Enforceable undertaking
An enforceable undertaking is a legally binding written agreement that a person voluntarily provides to another person or organisation. It sets out certain things the person agrees to do and/or refrain from doing.
Part 13 of the Building Act 1993 (the Building Act) gives the VBA a general power to take enforceable undertakings from practitioners, and for the VBA to enforce undertakings in a court of law.
Under the Building Act, the VBA may accept a written undertaking from a practitioner addressing issues raised in a show cause notice. The practitioner may agree to:
- do a specified thing, or
- refrain from doing a specified thing.
By providing an enforceable undertaking to the VBA, the practitioner acknowledges that, if they do not comply with the undertaking, legal action may be taken against them and they may also be subject to disciplinary action.
An enforceable undertaking can be given by any practitioner, including a company with corporate registration.
If you have been issued with a show cause notice and are in discussions with us regarding an enforceable undertaking, you should read the Enforceable undertakings practitioner guide. The guide will ensure you are fully aware of your responsibilities, what to do, and where to get further information or advice.
Frequently asked questions
You can propose to give the VBA an undertaking during the show cause process. This must happen before we make a final decision about whether or not to take the proposed disciplinary action against you.
Yes. For us to consider your proposed undertaking, you must set out in writing what you propose to do and/or not do. For example, if you receive a show cause notice, you may write to the VBA proposing that you undertake not to do certain things identified by the VBA in the show cause notice.
By accepting an enforceable undertaking, we will agree to do one or more of the following in relation to taking proposed disciplinary action against you following a show cause process:
- defer taking the proposed disciplinary action for a specified period
- take disciplinary action that we consider to be less serious than the proposed disciplinary action
- take no further action.
You will be given the opportunity to discuss the contents of an enforceable undertaking with us, before we formally make an offer to enter into an enforceable undertaking with you.
If we accept your proposed undertaking, you will be provided with a copy of a formal written undertaking. Once you return the signed undertaking, we will send you a copy.
Yes, but only if we have given our written consent to you to vary or withdraw the undertaking.
If we do not consent to you varying or withdrawing the undertaking, it will remain in force. This means you will be required to comply with the undertaking, as originally provided, until we agree to release you from the undertaking.
A proposed undertaking should be provided to us within the show cause period. We may extend this period on request. Email your request to discipline@vba.vic.gov.au.
If we refuse an extension, the show cause period ends on the date stated in the original show cause notice.
If we consider that you have failed to comply with an undertaking, we may apply to a court for an order seeking enforcement of the undertaking and requiring you to:
- comply with the undertaking
- carry out building work or protection work
- pay an amount up to the equivalent amount of any financial benefit you have obtained (either directly or indirectly) from a failure to comply with the undertaking
- compensate any person who has suffered loss, injury or damage as a result of your failure to comply with the undertaking.
We may also take disciplinary action against you if we consider you have failed to comply with an undertaking.
Yes, compliance will be monitored. This may involve requiring you to report or provide evidence to us that you are complying.
We may also conduct audits to ensure you are complying with an undertaking.
For more information
You can submit an enquiry or call us on 1300 815 127.