New South Wales · variations

Variations on New South Wales subcontracts: getting changed work paid

Most variation money is lost between the site conversation and the paperwork. The standard subcontract lets the builder direct variations unilaterally, gives you a short written-notice window (as little as 2 business days in contracts we've analysed) with an absolute bar behind it, and lets the builder value the work where rates don't apply. Under the Building and Construction Industry Security of Payment Act 1999 (NSW), variation amounts claimed under the contract flow through the payment claim process like any other amount.

The three clauses that take the money

Unilateral direction: "the subcontractor must comply with all variation orders" - you're bound to do the work before the price is agreed. Positions builders have accepted: variations agreed in writing before they bind, or a cap (bound only within the general scope, up to a stated percentage of the contract sum).

The notice time bar: a direction you consider a variation must be notified in writing inside the window or the claim is lost - 2 business days appears in real contracts. And valuation: "reasonable rates as determined by the Contractor" puts the price of your work in the other party's hands; a schedule of rates incorporated into the contract, sitting high in the order of precedence, is the fix.

The NSW angle

Under the Building and Construction Industry Security of Payment Act 1999 (NSW), a variation amount claimed under the contract goes into your payment claim like any other amount - and if the builder wants to pay less, it has to say so in a payment schedule within 10 business days, with reasons it will be held to at adjudication.

Head contractors must pay subcontractors within 20 business days of the claim, retention money on larger projects must be held in trust, and work can lawfully be suspended after non-payment on two business days' notice.

The 90-second habit

Before leaving site on the day anything changes: one email. "Confirming we discussed [the change] on site today. We're treating this as a variation. Formal notice and pricing follow within the contractual timeframe. Work proceeds on that basis unless you advise otherwise." It anchors the date, creates the record, and starts you inside whatever window the contract sets.

From the Australian Subcontract Index - live data

100%

have time bars that extinguish the claim entirely · 39 of 39

From 54 subcontracts analysed to date · see the full Index

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Frequently asked questions

Do I have to do variation work before the price is agreed?

Under standard drafting, yes - the direction binds first and valuation follows. That's why the pre-signature ask is a written-agreement requirement or a cap, and the on-site protection is same-day written confirmation of every direction.

Can I claim an unpaid variation through security of payment in NSW?

Yes - variation amounts claimed under the contract flow through the Building and Construction Industry Security of Payment Act 1999 (NSW)'s payment claim process, subject to your contract's notice requirements for the underlying entitlement.

Keep reading

Do variations need to be in writing for me to get paid? →What is a time bar in a subcontract — and when does it kill the claim? →What makes a progress claim one that actually gets paid? →How long can a builder take to pay a subcontractor in New South Wales? →Time bars in New South Wales subcontracts: what you lose, and when →Retention on New South Wales subcontracts: what's normal, and what to watch →How adjudication works in New South Wales →Not being paid in New South Wales: when can you lawfully stop work? →

General information for Australian subcontractors, not legal advice. Statutory deadlines change and have exceptions - verify against the Act and current guidance, or with a construction lawyer, before acting on them.