A Queensland court has recently found that mining-related works are not necessarily excluded from the mining exclusion under the Building and Construction Industry Payments Act 2004 (BCIPA).
The BCIPA ensures that contractors are able to receive progress payments for work carried out under a construction contract. However, certain services carried out are expressly excluded under the BCIPA, such as surface working, drilling or the extraction of oil, minerals or natural gas, otherwise referred to as the mining exclusion.
As a result of a recent decision, HM Hire v National Plant & Equipment*, the definition of “construction work” has been broadened to include, in this case, the removal of timber and topsoil from a mining site, which had previously been considered to be caught by the mining exclusion and therefore not covered by the BCIPA. Consequently, the contractor was able to rely upon the regime set out in the BCIPA.
Some take outs if you are providing mining related services under construction contracts in Queensland:
- Identify the services you are providing in detail. The mining exclusion will only apply for mining activities that directly relate to the actual extraction of minerals and all other services may be covered by the BCIPA.
- Understand your statutory rights to progress payments. Your rights may differ on a state-by-state basis.