On Friday 17 September, the Victorian Government published the following directions providing further light on the restrictions announced earlier in the week:
- Workplace (Additional Industry Obligations) Directions (No 42); and
- COVID-19 Mandatory Vaccination Directions (No 2).
Our latest Construction and Infrastructure update highlights the additional workplace obligations specifically in relation to the new restrictions on construction sites, the mandatory vaccination of workers in the construction industry and the new obligations on operators (i.e. principal contractors for the purposes of OH&S legislation).
Workplace (Additional Industry Obligations) Directions
The Workplace (Additional Industry Obligations) Directions include additional restrictions on top of the existing reduction in worker restrictions already in force. Relevantly, clause 38 of the Direction prescribes that in relation to a Work Premises that is a construction site, including a critical and essential infrastructure site, an employer must:
- comply with the applicable worker reductions for the construction site except in relation to:
- critical and essential infrastructure; or
- critical repairs to any work premises where required for emergency and safety as set out in the Authorised Provider and Authorised Worker List;
- limit movement of all workers (including supervisors and on-site specialists) between multiple work premises that are construction sites, except in relation to supervisors on small-scale construction sites, specialist contractors (who can move up to 3 construction sites per week), specialists who provide safety services and those required to meet minimum statutory obligations or requirements;
- not permit a worker to consume food or drink on a construction site including in a crib room, lunch room or tea room except for water or if required due to medical reasons;
- 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
- who is at the work premises whenever workers are on site;
- 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;
- except in relation to State Critical Infrastructure, 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 in Regional Victoria; and
- who ordinarily or temporarily resides in Regional Victoria to work at a construction site in the Restricted Area;
A full list of the Restricted Areas is available at the Area Directions (No 16). The Restricted Areas largely include Metropolitan Melbourne and Ballarat LGA’s.
Please note, the ‘State Critical Infrastructure’ is different to ‘critical and essential infrastructure’. State Critical Infrastructure are only the projects listed in the ‘State Critical Infrastructure List’ for Regional Victoria and Metropolitan Melbourne. To view the current projects in Metropolitan Melbourne and Regional Victoria, click on the respective link below.
- State Critical Infrastructure List – Metro 23 August 2021
- State Critical Infrastructure List – Regional 23 August 2021
Accordingly, if you have a project that is deemed critical and essential infrastructure but is not on the State Critical Infrastructure list, while that project is not subject to the reduction in worker requirements, those projects cannot permit workers to cross the border between Regional Victoria and the Restricted Areas.
COVID-19 Mandatory Vaccination Directions
Under clause 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) 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:
- they have received a full COVID-19 vaccination (two doses); or
- they have received a partial COVID-19 vaccination (one dose); or
- 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
- 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
- they cannot receive a COVID-19 vaccine for the reason permitted in subclause (2).
Further, under clause 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.
Under clause 6(3) of the COVID-19 Mandatory Vaccination Directions (No 2) (issued on Saturday 18 September 2021), on and from 24 September 2021 (thankfully a public holiday) operators (i.e. principal contractors) 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 (including subcontractors):
- a worker that has not received any doses of a COVID-19 vaccine and has not made a booking to receive a dose of a COVID-19 vaccine by 2 October 2021; and
- a worker who has not provided information or evidence of the matters noted in clause 3 of those Directions (see above).
Clause 6(3) 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.
Accordingly, not only are vaccinations mandated for workers attending a construction site, there is a positive obligation on the operator of a construction site (most likely being the head contractor) to inform all the workers intending to attend the site that the operator will be requesting evidence of the worker being vaccinated by 24 September 2021 and request that information. Further, the operator of the construction site must then keep records and store information regarding the vaccination status of all the workers attending the site.
Further Direction expected
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 (one dose), and on 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.
In this regard, it is expected that further Directions will be published later this week which will prohibit operators from allowing unvaccinated workers on construction sites from 2 October 2021.
Next steps
Operators (principal contractors) should approach the new restrictions carefully and explain to workers (employees and subcontractors) why information is being requested and why they may not be able to attend site on and from 24 September 2021. This is because there may be challenges from workers to the new Directions and questions on how they interact with other laws like the Privacy Act 1988 (Cth) and Sex Discrimination Act 1984 (Cth). We will provide a further update on this issue shortly.
In the meantime, we recommend operators (principal contractors) begin to implement appropriate processes as part of your induction or daily admission of workers into construction sites. Essentially operators will need to start preparing for the above and how it will be managed on constructions sites on and from 24 September 2021 and then on and from 2 October 2021.
On 24 September 2021, the Victorian Government is expected to release further directions and we will provide a further update.
More information
For more information, or advice on the directions currently in force, 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.