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Product Compliance – the Confronting Reality

In November 2014 a fire raced up the side of a multi-storey apartment building in Melbourne’s Docklands. The fire, which was started by a discarded cigarette, was fuelled by cladding material that failed to meet the necessary standards for combustibility.

More than 400 people were evacuated during the fire, which destroyed seven units and caused an estimated $5m in damage. After a thorough and damning investigation by the Metropolitan Fire Brigade (MFB) and subsequent Post Incident Analysis Report, the Victorian Building Authority have launched an investigation into the builder and building surveyor. In addition, the Authority is also auditing all inner city high rise buildings to ensure compliance. Many owners within the Lacrosse building are now also pursuing a class action lawsuit. All because of the use of non-compliant, cheap cladding, likely in pursuit of commercial savings.

This incident could well be described as a near miss in terms of the potential life safety impact. Fire protection systems and equipment installed in this building performed beyond expectation in response to a fire risk they were not designed for or expected to mitigate. For example, the MFB’s report confirms that the fire caused 26 sprinkler heads to activate and that fortunately in this instance a combined sprinkler/hydrant water supply supported this activation to maintain a level of effectiveness to allow evacuation. Separate sprinkler and hydrant water supply arrangements that were also permissible may have resulted in a dramatically different outcome. Fire protection systems and equipment installed within buildings are not expected to contend with fire spreading over multiple floors via the external façade and this event clearly indicates that the strength of building safety performance is the sum of many parts. The failure of one part alone can have significant consequences. Hence the importance of product compliance and independent confirmation that products achieve expected performance benchmarks and are ‘fit for purpose’. This incident is just one small sample of what FPA Australia believes is a systemic issue across the building and construction sector in Australia. The Association supports the work of the regulator in investigating this incident, but believes the weight of evidence of non-compliance issues now requires strong action to reform at a national level regarding product compliance requirements and that this should be risk based before a fire tragedy occurs involving loss of life.

Product compliance – the case for a thorough review
The Association has long advocated for change in this space.

As an example, in 2011 the Victorian Auditor General’s Office (VAGO) report into the private building surveying industry in Victoria found that 96% of permits examined did not comply with the relevant building and safety standards.

At the time the Association called for a similar full-scale review of the signoff process into building occupancy. FPA Australia CEO, Scott Williams, said that despite the efforts of FPA Australia and many other industry stakeholders, more than three years later little had changed.

“Today we still have occupied buildings in Australia that have significant questions over the level of life safety provided for occupants and the public,” Mr Williams said.

“In the building and construction industry it is widely known that non-compliant products are bypassing the building approval process and are being installed in Australian buildings. This is a most significant concern to life safety and yet worryingly, in almost all cases these issues are only identified when a fire event occurs.

“The community has an expectation that, particularly in new, multi-storey buildings, they will be reasonably safe from fire. It appears this is not the case in many Australian buildings today. We know anecdotally that there are many other non-compliant products installed in many other buildings around the country.

“In a developed country, non-compliant products simply should not be installed in buildings without required approvals. All stakeholders, not just the Building Surveyors, need to take their share of responsibility for product specification, selection and use in the design, installation and approval process. Clearer expectations and education of roles and responsibilities and good practice advice is needed.”

It is well recognised by Australian industry that global economic forces have an increasing impact on the production and supply of goods and services.

The World Trade Organisation (WTO) Agreement on Technical Barriers to Trade signed by Australia (agreement member) to support acceptance of imported and exported product has the following objective:

“The Agreement on Technical Barriers to Trade tries to ensure that regulations, standards, testing and certification procedures do not create unnecessary obstacles, while also providing members with the right to implement measures to achieve legitimate policy objectives, such as the protection of human health and safety, or the environment.”

Australia’s acceptance of this WTO Agreement has influenced the development of the Evidence of Suitability options for product compliance in the National Construction Code (NCC). In particular, Australia’s acceptance of this WTO Agreement has provided flexibility to adopt a range of forms of evidence, including certain international documentation.

The Australian regulatory requirement has adopted this flexibility providing multiple pathways to demonstrating product compliance. However each of the pathways currently permitted, have varying degrees of rigour when it comes to product assessment. For example it is equally acceptable under the NCC to demonstrate evidence of product suitability via a scientific test report from an accredited laboratory, as it is to accept the opinion of an individual with unknown qualifications.

The safety and confidence of consumers and the interests of product manufacturers and suppliers who take product compliance seriously is not supported by the current regime. Many FPA Australia members expend significant time and finances to research and test products to appropriate standards and also engage in product surveillance regimes. To lose market share to competitor product that has not undergone similar assessment does not provide much incentive for these companies beyond maintaining internal quality assurance standards. The result, less investment in product compliance assessment. Furthermore it is difficult for designers, installers, project certifiers and enforcement agencies to determine compliance due to the absence of rigour of some options and indeed the multiple options available.

Earlier in 2015 another high profile product compliance issue was revealed with the well documented use of Infinity Cable, a non-compliant electrical cable imported and installed in tens of thousands of Australian homes. Also with the demise of Australian manufacturing, the demand for imported product is not likely to diminish in the foreseeable future. Combined with a growing list of anecdotal instances of product non-compliance, pressure is mounting on governments to continue Australia’s commitment to the WTO Agreement on Technical Barriers to Trade to support economic prosperity and productivity objectives, but take decisive and meaningful action, as permitted by this Agreement to better establish and maintain minimum product performance standards and protect Australian business, industries and the community from the consequences of under-performing and un-safe product.

Solving non-compliance – Association initiatives
The investigation of building practitioners involved in the installation and certification of non-compliant products only treats the symptoms of this major issue, not the cause and does not necessarily rectify the problem for building owners and occupants.

Reactive measures aimed at resolving non-compliance issues when they are discovered are important. However, the Association believes these cannot be the only measures applied to support the rules for compliance outlined in the National Construction Code, otherwise unscrupulous building practitioners will have little incentive to comply if cheaper options are available.

FPA Australia has determined three elements that need to be attended to in order to treat the product compliance issue.

1. Lack Of National Risk Based Product Compliance Framework
There is a wide range of options for demonstrating compliance with rules in relation to products in the NCC Building Code of Australia, and they do not all provide the same level of rigour. Although the purpose of these options is to allow maximum flexibility in the product supply chain, one unintended consequence has been exploitation caused by unclear parameters.

FPA Australia Initiative
The Association is now calling for an urgent review and reform of the national product compliance framework and is developing a new risk-based conceptual approach that categorises product into three categories; low, medium and high, and prescribes the rigour of assessment required for each category commensurate with the risk of product failure and the impact this could have. In a further innovative step, FPA Australia’s concept is to allow industry to partner with government to develop assessment rigour requirements for product types within these categories and have a level of ownership of the requirements, providing leadership to their individual industry sectors. Figure 1 below provides a snapshop of this conceptual framework.

APF_54_July15_Compliance_JK_5

The Fire Australia 2015 Conference hosted by FPA Australia in March focused on product compliance issues and the resolutions from the Conference were as follows.

  1. FPA Australia supports the establishment of a clear and meaningful product compliance framework that is aligned to the risks. Without such a framework, the safety and performance objectives of Australian construction regulations and standards are unlikely
    to be delivered and the community is at risk.
  2. FPA Australia has resolved to constitute a Fire Products Reference Group for the purpose of establishing best practice technical schedules for the assessment and certification of fire protection products for the Australian market.
  3. FPA Australia will in future establish a product listing scheme (FPAL) that provides a single point of reference to validate fit for purpose products.

The conceptual framework developed by FPA Australia (Figure 1) would pave the way for these resolutions to be progressed and outcomes achieved. Major international and local fire product appraisal bodies have already agreed to participate in the FPA Australia Fire Products Reference Group.

The appropriate regulatory setting for this review is the Australian Building Ministers Forum. This group, as part of Council of Australian Governments (COAG), sets the national agenda for building and construction in Australia. The risks of product non-compliance are not limited to any state or territory and the Association believes this issue must be addressed at the national level.

Former Parliamentary Secretary for the Federal Minister for Industry the Hon. Bob Baldwin initiated a working group to tackle product compliance issues early in 2015. Mr. Baldwin has since been replaced in this position by the Hon. Karen Andrews and FPA Australia and other industry stakeholders are continuing to champion for change to requirements nationally through the Federal ministry and the Building Ministers Forum.

2. Lack Of Industry Understanding And Education
FPA Australia believes there is a widespread lack of understanding of the rules regarding product compliance across the spectrum of individuals working in building and construction. Such people include, manufacturers and suppliers, labourers on building projects, designers, installers, certifiers, building surveyors, purchasing officers and even councils and state and federal regulatory authorities.

FPA Australa Initiative
FPA Australia has already been a leading voice in providing educational material regarding product compliance requirements. The FPA Australia Position Statement PS-05 Product Compliance and Evidence of Suitability was published in July 2014 and outlines the Associations position in addition to explaining the current product compliance pathways. This document is freely available on the Associations website www.fpaa.com.au and was referenced and supported multiple times in the recommendations of the MFB Post Incident Analysis Report regarding the Lacrosse building fire incident as a document that building practitioners are encouraged to read and understand.

In the future FPA Australia intends to run a range of CPD events to advise all stakeholders in the building and construction industry of the specific requirements under the NCC as well as a detailed understanding of the different options for demonstrating product compliance regarding fire protection products. Our magazine partner AFAC is also contributing to this important initiative by running its own a briefing sessions on the lacrosse apartment fire.

3. Lack Of Adequate Regulatory Enforcement
Legislation is only as good as its enforcement. For fire safety, the Association believes the stakes are too high for enforcement to be ignored. FPA Australia considers that it is a core responsibility of government regulators to undertake targeted enforcement aimed at deterring and treating poor practice especially regarding product compliance. The privatisation of the building approval process throughout Australia increases the responsibility on governments to remain vigilant and ensure the regulations they have introduced are actually being applied.

Mr Williams said until the issue of non-conforming products was taken seriously by regulators, the industry and the community, it would not be resolved.

“Inferior and potentially dangerous products have been, and continue to be, sold in Australia for building and construction purposes and these products routinely end up being installed in all types of construction, from family homes right up to major public and commercial buildings,” said Mr Williams.

“In instances where such products may dramatically increase the risk of fire, it is easy to see the potentially deadly consequences of such non-compliance. This is why there are established minimum standards in Australia, but there is a current lack of scrutiny and general complacency at point of sale and installation, which means product may not always meet these expectations.

“The hard truth is that, in the rush to reduce technical barriers to trade and generate import and export opportunities, government has established multiple options for product compliance with varying assessment rigour.

“Some of these options are open to deceptive practices and there are systemic problems with the way some products are tested, certified and approved for sale. This is an issue that must be addressed before lives are lost.

A supervisor keeps note of progress during a full room burn test.

A supervisor keeps note of progress during a full room burn test.

FPA Australia Initiative
The Association will continue to make strong representations to governments at all levels that change is needed in the auditing and enforcement of building product compliance in Australia. Through our membership on the Australian Building Codes Board’s Building Codes Committee (BCC), and our direct contact with the state, territory and national regulators and the media, we will continue to vocalise the need for change until this is realised.

Conclusion
A sobering final thought to illustrate how much of a problem this issue could become for Australia: weather-proofing in New Zealand and Canada and the problem of ‘leaky buildings’ has created significant economic hardship for building owners. The estimates for New Zealand (roughly the size of Victoria) are that the repair costs were up to $11.3 billion in 2009 and a recent New Zealand High Court decision awarded $25m to the owners of one building to compensate
for poor construction practice. The risks of non-compliance are damaging, costly and in the case of fire risks, potentially deadly.

FPA Australia’s undertakings outlined above will go some way to addressing the critically important issue of fire protection product compliance in Australia. However, until all stakeholders pursue this issue with similar focus, we cannot expect the problem to be resolved. The specification, purchase, installation and certification of non-compliant products is not the fault of any individual stakeholder—it is up to everyone in the building and construction supply chain, as well as regulators, to shoulder this responsibility. The community expects nothing less.

For further information, go to www.fpaa.com.au

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<p>Matthew Wright is Chief Technical Officer and Deputy CEO, FPA Australia.</p>

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