Written by Amy Munro, Will Connolly, and Irma Glinac.
On 16 September 2021, the Victorian Government announced a number of changes to the COVID-related restrictions that apply to individuals and businesses in the state.[1]
These changes included a number of new restrictions that apply in construction settings in both metropolitan Melbourne and regional Victoria, commencing from 11:59pm on Friday, 17 September 2021.[2]
The new changes are in addition to existing restrictions that apply in construction settings, such as limits on the number of workers permitted on a construction site in accordance with the size of the project. The new changes include a Government-mandated vaccination requirement, the closure of tea rooms, the requirement for worker 'shift bubbles', the requirement to appoint a COVID Marshal, and restrictions on workers moving between metropolitan Melbourne and regional Victoria to attend a construction site.
The new restrictions are contained in the updated COVID-19 Mandatory Vaccination Directions (No 2) (Vaccination Directions) and the updated Workplace (Additional Industry Obligations) Directions (No 42) (Workplace Directions).
We summarise below what employers in the construction industry need to know and what steps need to be taken to ensure compliance with these new directions, including what exceptions might be available to your projects.
As always, construction industry participants should keep detailed, contemporaneous records of the impacts (such as losses of productivity or slippages in construction programs) and any actions taken as a result of the Government's COVID restrictions for the purposes of any potential delay or disruption claims.
Vaccination requirement
What you need to know
The Vaccination Directions require that by 24 September 2021, construction workers must have done the following in order to enter a construction site:
- provided the information requested by the site's principal contractor about their vaccination status or whether a medical exception applies to them; and
- either received one dose of a vaccine or have booked in to receive a dose by 2 October 2021.
Operators of a construction site (defined in the Vaccination Directions to mean a site's principal contractor) must obtain this information from any workers that are intended to work at a construction site – including those employed or engaged as contractors by a third party. The requirement also extends to workers who will be attending nearby work premises in which work relating to the operation of the construction site is undertaken, such as a site office for a construction site located in an office building close to the construction site.
There are limited exceptions to the mandated vaccination requirement, those being:
- the worker has a medical exception from receiving a COVID-19 vaccine;
- the worker is required to attend the premises to respond to an emergency at the work premises;[3] or
- the worker 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.[4]
What you need to do
If you are the principal contractor of a construction site, you must:
- inform workers who work or are intended to work at those sites (including nearby work premises such as offices, and including workers employed or engaged as contractors by third parties to work at the site) that you will be requesting information and evidence by 24 September 2021 as to their vaccination status, whether they have booked a first-dose appointment by 2 October 2021, or whether a medical exception applies to them;
- request, collect and store such information and evidence on an ongoing basis; and
- on and from 24 September 2021, take all reasonable steps not to permit anyone onto a construction site who has not received at least one dose of a COVID-19 vaccine and has not made a booking to receive a dose by 2 October 2021, or who has not provided the information requested (even if that worker is, in fact, vaccinated or has booked a vaccination appointment).
Metropolitan Melbourne / Regional Victoria movement restriction
What you need to know
The Workplace Directions impose a restriction on workers travelling between metropolitan Melbourne,[5] and regional Victoria,[6] to work at a construction site.[7]
The restriction does not apply to:
- State Critical Infrastructure (also referred to as 'Type 2' critical and essential infrastructure. This exception relates to projects on the Government's pre-published list);[8] or
- a worker who is required to attend the work premises to:
- respond to an emergency; or
- perform urgent and essential work to:
- protect the health and safety of workers or members of the public; or
- 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.
In addition to the above built-in exceptions to the restriction, the Chief Health Officer (CHO) may grant an exemption to the metropolitan / regional movement restriction.[9]
What you need to do
- Assess whether any of your projects meet either of the exceptions in (a) or (b) above.
- If no exception is met, consider whether any of your projects will be significantly impacted by the movement restriction (taking into account the restrictions on the number of workers that can attend a site, depending on the site's size) and whether it is desirable for an exemption from the CHO to be sought.[10]
- If no exception is met or obtained, ensure your workers do not move between metropolitan Melbourne and regional Victoria to attend a construction site.
Requirement to appoint a COVID marshal
What you need to know
The Workplace Directions now require an employer to designate an employee or employees as a COVID Marshal for each construction site.[11]
The COVID Marshal must:
- monitor compliance with the Workplace Directions;
- complete training provided by the employer in accordance with Department of Health Guidelines; and
- be at the work premises whenever workers are on site.
What you need to do
Immediately designate one or more employees as a COVID Marshal at each construction site and provide them with training in accordance with guidance from the Department of Health.[12]
Requirement to implement worker 'shift bubbles'
What you need to know
The Workplace Directions require employers to arrange operations at work premises that are constructions sites so as to have construction workers working consistently with the same group of other construction workers where reasonably practicable.[13] This includes:
- developing separate shifts in a way that minimise physical interaction between groups of construction workers attending different shifts;
- separating construction workers into work areas;
- dividing work areas up further into separate teams;
- providing separate break areas and separate break times for the separate teams;
- requiring teams to use separate entrances and exits from other teams; and
- where construction workers are from the same household, ensuring they work in the same shift and work area.
What you need to do
- Immediately consider each of your construction sites and how workers could be arranged into 'bubble groups' to the extent possible with minimal disruption to your construction program.
Requirement to close tea rooms
What you need to know
The Workplace Directions require an employer to "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".[14]
What you need to do
- inform workers that they are not permitted 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; and
- ensure your COVID Marshal is aware of the restriction.
If you require advice on the application of the restrictions or an exception to your project, or how you should go about implementing any of the actions described above, our construction and employment teams are able to assist you.
[1] 'New Freedoms When 70% Per Cent First Dose Target Reached', https://www.premier.vic.gov.au/new-freedoms-when-70-cent-first-dose-target-reached.
[2] Construction Sector Guidance, https://www.coronavirus.vic.gov.au/coronavirus-sector-guidance-construction.
[3] Vaccination Directions, section 8(2)(c).
[4] Vaccination Directions, section 8(2)(d).
[5] See Area Directions (No 16), section 4(1) for a list of the local government areas which are 'Restricted Areas'.
[6] Anywhere not listed in section 4(1) of the Area Directions (No 16): section 4(3).
[7] Workplace Directions, section 7(38)(g).
[8] Workplace Directions, section 7(38)(g) and section 9(65) (definition of State Critical Infrastructure).
[9] Workplace Directions, section 7(39).
[10] Applications for an exemption can be made to ICC@ecodev.vic.gov.au.
[11] Workplace Directions, section 7(38)(e).
[12] For example by directing designated COVID Marshals to complete the training available here.
[13] Workplace Directions, section 7(38)(f).
[14] Workplace Directions, section 7(38)(d).
