On 16 August 2020, the Public Health Commander issued the Workplace (Additional Industry Obligations) Directions (No 4), Workplace Directions (No 3) and Area Directions (No 7) (collectively, Directions), which provide much needed guidance on the potential impact of Stage 4 restrictions on construction projects in Victoria.
Although the various government websites and daily press conferences provide very useful guidance, the Stage 4 restrictions have changed significantly since they were first announced and full details of these changes are difficult to locate and not in all respects consistent with the websites. This article provides an easy reference point and a snapshot of key requirements that apply to construction projects as they currently stand.
The Directions commenced on 11.59pm on Sunday, 16 August 2020 and end at 11.59pm on Sunday, 13 September 2020.
The Stage 4 restrictions apply to all 31 municipalities across Greater Melbourne.
Different restrictions apply depending on the size, nature and stage of the construction project. For full details of the restrictions, please refer to the Directions published on www.dhhs.vic.gov.au (as amended from time to time).
These restrictions are summarised below:
|Early Stage Land Development Site||Large-Scale Construction Site||Small-Scale Construction Site|
|Type of Construction Project||An "early stage land development site" is all civil works undertaken in open air, large greenfield sites that are associated with and preparatory to construction of multiple individual residential dwellings or industrial or commercial development on that site (including site remediation and site preparation works, construction of utilities and construction of roads, bridges, stormwater/flood management works and trunk infrastructure) (ESLD Site).||A construction site is a "large-scale construction site" if it is:||A construction site is a "small-scale construction site" if it is not a "large-scale construction site" or an ESLD Site.
This category is likely to cover:
|Density requirements 1||A maximum of 10 workers per hectare at any one time.||A maximum of the higher of: |
The baseline daily workforce is calculated based on the daily average number of workers on the site across the project lifecycle as derived from the site's resourcing plan as of 31 July 2020.
|A maximum of five workers (excluding the site supervisor) at any one time.|
|Restrictions on movement between sites 2||Employers must limit movement of all workers between multiple work premises other than: ||Employers must limit movement of all workers between multiple work premises other than: ||Employers must limit movement of all workers between multiple work premises other than:
|Working from home||Employers must not permit a worker to perform work at the construction site where it is reasonably practicable for the worker to work at the worker's place of residence or another suitable premises.|
|Other requirements||Employers must:
Penalties apply to all ‘workers’ and ’employers’ (including those who own, operate and control the construction site) who fail to comply with the Stage 4 restrictions in relation to construction sites. This extends to contractors, principals and others with control over the construction site (for example, managing agents). Unlike the occupational health and safety legislation, it appears that owners are unable to delegate their duties to those with control over the site.
Failure to comply with a Direction without a reasonable excuse may attract up to 120 penalty units (approximately $20,000) in the case of a natural person or 600 penalty units in the case of a body corporate (approximately ($99,000).
Other forms of construction work are only permitted in limited circumstances.
Penalties apply to any ‘person’ who fails to comply with a Direction without reasonable excuse. This is likely to extend to contractors who perform unauthorised work and anyone who permits unauthorised work to be carried out on their property in contravention of the restrictions.
Failure to comply with a Direction without a reasonable excuse may attract up to 120 penalty units (approximately $20,000) in the case of a natural person or 600 penalty units in the case of a body corporate (approximately $99,000).
Construction contracts should be reviewed on a case-by-case basis to determine whether the contractor is entitled to additional time and/or costs in connection with Stage 4 restrictions. This needs to be examined in the overall context of the project, noting that Stage 4 restrictions may not necessarily cause a delay on the critical path if a major construction project is still in the design phase, or a preliminary phase where less than 25% of the baseline daily workforce would otherwise be on site.
If you require assistance navigating the Directions, get in touch with our Property Team.
For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.
Andrew Denehy, Partner
Daniel Middleton, Partner
Rachel Ong, Associate
1 The density requirements do not apply to workers where it is reasonably practicable for those workers to work from home, undertaking emergency repairs and maintenance, carrying out cleaning requirements or assurance activities required under the Directions or suppliers or workers transporting supplies to the construction site where those workers are only on the construction site for such period of time as is reasonably necessary to deliver the suppliers to the construction site.
2 The restrictions on movements do not apply to exempt workers (i.e. specialists who provide safety services or those required to meet minimum statutory obligations or requirements, for example, auditors, building inspectors or surveyors).