Overnight, the Victorian Government published new Directions preventing most construction sites from operating for two weeks (until 4 October 2021) subject to some limited exceptions.
Here’s what you need to know.
Workplace (Additional Industry Obligations) Directions
Under clauses 7(38) to 7(46) of the Workplace (Additional Industry Obligations) Directions (No 44), among other things:
- an employer must not operate a Work Premises that is a construction site in the Restricted Area (including a critical and essential infrastructure site), unless:
- a worker is required to attend the Work Premises to make a site which has or is to be shut down safe and secure, respond to an emergency or is required to perform urgent and essential work to protect the health and safety of workers or members of the public, or to protect assets and infrastructure, provided that the worker is only permitted to enter and remain upon the work premises for the period of time necessary to respond to those circumstances and the workers cannot be sourced from within the same area in a timely manner; or
- the Work Premises is a State Critical Infrastructure Project;
- an employer for State Critical Infrastructure Projects may permit a worker who ordinarily or temporarily resides in Regional Victoria to work at a State Critical Infrastructure Project in the Restricted Area; and
- in relation to a Work Premises that is a construction site, including a critical and essential infrastructure site, which is permitted to operate in Regional Victoria or in either of the circumstances described in bullet point 1 above, an employer must comply with all of those restrictions described in our Construction and Infrastructure update published yesterday which also still includes the reduction in worker restrictions (i.e. to 25%). And of course, the existing Workplace Directions (No 49) continue to apply to those sites.
The Restricted Areas are defined by the Area Directions (No 18) and continue to largely include the Melbourne Metropolitan and Ballarat LGAs.
The State Critical Infrastructure Projects – Restricted Area list (which lists the projects that are allowed to continue within the Restricted Areas defined by Area Directions (No 18)) has been updated overnight and only includes DELWP projects critical to utility services projects. All other department and agency projects are only allowed for safety and essential maintenance work. The State Critical Infrastructure List – Regional Victoria has not been amended since 23 August 2021.
To view the State Critical Infrastructure Projects – Restricted Area and State Critical Infrastructure List – Regional Victoria, click on the respective link below:
- State Critical Infrastructure Projects – Restricted Area 20 September 2021
- State Critical Infrastructure List – Regional 23 August 2021
We strongly recommend issuing new NODs and EOTs in relation to this new 2-week delay caused by Workplace (Additional Industry Obligations) Directions (No 44).
There will no doubt be further Workplace (Additional Industry Obligations) Directions within the next two weeks to determine next steps once the 2-week lockdown is lifted, which will almost certainly require further NODs and EOTs.
Accordingly, other than Regional Victoria (where the reduction in worker and other restrictions still apply), if you have issued NODs or EOTs in relation to the reduction in worker restrictions, those delays have now ended and ongoing continuing EOTs are probably not necessary for Restricted Area projects. However, if under your contracts you are required to issue a further EOT once a delay has ended or a final continuing EOT, now is the time in respect of the reduction in worker delays for Restricted Area projects (again, does not apply to Regional Victoria where NODs and EOTs should continue to be issued).
COVID-19 Mandatory Vaccination Directions
The COVID-19 Mandatory Vaccination Directions (No 2) remain in force. For those limited construction sites that can continue to operate (as detailed above), please ensure you are complying with the new record keeping and other obligations in respect of the vaccination mandate.
For all constructions sites (whether open or shut), we still recommend issuing NODs (and then EOTs and continuing EOTs) in relation to COVID-19 Mandatory Vaccination Directions (No 2) if it is expected you will face delays from those Directions. Although we expect these Directions may also be updated shortly (hopefully before your contractual NOD and EOT time bar periods apply) so that you can utilise a new delay event relating to mandatory vaccinations.
More information
For more information, or advice on the new Directions published overnight, please contact Damien Simonetti, Principal Lawyer, on (03) 8600 0708 or dsimonetti@kcllaw.com.au, or Jaimi Johanson, Lawyer, on (03) 8600 8839 or jjohanson@kcllaw.com.au.
Authors
This Construction and Infrastructure update was co-authored by Damien Simonetti, Principal Lawyer, and Jaimi Johanson, Lawyer.
Note: This update is a guide only and is not intended to constitute legal advice.