Mandating the Continuing Professional Development in Statutory Adjudication: Adjudicators’ Perspectives
Publication: Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 14, Issue 4
Abstract
Statutory adjudication is a swift dispute resolution platform to determine payment disputes within the building and construction industry security of payment legislation. In recent years, Australian courts have been more willing to intervene in the adjudication process due to the poor decision-making process and/or failure of some adjudicators to comply with the basic and essential requirements under the legislation. To improve the competence of adjudicators, Queensland has recently mandated continuing professional development (CPD) requirements for all registered adjudicators and required adjudicators to engage in predefined educational activities and obtain at least 10 CPD points every year to maintain their eligibility to adjudicate. This timely study explores the perceptions of Queensland adjudicators and the factors influencing the effective implementation of the mandatory CPD requirements. The study follows an inductive qualitative approach by adopting semistructured interviews with 11 registered adjudicators in Queensland. The study found that adjudicators generally support the notion of the CPD requirements but had mixed views regarding the content and dynamics of CPD activities. The study identified and discussed key factors influencing the effective implementation of the CPD policy, including the requirements for adjudicator registration and renewal, adjudication panel size, and adjudicator appointment criteria. The study findings are not only beneficial to inform future reforms in Queensland but also relevant to other comparable jurisdictions seeking to mandate similar CPD requirements for adjudicators.
Introduction
Over the past two decades, the building and construction industry security of payment (SOP) legislation has been evolving progressively across all Australian states and territories with the unified purpose of facilitating expeditious progress payment for subcontractors (Murray 2017). In contrast to the traditional protracted and expensive curial proceedings, the adjudication process introduced within the SOP legislation was designed to quickly resolve payment disputes and improve the cash flow of subcontractors (Bell and Vella 2010; Collins 2012). According to Davenport (2010), the crucial success factor of the SOP legislation in the Australian eastern jurisdictions is connected to the capacity of the legislation to assist contractors and subcontractors to promptly recover progress payments. However, considerable operational problems have been identified, threatening the aim of this process and creating an atmosphere of dissatisfaction over the adjudication outcomes (Munaaim 2011; Murray 2017; Skaik 2017b). The lack of trust in the system has motivated aggrieved parties to seek judicial review to challenge adjudication decisions, hurting the fast-track spirit of the legislation, and the Australian courts have quashed many determinations for reasons relating to the poor adjudication decision-making process (Bartels et al. 2014; Skaik 2017c). The arguments of successful challenges include, inter alia, denial of natural justice, acting without jurisdiction, adjudicator’s bias, and nonfulfillment of the essential role of the adjudicator (Bartels et al. 2014).
Adjudication determinations should satisfy the following basic requirements: adjudicators act within their statutory authority; they follow natural justice principles; they exercise their powers in good faith, and adjudicators’ determinations do not contain material and substantial errors of law (Skaik 2017c). The lack of strong appointment criteria has led to the appointment of adjudicators based on their availability rather than their expertise (Skaik et al. 2016). In Victoria, for instance, adjudicators are supposed to accept a referral only if they display the competencies required, encouraging a sense of self-assessment (Skaik et al. 2016).
The competence of adjudicators and their proper training are elements of considerable importance in the context of securing a quality process and results aligned with an expedited, fair, and systematic adjudication (Fiocco 2018; Murray 2017; Wallace 2013). The regulations of adjudicators as well as their training and competencies have been questioned on a regular basis (e.g., Coggins and Donohoe 2018; Collins 2012; Murray 2017; Fiocco 2018; Senate Economic References Committee 2015; Skaik 2021). To address this matter, and as a measure to counteract the increasing distrust in the legislation, Queensland introduced major reforms in 2017 and imposed several conditions on adjudicator registration. One of the imposed conditions was the requirements of continuing professional development (CPD) to maintain the quality and competencies of registered adjudicators. In November 2018, the Queensland government released Continuing Professional Development for Adjudicators Policy, hereafter “CPD policy.” In 2019, New South Wales (NSW) also mandated similar CPD requirements in its reform and released Continuing Professional Development Guidelines for Adjudicators, which has been in effect since September 2020. Although the CPD policy in Queensland has been in operation for a few years, there is little literature examining the relevant perceptions of adjudicators and evaluating the extent of the effectiveness of CPD requirements.
Therefore, this paper aims to explore the perceptions of adjudicators toward Queensland’s CPD policy and assess, according to the adjudicators’ experiences, possible improvement opportunities in the implementation of the CPD policy to make it more effective and feasible. The study is guided by the following research questions:
1.
What are the views of adjudicators regarding the mandatory CPD policy in Queensland and its requirements?
2.
What are the factors influencing the effective implementation of the CPD policy and how to address them?
Literature Review
Adjudicator Regulations in Queensland
The Queensland Building and Construction Commission (QBCC) is a statutory body within the portfolio of the Minister for Public Works, established under the Queensland Building and Construction Commission Act 1991 to regulate the building industry. Traditionally, the authorized nominating authorities (ANAs) were responsible for appointing training and appointing adjudicators to decide adjudication applications under the SOP legislation. However, Queensland introduced major reforms in 2014 and abolished all ANAs (Murray 2017; Skaik 2017a). The ANA role was taken over by the Adjudication Registrar within the QBCC (hereafter “the Registrar”) for processing adjudication applications, registration of adjudicators and referral of matters to adjudicators. The 2014 reform sought to establish a more structured mechanism for the adjudicator’s registration, appointment, and regulation after claims of perceived bias in the adjudicator’s appointment and was informed by many recommendations of a legislative review report (see Wallace 2013).
In 2017, Queensland implemented further reforms by virtue of the Building Industry Fairness (Security of Payment) Act 2017 (hereafter “Queensland Act”). Section 161 of the Queensland Act provides that, to be registered as an adjudicator in Queensland, candidates must meet specific requirements that include holding an adjudication qualification or another qualification that the Registrar appraises to be equivalent to an adjudication qualification. The Registrar nominated Contract Administration Group Pty Ltd., a private organization, to provide adjudication training and certify potential adjudicators [see Building Industry Fairness (Security of Payment) Regulation 2018, schedule 1]. The Queensland Act provides that adjudicators must renew their registration every 3 years (section 164) and details the conditions required to approve the renewal request. Furthermore, section 165 provides that all adjudicators must complete CPD to maintain their registration. The CPD requirements were further explained in sections 27 to 35 of the Building Industry Fairness (Security of Payment) Regulation 2018 as well as the CPD policy.
In 2018, the Registrar issued the Adjudicator Referral Policy to set the considerations for referring adjudication applications to adjudicators. To make the referral under this policy, the Registrar first performs an initial assessment of the application to determine whether a Grades 1 or 2 adjudicator will be adequate to resolve the application. The Registrar will consider various key matters to appoint the right adjudicator to a particular matter; specific aspects to be considered include experience, qualification, and skill. The Registrar will consider the claimed amount along with the complexity of the material issues in dispute. After this initial assessment, the Registrar will have a clearer picture of the specific skills and expertise required to determine the claim. If more than one adjudicator assessed by the Registrar are found suited to be referred to an adjudication application, the decision will be made considering the last occasion the adjudicators were referred an application, as a measure to have a fair distribution of the referral of applications. On the other hand, when dealing with complex claim applications that require the involvement of a Grade 2 adjudicator, the Registrar may consider the last occasion this adjudicator had to decide a complex matter.
CPD Requirements
The lack of competence and insufficient training of the adjudicators have been linked with deficient adjudication outcomes (Murray 2017). Similarly, it was pointed out that most adjudicators seem to lack the expertise required for handling jurisdictional challenges (Skaik 2017c). Even though many adjudicators have considerable experience and qualifications, they are unable to write good determinations that accurately tell the legal story to parties in a way that the parties can understand (Skaik 2017b). According to Murray (2017) and Skaik (2021), a timely adjudication process requires high-caliber adjudicators who can produce meaningful, well-reasoned determinations that cannot be appealed by aggrieved parties. Establishing appropriate criteria for adjudicator eligibility and training directly impacts the ability of the adjudicator to both conduct the adjudication process in a procedurally fair manner and have the necessary knowledge and experience to reach a reasonable and accurate decision (Collins 2012; Fiocco 2018; Murray 2017; Skaik et al. 2016; Skaik 2017c; Wallace 2013).
A previous study in Western Australia concluded that adjudicators must demonstrate minimum standards of competence, including legal training (Yung and Rafferty 2015). A national legislative review recommended that adjudicators should engage in continuing professional development activities and their performance should be monitored in response to the many successful court challenges (Murray 2017). In the same line, Coggins and Donohoe (2018) concluded that the quality of adjudication determinations can be improved by, inter alia, providing a formalized CPD training for all adjudicators.
In Queensland, the new CPD requirements demand the adjudicator to gather 10 CPD points each year. These points can be obtained by completing the CPD activities listed in the CPD policy or by other means that the Registrar considers comparable. This policy implies that adjudicators must spend considerable time and resources to keep their registration updated to be appointed. The CPD policy outlines the registration conditions for adjudicators and details all the requirements in terms of education and training that an adjudicator should achieve to be appointed. The CPD policy provides that adjudicators must accumulate a minimum of 3 CPD points by completing core CPD activities in each of the following areas:
1.
Legal principles (e.g., principles of contract law and construction law, construction contracts, construction projects, and analysis of the Queensland Act)
2.
Practice and procedure (e.g., natural justice, good decision making, decision writing, conducting adjudications, and roles and functions of adjudicators)
3.
Ethics (e.g., judicial ethics, impartiality, confidentiality, conflicts of interest)
Furthermore, the CPD policy provides that an approved CPD activity must be of significant intellectual or practical content directly related to adjudication and conducted by qualified experts. Table 1 provides a list of the types of CPD activities and corresponding CPD points.
| Type of CPD activity | CPD points | Maximum CPD points that can be undertaken |
|---|---|---|
| Courses, seminars, workshops, lectures, conferences, discussion groups, multimedia, or web-based program (in-person or online) | 1 CPD point per hour | N/A |
| Preparation and delivery of a lecture at seminars, conferences, or courses | 1 CPD point per hour | 5 |
| Preparation and publication of paper or case update in law, academic, or industry publication | 3 CPD points per 1,000 words | 6 |
| Satisfactory completion of subjects or modules within relevant undergraduate or postgraduate courses or units of study from a professional body | 5 CPD points per subject or module | 5 |
| Subscriptions to a professional journal or publication relevant to adjudication | 1 CPD point per subscription | 1 |
| Completion of a unit of CPD with a professional association relevant to adjudication work | 1 CPD point per unit of CPD completed | N/A |
Research Method
This study followed an inductive qualitative approach and collected primary data via semistructured interviews with 11 registered adjudicators in Queensland. The participants were shortlisted based on their availability, following a convenience sampling technique. The small sample size is recommended to support the in-depth analysis promoted by a qualitative study (Vasileiou et al. 2018). Contact details of the participants were obtained from different sources, including LinkedIn, the Registrar’s database, and the approved CPD training provider in Queensland. Upon receiving the ethics clearance from the affiliated university, the invitations to participate in this research were sent out via email to 28 adjudicators along with a consent form and an interview information sheet. The 11 adjudicators who confirmed their participation were interviewed between February and May 2021. The interview questions were carefully crafted to obtain responses that could help test the two research questions. The duration of each interview lasted around 60 min. All interviews were conducted via Zoom, recorded and transcribed with the approval of the participants. The collected data were manually analyzed using thematic analysis.
Research Findings
Biographies of Participants
Eleven adjudicators participated in the interviews, three of whom were Grade 1 adjudicators (entry level) and eight were Grade 2 adjudicators (senior level). Six participants had a legal background, including one arbitrator and five lawyers, whereas the remaining five were construction practitioners including construction managers, project managers, and contract administrators. Most of the participants had more than 15 years of experience in adjudication and 20 years of experience in the construction sector. Ten participants were practicing adjudication on a part-time basis and relied upon their respective professions to secure their main income. The participants shared their perspectives regarding the mandatory CPD policy and expressed their views on what they identified as factors influencing the effectiveness of the CPD requirements in upskilling adjudicators and contributing to better-quality outcomes of the adjudication process. The study participants were designated P1 to P11 as given in Table 2.
| No. | Grade | Qualification and experience |
|---|---|---|
| P1 | 2 | Quantity surveyor with 40 years of experience |
| P2 | 2 | Lawyer experienced in construction law with 17 years of work experience |
| P3 | 2 | Lawyer experienced in construction law with 15 years of work experience |
| P4 | 2 | Grade 2 Adjudicator with twenty years of experience in civil works |
| P5 | 1 | Mechanical engineer with a master’s in law and 6 years of experience as an adjudicator |
| P6 | 2 | Accredited mediator and arbitrator with 20 years of work experience |
| P7 | 1 | Senior contracts administrator with 20 years of work experience |
| P8 | 2 | Barrister with 10 years of experience in adjudication |
| P9 | 2 | Lawyer experienced in construction with 20 years of experience in law and construction |
| P10 | 1 | Lawyer specializing in construction law with 10 years of experience in adjudication |
| P11 | 2 | Civil engineer and a full-time adjudicator with 30 years of experience in civil engineering and 21 years of experience in arbitration |
Role of CPD Training in Upskilling Adjudicators
All the participants agreed that their approach in exercising adjudication has not changed after the implementation of the CPD requirements. Many participants pointed out that the CPD training is a valuable tool to keep them updated with the latest changes in the legislation and to do networking (P2, P3, P4, P7, P10). In this context, P2 stated: “I think the CPD requirements help to keep them abreast of current trends and changes in the law, but I don’t think they are or should be even considered as being part of the education process to be an adjudicator.” P5 acknowledged the importance of the CPD training in promoting discussion among professionals from different backgrounds, such as lawyers, project managers, and other professionals working right across the industry. Furthermore, P2 and P4 asserted that CPD training contributes to keeping adjudicators well informed of the latest developments in contract law and the approach followed by the legal fraternity when dealing with complex decisions. P6 argued: “The CPD is only one of the tools for enhancing or maintaining standards of adjudicators, but it can’t do it all, and I think there needs to be some form of either peer review or professional review of decisions.” He further elaborated: “Many adjudicators step outside the powers that they’re given under the act, and a lot of adjudicators don’t properly exercise the powers that are given under the act, and the biggest fault is that decisions are issued without adequate reasons.” P9 claimed that the CPD requirements are particularly important to strengthen the adjudicators’ knowledge in key areas outside their main expertise: “Many adjudicators who are nonlawyers have a reasonable to good comprehension of contract administration but fall down because of an absence of proper understanding of law, and similarly there’s a lot of lawyers who are adjudicators who have a reasonable to good understanding and comprehension of law but fall down in the comprehension of basic contract administration procedures in the construction industry.”
Features of Effective CPD Training
According to the participants, the CPD activities rely heavily on the level of involvement and self-awareness of the participants; therefore, the implementation of a practical component is highly encouraged to enhance the relationship between the mandatory CPD training and adjudicator upskilling. A few participants mentioned that after the recent COVID-19 outbreak, training has moved online, changing the dynamics of the CPD training. Regarding this matter, some participants (P1, P6, P9, P11) were concerned that some adjudicators can gather CPD points by only attending the CPD meetings without being truly engaged. In this context, P11 argued: “You’ll have 50 plus adjudicators at that meeting and 45 of them probably don’t have their camera switched on and don’t participate, so I suspect that they log in and walk away.” P1 proposed a smaller pool of attendees to counteract this situation. A few participants raised another concern that some adjudicators are just rushing at the end of the adjudication year to complete the CPD points just to keep their registration active but without actively taking part in upskilling (P1, P6, P9).
Furthermore, P1 compared the CPD activities conducted nowadays with the training sessions previously organized by the abolished ANAs. According to this participant, the ANA training activities were sometimes moderated by a judge who encouraged open discussions, making room for attendees to actively participate and elaborate on how a matter should be handled. P11 recalled some of the training delivered under the ANA system which required participants to respond to questions before attending the activity for further discussion and analysis, requiring that all attendees demonstrated active and meaningful participation. P6 and P10 perceived that current CPD training can be improved by adding an element of participation, including a question-and-answer (Q&A) session and assignments that could be discussed among attendees. P9 asserted that for effective CPD training, tutorials or workshops need to be developed with presentations of some scenarios followed by a discussion. P10, also a lawyer, suggested a more intensive and in-depth CPD training for practitioners who do not have a law background. P10 went on to say that practical components can be incorporated independently if the content is delivered online or face-to-face.
Some participants considered that the contents of the CPD training can be quite repetitive (P3, P5, P7). P1 confirmed that the contents are reasonable; however, the issue with the skills and the CPD training relies on the professional background and experience of adjudicators. P2 raised a similar point, stating that “the CPD requirements are great for those who are experienced.” P1 and P2 agreed that adjudicating requires demonstrable experience in legal issues as well as construction technology. P3 further added that “the reason that most security of payment determinations or decisions in Queensland are overturned by the support of the court normally has to do with the adjudicator’s jurisdiction,” emphasizing the importance of mastering some of the fundamental principles of the SOP legislation.
The participants were also asked which skills need to be further developed and enhanced to secure quality outcomes and whether the CPD training is designed to improve such skills. P2 suggested that mock adjudication is a great option but may not be appropriate for CPD activities as it takes so much time and effort; therefore, he supported webinars by experts as an alternative efficient option. P4 believed that the current training is not of utmost importance regarding educating adjudicators for producing quality decisions. P5 considered that adjudicators should be able to take the reader on the journey through their decision, taking into account that the people reading this decision might not be knowledgeable. This is the kind of skills that can only be developed by writing decisions consistently, as all the participants stated. P6, who also provides CPD training, confirmed that the contents of the CPD activities are not aimed at improving decision-making abilities. A peer review system, according to P2 and P10, in which each decision is scrutinized, is a reasonable complement to the CPD training.
Influential Factors of Effective Implementation of the Mandatory CPD Training
Registration and Renewal Process
Many participants highlighted that the current system allows unqualified adjudicators to register and questioned the ability of those adjudicators to perform as per expectation by undertaking the CPD activities. From P2’s perspective, the Registrar is allowing the registration of many candidates whose prior experience and education are insufficient for the role. P4 was critical of the adjudicator registration requirements: “Before they even get to the stage of being adjudicators, it’s not all that difficult of a course that they do, quite frankly. So, yes, I think they need a lot more. You see, for arbitrator, you’ve got to at least have completed the professional certificate in arbitration through the University of Adelaide just to even have a chance at grading, whereas with adjudicators, they just do this little course over a day or two, I think it’s a 2-day course and they are adjudicators.” This view is shared by P11, who claimed that the repealed registration process required a more challenging assessment process to filter the candidates who are less skilled for the role. In contrast, P10 expressed that the received training for registration in Queensland was adequate to understand the context of adjudication, particularly for the candidates who do not have a background in law.
Furthermore, many participants raised concerns regarding the ambiguity of the renewal process of adjudicator registration. P11 claimed that the Registrar is currently considering the completion of the CPD points only, instead of the quality of the decisions produced. In this regard, P6, who delivers CPD training in Queensland, observed that no requirement allows the Registrar to take a nonperforming adjudicator off the list. The participant went on to say that several adjudicators end up not performing well in practice despite performing well on their training. Therefore, a reapplication process should be put into practice and renewal criteria should be toughened up to disqualify adjudicators who are not performing as expected. P11 called for a more rigorous assessment process for the triennial renewal of adjudicator registration. P3, P6, and P11 recommended the involvement of a peer review system and a performance evaluation every 3 years as part of the renewal process.
Adjudication Panel Size
All participants unanimously viewed that the panel size in Queensland is too big, limiting the opportunity for adjudicators to upskill through continuous practice of adjudication. Most participants considered that the panel size is a considerable constraint in having the opportunity to adjudicate regularly. In this context, P1 argued: “There are more and more adjudicators being appointed when there is only a limited amount of work for them to do, which means that each and every adjudicator, every time they register a new person, gets less and less work.” P3 asserted that “the only way you really get good adjudicators is to keep people adjudicating all the time.” P2 argued that having a smaller pool of adjudicators will help reduce the number of successful challenges of adjudication determinations in courts. P3 claimed that the Registrar’s staff, as government employees, just follow the regulation and keep pushing for more training instead of objectively considering that the panel is big enough already. This participant further explained that the standards among adjudicators are dropping, as most of them are not allowed to adjudicate regularly. This view was supported by P1, who affirmed that the continuous practice of adjudication is the most relevant course of action in upskilling the panel of adjudicators. P5 explained there are basic skills that an adjudicator should have such as critical thinking and legal writing, and argued that such skills can only be obtained and enhanced by putting them into practice. P9 pointed out the connection between the adjudicators not getting enough referrals and the quality decline in adjudication decisions.
P9 mentioned that, over the last 10 years, there has been a substantial reduction in the number of adjudication applications in Queensland, while there has been a considerable increase in the number of adjudicators registered. P4 and P5 observed that, on average, each adjudicator receives fewer than two matters per adjudicator per year. Furthermore, P7 claimed that over 18 months, he has only adjudicated one matter and has no confidence in getting a new one soon. For this participant, limiting the number of adjudicators might be of value as well as trying to keep a good balance of people currently engaged in adjudication and building up a smaller panel size with more experience. According to P1, adjudicators doing only one adjudication per year find it more challenging to gather the skills needed to write decisions. He further stated: “It’s a bit like asking a professional golfer to go out and play on the Masters without having played any golf all year; they’re not going to do pretty particularly well and standards must drop.” This perception is shared by P2, who also considered that CPD training is not enough for inexperienced adjudicators. Similarly, two Grade 1 adjudicators (P5 and P10) expressed their concern that they will not be able to upgrade to Grade 2 if they are not adjudicating enough.
Controversial Appointment Criteria
Many participants raised similar concerns regarding the ambiguous appointment criteria of adjudicators to a particular matter as no clear link could be established between skills, experience, and appointment. Most participants were not able to identify a consistent practice that involves matching the skills of adjudicators with the matters referred to, compromising the engagement of adjudicators with the mandatory CPD training. Three participants (P8, P9, P11) were not quite certain regarding the criteria followed by the Registrar to appoint matters to adjudicators. These participants were particularly concerned that a rotation system seems to be in place instead of a discretionary process that considers the most experienced adjudicator for a particular proceeding. P11 asserted that adjudicators’ skills become irrelevant as there is no match between skills and adjudicated matters. P10, who recently registered as a Grade 1 adjudicator, claimed that such a rotation system seems to be reasonable considering the benefit for freshly enrolled adjudicators to get referrals. However, P1 observed that there is unfair distribution of adjudication referrals among the registered adjudicators: “The appointment system seems not to be fair since there is a group that is getting a lot of appointments and another group that is not getting enough to make a living out of it.” P7 and P9 pointed out a contradiction between the appointment guidelines announced by the Registrar and how adjudication matters are split up between different adjudicators. P1 contrasted the current system with the ANA system by stating that ANAs had been more inclined to perform a thorough analysis of the skills of adjudicators during the appointment process.
When analyzing the possible reasons for the lax appointment criteria, P1 and P2 mentioned that the staff currently responsible for appointing adjudicators are not trained adjudicators themselves; therefore, the Registrar staff are not in the position to read submissions. P1 wondered whether the Registrar is under pressure to ensure a cost-effective process by employing junior staff that may not be competent to appoint adjudicators. P9 claimed that the Registrar refers a matter to an adjudicator based on only the information in the adjudication application, which makes it difficult to determine with certainty the extent of the complexities in a matter that needs to be matched to a skill set. According to this participant, this situation also requires a self-assessment from the adjudicator to objectively acknowledge whether the matter received is out of their depth.
Possibility to Gather the Required 10 CPD Points per Year
The participants had varied views regarding the possibility of collecting 10 CPD points per year. Many participants argued that for adjudicators who provide CPD training or engage in teaching activities, gathering the 10 CPD points each year is feasible since they can accumulate points by merely undertaking these activities (P1, P6, P8, P9, P10). P6 mentioned other CPD activities that adjudicators can pursue to gather points, including attending court hearings or events put in place by the QBCC with free access. P3 claimed that gathering the 10 CPD points is doable, but with considerable effort. He further clarified that to gather the 10 points, adjudicators must involve themselves in almost one training activity per month; that is why he suggested reducing the number of CPD points to five. P8 shared a similar view by stating that finding the time to attend CPD training is challenging. Similarly, P10 mentioned that some activities, besides being quite costly, require taking days off work, which is a considerable burden for some professionals. P6 explained that some activities require traveling from regional areas to Brisbane, which creates more burden to regional adjudicators. Most participants, therefore, agreed on the fact that holding these events online makes the CPD points more achievable.
Cost-Benefit Element: Motivations versus Income
When participants were asked whether they could see a clear connection between getting more appointments and completing the CPD training, they unanimously agreed there is no correlation between completing or even exceeding the CPD points and getting more matters referred to them. For some participants, the motivation behind getting appointments goes beyond the profit they can make, acknowledging that it is not realistic to expect making a living out of adjudication. P2 acknowledged that despite getting enough matters throughout the year, he is aware of adjudicators who complain about receiving only one or two appointments per year and wonder whether it is worthwhile for them to continue pursuing CPD training. P4 shared similar concerns and argued that adjudicators who do small adjudications will be more reluctant to invest in CPD activities. P2 claimed that the lack of workload creates an ethical conflict as it has pushed some adjudicators to accept invalid adjudication applications.
P1 pointed out that if adjudication is not a matter of making money, adjudicators should not be losing money either. Regarding this matter, P6 stated: “For a low-time adjudicator, it is very difficult to recoup the cost of the initial certificate in adjudication. The cost of registration every 3 years is about $700. The cost of CPD is about $700 a year at the bottom end, so by the time you put all those things together, it costs more to become an adjudicator than you will get out of the process.” P7 acknowledged that the possibility of getting a financial benefit from adjudication was one of his reasons for applying for registration; however, after becoming more familiar with the process, that is no longer what keeps him engaged in pursuing CPD training. According to him, there is also the motivation to keep things fair in the industry. P10, also a full-time construction lawyer, claimed that there is no positive cost-benefit ratio between the adjudicator fees and the cost of the CPD training, but his motivation lies on the possible opportunity to handle complex matters once promoted to Grade 2 and on the continuity of learning and making connections in the construction industry. P10 further explained that if adjudication is seen from a pure business perspective, adjudicators would stop adjudicating as the cost of CPD training considerably exceeds the fees they receive.
According to P5, also a project manager for an infrastructure company, adjudicators enjoy the mental stimulation and find it more rewarding than the money they can get from adjudicating, noting how, for most of the professionals of this field, their major source of income is their main job. P8 considered that having the opportunity to judge a matter contributes to his knowledge in construction litigation. This perception was also shared by P9, who claimed that adjudication is intimately linked with his career as a barrister. He further stated that he is keen to attend CPD sessions as a presenter to obtain some recognition as an expert in the area, for the sole purpose of getting more work as a barrister. He went on to say, “I have always, as a matter of my own self-discipline, maintained and continued to maintain a regular reading of the case law, following up on what’s happening with the law, keeping in touch with the changes of the legislation, monitoring the cases coming out of all jurisdictions in terms of security of payment decisions.”
Discussion
This study explored the perceptions of Queensland adjudicators regarding the mandatory CPD requirements under the SOP legislation. It was evident from the findings that establishing a more rigorous approach to adjudicator registration, appointment, and professional development has a positive impact on the decision-making process and the user’s confidence in adjudication. Most stakeholders consulted in a recent legislative review in Western Australia supported the CPD requirements for adjudicators as a condition for registration renewal (Fiocco 2018). Most participants of this study acknowledged that CPD training is relevant in keeping them abreast of the changes in the SOP legislation; however, they advocated for more engaging and effective CPD activities. The necessity of a CPD program was also addressed in many studies (e.g., Coggins and Donohoe 2018; Skaik 2021; Zhang 2009). The study participants, however, mentioned that even if adjudicators undertake formal CPD training, they can still err when deciding on jurisdictional matters.
The successful challenges of adjudication decisions in court have been based on procedural errors that include breach of natural justice, nullity in the process, or the adjudicator not having jurisdiction to determine the adjudicated matter. Likewise, courts have identified many poor-quality decisions and questioned the adjudicator’s unsatisfactory performance (Bartels et al. 2014; Skaik 2017c). This may justify the views of some participants who called for a component of practice and discussion in the CPD training to improve the reasoning behind a decision and the ability to sustain it. Likewise, all participants agreed that there are certain skills such as critical thinking and the ability to write sound decisions that can only be developed through the actual practice of adjudication. This may imply that the CPD training is not an isolated element in securing quality outcomes and should be considered as a complementary element to the relevant professional qualifications and experience of adjudicators. Murray (2017) conveyed the views of different stakeholders who advocated the need for adjudicators to have a mixture of skills and experience as a fundamental contributor to secure consistency and quality in adjudication decisions. The study participants agreed with this approach in terms of acknowledging the connection between skills, professional background, and performance.
Nevertheless, the study identified other relevant aspects that may jeopardize the sustainability of the CPD requirements. These aspects were categorized as influential factors hindering the effective implementation of the mandatory CPD policy. Some participants, particularly Grade 2 adjudicators, were critical of the registration process as it allows incompetent adjudicators to practice after completing only a short training course, and advocated that the registration process be toughened up to prevent candidates who are not up to the standards from being admitted as adjudicators. It seems that the participants’ concerns are mainly related to large or complex adjudication matters. In this regard, Coggins and Donohoe (2018) proposed that adjudicators of large claims should undertake an additional legal training course tailored for large payment claims. This proposal seems to have merits as previous research found that 73% of registered adjudicators in Western Australia were not legally trained (Yung and Rafferty 2015).
Furthermore, some participants questioned the renewal process and considered it not rigorous enough as it does not exclude adjudicators whose performance is not up to the standards. The participants suggested that the renewal process should be based on a thorough assessment of the adjudicator’s performance. Murray (2017) recommended the inclusion of registration renewal in any SOP legislation as an effective mechanism for ongoing monitoring of adjudicators but did not provide an adequate explanation of how the monitoring process will look like. The participants in this study highlighted the importance of the assessment and stressed that it should go beyond the current CPD activities. The participants further argued that gathering the 10 CPD points per year is not enough to guarantee an adjudicator’s competence to continue practicing. The participants further suggested considering other criteria such as an analysis of adjudication decisions, the logic behind the produced outcomes, and whether adjudicator decisions were overturned in courts. Such views are consistent with the current arrangement in South Australia, whereas the Code of Conduct for Authorized Nominating Authorities (2017) provides: “An ANA must not nominate an adjudicator that has been found, by a court in Australia, to have made technical errors in performing adjudications unless the ANA is satisfied that the cause of the error has been resolved.”
The participants were also critical of the appointment process of adjudicators being controlled by the Registrar instead of ANAs. The abolishment of the ANAs in Queensland came into effect as a response to counteract the susceptibility of the system to unfairness (Wallace 2013; Murray 2017). To bring transparency to the process and increase the trust in the SOP legislation, the appointment process was shifted to the Registrar within the QBCC; however, some of the participants pointed out that this change has affected the number of appointments received, the methodology of the training, and therefore, the reinforcement of adjudicator upskilling. Some of the participants who had the opportunity to adjudicate under the ANA system recalled the intensity of the noncompulsory CPD training they received and its suitability to facilitate producing sound decisions in contrast to the current CPD training. Some of the participants referred particularly to the CPD training carried out by the Resolution Institute (formerly IAMA) that included mentoring and a peer review scheme. Regarding this matter, Zhang (2009) recalled the CPD requirements set by IAMA and recommended collaboration with this organization to develop a formal training program. Collins (2012, p. 132) also commended the education services provided by IAMA for adjudicators. Therefore, it is clear that the participants’ recommendations to engage reputable training providers are legitimate to ensure adjudicators can always handle the complexities of the adjudication applications and deliver more satisfactory outcomes.
Furthermore, it was possible to identify a connection between the adjudication panel size and genuine engagement with CPD activities. Many participants considered the number of adjudicator registrations has reached a point where there are not enough matters for all the active adjudicators. The participants argued that when panels are kept small, adjudicators will be genuinely engaged with CPD activities and will be constantly writing decisions and, therefore, enhancing their ability to deliver high-quality decisions. Adjudicators will be reluctant to invest in undertaking CPD activities if they are not able to make money out of adjudication by receiving an appropriate referral workload. According to the participants, certain skills can only be enhanced by the actual practice of adjudication, such as critical thinking, legal reasoning, and decision writing. However, the current arrangement in Queensland provides minimal opportunities for adjudicators to polish their skills and advance. A common perception among all the participants was the importance of keeping the panel of adjudicators small as a relevant aspect in upskilling adjudicators. This empirical finding is consistent with a recent study that suggested a connection between the adjudicators’ panel size and the quality of adjudication outcomes (Skaik 2021).
Conclusion
This study explored the perceptions of adjudicators regarding the mandatory CPD policy in Queensland. The study identified many aspects associated with the effectiveness, sustainability, and feasibility of the implementation of the CPD policy in Queensland. The study found that the mandatory CPD training is perceived as relevant in terms of keeping the adjudicators updated about changes in the legislation, networking, and gaining new knowledge. The CPD policy is also perceived as a complementary element to secure quality adjudication outcomes in Queensland, and the compulsory attainment of the annual CPD points should be balanced with other improvements in the legislation. The study participants advocated for more practical components to be included in the CPD activities including Q&A sessions, open debates about how to approach a particular decision, and an assessment process to test the acquired knowledge. The general concern of adjudicators is that, despite the mandatory CPD policy, they will not be able to upskill unless they are adjudicating matters continuously as some skills can only be developed with regular practice.
The study identified some factors influencing the effective implementation of the CPD policy to achieve its purpose of upskilling adjudicators. The majority of the participants, particularly those with long experience in Queensland, considered that the CPD policy and the Registrar behind it are not connected with the realities of adjudicators in terms of the type of CPD training activities required for them to upskill. The necessity of better-regulated processes for registration, appointment, and renewal of registration were identified as influential factors impacting the effective implementation of the CPD policy. The participants argued that the Registrar performs no reasonable assessment of adjudicator skills when appointing matters and perceived that the appointment system is working as a rolling list, assigning the next adjudicator available instead of performing a systematic pairing between the complexities of the matter and the set of skills and background required. In this situation, the current appointment system creates an atmosphere of distrust, which makes the mandatory CPD training less engaging and merely a requirement for maintaining registration.
The participants expressed their concerns regarding the sustainability of the mandatory CPD requirements if adjudicators are not able to secure a reasonable income out of adjudication. The study concludes that CPD requirements are only realistic if adjudicators can adjudicate regularly. The study found a general discontent among adjudicators with the number of appointments received. Particularly, adjudicators who have been adjudicating in Queensland for more than 3 years experienced a considerable reduction in the number of appointments received after the Registrar took over. This situation may be attributable to having a panel size that is just too large for the number of adjudication applications lodged each year. The study found that for Grade 1 adjudicators, the cost-benefit ratio of participating in the mandatory CPD training is negative. On the other hand, Grade 2 adjudicators are in a slightly optimal position as it is possible to assess that at least the investment done is equal to the fees received. The study also concludes that completing the CPD training is relatively feasible as long as the training is conducted online. In-person training, however, could make it difficult to earn CPD points at a rate of 10 points per year. The findings of this study can apply to similar jurisdictions intended to introduce mandatory CPD requirements. It is also anticipated that the policymakers in Queensland may consider the findings reported in this study to continue structuring processes and policies that can better address the challenges hindering quality adjudication outcomes.
Limitations of This Study
The study findings cannot be generalized considering its qualitative nature and small sample size. This study considered the views of 11 adjudicators currently practicing in Queensland. Eight participants were Grade 2 adjudicators, and three participants were Grade 1 adjudicators. Two Grade 1 adjudicators and one Grade 2 adjudicator had been practicing in Queensland for less than 2 years. Such an imbalance of the representation of each group could have led to biased results. A more heterogeneous group was not obtained primarily due to time constraints. It would be desirable to replicate the study with a more balanced and diverse sampling group with participants from other jurisdictions that have introduced a similar CPD policy, namely, NSW.
Data Availability Statement
All data, models, or code generated or used during the study are proprietary or confidential in nature and may only be provided with restrictions.
References
List of Statutes
Adjudicator Referral Policy, Queensland Building and Construction Commission, version 1.0, November 2018.
Code of Conduct for Authorized Nominating Authorities, South Australia, April 2017.
Continuing Professional Development Guidelines for Adjudicators, Fair Trading, New South Wales, August 2020.
Continuing Professional Development for Adjudicators Policy, Queensland Building and Construction Commission, version 1.0, November 2018.
Queensland Building Industry Fairness (Security of Payment) Act 2017.
Queensland Building Industry Fairness (Security of Payment) Regulation 2018.
Queensland Building and Construction Commission Act 1991.
Works Cited
Bartels, G., I. Bailey, J. K. Coggins, S. Ellis, A. Oxbrough, S. Pyman, S. Steele, and K. Vague. 2014. Report on security of payment and adjudication in the Australian construction industry. Sydney, NSW, Australia: Society of Construction Law Australia.
Bell, M., and D. Vella. 2010. “From motley patchwork to security blanket: The challenge of national uniformity in Australian ‘security of payment’ legislation.” Aust. Law J. 84 (8): 565–582.
Coggins, J., and S. Donohoe. 2018. “Strength from diversity: A refined proposal for unifying Australian security of payment laws in light of the Murray review.” Constr. Law J. 34 (1): 19–46.
Collins, B. 2012. Independent inquiry into construction industry insolvency in NSW—Final report. New South Wales, Australia: NSW Government.
Davenport, P. 2010. “Harmonisation of chalk and cheese.” Aust. J. Constr. Econ. Build. 10 (3): 36–50. https://doi.org/10.5130/AJCEB.v10i3.1805.
Fiocco, J. 2018. Final report to the minister for commerce security of payment reform in the WA building and construction industry. Western Australia: Dept. of Mines, Industry Regulation and Safety—Building and Energy Div.
Munaaim, C. 2011. “Statutory adjudication in New South Wales: Operational problems and potential improvements.” In Proc., RICS Construction and Property Conf., 48–60. Strand, UK: King’s College London.
Murray, J. 2017. Review of security of payment laws: Building trust and harmony. Australia: Dept. of Jobs and Small Businesses, Australian Government.
Senate Economic References Committee. 2015. I just want to be paid: Insolvency in the Australian Construction Industry. Canberra, Australia: Commonwealth of Australia.
Skaik, S. 2017a. “The East Coast model: Queensland.” Chap. 3, in International contractual and statutory adjudication, edited by A. Burr. Oxfordshire, UK: Routledge.
Skaik, S. 2017b. “Operational problems and solutions of statutory complex adjudication: Stakeholders’ perspectives.” Int. J. Law Built Environ. 9 (2): 162–175. https://doi.org/10.1108/IJLBE-03-2017-0009.
Skaik, S. 2017c. “The tip of the iceberg: Jurisdiction of statutory adjudications.” Constr. Law J. 33 (3): 102–120.
Skaik, S. 2021. “Addressing the elephant in the room: The inadequate adjudicator regulations in New South Wales.” Constr. Law J. 37 (7): 378–391.
Skaik, S., J. Coggins, and A. Mills. 2016. “The big picture: Causes of compromised outcome of complex statutory adjudications in Australia.” Int. Constr. Law Rev. 33 (2): 123–147.
Vasileiou, K., J. Barnett, S. Thorpe, and T. Young. 2018. “Characterising and justifying sample size sufficiency in interview-based studies: Systematic analysis of qualitative health research over a 15-year period.” BMC Med. Res. Methodol. 18 (1): 1–18. https://doi.org/10.1186/s12874-018-0594-7.
Wallace, A. 2013. Discussion paper: Payment dispute resolution in the Queensland building and building and construction industry—Final report. Queensland, Australia: Queensland Government.
Yung, P., and K. Rafferty. 2015. “Statutory adjudication in Western Australia: Adjudicators’ views.” Eng. Constr. Archit. Manage. 22 (1): 54–72. https://doi.org/10.1108/ECAM-03-2014-0033.
Zhang, T. 2009. “Why national legislation is required for the effective operation of the security of payment scheme.” Build. Constr. Law J. 25 (6): 376–398.
Information & Authors
Information
Published In
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 14 • Issue 4 • November 2022
Copyright
This work is made available under the terms of the Creative Commons Attribution 4.0 International license, https://creativecommons.org/licenses/by/4.0/.
History
Received: Mar 4, 2022
Accepted: Jul 4, 2022
Published online: Sep 1, 2022
Published in print: Nov 1, 2022
Discussion open until: Feb 1, 2023
Authors
Metrics & Citations
Metrics
Citations
Download citation
If you have the appropriate software installed, you can download article citation data to the citation manager of your choice. Simply select your manager software from the list below and click Download.