As we reported last night, the State Government has announced a 2-week temporary shutdown of all construction sites (with the exception of designated State Critical Infrastructure Projects) in Metropolitan Melbourne and in the Ballarat, Geelong, Surf Coast and Mitchell Shire local government areas, effective from 11:59pm on 20 September 2021.
This morning, the Government released transitional directions that apply until 11:59pm on Thursday, 23 September 2021 (and will presumably be updated at that time) that grant a brief amnesty period that mean, until that time, a construction site cannot operate 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.
The shutdown period is to act as a circuit breaker against reported transmission of COVID-19 in large scale construction sites and what the State Government has described as industry-wide non-compliance. Construction sites will only be permitted to re-open after that time if they can demonstrate compliance with the mandatory vaccination directions and additional industry obligations released over the weekend and detailed below.
The details of both health directions can be found in recent updates made to the Workplace (Additional Industry Obligations) Directions (No 44) and the COVID-19 Mandatory Vaccination Directions (No 2).
We have summarised the new directions below:
The new directions are cumulative with the existing industry obligations such as the directions requiring an industry-specific COVIDSafe Plan, face masks, density quotients and a 5 person or 25% baseline daily work force for large-scale construction sites or a 5 person (not including the supervisor) limit for small scale construction sites.
When does the industry shutdown end?
Subject to any updated directions, 11:59pm on Monday, 4 October 2021.
What vaccine information must be collected and who is responsible?
The new directions place an obligation on site operators (meaning principal contractors that operate construction sites) to inform workers who are to perform work at the construction site that the worker must provide information and evidence by 24 September 2021 that:
- the worker has received a full COVID-19 vaccination; or
- the worker has received a partial COVID-19 vaccination; or
- the worker has not received any doses of a COVID-19 vaccine but have made a booking to receive a dose of a COVID-19 vaccine by 2 October 2021; or
- the worker has not received any doses of a COVID-19 vaccine and have not made a booking; or
- the worker is medically exempt due to vaccine medical contraindication, supported by a medical certificate.
This notice is a continuing obligation on site operators that extends to new workers, who should be informed of these requirements by the site operator as part of any hiring or on-boarding process.
Who can attend construction sites after the shutdown?
On and from 24 September 2021, site operators must take reasonable steps to prevent workers from entering, or remaining on a construction site where:
- the worker has not provided to the site operator information and evidence that a COVID-19 vaccine dose has been received or that the worker is medically exempt from receiving a vaccine (supported by medical certificate);
- the worker has not provided evidence to the site operator evidence that they have made a booking to receive a vaccine dose by 2 October 2021; or
- the worker has notified the site operator that they have not received a vaccine dose and have not made a booking to receive a dose by 2 October 2021.
What vaccine records must the site operator keep to demonstrate compliance?
To demonstrate compliance, site operators are not only required to request the worker vaccine information above, but also to:
- collect and store the worker vaccine information;
- to sight evidence of the vaccination status, booking status, or medical certificate provided with the worker vaccine information; and
- to keep a record of the site operator having “sighted” the evidence.
We recommend that site operators also inform workers that their information and records of evidence will be kept and may be required to be produced to an Authorised Officer to demonstrate the site operator’s compliance with the directions.
Onsite COVID-19 Marshals
The new directions also require employers that own, operate or control construction sites (and includes a self-employed person or sole-trader) to designate an employee or employees as COVID-19 Marshals, who are on the construction site whenever other workers are on site to:
- monitor compliance with the new directions (including the requirements of the workplace COVIDSafe Plan, such as physical distancing); and
- complete training provided by the construction site operator with guidance from the Department of Health – free infection control training and online training is offered on the Department website.
Worker Bubbles and worker movement restrictions
Employers (as previously defined) must arrange operations on construction sites so as to have construction workers working consistently with the same groups where reasonably practicable, including by
- separating worker shifts to minimise physical interactions between different groups of workers;
- separating worker groups into work areas;
- separating work areas up even further, into separate teams;
- providing separate break areas and break times for the different teams;
- requiring teams to use separate entrances and exits from other teams; and
- ensuring workers from the same household to work in the same shift and work area
The worker bubbles are not confined to large scale construction sites, and apply equally to small scale construction sites.
Are workers from Regional Victoria and Metropolitan Melbourne allowed to work at construction sites outside their area?
With the exception of workers in designated “State Critical Infrastructure Projects”, employers are not to permit a worker that is a resident (temporary or otherwise) of Metropolitan Melbourne to work at a Regional Victoria construction site, or vice versa.
Exceptions apply if a worker is required to attend a construction site to respond to an emergency, or for essential work to protect health and safety of workers or the public, or to protect assets and infrastructure, but only for so long as that work is needed and only if it cannot be otherwise sourced from a local area.
As some of the new directions have proven to be quite controversial, with limited industry consultation, it remains to be seen whether they will remain in place for the period of the industry shut down. In less than a day, the State Government has pushed several minor updates to the wording of the Additional Obligations, so further modification is expected.
For now, site operators and employers that intend to be ready to re-open at the end of the mandated shut down period will need to adhere to the new directions, and expect that compliance with the directions will be checked.
Due to the breadth of the new directions released by the State Government, this summary is non-exhaustive and provided for general information only.
If you have any questions about the new directions, or your obligations as a site operator, worker or employer, please contact Peter Lettieri or Isabella Royce.
