Construction and Infrastructure update: latest industry Directions, Privacy Act obligations and tips on notices and claims under Australian standard contracts

Sep 29, 2021

On Friday 24 and Monday 27 September 2021, the Victorian Government published new Directions, which include:

The Victorian Government also published updated Project Lists – Restricted Areas and Regional – and
some helpful guidance for construction businesses across Victoria, which can be accessed by clicking on the links below.

We have provided below a summary of what you need to know and underlined the major changes in the latest Directions.

Workplace (Additional Industry Obligations) Directions (No 46)

These directions commenced at 11:59 pm on 23 September 2021 and end at 11:59 pm on 4 October 2021.

Further to our update published on 21 September 2021, there are major changes under clauses 7(38) to 7(46) of the Workplace (Additional Industry Obligations) Directions (No 46) which we have underlined below:

  1. 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 Fully Exempt State Critical Infrastructure Project.
  2. For Fully Exempt State Critical Infrastructure Projects, an employer may permit a worker who:
    • ordinarily or temporarily resides in Regional Victoria to work at a Fully Exempt State Critical Infrastructure Project in the Restricted Area; and
    • ordinarily or temporarily resides in the Restricted Area to work at a Fully Exempt State Critical Infrastructure Project in Regional Victoria.
  3. 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 1 or 2 above, an employer must comply with all of those restrictions described in our email updates (refer to key update further below on Sunday, 19 September 2021 para (a) to (f)) which also still includes the reduction in worker restrictions (i.e. to 25%). And of course, Workplace Directions (No 50) continue to apply to those sites.

    Construction sites that are not Fully Exempt State Critical Infrastructure Projects in Local Government Areas (LGA) under lockdown restrictions have shut down for two weeks from 11.59pm Monday 20 September 2021 to and including 4 October 2021. That is, only those Local Government Areas in Regional Victoria that are currently not under lockdown (and do not appear as a Restricted Area in the Area Directions) will be permitted to operate.

    ** Critical and essential infrastructure means:
    • construction or maintenance (including civil works, building or construction activities) of critical and essential infrastructure (whether privately or publicly funded) where the Victorian Government has deemed, and the Chief Health Officer has endorsed, that it is urgently required for the purposes of sustaining human health, safety and wellbeing, on a case by case basis; or
    • activities deemed by the Victorian Government from time to time as State Critical Infrastructure Projects (refer to relevant Restricted Area and Regional Lists below); or
    • activities deemed by the Victorian Government from time to time as Fully Exempt State Critical Infrastructure Projects (refer below); or
    • construction for the purposes of national security or defence.

Restricted Areas and Project Lists

The Restricted Areas are defined by the Area Directions (No 21) which includes Melbourne Metropolitan Local Government Areas (LGAs) and any other Regional LGAs currently in lockdown (including without limitation Greater Geelong, Mitchell Shire and the Surf Coast). A full list of the Local Government Areas that form part of the Restricted Areas can be found on the Area Directions (No 21). The Area Directions (No 21) commenced at 11:59 pm on 26 September 2021 and end at 11:59 pm on 21 October 2021.

The following Project Lists are now in effect:

  • The Fully Exempt State Critical Infrastructure Projects List (which lists the projects that are allowed to continue within the relevant Restricted Areas defined by Area Directions (No 20)) only includes DELWP and Water authorities 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 Projects – Regional Areas List has been amended.
  • The State Critical Infrastructure Projects – Restricted Areas List has also been updated and now contains ‘NIL’/no projects.

COVID-19 Mandatory Vaccination Directions (No 3)

These directions commenced at 11:59 pm on 23 September 2021 and end at 11:59 pm on 21 October 2021. The major changes to the directions have been underlined below.

Under clause 6(3) of the COVID-19 Mandatory Vaccination Directions, an operator of a construction site must inform workers who perform, or are intended to perform work (which includes subcontractors and your new employees being hired), at a construction site operated by the operator, that the operator will be requesting the workers to provide information and evidence to the operator by 24 September 2021 that:

  1. they have received a full COVID-19 vaccination (two doses); or
  2. they have received a partial COVID-19 vaccination (one dose); or
  3. they have not received any doses of a COVID-19 vaccine and have made a booking to receive a dose of a COVID-19 vaccine by 2 October 2021; or
  4. they have not received any doses of a COVID-19 vaccine and have not made a booking to receive a dose of a COVID-19 vaccine by 2 October 2021; or
  5. they cannot receive a COVID-19 vaccine for the reason permitted in subclause (2).

Further, under clause 6(4) of those Directions, an operator of a construction site must request, collect and store information about the vaccination status from workers who perform, or are intended to perform work, at a construction site operated by the operator i.e. whether or not (1) to (5) apply to the worker.

Clause 7(3) provides that on and from 24 September 2021, the operator of a construction site must take all reasonable steps to ensure that the following workers do not enter or remain on premises that is a construction site, for the purposes of performing work as a worker:

  • a worker referred to in (4) above; and
  • a worker who has not provided information or evidence of the matters in (1), (2), (3), (4) or (5) above.

Note: this is a temporary measure to allow unvaccinated workers who have made a booking to receive a first dose of a COVID-19 vaccine to attend a construction site during the transition period of 24 September 2021 to 1 October 2021. From 2 October 2021, it is intended that all workers at construction sites will be required to have received at least a partial COVID-19 vaccination, and from that date will not be permitted to enter a work premises if they have not received at least a partial COVID-19 vaccination, subject to limited exceptions.

Clause 8 provides that an operator must keep the necessary records to demonstrate compliance with these directions, including, but not limited to, records of sighting evidence referred to (1) to (5) above. On request from an Authorised Officer, an operator must provide access to records demonstrating compliance with these directions.

Clause 11 allows for Exceptional circumstances and an operator of a construction site is not required to comply with any of the requirements in COVID-19 Mandatory Vaccination Directions (No 3) in relation to workers in the only following limited exceptional circumstances:

  • a worker who is required to attend the premises to respond to an emergency at the work premises; or
  • a worker who is required to perform urgent and essential work at the work premises to protect the health and safety of workers or members of the public, or to protect assets and infrastructure.

    Example 1: securing a crane due to impending high winds.
    Example 2: works required at a construction site in order to make the construction site safe for continued operation.

Objection by workers to providing vaccination status

KCL Law’s Employment and Workplace Relations team prepared a useful update on the obligations of employers and operators to request, collect and store vaccination information from on-site workers (which include your employees and workers of subcontractors) for when workers refuse to provide vaccination information by citing the Privacy Act. To read the Employment and Workplace Relations update, click here.

Time and cost

Notice of Delays (NODs)/Extension of Times (EOTs), other than for State Critical Infrastructure Projects in Regional Victoria or Fully Exempt State Critical Infrastructure Projects, where the reduction in worker and other restrictions still apply.

If after 4 October 2021 you see a reduction in Workers due to their refusal to get vaccinated, you will need to consider how that impacts time in addition to any government mandated worker reductions (if any).

Claiming time

Provided below are some tips on NODs/EOTs:

  • Any NOD prepared and issued in respect of the initial directions (issued 13 and 17 September 2021) should be broad enough to cover the ongoing delay past Thursday (i.e. to 4 October when lockdown expected to end and perhaps beyond in relation to mandatory vaccination). Note these delays will likely have commenced on your projects from issue of the initial directions, and any EOT will likely be due from those earlier dates under you contract anyway.
  • Your contracts may allow you to wait to issue the NOD/EOT until the further directions were issued Friday 24 September 2021, for example if NOD clause says ‘promptly issue’ and EOT clause requires claim within 10 Business Days after event/cause, rather than after delay commencing (take careful note of time bars).
  • If you have already issued an NOD, you might be able to simply issue a combined EOT for each project and simply refer to the initial direction (on 13 and 17 September) and further directions (on 24 September) without having to issue a further NOD.
  • Alternatively (but more administration), the further directions may be used as a new delay event for the first NOD issued and subsequent EOT (but again noting time bars). As with other directions in the last few months, this alternative may be useful if any time bars are missed in relation to the initial directions (unlikely in the present case regarding the lockdown).
  • Each of the contracts for the individual Projects will have their own unique timing and notice requirements, so please read carefully and use the precise words from the contract as much as possible.

Claiming costs or entitlement to costs

Since last week we have been considering contracts that allow not only time (subject of our previous updates) but also costs relating to changes in Legislative Requirements resulting from COVID-19, such as the 2-week lockdown (costs more easily quantified) or vaccination mandates (at this stage, costs less easily quantified). Most contracts since COVID-19 became an issue in early 2020 contain specific provisions dealing with time and cost (and usually exclude cost) for COVID-19.

If you have ongoing amended Australian standard contracts from before COVID-19 or recent amended Australian standard contracts that do NOT deal with COVID-19 or leave in certain standard provisions (noted below), you may be entitled to cost as well as time under such contracts.

If entitled to costs, the most common Australian standard contract provisions dealing with cost in relation to COVID-19 are clauses 11 and 41 (AS4902) and clauses 14 and 46 (AS2124/AS4300).

Clause 11.1/14.1 for example will require you to notify the Superintendent/Principal that a Legislative Requirement (or change in same) is at variance with the Contract. In addition, sometimes clause 41.1/46.1 (and clause 11.2/14.2) may require you to issue a prescribed notice detailing the basis for claim and quantum/costs within a time bar period (if any) in relation to costs under clause 11.2/14.2. It is critical that time bars are met under clause 41/46 if claim entitlements are to be maintained.

Alternatively:

  • often clause 41.1/46.1 will expressly NOT require prescribed notices for a/any ‘claim for payment’ in respect of the Contract Sum. If that is the case, then under clause 11.1/14.1 you will likely only need to simply notify the Superintendent/Principal that a Legislative Requirement (or change in same) is at variance with the contract (which can be notified in the NOD or EOT for example) – note: sometimes there will be a time limit on this notice under clause 11.1/14.1; and
  • if clause 11.2/14.2 is satisfied (i.e. a Legislative Requirement necessitates a change to the WUC and causes the Contractor to incur more cost) which will just be a fact not requiring further notice, then clause 11.2/14.2 will usually state that the difference (in cost) shall be assessed by the Superintendent and added to Contract Sum. If that is the case, then all you may simply need to do further (after issuing the 11.1/14/1 notice – see above) is include in your payment claim the cost difference (once incurred by you) which must then be assessed by the Superintendent pursuant to 11.2/14.2 in accordance with the payment provisions (clause 37/42) and added to the Contract Sum.

Despite the above, the better approach may be to notify Superintendents (and Principals if required under your contract) in writing that you intend to recover costs in relation to a Legislative Requirements under clause 11/14 where the alternative mentioned above applies. And for good measure, we strongly recommend that such written notification covers off the requirements of a ‘prescribed notice’ (i.e. basis of claim and quantum) but without referencing clause 41/46 or the words ‘prescribed notice’ (unless clause 41/46 expressly requires such reference).

There may be many arguments about whether clause 11.2/14.2 is satisfied (which can be argued later), but better to first maintain your entitlements than not maintain them as any entitlement to costs may at the very least make any push back on EOTs much easier to discuss with Principals or even allow you some negotiated costs (perhaps shared equally by the parties).

Most importantly, always check your amended Australian standard contract clauses carefully in preparing notices/claims if you intend to have any chance of recovering time and costs in relation to COVID-19.

More information

For more information, or advice on the latest Directions, the Privacy Act obligations and Australian standard contract clauses, 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.

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