Readings - Legislation PDF

Readings - Legislation Friday, 2 August 2024 8:47 PM Architect Act Legislation Legislation has been enacted in each state and territory to: Protect the title of "architect" Provide a framework fo...

Readings - Legislation Friday, 2 August 2024 8:47 PM Architect Act Legislation Legislation has been enacted in each state and territory to: Protect the title of "architect" Provide a framework for practicing architects To practice in a particular place an architect must register in relevant state or territory Each jurisdiction has an Architects Act and Code of Conduct (in Vic and other states) Week 1 Page 1 Readings - AACA Regulation of Arch Profession Friday, 2 August 2024 9:09 PM A summary of state/territory legislation Eligibility 1. Registration Requirements for individuals ► A natural person is eligible if they are deemed fit and proper, have at least 2 years of practical architectural work experience, and hold a prescribed qualification in architecture or have passed a prescribed course of study and gained professional knowledge in architecture over five years. ► Prescribed qualifications are available from Deakin University, RMIT University, The University of Melbourne, Monash University, and Swinburne University. Other qualifications can be approved by the Board as equivalent. ► Prescribed courses of study include the AACA’s National Program of Assessment (NPrA) or the APEC Architect Supplementary Assessment. 2. Practice examination ► The Board may require a natural person to undertake a written or oral architectural practice examination to assess their standard of professional practice. 3. Types of registration ► The Board may require a natural person to undertake a written or oral architectural practice examination to assess their standard of professional practice. Registration Requirements for The Act provides for the approval of partnerships and companies, which must be Partnerships and Corporations recorded in the register. A partnership must include at least one registered architect covered by the required insurance. Companies must have a constitution stating that one of their purposes is the practice of architecture and at least one director must be a registered architect covered by insurance. The services must be carried out by or under the supervision of a registered architect. If one architect provides arch services and contravenes a reg, all partners that are registered arch/registered arch directors have contravened Renewal of Registration The legislation does not differentiate between initial registration and renewal. Annual fees must be paid to the Board by 30 June each year. Code of conduct The Victorian Architects Code of Professional Conduct is included in the Architects Regulations 2015. A breach of the Code may constitute unprofessional conduct by an architect. Professional Indemnity An architect must hold professional indemnity insurance, with proof required at registration, renewal, or when there are changes in coverage. The minimum required insurance is not less than $1 million plus $200,000 or 20% for defence costs, with one automatic reinstatement. Maintenance of skills and The Act requires a declaration at renewal that any required continuing professional knowledge development (CPD) has been completed. The ARBV recommends following the National CPD Framework to ensure compliance. Fitness to practice Determining where person is a fit and proper person within 10 years of applying for rego: Any illegal activity, rego has been suspended or cancelled, faced VCAT, insolvent Complaints against architect The Board may initiate an inquiry into an architect’s fitness to practice or professional conduct. An inquiry is conducted by a three-person Tribunal, which can issue various Week 1 Page 2  conduct. An inquiry is conducted by a three-person Tribunal, which can issue various determinations including caution, reprimand, further education, conditions or limitations on practice, penalties, suspension, or cancellation of registration. Complaints against an architect can lead to disciplinary action, with determinations published by the Registrar. Protection against title of architect Registration Requirements for Individuals 1. Eligibility: ○ A natural person is eligible if they are deemed fit and proper, have at least 2 years of practical architectural work experience, and hold a prescribed qualification in architecture or have passed a prescribed course of study and gained professional knowledge in architecture over five years. ○ Prescribed qualifications are available from Deakin University, RMIT University, The University of Melbourne, Monash University, and Swinburne University. Other qualifications can be approved by the Board as equivalent. ○ Prescribed courses of study include the AACA’s National Program of Assessment (NPrA) or the APEC Architect Supplementary Assessment. 2. Practice Examination: ○ The Board may require a natural person to undertake a written or oral architectural practice examination to assess their standard of professional practice. 3. Types of Registration: ○ There are two classes of registration: practising architects and non-practising architects. Non-practising architects cannot provide architectural services, do not pay fees, or provide proof of professional indemnity insurance. Registration Requirements for Partnerships and Corporations The Act provides for the approval of partnerships and companies, which must be recorded in the register. A partnership must include at least one registered architect covered by the required insurance. Companies must have a constitution stating that one of their purposes is the practice of architecture and at least one director must be a registered architect covered by insurance. The services must be carried out by or under the supervision of a registered architect. Renewal of Registration The legislation does not differentiate between initial registration and renewal. Annual fees must be paid to the Board by 30 June each year. Code of Conduct The Victorian Architects Code of Professional Conduct is included in the Architects Regulations 2015. A breach of the Code may constitute unprofessional conduct by an architect. Professional Indemnity Insurance An architect must hold professional indemnity insurance, with proof required at registration, renewal, or when there are changes in coverage. The minimum required insurance is not less than $1 million plus $200,000 or 20% for defence costs, with one automatic reinstatement. Maintenance of Skills and Knowledge The Act requires a declaration at renewal that any required continuing professional development (CPD) has been completed. The ARBV recommends following the National CPD Framework to ensure compliance. Fitness to Practice and Complaints The Board may initiate an inquiry into an architect’s fitness to practice or professional conduct. An inquiry is conducted by a three-person Tribunal, which can issue various determinations including caution, reprimand, further education, conditions or limitations on practice, penalties, suspension, or cancellation of registration. Complaints against an architect can lead to disciplinary action, with determinations published by the Registrar. This summary captures the essential regulatory requirements and processes for architects practicing in Victoria. Week 1 Page 3 in Victoria. Week 1 Page 4  Readings - Risk Management Saturday, 3 August 2024 4:14 PM Architects Standard of Care ► Legal definition ○ Architects have to duty to perform their contractual obligations with reasonable skill and case, to avoid liability for negligence ► Specialist expertise ○ Standards may vary by specialisation within the profession, standard of skill or specialist measured against standard of skill ordinarily exercised by other specialists in that field ► Compliance with accepted practice - hilarious ○ Following accepted professional practices is not necessarily a defence ○ Although evidence of ordinary practice can be used by courts to see what architects should of done ► Approval/review of plans by a planning authority ○ Approval by authorities does not diminish the architect's duty to us due care and skill as an architect. ► Minimum standards ○ Where warranty or promise is in contract, danger to provide outcome based promise that exceeds use of reasonable care and skill ○ Liability can apply, irrespective of compliance ► Risks and insurance ○ PI insurance covers failure to meet 'reasonable care and skill' standards but may not cover guarantees/unqualified promises Architects Liability Breach of Contract When architect fails to fulfill the terms of a contracts terms (CA agreement). Proof of loss or damage is (Breach in CA agreement) not necessary but will be relevant to amount and type of compensation. Architects usually contract to provide services in accordance to generally accepted professional standards/which they can obtain insurance. "architect was exercise skill and care of a reasonably competent, registered architect" (CA) Contracts should be carefully reviewed to avoid higher standards/warranties that may not be covered by insurance. Professional Negligence Negligence is a civil wrong requiring proof that the architect owed a duty of care, breached that duty, and caused loss or damage as a result The duty of care extends to clients and can also include building users if harm is reasonably foreseeable. Courts evaluate negligence based on what a reasonably competent architect would have done, considering industry knowledge, risk magnitude, and harm severity. Mistakes that lead to liability Extreme care needs to be taken only to provide services within your expertise. Liability for Negligence ► Duty of Care: Professionals, including architects, owe a duty of care not only to the original owners of a property but also to subsequent purchasers. This duty encompasses avoiding pure economic loss due to negligent advice or actions. ► Criteria for Proximity: Establishing a 'relationship of proximity' involves factors such as a connection between the contractor and owner, foreseeability of economic loss, no interference in the causation chain, and similarities in the contractor-owner relationship across different owners. ► Five Assessment Criteria: Reasonable foreseeability of loss Indeterminacy of liability Autonomy of the individual Vulnerability to risk Week 1 Page 5  Vulnerability to risk Knowledge of the risk and its magnitude ► Implications for Professionals: Professionals need to be aware of these principles to structure their contracts to limit liability for pure economic loss. The potential for delayed manifestation of damage means that keeping long-term records is advisable, especially since actions can be initiated well beyond typical statutory periods. ► Legislative Considerations: There is a call for legislative action to clarify and potentially limit the extent of professional liability to prevent indefinite and broad-ranging claims. Proportionate Liability Proportionate liability Held liable to plaintiff for the portion of loss they caused, replaced long standing common law system of joint and severally liable Joint and Severable Liability Plaintiff could recover its entire loss from any one part who contributed to the loss As each wrongdoer was regarded 'jointly and severally liable for plaintiffs' loss' Do not contract out (may be held jointly and severally liable and may not be covered by PI) Take aways Insert a clause expressly stating proportionate liability applies (so no confusion) Consider indemnity clause to ensure it considers clients negligence and proportionate liability of other consultants, contractor Limitation of liability Architects can limit their liability in contracts with clients and subconsultants through appropriately Contractual and Tortious drafted agreements. Contractual liability refers to obligations under the signed contract, while tortious liability arises from negligent actions causing damage or loss. In CA agreement, does not avoid claims against arch: Limitation of liability clause Third-Party Claims: Limitation clauses do not protect architects from claims in tort by third parties who are not part of the contract, such as individuals injured due to negligence. Misrepresentation in pre-contract negotiations: e.g. architect promises something that is untrue or doesn’t come about Consider limitation clause in your subconsultant agreement is proportionate to liability you are exposed Subconsultant agreements to in CA agreement Limitation clauses in your CA agreement = limitation clauses in subconsultant agreement = back to back provisions Client Agreements Insurance Coverage: The amount of professional indemnity (PI) insurance should reflect the risks and should prudently be higher than the negotiated liability limits. Clause G.2 CA: Provides a balanced limitation of liability, capping the architect's liability to the net amount received under their PI insurance. This protects both the architect and the client. Duty to correct and warn Duty of care of an architect to exercise due care, skill, diligence extends to client and third party that General duty of care of an comes to harm architect Without contract, only here damage due to reasonably foreseeable consequence of negligent conduct Liability: If an architect fails to meet these standards and causes damage, they are liable for that damage, either through breach of contract or in tort. Duty to correct design and Ongoing duty to check that their design will work in practice and correct any errors that may emerge construction errors prior or during construction Periodically inspect construction to ensure it conforms with design Discovery of improper Architects must closely inspect construction frequently to ensure that materials and workmanship Week 1 Page 6  Discovery of improper Architects must closely inspect construction frequently to ensure that materials and workmanship contractor performance conform with contractual requirements Discovering new information If new information reveals deficiencies in the design, especially with novel or untried methods, architects must correct the design and inform the client of associated risks. 1. Significant corrections that alter the project scope or cost require client consultation. 2. The party responsible for the error typically bears the cost of correction, but this can depend on the contract terms. Public Liability Also known as 'Broadform or General Liability' insurance, protects against liabilities for Public liability insurance injury or damage to third parties arising from the practice's premises, activities, and business conduct Covers: ○ Legal liabilities for accidental bodily injury and property damage connected to the business operations and premises ownership NOT professional activity (PI insurance will cover) ○ E.g. client injured by collapsing chair in office, architect causing injury to contractor on site Does not cover: ○ Injuries to employees (covered by workers' compensation). ○ Claims arising from motor vehicle use (covered by motor vehicle insurance). ○ Consultant/subconsultants (make sure they have their own) ○ Contracted staff ○ Staff injuring themselves (workers compensation) Duty to disclose liability ► Duty to disclose when completing insurance applications Insured is required to disclose all matter relevant to the insurers decision to accept the risk, may avoid contract if don’t If innocent mistake, it will not be misrepresentation Duty to disclose liability ► Duty to disclose when completing insurance applications Insured is required to disclose all matter relevant to the insurers decision to accept the risk, may avoid contract if don’t If innocent mistake, it will not be misrepresentation Common Risks for architects Key risk areas include: 1. Liability for Free Advice: ○ Architects can be held liable for negligence even when advice is given for free. It is important to provide disclaimers and ensure that advice is not relied upon without proper context. 2. Sketch or Development Documents: ○ Providing partial services can lead to liability if delays or losses result from inadequate service. 3. Design and Documentation Without Contract Administration: ○ This scenario often leads to legal claims due to uncorrected discrepancies and contractor mistakes that the architect could not oversee. 4. Contract Administration on Another Architect's Design: ○ More challenging and risky due to unfamiliarity with the original design, requiring extra time and higher fees to manage. 5. Certification Without Full Inspection and Contract Administration: ○ Not recommended due to high risks of insufficient information. 6. Pre-purchase and Other Inspections: Week 1 Page 7  6. Pre-purchase and Other Inspections: ○ High risk and usually not covered by professional indemnity (PI) insurance. Specialists should be engaged instead. 7. Valuations: ○ Only licensed valuers should provide valuations as architects are unlikely to be covered by PI insurance for this service. 8. Pro Bono Services: ○ Donating services carries the same liability risks as paid services, necessitating written agreements to limit liability. 9. Working in Specialist Areas: ○ Architects should avoid working in areas outside their expertise without engaging or consulting specialists to avoid negligence claims. 10. Secondment of Staff: ○ Providing staff for on-site roles increases litigation risk due to unclear responsibilities and scope of work. Clear agreements and insurance coverage are essential. 11. Staff Qualifications: ○ Ensuring that work is done by suitably qualified staff is crucial. PI policies usually cover firms for breaches of professional duty, but unqualified staff could lead to claims if not adequately supervised. Risks of free design services Avoid providing design services for free Week 1 Page 8 Readings - Insurance Sunday, 4 August 2024 11:35 PM Insurance Transfer risk = insurance Obligation of good faith - insurer to disclose everything that is relevant to insurers decision E.g. professional indemnity, workers comp, public liability etc Professional indemnity insurance for architects Risk Management Avoiding errors and omissions + Defend from the direct transfer of risk by others from the construction industry Exclusions of PI Policy Exclusions commonly found in PI polices: Contractual assumptions of liability (clauses extending liability) Waivers of rights (clauses that waive) Pre-purchase inspections Asbestos and toxic mould Cladding, pollution, terrorism Negligence actions PI claims can be made from: personal injuries, property damage, financial losses Claims from: client or third party affected that has proximity Window for litigation 6 years from the time damage occurred (can be economic i.e. dodgy footings, swimming pool leaking - 6 years from economic loss not from when dodgy footings installed) Professional indemnity insurance for architects Mandatory PI Insurance Represent yourself as higher skill, your liability will be higher Insurer can be entitled to just pay out the degree if representation had not been made Common ways representation made: CA agreement describing higher skill, marketing, website, client convos, 'Claims made' Insurance PI covers claims actually made or 'intimated' during the term of the policy even though the events leading to the claims have occurred long ago IMPORTANT to always renew promptly so no gaps in insurance Run off Cover: when retired, PI insurance to cover any new claims arising out of past work Reducing cover: reducing cover when higher previously may leave you with inadequate levels of PI Retroactive date: best to be 'non' or unlimited (to make sure you're not uninsured) PI Insurance Coverage Who should be covered: employees, directs, partners (and retired/past - pending on retroactive dates) Practice can also be held liable for agents, subconsultants and joint venture partners Proposal form: (form conveying to insurer nature of architectural business) should be filled out accurately Failure to disclose = insurer charges premium or refuse to pay claims Amount of Insurance: consider Min requirements imposed by law, contract value of project, expertise of staff, inflation, risk appetite, type of client (e.g. government usually require higher) etc. Legal cover: limit of indemnity is max amount insurer will pay Can be inclusive or exclusive of costs (legal costs) A Cost exclusive excess and limit of indemnity is the best cover Managing PI claims Potential claim Can be averted or resolved by negotiation revisions or documents Intimation or claim Claim: actual allegation in writing you/your practice is liable Intimation: can include verbal comments, or threat about you/your practice liability, suggestion in writing which are not explicit about legal actions, or your own assessment Notify: must notify, failure can leave your uninsured. Early claims can: provide guidance/engage solicitors, investigate legitimacy, prevent potential claimant incurring legal costs (which they will see to recover from you) Exclusions Exclusions: Non-compliant building products (e.g. claddings), asbestos Week 1 Page 9  Non-compliant building products (e.g. claddings), asbestos Claims involving dishonest, fraudulent, criminal or malicious acts or omissions Breaches of copyright (unless inadvertent or coincidental) Punitive damages (court ordered damages not compensation) Proximity or related entity: Claims made by relatives or entities controlled by insured (trusts) Warranties, promises Clauses Clauses in CA to indemnify client will usually be excluded Waiving proportionate liability (700,000 to be paid, 900,000 with joint and severable = you'll pay 200,000 out of pocket) Subconsultants Make sure there is no gap between practice liability to your client and the limited liability of the subconsultant AS 4122-2000 Warranties may not void insurance, but insurer not obliged to pay claims due to this Week 1 Page 10 Readings - Ethics Tuesday, 6 August 2024 9:16 PM Ethics Client expectations: Common causes of complaints against architects include poor communication, unmet expectations, Professional Ethics and poor technical performance, absence of CA agreement Meeting expectations: manage time, cost, quality through all stages Effective communication: keep clients informed, responding promptly to instructions and enquires Technical performance: adequate documents, regular inspection of works in progress to identify and have contractor correct faulty work Fees and agreements: inadequate fees = poor service = bad docs at tender = higher price for projects Resigning a commission: good practice to retain client, should be last resort Minimising areas of dispute: agreement for services, fees, responsibilities of parties, mechanism for termination Reasons for resigning: non-payment of fees, instructions conflicting with professional obligations, unrealistic requirements for budget and time, persistently bypassing arch to communicate with contractor and subbies Process: timing should not prejudice client, urgent work should be completed prior to resignation being effective ○ Talk to the client informally first about issue ○ Only if irretrievable breakdown of trust than resignation put into effect Conduct towards other architects Taking over work: CA agreement recognises various stages of project where either party can terminate and engage a Taking over work new architect. When taking over work from another architect, contractual obligations must be respected. It is important to understand copyright, moral rights, and the previous agreement's conditions. Copyright Copyright: automatic upon creation of architectural works (plans, models, buildings) owned by creator unless asigned Express license: Implied license: no agreement with client regarding copyright, generally implied license: ○ Not be revoked even if owner deviates from original plans ○ Prepare further drawings to complete project ○ Subsequent purchases can use Typically not revocable Client licensed to use documents, even when arch terminated Prior to take over, new architect should verify if there is an existing license for the use of drawings and documents from the previous architect. Moral Rights Moral rights: rights retained by the original creator/individual. Include: ○ The right to be credited, ○ Not to have their work falsely attributed ○ Not to have their work treated in a derogatory manner Newly appointed architect: ensure proper attribution in publications, publicity or awards submissions. If don’t want to be attributed, a waiver and indemnity should be obtained. Code of professional conduct Architects should not attempt to supplant another architect with a firm commitment. Professional courtesy suggests notifying the previous architect about the new appointment (ONLY with approval from client) Warranties and agreement If client objects to you contacting previous architect or previous architect objects to your use of the copyright: Obtain warranty from client they are entitled to appoint you Obtain indemnity from client from any claim from previous architect regarding copyright Defamation Care must be taken to avoid defamatory statements about others, particularly in written reports. Honest and factual reporting is essential, and statements should be verifiable. Reporting on Another When evaluating or reporting on another architect's project, focus on the work, not the person. Architect's Work Direct criticism should be avoided; if required, it should be fair, accurate, and professional. Informing the original architect about the report is courteous but subject to client approval. E.g. report for prospective purchaser or another architect's client/potential client/plaintiff (very litigious) Freedom of Information Act Reports involving government projects may be subject to disclosure under FOI laws. Reports should be factual, minimize opinion, and avoid unnecessary attribution of blame. Week 1 Page 11  Reports should be factual, minimize opinion, and avoid unnecessary attribution of blame. Pro-bono or reduced fee services Professional services offered for free or substantially reduced fee to benefit public good Pro-bono Architects should assess the prospective client's financial capacity, insurance coverage, and other avenues of financial assistance. Even for pro bono work, a formal client-architect agreement should be in place to outline the scope of services and manage expectations. Risk Management Strategies Record keeping Client architect agreement: Clearly define the scope of services, including any reduced fee or no fee components, and ensure the client understands what is included. Insurance Considerations: Be aware of limitations in professional indemnity insurance, especially regarding asbestos, and ensure coverage for work performed in a private capacity if applicable. Fee and Cost Discussions: Discuss and document any disbursements, limits on revisions, pro bono hours, and conditions for withdrawing services or charging a fee retrospectively. Have client engage subconsultants Not recommended to CA with pro-bono, contractor may be inclined to cut corners Online ethics Obligations Obligations and risk Uphold public's view of profession, professional communication etc Risk Defamation, copyright/moral right infringement, disclosing confidential info Week 1 Page 12 Readings - CA and NCC Wednesday, 7 August 2024 12:21 AM Week 1 Page 13  Tutorial - Notes 27.05.23 Friday, 2 August 2024 8:44 PM Regulation History ➔ 6 settlements govern themselves ➔ Needed laws that govern nationally ➔ Establish State and Local government ➔ Until 1901 – made a federal government – national set of rules ➔ 1910 territories were created ➔ Constitution – sets out federal and state ➔ Trade and Commerce – state o Construction o Architect ➔ Bill – Through houses – Governor General – Receives Royal assent – Becomes Act ➔ Architects Act is consumer protection – Architecture Act ➔ Architects Act is consumer protection ➔ Regulation of construction industry Body (Board) ➔ Ensures act is enacted ➔ Like a CEO (gets directed by director), job is to put into affect into Act ➔ Board is made up of architects, consumers, allied industry, ministerially elected ➔ Meet about 10 times a year o Look at disciplinary matters ➔ Registrar – is like the CEO, along with staff: o Establish Subordinate Regulations – Act may say o Regulations – so you don’t have to update the Act and then Minister can approve (doesn’t have to go to parliament) o Regulations = Rules o Register = List of licenses (representing yourself to community as having a license), businesses need to register o Compliance = Individuals on register comply with the regulations, people that aren’t architects o Educate/Inform = Minimum educate public that there is a licensing regime and provide that publicly. What they do and what the regulation ➔ Boards o Regulatory body that you can file a complaint to o Can end up in front of a tribunal o Quango – self funding – registration pays for the operation of the board Week 1 Page 14  State Based Registration ➔ Registration applies to only the state you register in ➔ You can registered in every state and territory ➔ Automatic Mutual Recognition = Fill in a form/advise, no fees, provided a license number (happened after covid due to doctors moving interstate) except Queensland. o As long as home state rego is kept valid, interstate ones will be o You need to comply with the rules everywhere (you need $1 mill PII in VIC, NSW suitable PII required) o Apply the strictest responsibility ➔ Business needs to be registered, or sole trader, when working on project interstate o Based in VIC, Client in NSW and project WA = have rego in all o You are representing yourself as an architect ➔ Client/Arch agreement = controlling legislation is that of the site ➔ Vexatious Claim – Personally want to ruin ➔ Frivolous Claim - architect chose purple, and I'm not happy with it ➔ Not in the remit Claim – Leaking building, board will only look at whether you provide the services of a reasonably competent architect Reasonably Competent Architect ➔ Defined as someone as 5 year degree, 2+ years industry, passed registration ➔ Competency Standards Act ➔ Regulations: NCC by itself by its self (no legal meaning) o Must comply in other building and planning o A lot of Native Title excluded from NCC o Australian Standards referred to ➔ Register – 54min o Trades/Construction o Some states for Engineers ➔ Compliance o Body make sure people on register comply with rules Legislation ➔ Protects building of people’s homes to the greatest degree o Highest level of regulation = to do with peoples homes o Statutory Warranties: issues, contractor needs to fix o Often peoples biggest asset and its their place to live ➔ Environmental and Planning – Planning Schemes in Victoria o Setbacks o Local council - administer the provisions of the planning legislation ➔ Permission to Build ➔ Building Permit o Privatisation in Kennet government o Building Surveyors - Certifier are privatised o But are representatives of the building council o Building Certifier – can only be engaged by the client not the builder ▪ The one that is providing permission to building - can't provide advice AND certify ▪ Get a separate consulting one Week 1 Page 15  ▪ Get a separate consulting one o When you want them to design – deemed to satisfy (follow the recipe) OR performance solution – to try assist in providing performance solution ➔ Permission from council, permission to build, permission to occupy Other Legislation that regulate ➔ Copy Right ➔ Building ➔ Architects Award ➔ Naughty Architect o In breech of the Architects Act - e.g. call yourself an architect and you caused a loss o You can be sued for breech of the Architects Act o Need to prove there is a loss (damages) Statutory Liability ➔ Break the law ➔ Liability under contract - Client/Architect Agreement o Client can be engineer, builder, ➔ Liable for the life of the contract + Window of time (but not forever), about 6/7 years Contract - Multi-storey Hospital o Covered in Core-Ten steel – want it positively fixed, although needs to be galvanised o Something falls off during contract – liable under contract – sue for damages o Damages – amount of money that puts the client back in the position before the damage o Something goes wrong in the window – can be sued under contract o Outside of contract & window – cant be sued under contract Tortious - Duty of care to provide services and advice as a reasonably competent architect - Anyone that suffers a loss because of the specification of the fixings - Boat drives past panel falls off, o Boat, property (mobile), pure economic loss, personal injury o Negligence will calculate all the above o Must be within 6ish years - Can be sued under tort until you die Liability Cap - Building defects (10 years from when it finished, when BS provides occupancy permit) - After 10 years, building caught fire, no case yet to decide - Insurance industry Week 1 Page 16  Insurance - PII - Office insurance - Make sure everyone is educated (i.e. not spec’ing crap products – reconstituted stone) - Systems and processes - Charge properly – to do drawings and be able to check them rpopoer PII ➔ Professional Indemnity Insurance: allegations to negligence, errors or omissions in your work ➔ Policy that covers you o Doesn’t cover you if you have a fee dispute ➔ Third party sues, PII is there to mitigate risk. ➔ Required by legislation ➔ Victoria – there is minimum, but need to make a call for a ➔ CRITICAL to notify PII if you have – don’t be scared to notify o If you DON’T, you may not be covered ➔ Help protect your assets – future assets ➔ Contractor – need own insurance ➔ Always read the fine print o Won’t cover cladding (alum) o Asbestos o Exclusion clauses for mould (DEAL WITH VENTILATION CORRECTLY) ➔ Need to ➔ Run off Insurance – get when you retire, not providing architectural services or advice o Premium is $1 mill ➔ Excess: ➔ Don’t be under insured Example: ➔ Concurrent Wrongdoers: Engineer, façade fabricator, contractor etc had a responsibility as well o All other involved and join you together o 50 million – Proportion the liability (Eg. Arch = 50%, Contractor 20%...) ➔ Proportionate Liability o Builder goes broke o Developer runs away o Architect ends up paying ➔ Joint and Several Liability: whoever’s left standing pays the bill ➔ Architects’ synthesis the design – indemnify contractors etc ➔ Lacrosse o 0% to contractor - No reasonable competent project manager Week 1 Page 17 - No reasonable competent project manager - Week 1 Page 18 Week 1 Page 19 Waterproofing, budget control, communication – Week 1 Page 20 Readings - Business Structure and Planning Saturday, 10 August 2024 5:25 PM Business structure and planning Establishing a business Business structure + Operational Structure + Business Plan Sole practitioner Sole practitioner Individual that is entitled to all the profits but exposed to all the risks and personally responsible for all debts and liabilities. May contractor work out to other and employ but sole business partner Need to register business name if other than their own name Advantages: simple, easy and cost effective start up, least amount of regulation, only required to pay worker comp if employ Disadvantages: personal liability for all business debts and civil claims from 3rd party, there is no isolation of the sole practitioners personal assets from the business assets Proprietary companies Proprietary companies Sole director/shareholder or number of shareholders and/or directors/shareholders in association with each other Create a sperate legal entity which owns and operates the practice Require accounting and legal advice to set up Features: Company is a legal entity in its self and in law considered to be a person Shareholder entitled to share of profit Have owners = shareholders, officeholders = directors and secretaries, director can also be shareholder Structure can provide protection to directors/shareholders against liabilities which partnerships and sole practitioners are exposed to Greater responsibilities/accountability Partnerships Partnerships Formed when two or more people go into business together to make profit Not an entity like Sa company is a legal person Must register name if not trading under their name No legal requirement to have a written partnership agreement, RECCOMENDED Advantages: not expensive, shared capital, knowledge experience, skills Disadvantages: partners can be individually/collectively liable for the defaults of other partners (including debts and negligence) Can be avoided by company structure Limited partnerships Different from conventional partnerships. Need to be registered separately from business name. Consist of Week 2 Page 21  business name. Consist of General partners (manage the business) + Limited partners (passive investors) Business planning Business plan Business plan = operational plan + marketing plan + financial projections Business plan = business objectives Strategic plan = how you will action these Operation plan Comprehensive detail around organisational structure, hierarchy, responsibilities of staff Marketing Setout current/future markets and strategies for CRM Analysis of competitors, and what you can provide Financial projections Key financial information that is often requested by your financial lender Balance sheet, income or profit and loss statement and cash flow analysis Capital investments (office, IT equipment etc) Economic contingency Starting a practice Starting a practice Registration Corporate structure (sole practitioner etc). Tax and regulations Insurance Office space and equipment Employing staff Week 2 Page 22 Readings - Risk management and insurance Sunday, 11 August 2024 2:47 PM Risk management and insurance Risk management Duty of care (legally bound) to inform/advise clients of risks Risk management divided into categories Risk identification Risk analysis Risk treatment Risk transfer Insurances Insurances Transfer risk = insurance Obligation of good faith - insurer to disclose everything that is relevant to insurers decision ○ If deliberate misrepresentation, insurer entitled to not pay out ○ Unintentional, insurer may need to only pay out amount if there was no misrepresentation E.g. professional indemnity, workers comp, public liability etc Making a claim Insured should never admit liability Directors and officers insurance Directors insurance Only applicable to companies Covers personal liability of directors, officers and usually employees where a third party suffers loss from their act or omission in fulfilling their role or functions Negligence in corporate governance, compliance with statutory duty in company management etc Not relevant Not relevant to partnerships = partners are jointly and severally liable General practice insurance Workers compensation Compulsory cover for employees whilst at place of work engaged in occupational duties. Travel Medial, repatriation, luggage loss etc. and covered for liability like public liability insurance Building and contents Insuring the practices buildings they own and business contents insurance Business interruption Physical damage can result in reduction of income. Insured nominates a period (min 3 months, max 2 years) to achieve same degree of trading Others Glass, electronic breakdown, machinery breakdown, replacing drawings, burglary and theft, motor vehicles, fidelity (doesn’t cover contract staff) Insurance cover and WHS obligations WHS laws In place nationally except WA and VIC. Must comply with regs otherwise could be Week 2 Page 23 WHS laws In place nationally except WA and VIC. Must comply with regs otherwise could be criminally or civilly liable (including if nothing happened by you did something wrong) Should follow Code of Practice Guides can be used to see what architect should've done but conversely following guide will not be 100% a defence Week 2 Page 24 Readings - Human Resources Sunday, 11 August 2024 4:39 PM Human resources & Recruitment and Employment Human resources National Employment Standards (NEP) 10 min standards of employment Will take precedent over a modern award, agreement or employment contract where these are less favourable. More favourable these will take precedent. Recruitment and Developing selection procedures to help find right people is important business skill employment Employment agreements Will set out salary, employment conditions and other statutory entitlements Include provisions addressing performance assessment, career opportunities and aspirations of practice. Engagement of contract staff Contractor or employee? Used to meet peaks and troughs in workload Important that contractor is not actually an employee (under ATO definition). Penalties apply if not (PAYG, super, interest etc) Having ABN doesn’t mean they're a contractor Written agreement specifying time for completion, contract costs and liability of individual Use contractor decision tool on ATO 100% of work during time of contract with 1 practice could be employee Considerations Tax: more convincing if services provided by contractor through trust (however not conclusive) Negligence: principal is not liable for the acts of independent contractor. Client will still action against principal Insurance: PI may not cover principal from negligence arising from contractor - policy must state acts of agents as well as employees Workers compensation: cant contract out of providing for contractor, have responsibility to ensure contractor has comp (usually if own business they will be covered) Copyright: in absence of an agreement, contractor would own copyright Agreement provisions: principals should ensure that Advise PI insurer, contractor has a Pty Ltd or trust, ABN, GST registered, insured, contractor signed for fixed price, contractor needs to make good any errors, copyright/moral rights PI Insurance 1. Insurance cover for employer Specifically extend PI insurance to contractor 2. Subrogation Insurance companies right to action against person who caused loss - contractors can incur this Employee private commissions and liability Private work effect on a Client could come after practice where employee is doing private work practice Due to employee not having assets or insurance Likely to occur if practice supported private work in any way (communications through practices email, drawing sheets, title blocks) Week 2 Page 25 Steps to take Expressly prohibit performance of private work in practices premises and use of practices resources (IT, title blocks etc) practices should have clearly written personnel guidelines (informing private client that practice has no responsibility) Employee considerations Ensure client knows practice is not related to this work Avoid time commitments that would conflict with employment Consider undertaking commission through place of employment (if they agree) Copyright and confidentiality - employees Duty of fidelity Employee legal duty to employer. Duties include: Act honestly and fairly Not earn secret profits Employer has proprietary right over certain creations made by the employee (copyright) Not disclose confidential information (inc. client information) Confidential information Specifically identified, quality of confidence (not public knowledge), be disclosed in circumstances that create obligation of confidence Duty of confidence in Common law - obligation not to disclose confidential information obtain during employment employments. Usually also specific clause in employment agreement Employee can't accept work from client when working at practice, or when left cant supplant Restrictive covenants Impose restrictions on employee to prevent them from engaging in any other employment for the duration of the contract - where likely to be a conflict of interest Minimum wages and award rates Generally increase annually Student Employment Architectural employers have a responsibility to the profession to help build skills and confidence of future generations of architects Graduates - practical Employers need to provide practical experience for architecture graduates to develop experience their professional skills and achieve registration. Provide a bridge between theory and practice Acquire basic knowledge and skill in practice of architecture Enable broad range of experience Superannuation Superannuation Superannuation Guarantee Act 1992 Super contributions by the employer must be paid into a complying supernation fund/retirement saving Contractors could be defined as employees Voluntary super contributions Managing People Week 2 Page 26 Managing People Managing people Challenge and recognition = motivating factors for employees Communication = employees make better decisions when know goals of practice, client objectives/problems Informal, somewhat formal, off site retreats, social events Management = people don’t thrive in uncertain environment Social Media Have a social media policy Flexible working Can bring positives to business including attracting/retaining good staff, increased arrangements productivity etc. e.g. reduction in hours, PT hours, altered start/finish times, job share arrangements etc WHS Duties of employers Eliminate risks to health and safety to a reasonably practical extent Have workers comp insurance Duties of employees Take reasonable care of their own health and safety at work Take reasonable care of their actions or lack or action does not have effect on others Cooperate with all directions or procedures provided by employer to comply with WHS regs Gender Equity Gender Participation rate, progression of women within the architectural profession is disproportionately low compared to number of women grads. Week 2 Page 27 Readings - Indigenous matters in practice Sunday, 11 August 2024 8:13 PM Cultural Awareness By undertaking cultural awareness training, individuals and practices can learn more about: Aboriginal and Torres Strait Islander peoples and cultures Legislation related to Indigenous place making Gain an understanding of cultural protocols Strategies can be implemented in sole, small, medium and large practices Engage in training Undertake their own RAP Encourage understanding and respect for Aboriginal culture in practice ○ During planning and development of a property (consider the place/land on which project is located) ○ Acknowledgement of Country on email signatures Increase employment opportunities and mentorships for Aboriginal/Torres Strait Islander People Week 2 Page 28 Week 2 Page 29 Readings - Privacy Legislation Sunday, 11 August 2024 8:21 PM Coverage and Exemptions Legislation Privacy Act 1988 - Australian Privacy Principles (APPs) in Schedule 1 Protect personal information and to regulate in the area of fair information practices Set out minimum standard how personal info is collected, used, disclosed and stored Entities covered by Act Individual Body corporation Partnership Unincorporated association A trust Not covered: business earning 3mill or less annual turnover (with exceptions) Exemptions Needs to be current employees Sharing information between related bodies corporate ok Australian Privacy Principles APP 1: open and transparent management of personal information (APPs) APP 2: Anonymity and pseudonymity APP 3: Collection of solicited personal information APP 4: Dealing with unsolicited personal information APP 5: Notification of the collection of personal information APP 6: Use or disclosure of personal information APP 7: Direct marketing - must not APP 8: Cross-border disclosure of personal information APP 9: Adoption, use or disclosure of government related identifiers APP 10: Quality of personal information Week 2 Page 30 Week 2 Page 31 Readings - Architects working together Sunday, 11 August 2024 8:52 PM Architects working together Working together Architects collaborate on particular projects that would benefit or client/developer suggest. Formal agreement should be prepared Typical ways Joint Venture Agreement: Create a legal separate entity for a specific project or field of work with representative from each practice on the board Agreement to include parties, accounting arrangements, taxation, insurances, liability, copyright and roles and responsibilities of each parties Legal practitioner to prepare agreements Architects in association: practices join forces but keep their own identities Both architects sign a CA agreement but have their roles clearly defined A separate agreement between the architects addressing the roles and responsibilities of each architect, fee sharing, insurances and personnel must also be prepared Should consult PI insurer prior Subconsultant agreements: one architect is principal and one is referred to in CA agreement One architect signs CA agreement This architect holds PI insurance, carries risk with client, takes profit/loss and manages the work of all the team members Other architect regarded as subconsultant who provide fee for service Week 2 Page 32 Week 2 Page 33 Readings - Copyright Sunday, 11 August 2024 9:06 PM Copyright Who owns it Creator of copyright material During employment, copyright was be the employer Owner of copyright must be a legal entity (individual, company or government) Architectural partnerships can create jointly owned or individual Exclusive rights of owners Reproduction, Communication, Performance, Adaptation Architectural material Assignment of copyright: transfer of copyright from owner to new owner using a written agreement License: permission from owner that allows another person to use copyright material Can be exclusive or non-exclusive and does not need to be in writing to be legally effective Exclusive: allows licensee exclusive rights to copyright (inc. exclusion of architect) Non-exclusive: owner can grant permission over the same material to as many licensees as they see fit. Typically the license provided to client. License agreement Strongly recommended to get license agreements in writing Granting of license not necessarily conditional on receiving payment - need to expressly set out in license agreement Architects and copyright FAQs 1. How do architects obtain copyright for their designs Automatic as soon as created with exceptions of employee under employer and government 2. Is it necessary to use copyright symbol? No legal requirement by recommended to remind people work is protected 3. Are ideas protected by copyright? No, doesn’t protect ideas, concepts, facts, information or styles - only material expression 4. Do architects have moral rights? Yes 5. Client rights a. Where client is government: government automatically owns b. Commercial clients: implied license even when architect services terminated c. Express agreement on copyright: can be transferred in writing, architect will retain moral rights. d. Under CA agreement: no implied license, only express Expressed purpose: design can only be used on project site, cant transfer to someone else, cannot share/show/give the design to anyone else Including change in ownership of site 6. Approached to take over another architect project prior to completion, what to do to protect against possible copyright/moral infringement Ascertain who copyright owner is, Ask to see copy of CA agreement that assigns copyright from architect to client Week 2 Page 34  client With client permission contact previous architect ○ No objection: get in writing ○ Objection: CA agreement to include client providing warranty clause in which client promises any copyright materials they supply you won't infringe on intellectual property right and ○ Indemnity clause for client to compensate if required Do not give client legal advice on copyright The value of copyright in designs Background AS4122-2000 General conditions Relevant components AS provides two alternatives Architect retains copyrights Copyright in a design can vest in the client but only on payment by client - of all fees due and additional fee specified in contract Value of copyright Max price that could be realised for the design in open and unrestricted market between willing but not anxious seller and buyer both acting at arm's length and with full information. Full service commissions typically involve: Creative components = sketch and detailed design Commodity component = CD and CA Detailed design = 30% Documentation = 40% Contract administration = 30% License over the arch design Even when architect retains copyright client is granted a license to use copyright material: Build design only once on site Maintain building in question Improve, modify, extend as necessary subject to arch moral rights Given relatively generous entitlement client generally have little need to attain copyright Additional fee Client might desire copyright due to Protecting uniqueness, opportunities to reuse of re sell the design Likelihood of continuing commercial relationship 40% of design fee, where no more than one sale or use of design 20% of design fee, multiple uses and sales 20% of design fee no further use or sale Conclusion Little or no reason for client to acquire the copyright in an architects design Week 2 Page 35 Readings - Moral Rights Monday, 12 August 2024 8:55 PM Copyright and Moral Rights Copyright Act expressly recognises and protects moral rights Copyright = economic rights Moral rights = honour and reputation, can't be assigned to another party 1. Right of attribution 2. Right against false attribution 3. Right of integrity 1. Attribution Requires author to be identified Architect: Architects name typically Advise client on their obligation to respect moral rights Employer retains copyright, employee retains moral rights Defences Consent: not infringement if author consents to not being attributed Reasonableness: reasonable not to identify author ○ Nature of work, difficulty in identifying author, work during course of employment etc 2. False Attribution Falsely or incorrectly credit another person for an author's work Attribute a person as author if they are not holder of moral rights Partnership/corporation = claim designed project unless individuals have consented Joint ventures/associations = joint authorship Claiming design of a project without noting part of a team Failing to mention designed as part of employment Defences Consent 3. Right of Integrity Right to not have work subjected to derogatory treatment Prejudice on architects: ○ Honour: how person considers how they are perceived ○ Reputation: relating to professional, business or personal standing in community Can be alteration - if affects character and reputation of artist Defences Consent Reasonableness: not infringement if considered reasonable. Considerations: ○ Nature of work, purpose/manner/context, industry codes, compliance, made in course of employment ○ Section 195AT (3A) Change in, relocation, demo, destruction of a building will not infringe on architects moral right of integrity if owner of building: 1. Makes reasonable enquires to discover who author is 2. If enquires successful, notification of 3 weeks for author to access/record works or consult in good faith with owner 3. If architect indicates within 3wk period, owner has to give another 3 weeks to access. Architects should factor in the potential 6 week delay if renovating/demo etc. Week 2 Page 36  Architects should factor in the potential 6 week delay if renovating/demo etc. Moral rights guide and template letters Examples Moral rights are held by individuals Examples of moral rights being impacted Work is predominantly featured without authorship noted Reproduced/published with someone else named as author Building is demo/reno'd without you being notified Examples not being violated Gave clear, written consent to publish without authorship Moral rights consent clause in agreements If you are merely not happy with alteration/treatment Client commissions and moral rights Responsibility of architect When lead consultant, architect has duty to protect rights of others negotiations with client - subconsultants, arch practice, building contractors/PMs etc Attribution Two aspects: 1. Fixed to work: plaque/sign etc (may be suitable for big but not small projects) 2. Attribution for publication: client prepared publications, or informing newspaper etc if asked (but likely not to be held liable) Integrity 1. Notifying original designer, notifying 3 weeks to decide Making a record of building prior to alteration Consult in good faith about alterations 2. Locating original designer If can't be found advise client to seek legal advise 3. Making a record before change, relocation, demo Architect to do this within 2nd 3 week period 4. Consulting the original designer Architect to do this within 2nd 3 week period 5. Fees and program Reflect extent of the additional services you will provide 6. Terms of the agreement Whether there is a plague/sign, organisations to be notified if publicised, if owner alters who to notify Consent to infringement of moral rights Consent definition Should be in writing, must (won't be consent present if don’t): Specify actions/omissions or types being consented to (can't be vague) Relate to specific work in existence Giving consent Building owners Obtain consent from author to alter building Comply with reasonable enquiry/notice/inspection procedures in Copyright Act Employees Employers required to attribute employees for work Unless employer has written consent from employee Contractors (hired by practice) Week 2 Page 37  Contractors (hired by practice) Should be required to grant consents to firm but must be in relation to acts/omissions Terms of written consent Can include terms: Permit work undertaken by person to practice without being named Permit practice to negotiate with client to form of attribution Not require practice to notify individual if notified demo/alteration etc Practice may give client/subsequent owner copy of consent Defence Include Nature and purpose of work, manner/context, relevant practice in industry Existence of consent, under employment, difficult/expense of finding author Remedies Injunction, damages, declaration of infringement, public apology, removal/reverse of any derogatory treatment/false authorship Example "Unless you (practice) and I agree otherwise in writing, I will not be attributed personally as the author of my work" Waiver of moral rights Refuse waiver of moral Architect should refuse to sign waiver. Reasons: rights 1. Cant waive rights granted under Copyright Act 2. Personal to author/cannot be assigned can only be possessed by individuals. Cannot sign agreement in relation others moral rights Indemnity Client asking to sign - indemnifying client against any infringement arising from work undertaken for them Refuse to sign, usually uninsurable Agreements with clients Advise client on moral rights (not just own by all those assisting) If you have consent agreements with staff/other consultants Can enter into agreement with client on their behalf ○ To provide client protection/ensuring moral rights are protected Week 2 Page 38  Tutorial - Notes Friday, 23 August 2024 7:08 PM Practice Exam - Specificity - Strength: may vs must, should avoid conflicts of interest or must - Precise Straightforward answer, not the one you can manipulate into the right answer Look at the information provided on the question Questions - Multiple choice - True/false Professional Indemnity - You need to have to be on the register - Employers insurance or own - Claim made insurance o When the panel falls off o When you panels went on Company Structure Sole Trader - No separation between the person and entity that creates the architecture o Can sign contracts client o Can sign contracts with subconsultants on behalf of entity o Can employ employees o Individual will provide same TFN o Entity/individual has the same assets (no separation) o Creates an on paper person - Easiest, need to register name if wanted - Negatives: personal assets are exposed if there are litigation Company - Professionals have been allowed to forma company structure o Company creates an on paper person o Separation between company and assets It can sued Week 2 Page 39  o It can sued o Doesn’t end with a person o Company can be killed off – liability of company is wound up o Director registration – company number – ASIC makes sure companies follow rules, deal with compliance and provide info out into the community o Individual can form a company – couple of grand ▪ Why wouldn’t you just do a company ▪ No good reason, other than cheaper ▪ Good way to manage risk - The shell was almost impenetrable o Now can be o Breaches of workplace safety can be liable o Not paying super of employees o Cant trade when insolvent - Accruing debt - Not personally liable for arch services provided - If it can’t get paid, assets can be liquidated - Need ASICs approval to form company - Going broke- not a breach of company Pistachio towers PTY LYM - Forms contracts with contractors, engineers etc - Last occupant - Wind up the company - Make new Peanut Towers – student accom - Sold off all apartments - Wind up company - Macadamia towers o High res - Peanut towers o Things start falling off o Owners suffer loss, find concurrent wrong doers o Cant sue director - Pheonix companies o Illegal o ASIC – hard to prove theyre bad, if theyre not doing anything wrong ▪ Restricting trade o Directors having their own numbers – helps in tracker o Not typical for architecture firms ▪ Long to start up ▪ Long to develop a brand o Lendlease ▪ Silo off different areas to separate liability Partnership - Like gluing lots of sole traders - Assets are still exposed - Joint and severable: assets are exposed if any partners make a mistake Joint Venture Week 2 Page 40 - Small Design firm and wins a design competition – joins with large firm for - JV Agreement: liability and scope defined in bespoke contract with client o Who does what work o Who gets paid o Liability: one firm design – laable for design, big firm documentation – liable for documentation and CA - Expensive to run, wouldn’t do this for a small company - If there is a company wrapped around joint venture, rules in contract that companies will take on liability when its wrapped up - Studio A1 and A2 PTY LTD – create an entity – - Vaccines – entities join to roll out vaccine – research and delivery - Disadvantage: no standard agreement, lots of legal fees - If you would like to do - Ventures can be be - When shit hits the fan o Some of the liability may transferred between architect 1 and 2 o Hard to be completely distinguishable roles – design still needs to go on site Architects in association Week 2 Page 41 - 2 x client architect agreements (separate contracts - Roles/responsibilities to be defined in contract – no need to joint venture - Architects need to have an agreement on moral rights etc - Architect 1 may do base building, Architect 2 will do fitout - Split roles - Architects not bound in contract – Memorandum of understanding o Non-binding typically (can be binding) o General agreement of how they’ll work together o Façade colour or fitout colour – who has final say etc o Can work well as long as both architect 1 and 2 get along o Risk when - Clear contractual line with architect - If you don’t merge as a company – will be partnership o WILL BE LIABLE FOR EACHOTHERS ACTIVITIES - Liability protected under contract – offers protection o Although hard to separate o A1 could sue A2 tortiously - When sign C/A agreement o Asks if parties are companies, joint venture etc - Need to be careful about who you enter a contract in with THE LINES DESCRIBE LIABILITY – LINES OF LIABILITY Liability - PI Insurance = excellent idea - Business Structures = good idea for liability - BHP company – board of directors – make money for shareholders/staff interests o CEO and staff – earn decent money o Shareholder - return on profit o 3 parts to company - Directors o Sin the business and own it – shareholder, staff - Boiler plate – pro forma – standard o Need to get advice from legal and accounts Company PTY LTD o Separate entity to you, nominated architect o If you work around the country – need to be rego’d o Building permits – use company registration number not your own (attracts personal liability) o Run in accordance with the ACT– approval or nominated architect Week 2 Page 42  Setting up Company - Setting up architecture practise: Part 3 typical question o Insurance ▪ PII ▪ Public Liability – for the environment you control (slipping over etc) ▪ Workers compensation for employees (injured at work, pjysicial and psychological) ▪ Key personal insurance – Starchitect ▪ Document insurance – most policies require 4/5 degrees of separation (hard drives) ▪ Window replacement insurance (Glass) ▪ Contents insurance o Employment of staff ▪ Employee/employer contract Can not have one but not foolish ▪ Graduates student Need to be National document – KNOW A LOT ABOUT THE ARCHIRECTS AWARD How do you calculate overtime, hours in work week ▪ Anti-Bullying/Harassment laws o Sust/First Nations ▪ Limit waste, how to make company as sustainable as possible ▪ Making available EOT facility/bike parking ▪ First Nations suppliers How you can contribute to First Nations communities – engaging businesses RAP – Reconciliation Action Plan Architects fail to make money – don’t create separate entities Copyright and Moral Rights and Intellectual Property Copyright - Right to copy something - Commercial right – can be bought and sold - Employee typically goes to employer (enforced by contract) - Copyright Act - National Act o Similar to copyright legislation globally – poretect international - Builder builds – copies your design o Business owns copyight o Can sell copyright – generally don’t do it o Under legislation – when working for government – copyright of design belongs to government o Need government permission to use images on own website o Clien - Client o Can’t copy design/can’t build it o Engage architect to do drawing, implied that there is a license ▪ Implied license, sticks to the site (sells site, permission to go with it) ▪ Became effectively law ▪ CAA Section F – You and client make an agreement that there is no implied license only express license. Client has to pay up until the date of the drawings to obtain copyright ▪ We have to be paid, has to be built on the site, ownership of the site ▪ CAA to write out license carrying with selling of site Week 2 Page 43  ▪ CAA to write out license carrying with selling of site o Starting with another architects drawings ▪ Action of copying ▪ When you get a commission – client sacks architect – they need to ▪ Write to client to ask permission to ask original architect ▪ Client says no – warranty in CAA to ensure they have a license and client will indemnify you if OG architect tries to sue you ▪ Change in design – how much copyright you have Moral Rights - 70s/80s - people started sampling other people’s music o Sampling and chopping up music into dance tracks o Lots of litigation o America – lots of cases that accumulated into precedent o If you use less than 7 seconds o Moral right to attribute the original artist - Individual person that created the original design o Needs to be attributed - Movies – credits to support moral rights - Moral and copyright – photo o License and attribute photography and architect - Employee/Employer agreement o Can’t assign to employer – employer cant take moral right (stuck to an individual) o If employer takes credit for, employee agrees not to sue– waiving your rights/allowing rights to be infringed - Responsibility o To get client to give OG architect o Give notice to OG architect 3 weeks and 3 weeks to take photos/document/listen to them - Can ask for name to be not attributed to a project First Nations Cultural Intellectual Property - First Nations Peoples term used by - First nations artistic work o Belongs to person who creates art o Knowledge, practises that don’t - Invited to hear knowledge o Ask permission to do anything at all with knowledge provided o Enormous amount of trust given – need to respectful - Something cultural that can’t be owned – that can be shared with you – but you can’t be Link on explanatory notes – - Fine print Design national park shelter - Shelter with highly polished floor - Shelter got adopted and made 50 times - Town planning – plans approved o Need permission from designer Week 2 Page 44 - Breach of copyright From Week 2 Page 45 Readings - Project Bid Saturday, 17 August 2024 10:29 AM Project Bid ► Response to advertisement (public invitation), invitaion to number of practices (select invitation) or individual invitation. Includes: ► Previous experience, project understanding, resources, proposed fees etc. Architect selection and commissions Common selection methods Tender, design competitions, invitations, referral, return business, accredited architectural competition, quality based selection Accepting commissions Need to communicate with client at outset ► Explain in detail services and fees to be charged ► Determine clients financial capacity/prior record ► Whether you have adequate experience for commissions ► Obtain a written agreement (C/A preferred) Client invitations Limited to request of architects credentials (not prelim designs) ► Open ► Select ► Staged (1. open request, 2. shortlist) Include in submission Factual info, practice philosophy, completed projects, key personnel, visual record, references, individu0 al response, presentation Promotion via proposals and tenders Promotion Even when unsuccessful, see documentation as promotional opportunity for future invitations Considerations ► Record time for future ► Failure to understand clients requirements no. 1 reason of failure ► Process: proper leadership, tracking, opportunity, deliver/present well Graduate and student commissions Taking commissions ► Ensure client knows you are not qualified/express in writing ► Consider taking commission through a practice or in association with experienced architect ► Standard of care: if not an architect, can't have PI insurance ► In VIC illegal to provide arch/drafting services if mot registered building practitioner Architecture competitions Architecture competition ► Appropriate where public significance, public interest, high quality etc ► Not appropriate where no jury, quick turnaround, budget/brief insufficient Objectives: can be project or ideas competition Eligibility: open, limited or select Staging: single or multi staged (for more complex) Week 3 Page 46 Week 3 Page 47 Fee calculation ► Analysing cost of time, calculating expenses and determining min staff charge out rates ► Prohibition of mandatory fee scales, client and arch can agree Charge out rate Charge out rates Charge out rates for technical staff, consider: ► No of hours per year for each technical staff ► % of time worked on projects/non-project time ► A factor for overheads ► Target profit margins Example Salaries and overheads Salaries and overheads Total annual expenses of practice = total of all salaries (technical and non-technical) , staff on costs, fixed and controllable overheads and non-budget items. Technical staff = project time to be accurately calculated Non-technical staff = secretory, office manager etc. generally included in overheads Overheads 1. Non-project component of salaries (non-technical staff) 2. Staff on-costs (payroll tax, super etc) 3. Fixed overheads (fixed commitments - rego fee, bank charges, equipment etc) 4. Non-budget items (contingency sum) 5. Controllable overheads (advertising, cleaning, electricity, printing etc.) Time records Records To calculate project costs, staff costs and charge out rates, accurate knowledge of how time is spent is required. Purpose 1. Historical data for future projects, fee proposals 2. Set project budgets/programs 3. Compare/monitor cash flow against predicted cash flow 4. Provide accurate invoicing on charge out contracts Determining fees for small project Determining fees Discounted fees for reduced services need to be analysed ► Consider if regular client, whether it will turn into a bigger job, resources available, do you want it ► Learn to say no if unreasonable Week 3 Page 48 Week 3 Page 49 Readings - Building contract Saturday, 17 August 2024 4:32 PM Building contract ► Consist of building contract, specifications and schedules and the drawings Contractual liability Two kinds of contract Contract under seal: valid without consideration, valid due to agreement in writing (signed, sealed, delivered) A simple contract: requires consideration. May be oral, however oral is hard to prove unless witnesses Elements necessary for 1. An offer contract existence 2. Acceptance of offer (words or conduct) 3. Consideration (act or promise of one party to contract by which their rights under contract are acquired - e.g. money or agreement not to sue) 4. Intention to create legal relations 5. Legal capacity (bankrupt, insane, infants) 6. Genuine consent (willing not influen