. The learning curve can then rise exponentially after the first few hours of using any of those tools.
Transformation into an online operation may be a hectic and overwhelming project which may require a pilot testing before mass implementation. However, engaging project management tools and techniques will foster effective and seamless transformation whereas most uncertainties can be eliminated as early as possible. This will of-course require adequate scoping and preparation time. Therefore, it is important to make a start now and it is never too late to be agile and responsive to the ongoing devastating impact of the coronavirus.
