This article was written by Katherine Vines, Philip Willox, Nicholas Beech.
The Commonwealth and WA Governments have both declared an emergency in response to COVID-19 and have implemented measures to minimise the impact of the virus.
While these measures currently do not prevent construction workers in WA from performing their work, workers and their employers must remain vigilant to comply with their employment and OH&S obligations and mitigate the risk of any potential spread of COVID-19 onsite. In particular, employers must make sure that they take steps where practicable to remove or minimise the risk posed by COVID-19.
Government response to COVID-19
Commonwealth Government
On 18 March 2020, the Commonwealth Governor General declared a Human Biosecurity Emergency pursuant to section 457 of the Biosecurity Act 2015 (Cth).
This declaration empowers the Commonwealth Health Minister to make any determination, as is considered necessary to prevent or control the spread of COVID-19 in Australia. A number of determinations have been issued pursuant to the declaration, including relating to:
- cruise ships;
- overseas travel;
- remote communities; and
- retail outlets at international airports.
WA Government
On 15 March 2020, the WA Minister for Emergency Services declared a State of Emergency pursuant to section 56 of the Emergency Management Act 2005 (WA). Also, on 16 March 2020, the WA Minister for Health declared a Public Health State of Emergency pursuant to section 167 of the Public Health Act 2016 (WA). Both of these have been extended and currently remain on foot.
A number of directions for COVID-19 measures have been issued pursuant to these declarations, including relating to:
- border closure;
- regional travel;
- business and community activity;
- isolation and quarantine; and
- health.
Impact on workers in the WA construction industry
As the law currently stands, construction workers in WA are able to continue to carry out work, as discussed below.
Construction work is an "essential activity"
At the Commonwealth level, determinations that have been issued pursuant to the Human Biosecurity Emergency declaration do not impact the ability of construction workers to carry out work. This is because the determinations largely concern the movement of people within Australia. Most relevant to the construction industry is the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020). In accordance with this determination, a person may enter a "designated area" (essentially a remote area in WA, as specified in the determination) if they are primarily engaging in an "essential activity" or providing transport for a person to engage in such an activity. An "essential activity" includes "continuing…construction in the area of housing or transport infrastructure that was in progress immediately before the commencement of this instrument". To enter a "designated area" a person must also meet other essential requirements in the determination, including that, in the 14 days immediately before entry, the person does not have COVID-19 signs or symptoms and has not been outside Australia. If a person enters a "designated area" to engage in an "essential activity" they must take reasonable steps to minimise the extent to which they expose themselves to others in the area.
Construction sites are not "affected places"
At the WA level, directions that have been issued pursuant to the State of Emergency declaration and Public Health State of Emergency declaration do not impact the ability of construction workers to carry out work. Whilst the Closure and Restriction (Limit the Spread) Directions have closed "affected places", and restricted "prohibited gatherings" and "prohibited activities", from 7 April 2020 to 7 May 2020 (or when the State of Emergency declaration is revoked), construction work remains unaffected. Specifically, construction sites are not included within the definition of "affected places", and construction work is not included within the definition of "prohibited activity" and is explicitly excluded from the definition of "prohibited gathering".
Impact on supply chains
The Quarantine (Closing the Border) Directions are also worth noting in the context of the WA construction industry, as these directions allow a person who is an "exempt traveller" to enter WA. This includes a person with specialist skills not available in WA, including "any person who in the course of the person's duties is responsible for critical maintenance or repair of infrastructure critical to a region of, or to, Western Australia". Also, persons involved in transport, freight and logistics are "exempt travellers", minimising the impact of COVID-19 on supply chains.
Broader employment obligations
It is essential that employers and workers in the WA construction industry continue to comply with their broader employment obligations whilst COVID-19 remains a live issue.
- Standing down employees and redundancy – Whilst construction work is an "essential activity" that is not to say that certain construction projects will not be impacted by government measures and the broader economic situation. As such, it is likely to be necessary for some employers to consider how to manage employees through this period. For more information about broader employment obligations please refer to the following insight: https://www.kwm.com/en/au/knowledge/insights/covid-19-issues-from-an-australian-employment-law-perspective-20200322
- Award compliance – While the Fair Work Commission (FWC) has not yet proposed to amend the awards which may be relevant to construction workers, being the Building and Construction General on-site Award 2010, the Joinery and Construction General On-site Award 2010 and the Mobile Crane Hiring Award 2010, in the expert report of Professor Borland, who was briefed by the FWC, it is noted that the Building and Construction General on-site Award 2010 may be considered in the longer-term, depending on the evolution of labour demand. It is important for employers in the construction industry to be aware of these developments for any award covered employees. For more information about award compliance please refer to the following insight: https://www.kwm.com/en/au/knowledge/insights/covid-19-variation-of-modern-awards-at-the-initiative-of-the-fair-work-commission-20200402
- Job Keeper payments – The introduction of the JobKeeper legislation and related benefits may also impact certain construction employers and their workers. Employers in the construction industry should consider whether they may be eligible for the scheme which is effective from 30 March 2020 to 27 September 2020 for eligible employees. For more information about JobKeeper please refer to the following insight: https://www.kwm.com/en/au/knowledge/insights/covid-19-help-is-coming-fair-work-amendments-announced-20200408
- Apprentices and trainee payments: A $24.5 million support package for the construction workforce has been announced by the WA Government (see here). This support package is aimed at assisting the building and construction industry to maintain a skilled workforce during the COVID-19 crisis by providing payments to employers with existing apprentices and trainees, and payments to employees completing short apprenticeships and traineeships. As the situation evolves, employers and employees in the construction industry should consider whether they may be eligible to receive payment under this support package.
Navigating the safety risk posed by COVID-19
Minimising occupational health and safety risks
Section 19 of the Occupational Safety and Health Act 1984 (WA) requires employers to provide and maintain a working environment in which, so far as is practicable, employees are not exposed to hazards.
Additional specific duties to the employer can include:
- providing information, instruction, training and supervision to enable employees to work safely;
- consulting and cooperating with safety and health representatives and other employees regarding occupational safety and health at the workplace; and
- supplying employees with adequate personal protective clothing and equipment where it is not practicable to avoid the presence of hazards at the workplace as is practicable.
The laws also require employees to take reasonable care for their own safety and to avoid adversely affecting the safety or health of any other person through any act or omission at work. Employees must also cooperate with employers on safety and health matters.
The spread of COVID-19 presents a risk at workplaces where workers are still attending in person (including at construction sites), and therefore an employer must take steps where practicable remove or minimise this risk. Safe Work Australia have provided guidance on how this can be done, including specific guidance in the "building and construction" industry (see here).
WorkSafe WA and Safe Work Australia guidance
WorkSafe WA advise that the risk of employees being exposed to the virus warrants the completion of a risk assessment, including reference to the latest information (see here).
Safe Work Australia specify that control measures must be implemented onsite to minimise the spread of COVID-19, even if such measures result in delays or disruption to a project. Safe Work Australia further specify that these measures must be clearly communicated to workers, and that workers should know:
- when not to go to their workplace;
- what to do if they are unwell; and
- what symptoms to be concerned about.
- Safe Work Australia recommends several control measures that can be implemented onsite, including:
- Physical distancing – such as (where possible) ensuring that there is at least 1.5 metres between workers, limiting worker numbers on site, and staggering meal times and smoking breaks;
- Health checks – such as monitoring workers for COVID-19 symptoms, directing workers to report COVID-19 symptoms (including symptoms they have observed in others), and prohibiting workers with COVID-19 symptoms from working;
- Cleaning and disinfecting – such as in relation to frequently touched surfaces, items used to conduct work, and site amenities (such as toilets, lunchrooms and vending machines), and training workers to clean down plant and equipment immediately after use;
- Worker hygiene – such as placing signs to remind workers to physically distance and regularly use any provided hand sanitizer, wash their hands for 20 seconds with soap and water before and after eating and using the toilet, and avoid physical contact with others (such as handshakes) (see free posters here); and
- Handling deliveries and contractors attending site – such as cancelling non-essential visits to site, giving clear instructions to delivery persons and other contractors attending site of their requirements whilst onsite, and asking such persons to use contactless methods of communication such as mobile phones and electronic paperwork.
Safe Work Australia specify that workers must be kept informed about the risks of exposure to COVID-19, and consulted (alongside duty holders) about health and safety matters regarding COVID-19.
How to respond if a worker has COVID-19
Remove or minimise risk
To meet work health and safety requirements, an employer should ensure that a worker with a confirmed case of COVID-19 does not return to work. If a worker is suspected of having COVID-19, workplace policies and procedures should be followed, which may include sending the worker home.
An employer must identify the risk posed by the infected worker (including to others at the workplace) and control this risk (including by evacuating the workplace, conducting a deep clean of the workplace and sending other workers home). Any control measures should be regularly reviewed for their effectiveness.
Safe Work Australia has created an infographic to advise workplaces on the steps they should take if a worker comes down with a suspected or confirmed case of COVID-19 (see here).
Psychological Risks
The COVID-19 Pandemic has resulted in significant challenges for everybody and may result in anxiety amongst some employees. A positive, communicative and supportive environment is important during this time. The duties of employers extend to psychological risks. These risks should also be considered by employers with controls implemented where necessary. WorkSafe WA have provided guidance for employers (see here) and employees (see here).
Notification requirements
Safe Work Australia advise (see here) that West Australian employers, principal contractors and contractors must notify a case of COVID-19 to WorkSafe WA only where it is the cause (or suspected causes) of a death at a workplace.
Despite this advice, if an employee tests positive it would be prudent for the employer to contact the regulator outlining the steps taken in response to this event, such as isolating the worker, arranging medical care and assessment, notifying health authorities, identifying any close contacts and arranging proper cleaning of the workplace. The regulator can advise of any further preventative action and if any notification is required.
For more information on reporting notifiable incidents to WorkSafe WA - see here.
Industry guidance
The following industry associations are providing regular updates and guidance for their members and have developed useful materials for construction industry employers:
