Construction and Infrastructure update: new restrictions on construction industry outlined in latest Directions and guidance

Oct 5, 2021

The latest Directions giving effect to the new construction industry restrictions announced on Friday have been released.

Provided below is our update on those new restrictions, including the mandatory vaccination directions also currently in force.

Workplace (Additional Industry Obligations) Directions (No 48)

The Workplace (Additional Industry Obligations) Directions (No 48) came into effect from 11:59 pm on Monday 4 October 2021 and end at 11:59 pm, Thursday 21 October 2021.

Under clauses 7(38) to (54) of those Directions:

  1. In relation to a Work Premises that is a construction site, including a critical and essential infrastructure site, an employer must:
    • comply with the Workplace Directions (current version (No 51);
    • comply with the relevant reduction worker requirements (at subclauses 44 to 51 of the Directions);
    • limit movement of all workers (including supervisors and on-site specialists) between multiple Work Premises except in relation to supervisors on small-scale construction sites, specialist contractors, specialists who provide safety services and those required to meet statutory obligations or requirements;
    • designate an employee or employees as a COVID Marshal:
      • whose role is to monitor compliance with these Directions, including (but not limited to) physical distancing requirements;
      • who has successfully completed training provided by the employer that is in accordance with guidance from the Department; and
      • subject to subclause (52), who is at the Work Premises whenever workers are on site; and
    • arrange operations at Work Premises that are construction sites, so as to have construction workers working consistently with the same group of other construction workers where reasonably practicable.
  2. An operator must not operate a Work Premises that is a construction site, including a critical and essential infrastructure site, unless a representative of the operator has completed and submitted an attestation via the Services Victoria system that contains (amongst other things) detailed information regarding compliance with the Directions and recording of vaccination information (all of the attestation requirements can be found at clause 39 of the Directions). The Services Victoria system can be found here: COVIDSafe construction declaration | Service Victoria
  3. An employer must not operate a Work Premises that is a critical and essential infrastructure site unless:
    • all crib rooms at the Work Premises meet best practice standards; or
    • all crib rooms at the Work Premises are closed and not used by workers.
  4. An employer must not operate a Work Premises that is a large-scale construction site with more than:
    • 25% of the baseline daily workforce; or
    • if all crib rooms meet best practice standards and the employer has sighted evidence that each worker on the Work Premises has been fully vaccinated or is an excepted person, 50% of the baseline daily workforce.
  5. An employer must not permit a worker who:
    • is an ordinary resident of the Restricted Area or a temporary resident of the Restricted Area to work at a construction site that is a critical and essential infrastructure site or large-scale construction site in Regional Victoria; or
    • ordinarily or temporarily resides in Regional Victoria to work at a construction site that is a critical and essential infrastructure site or a large-scale construction site in the Restricted Area,

      unless the employer has sighted evidence that the worker:

    • is fully vaccinated; or
    • is an excepted person; or
    • is partially vaccinated and has been tested for SARS-CoV-2 and received a negative SARS-CoV-2 test result at least twice per week, with at least 72 hours between each test.

      A person is an excepted person if the person has obtained certification from a medical practitioner that the person is unable, due to a medical contraindication to receive a dose, or a further dose, of a COVID-19 vaccine.
  6. An employer must not operate a Work Premises that is a small-scale construction site with more than five workers (excluding the site supervisor).
  7. An employer may only operate a Work Premises that is an early stage land development site if there are 20 workers (or fewer) per hectare on the Work Premises at any one time.
  8. An employer must not permit a worker who:
    • is an ordinary resident of the Restricted Area or a temporary resident of the Restricted Area to work at a construction site that is a small-scale construction site or an early stage development site in Regional Victoria; or
    • ordinarily or temporarily resides in Regional Victoria to work at a construction site that is a small-scale construction site or an early stage development site in the Restricted Area,

      unless the employer has sighted evidence that the worker is fully vaccinated or is an excepted person.
  9. Any construction site that was, between 25 August 2021 and 13 September 2021 (inclusive) deemed to be a State Critical Infrastructure Project or Fully Exempt State Critical Infrastructure Project under a revoked Workplace (Additional Industry Obligations) Direction continues to be a critical and essential infrastructure site under these Directions.

COVID-19 Mandatory Vaccination Directions (No 5)

The current directions for mandated vaccination are COVID-19 Mandatory Vaccination Directions (No 5) which came into effect from 11:59 pm, Friday 1 October 2021 and end at 11:59 pm, Thursday 21 October 2021.

Under these Directions:

  • Under clause 8(7)(e) and Schedule 1, a construction site is a specified facility (and subject to the Directions).
  • Under clause 9(2)(b)(ii) and Schedule 1, the operator of a construction site is the principal contractor for that construction site (being the principal contractor appointed by the owner of the site and authorised as the principal contractor under the OH&S regulations). Further, Schedule 1 also provides that a worker includes any person performing work at the construction site including an employee of the operator and any contractor engaged by the operator or third party.
  • Under Schedule 1, a ‘worker’ in respect of a construction site is ‘any person (including a volunteer) performing work at a construction site, including: (a) an employee of the operator; and (b) any contractor engaged by the operator or by a third-party’. It appears the above is broad enough that inspections of construction work would be considered work.
  • Under clause 8(7) and Schedule 1, the relevant dates for the construction industry are:
    • the relevant date is 30 September 2021;
    • first dose deadline by 2 October 2021; and
    • second dose deadline is 13 November 2021.
  • Clause 4 contains the Operator’s obligations, including that:
    • If a worker is, or may be, scheduled to work at a specified facility on or after the relevant date the operator must collect, record and hold vaccination information about the worker.
    • If the operator collects information that a worker is partially vaccinated, the operator must also collect, record and hold information about whether that worker has a booking to receive, by the second dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become fully vaccinated.
    • If the operator collects information that a worker is unvaccinated, the operator must also must collect, record and hold information about whether that worker has a booking to receive, by the first dose deadline, a dose of a COVID-19 vaccine that will cause the worker to become partially vaccinated.
    • An operator must comply with the obligations above as soon as reasonably practicable and in any event, before the relevant date (being 30 September 2021).
  • Clause 5 outlines the requirement to take reasonable steps to prevent entry of unvaccinated workers, including that:
    • 5(1) An operator of a specified facility must take all reasonable steps to ensure that, on or after the relevant date, a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility.
    • 5(2) If an operator does not hold vaccination information about a worker, the operator must treat the worker as if the worker is unvaccinated.
    • 5(3) An operator of a specified facility may, between the relevant date and the first dose deadline, permit a worker who is unvaccinated and has a booking to receive, by the first dose deadline, a dose of COVID-19 vaccine that will cause the worker to become partially vaccinated to enter, and remain on, the premises of the facility for the purposes of working at the facility.
  • Clause 6 outlines the exceptional circumstances to which a specified facility is not required to comply with clauses 4 and 5. Those include:
    • 6(a) a worker is required to perform work or duties at the facility that is or are necessary to provide for urgent specialist clinical or medical care due to an emergency situation or a critical unforeseen circumstance; or
    • 6(b) a worker is required to fill a vacancy to provide urgent care, to maintain quality of care and/or continue essential operations at the facility due to an emergency situation or a critical unforeseen circumstance; or
    • 6(c) a worker is required to attend the facility to respond to an emergency at the facility; or
    • 6(d) a worker is required to perform urgent and essential work at the facility to protect the health and safety of workers or members of the public, or to protect assets and infrastructure.
  • Under clause 6(4), if either 6(c) or 6(d) above applies to a construction site, then the relevant operator must take all reasonable steps to ensure that the worker wears, at all times while on the premises of the facility, PPE that includes, at a minimum, a surgical mask and face shield.
  • Under clause 7(1), An Authorised Officer may request an operator to produce to the Authorised Officer any vaccination information held by the operator under clause 4.

More on Clause 5 of COVID-19 Mandatory Vaccination Directions (No 5) — Collecting, recording and holding vaccination information about workers of subcontractors and interaction with Federal Legislation

The following provisions have been enacted under the COVID-19 Mandatory Vaccination Directions (No 5) likely to overcome issues around Federal Legislation including the Privacy Act and Discrimination Act, but will likely cause delays in obtaining the vaccination information now required to determine whether or not a worker can attend a construction site.

Under clause 5(6) Authorisation to use vaccination information — for the purposes of complying with clause 5, an operator is authorised to use any information about a worker that it holds under clause 4.

Under clause 5(7) Disclosure to employer or contractor — if the operator is obliged to comply with clause 5(1) in relation to a worker and the operator is not:

  • the employer of the worker (i.e. the individual person); or
  • the person who engaged the worker (the individual person) to work at the facility,

the operator is authorised to disclose to the employer or person who engaged the worker that the operator is obliged to comply with clause 5(1) in relation to the worker.

Under clause 5(8) Notification to current and potential workers — an operator of specified facility must, as soon as reasonably practicable after the commencement of these Directions, inform each worker who is, or may be, scheduled to work at the facility on or after the relevant date, including each worker that an operator will or may hire after the relevant date (1 October 2021), that:

  • clause 4 obliges the operator to collect, record and hold vaccination information about the worker before the relevant date; and
  • clause 5(1) obliges the operator to take all reasonable steps to ensure that, on or after the relevant date, a worker who is unvaccinated does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility.

Accordingly, clause 5 of COVID-19 Mandatory Vaccination Directions (No 5) goes into more detail as to how subcontractor and employee information can be requested received and stored, strengthening the powers of operators (principal contractors) to do so.

If an operator is not the employer of the employee or importantly they are not the employer of the subcontractor worker (the individual person), then they are authorised to request, hold and store the vaccination information from the actual employer, and the actual employer is obliged to give them that information and inform that subcontractor worker that they must give that information to the operator, so that they operator can meet their obligation to not have unvaccinated people on construction sites. While waiting for that vaccine information through the various channels, the subcontractor worker is deemed unvaccinated until proven otherwise.

Next steps including Contract notices and claims

If not done so already, where you are the principal contractor for the construction site under the OH&S regulations, you will need to fill out the attestation as required by the Workplace (Additional Obligation) Directions here: COVIDSafe construction declaration | Service Victoria

New Notices of Delay (NODs) and Extensions of Time (EOTs) should be issued in respect of this new round of reduction in worker restrictions that applies. For the 2-week site closure EOTs, check your contracts carefully to see whether any final or ongoing EOT claim is due since that delay ceases today.

Further notifications or update of notifications of changes in legislative requirements (i.e. clause 11.1 and 11.2 (AS4902) or 14.1 or 14.2 (AS2124/4300) and clause 41/46) are probably also prudent if available for costs in relation to the new directions Workplace (Additional Industry Obligations) Directions (No 48) and COVID-19 Mandatory Vaccination Directions (No 5) as these various revised and new measures are likely to create additional costs of your project.

Both time and cost are probably not quantifiable at this stage and won’t be until sites reopen on Tuesday 5 October 2021 (today) and vaccination information starts rolling in (or not rolling in).

Be sure to check your notices and claims meet often strict contract requirements for service of notices.

For those large-scale construction sites, in order to increase site capacity to 50%, it will be necessary to ensure the crib rooms meet best practice standards and the necessary evidence is obtained that each worker on the site has been fully vaccinated or is an excepted person. Additionally, for all construction sites, there are obligations to take reasonable steps to ensure that any worker who is unvaccinated does not enter, or remain on, the premises of the site for the purposes of working at the facility.

We note that the Government has indicated it will be monitoring compliance with the Directions by the construction industry closely.

More information

For information or advice on the latest restrictions affecting the construction industry, 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

For any employment law-related advice, including mandatory vaccination obligations in the workplace, please contact Daniel Bean, Senior Associate, on (03) 8600 8825 or dbean@kcllaw.com.au.

Author

This Construction and Infrastructure update was co-authored by Jaimi Johanson, Lawyer, Daniel Bean, Senior Associate and Damien Simonetti, Principal Lawyer.

Note: This update is a guide only and is not intended to constitute legal advice.

BACK