COVID19 & Construction2021-09-23T10:19:21+10:00

#covidandconstruction

#covidandconstruction

Welcome to the
Morrissey Law
#covidandconstruction
Info Feed…
Updated for the
July 2021 Sydney
Construction Shutdown

All you need to know about the NSW Covid Restrictions and their implications for the Construction Industry.

The following resources have been pulled together by the team at Morrissey Law + Advisory to help the Construction Sector navigate through this testing period as smoothly as possible.

Webinar Series

We’re hosting a series of webinars, twice daily, from Monday July 19 – Friday July 23 running through considerations, recommendations, and updates to the restrictions as they affect the Construction Sector.

Details below…

Construction Shutdown FAQs

In addition to these webinars, you’ll find a series of FAQs below with questions we’re being asked by clients and common issues that we’re seeing or anticipating across the sector.

FAQs listed below…

July 2021 Construction Shutdown Webinar Series

The Sydney Construction Shutdown will see many projects grind to a halt and give rise to delays, costs, and many other issues.

All this week we’re bringing you quick webinars morning and afternoon discussing various issues and recommendations to help see you through the next couple of weeks.

We understand it is a very busy time for all so all who register will receive recordings, slideshows, and any other resources from the webinars. They will also be uploaded below to view at your convenience.


Monday 19 July:

10am – Construction Shutdown: What you need to know!
Webinar Recording  |  Slideshow  |  Event Page


Tuesday 20 July:

10am – Preparing Claims for the Shutdown
Webinar Recording  |  Slideshow  |  Event Page

2pm – Employment Law: Considerations for the Construction Sector & the Shutdown
Webinar Recording  |  Slideshow  |  Event Page


Wednesday 21 July:

10am – Security of Payment: Essential Tool to Getting Paid During Shutdown
Webinar Recording  |  Slideshow  |  Event Page  |  NSW Gov Construction Guidelines (released Tues 20 July)

2pm – Insurance: Do I Have a Claim for Lockdown
Webinar Recording  |  Slideshow Event Page


Thursday 22 July:

10am – Director Duties: Managing Obligations During Shutdown
Webinar Recording  |  Slideshow Event Page

2pm – Managing Business Risk through the Shutdown
Webinar Recording  |  Slideshow  |  Event Page


Friday 23 July:
10am – General Q&A, What We’ve Seen, and What We Expect Next Week
Webinar Recording  |  Event Page


Thursday 29 July:
11:30am – Pressing Play after the Construction Pause
Webinar Recording  |  Slideshow  |  Event Page  |  NSW Gov: Authorised WorkersConstruction Covid Safety Plans


July 2021 Construction Shutdown FAQs

Please note: The information on this page is not intended as legal advice.

The responses listed below are intended as commentary, and we recommend seeking specific legal advice for any situation you are unsure about.

We’ll try to keep this information as up-to-date as possible given the constant updates and alterations being made to the rules and restrictions in place.

General Questions:

Yes. With many rules and restrictions in place.

Last updated: Tuesday 24 August 2021

Local Government Areas (LGAs) have been categorised into the following groups:

  1. Greater Sydney – including the Blue Mountains & Woolongong.
  2. LGAs of Concern – includes:
    • Bayside, Blacktown, Burwood, Campbelltown, Canterbury-Bankstown, Cumberland, Fairfield, Georges River, Liverpool, Parramatta, Strathfield
    • Penrith suburbs: Caddens, Claremont Meadows, Colyton, Erskine Park, Kemps Creek, Kingswood, Mount Vernon, North St Marys, Orchard Hills, Oxley Park, St Clair and St Marys.
  3. Regional & Rural NSW – Now includes the Central Coast & Shell Harbour areas.

Last updated: Tuesday 24 August 2021

Businesses permitted to operate as normal include:

  • Supermarkets and neighbourhood shops.
  • Shops the predominately sell food or drinks, including:
  • Butchers
  • Bakeries
  • Fruit shops
  • Delicatessens
  • Chemists and pharmacies
  • Shops that predominately sell any of the following items in the course of their normal operations:
  • Office supplies
  • Pet supplies
  • Newspapers, magazines, and stationery
  • Alcohol
  • Maternity and baby supplies
  • Medical or pharmaceutical supplies
  • Hardware and building supplies
  • Landscaping material supplies
  • Rural supplies
  • Timber yards
  • Garden centres and plant nurseries
  • Vehicle hire premises (not including the premises at which vehicles are sold)
  • Industrial or commercial food retailing
  • Fuel retailing (i.e., service stations)
  • Journalism and media services for news and other critical public communications purposes
  • Telecommunications services (i.e., internet providers)

Businesses with restricted trading include:

  • Retail premises can continue to trade for click and collect and delivery only. For example,
  • Ordered by phone or internet
  • Collected by customers
  • Delivered to customers
  • Pubs and clubs (takeaway only)
  • Cellar door premises (takeaway only)
  • Indoor recreation facilities (except for the purposes of providing educational services or childcare or a small funeral or memorial service)
  • Places of worship (except for the purposes of providing educational services or childcare or a small funeral or memorial service)

Businesses not permitted to trade at all include:

  • Entertainment facilities (except for small funeral or memorial services)
  • Amusement centres
  • Hairdressers, spas, nail salons, beauty salons, waxing salons, tanning salons, tattoo parlours or massage parlours.
  • Auction houses/ betting agencies
  • Nightclubs

Last updated: Tuesday 24 August 2021

Financial Assistance Packages:

The decline in turnover is calculated on what is experienced by your business over a minimum 2-week period from 26 June 2021 to 17 July 2021 compared to the same period in 2019, or the same period in 2020, or the 2-week period immediately before the Greater Sydney lockdown began (12 June to 25 June 2021). The different grant amounts will be available depending on the decline in turnover:

  • $7,500 for a decline of 30% or more
  • $10,500 for a decline of 50% or more
  • $15,000 for a decline of 70% or more.

Last updated: Wednesday 25 August 2021

The NSW Government has provided additional support to small-medium size businesses and individuals affected by the construction pause across Greater Sydney. This support is summarised below:

INDIVIDUALS SMALL-MEDIUM BUSINESSES
COVID-19 Disaster Payment JobSaver
Mental Health Long Service Leave
Additional Leave Support Payroll Tax Deferrals
Payroll Tax Concessions

More information on these support packages can be found here.

Last updated: Thursday 29 July

Transport for NSW (Transport) has created the COVID-19 Liquidity Support Program (Program) to provide immediate support to limit the impact of the construction pause across Greater Sydney. The Program facilitates cash flow to ensure the supply chain of employees, equipment and other resources are supported and ready to recommence work by 31 July 2021. This support is available now to Transport’s contractors and we strongly encourage your participation to facilitate cash flow across industry.

Eligible participants of the Program will receive support in the form of accelerated payment of certified June work and accelerated advance payments of actual and anticipated July works and on site activities impacted by the Construction Pause.

  1. Payment for work to end of June 2021 (June Claim):
    Irrespective of whether you opt into the Program payment, certified progress claims will be made on an urgent basis.
  2. Payment for work to 30 July 2021 (July Claim):
    Contractors may immediately submit a progress payment claim for July 2021 providing details of:

    • Activities and works completed up to the time of the pause on construction (12:01am on Monday 19 July 2021); and
    • A cost estimate of the activities and works that would have been undertaken during the construction pause (19 July 2021 to 30 July 2021, inclusive) which is consistent with the July forecast and which may include the cost of dealing with the construction pause.

It is paramount that contractual relief flow through the entire supply chain, from head contractors right down to subcontractors and suppliers. Evidence that subcontractors have been paid must be submitted in the usual way.  Following reconciliation if payments have not passed through to subcontractors, as appropriate, Transport reserves the right to recover them.

Last updated: Thursday 29 July

Construction Work:

Yes.

All construction work is permitted, subject to strict rules for site capacity, number of trades operating, wearing masks, COVID-19 Safety Plans, and vaccination requirements.

See the following questions for details of the restrictions in place for each area category.

Last updated: Thursday 29 July

Face masks:

Must be worn at all times, subject to the rules listed here: NSW Gov Face Mask Rules.

Of particular note for construction sites will be the following exemption:

…the wearing of a fitted face covering a risk to the person’s, or another persons’ health and safety, or where clear enunciation or visibility of your mouth is essential.

COVID-19 Safety Plan:

Mandatory for all construction sites in Greater Sydney, except where the site is an occupied residence.

Further information on COVID-19 Safety Plans for Construction can be found here: NSW Gov Covid Safety Plan.

Workers on Occupied Sites:

Occupied sites can have no more than:

  • 2 people working on indoor areas
  • 5 people working on outdoor areas

Workers from LGAs of Concern cannot attend occupied sites outside their LGAs.

Workers on Unoccupied Sites:

Unoccupied sites are limited to the lesser of:

  • 1 person per 4m2, or
  • 50% of the maximum daily workforce.

Workers from LGAs of Concern can attend unoccupied sites outside their LGAs if they are vaccinated.

Last updated: Tuesday 24 August 2021

Face masks:

Must be worn at all times, subject to the rules listed here: NSW Gov Face Mask Rules.

Of particular note for construction sites will be the following exemption:

…the wearing of a fitted face covering a risk to the person’s, or another persons’ health and safety, or where clear enunciation or visibility of your mouth is essential.

COVID-19 Safety Plan:

Recommended for all construction sites in Rural & Regional NSW.

Further information on COVID-19 Safety Plans for Construction can be found here: NSW Gov Covid Safety Plan.

Workers on Occupied Sites:

Occupied sites can have no more than:

  • 2 people working on indoor areas
  • 5 people working on outdoor areas

Residents must stay in separate areas of the premises to those where work is being carried out.

Workers from LGAs of Concern cannot attend sites outside of Greater Sydney.

Workers on Unoccupied Sites:

Unoccupied sites are limited to the greater of:

  • 1 person per 4m2, or
  • 25 people on site.

Workers from LGAs of Concern can attend sites outside Greater Sydney.

Last updated: Tuesday 24 August 2021

No.

Since the Central Coast and Shell Harbour areas now fall under the restrictions in place for Regional & Rural NSW, instead of those for Greater Sydney, workers from LGAs of concern are no longer permitted at these sites.

Last updated: Tuesday 24 August 2021

Yes.

Construction sites located in the LGAs of concern are permitted to operate provided that occupiers of these construction sites:

  • Comply with the capacity limits for constructions sites;
  • Ensure their workers comply with the COVID-19 vaccination requirements before the worker enters the site; and
  • Have a COVID-19 Safety Plan

Last updated: Tuesday 24 August 2021

Yes.

Workers who live in a restricted LGA of concern are permitted to work at a construction site outside of their LGA if they comply with the COVID-19 vaccination requirements (see below).

Last updated: Tuesday 24 August 2021

From 12.01am Saturday 21 August 2021, if you’re travelling for work more than 50km outside of Greater Sydney you need to register your travel online with Service NSW. You must carry your regional travel registration and supporting documents with you at all times as you will need to provide these to NSW Police if requested. Your regional travel registration will be valid for a maximum of 14 days. You will need to reapply if:

  • You are travelling for more than 14 days, or
  • Your travel dates change or need to be amended

Greater Sydney workers who are authorised to travel to work at construction sites more than 50km outside of Greater Sydney must have a covid test within 7 days of leaving the Greater Sydney area and proof of the test. You do not have to self-isolate when you are waiting for your test results. If you work within 50km of Greater Sydney, then you do not need to follow the testing requirements.

Construction sites located in the Central Coast or Shellharbour LGA are no longer considered to be construction sites in Greater Sydney. These construction sites are now categorised as being a part of regional and rural NSW. Accordingly, Greater Sydney construction workers (excluding those living in an LGA of concern) must register their travel and have a covid test within the 7 days of leaving Greater Sydney to be able to work on the Central Coast and Shellharbour. Construction workers from the LGA’s of concern are not permitted to work in regional or rural NSW (including the Central Coast and Shellharbour).

Further, clause 22AA of the Orders says that a person who is at least 18 years of age who is leaving Greater Sydney must—(a) carry evidence showing the address of the person’s place of residence or temporary accommodation, and (b) produce the evidence for inspection if requested to do so by a police officer.

From Monday 23 August 2021, COVID-19 testing requirement will not longer apply to authorised workers who need to leave their LGA to go to work. Authorised workers are workers who live in the LGA’s of concern and have met their vaccination requirements, that being:

  • had 2 doses of a COVID-19 vaccine or
  • had one dose of a COVID-19 vaccine at least 21 days ago or
  • had one dose of a COVID-19 vaccine within the preceding 21 days and has been tested for COVID-19 within the preceding 72 hours (3 days) or
  • a certified medical contraindication and has been tested for COVID-19 within the preceding 72 hours (3 days)

From Monday 30 August 2021, authorised workers who need to leave their LGA to go to work will need to comply with the COVID-19 vaccination requirements.

Last updated: Tuesday 24 August 2021

Worker Vaccinations:

Construction workers from the affected LGAs must provide evidence that they have received:

  • Two doses of a COVID-19 vaccine, or
  • One dose of a COVID-19 vaccine at least three weeks before attending work, or
  • One dose of a COVID-19 vaccine and, if less than three weeks since that vaccine was administered, a negative COVID-19 test in the previous 72 hours.

Last updated: Thursday 24 August 2021

The mandatory COVID-19 Safety Plan states that employers must maintain records on their staff, including ‘place of residence to determine whether staff are required to undertake surveillance COVID-19 testing’ as well as ‘age and vaccination status’.

You are required to ask all workers before they enter a construction site for proof of their residential address (i.e., their drivers’ licence) to determine what restrictions apply to them. If their residential address is in one of the affected LGAs you must then ask whether the worker has been vaccinated. If the worker has not met the vaccination requirements or does not wish to disclose their vaccination status you are required to refuse them entry onto site under the COVID-19 Safety Plan and the Public Health Order.

Remind the workers who are refused entry onto site that the vaccination requirements are mandatory under the Public Health Order and that you are complying with your legal obligations by refusing them entry onto site.

Last updated: Thursday 24 August 2021

No.

If you follow the Public Health Order and COVID-19 Safety Plan you will not be liable.

Last updated: Thursday 24 August 2021

No.

You cannot terminate a worker who refuses to be vaccinated or refuses to provide their vaccination status. You must only refuse them entry to the site (if they are an LGA of Concern).

Remember: It is not the responsibility of the employer to enforce the vaccination requirement.
It is the responsibility of the employer to prohibit construction workers who live in LGAs of Concern from entering a construction site without complying with the Public Health Order (ie. by getting vaccinated).

Last updated: Thursday 24 August 2021

The vaccine is not mandatory. It is your right to choose whether or not to get vaccinated. However, if you choose not to get vaccinated or not to disclose your vaccination status to your employer before entering a construction site then your employer must refuse you entry onto the site if you live in one of the LGAs of Concern. You may also be stood down without pay for as long as the Public Heath Order remains in place.

Last updated: Thursday 24 August 2021

Notices & claims under contracts:

Yes. In most contracts, the ability to claim an EOT arises as a result of a change in legislation or an event that is outside the control of the contractor.

While each contract is different, the following questions address some standard examples.

Last updated: Monday 19 July

Yes.

Industrial Conditions would likely allow a claim of an EOT for the impact of the Covid shutdown. However, most AS4000 contracts that are used these days, include numerous variations, particularly in the clauses concerned with variations, EOTs and delays, so it is critical to review your contract and understand your obligations.

If you do have the ability to claim an EOT, it is critical you put the principal and superintendent on notice, with the contract stating that any party (although let’s say the contractor) “shall promptly give the Superintendent and the other party written notice of that cause and the estimated delay.”

Last updated: Monday 19 July

The builder would be entitled to an EOT under clause 11, as it states “Should the progress of the works be delayed by any of the following matters, conditions or consequences resulting from them: ix) civil commotion or industrial dispute affecting any of the trades employed upon the works or the manufacture or supply of materials for the works”.

This is a broad definition that allows not only the delay for the shutdown to be claimed as an EOT, but also any delay that is suffered as a result of the shutdown. For example, if you had programmed the roof to be installed and couldn’t, you would be entitled to claim for an EOT until such time as you could reengage those trades to install the roof.

Last updated: Monday 19 July

Yes. Subject to the builder using the MBA BC4 contract, the delay is a compensable cause.

The builder would be required to advise the owner in writing, and subject to that not being rejected by the owner, a builder would be able to claim delay costs under the contract.

Those delay costs being the costs determined in the schedule, or if those costs are not applicable, nil.

Last updated: Monday 19 July

The builder would be entitled to an EOT under clause 6, as it states “Should the progress of the works be delayed by any of the following matters, conditions or consequences resulting from them: ix) civil commotion or industrial dispute affecting any of the trades employed upon the works or the manufacture or supply of materials for the works”.

This is a broad definition that allows not only the delay for the shutdown to be claimed as an EOT, but also any delay that is suffered as a result of the shutdown. For example, if you had programmed the roof to be installed and couldn’t, you would be entitled to claim for an EOT until such time as you could reengage those trades to install the roof.

Last updated: Monday 19 July

Yes. Subject to the builder using the MBA BC3 contract, the delay is a compensable cause.

The builder would be required to advise the owner in writing, and subject to that not being rejected by the owner, a builder would be able to claim delay costs under the contract.

Those delay costs being the costs determined in the schedule, or if those costs are not applicable, nil.

Last updated: Monday 19 July

Employment Matters:

In the event that your business can demonstrate that it is restricted from doing any work during the current restrictions, employers would have options in respect of how to deal with their employees during this time. The below options are based on the assumption that all avenues to have the employee work from home, or undertake different duties have been canvassed and there is no further work available.

In those circumstances, the options include:

  1. Negotiate reduced hours during the lockdown;
  2. Negotiate a period of paid or unpaid leave with the employee;
  3. Stand down the employee; and finally
  4. Make an employee redundant.

Our view is that both the third and fourth options should be approached with significant caution. It was only weeks ago (if not less in many instances), where employers were struggling to find employees and trades, and, if history is any indication, what the NSW Government has shown is that they intend on bouncing back from this lockdown through construction stimulus.

In the event that any changes are made to employees work hours or work, ensure that the employee is consulted and that you document the changes in writing.

Last updated: Monday 19 July 2021

This will depend on whether they have provisions under the employment contract or the enterprise agreement which deals with this situation. However, under section 524 of the Fair Work Act 2009 (Cth), you will be entitled to stand the employee if:

  1. The employee cannot be usefully employed;
  2. There has been a stoppage of work for any cause; and
  3. For which the employer cannot be held responsible.

If the three elements above are satisfied and subject to any applicable provision in their employment contract or enterprise agreement, you will be entitled to stand – down the employees.

Last updated: Wednesday 21 July 2021

Yes, their entitlements continue to accrue.

Last updated: Wednesday 21 July 2021

No, if your employee is stood down, they would not be able to use their paid sick leave, carer’s leave or compassionate leave. They can however use their annual leave, long service leave or any other paid leave entitlements.

Last updated: Wednesday 21 July 2021

There is no minimum notice period, however, you should give as much notice as possible.

Last updated: Wednesday 21 July 2021

A redundancy is genuine if:

  • the job is no longer required to be performed by any person;
  • the employer has complied with consultation obligations (whether under the applicable modern award, employment contract or enterprise agreement); and
  • the employee cannot be reasonably redeployed within the business.

Last updated: Wednesday 21 July 2021

You could consider allowing your employees to have access to their accrued annual or long service leave where the workforce is being stood down, varied the employment contract by agreement (eg. Reducing hours and remuneration) or leave without pay.

Last updated: Wednesday 21 July 2021

Director Duties:

Highly unlikely. D&O insurance policies will have a carve-out for particular situations, for example, negligence, fraud, dishonesty, criminal acts, intentional breaches of the law etc.

Last updated: Thursday 22 July

These people may be held responsible for a breach of directors duties if they are a director (including if they are held to be a de facto director or shadow director). If not, they will still have responsibilities for example, under their employment agreement, and under other pieces of legislation that apply to the particular business.

Last updated: Thursday 22 July

Previous Covid-19 Articles

Here you will find our previous Morrissey Law articles concerning the COVID-19 pandemic, the implications for the construction industry, and important information that you need to know.

Please Note: While we make every effort to keep this information up-to-date, unfortunately given the dynamic nature of the COVID-19 situation, there may be instances where the information provided becomes no longer current. If you have any questions or concerns regarding the information provided, please get in touch here.
All information provided is intended as commentary or general information for reference purposes – it does not constitute legal advice.

Go to Top