Legal Insights

A mandatory vaccination regime is now in place for construction sites across Victoria

By Dale McQualter & Sarah Tucker

• 12 October 2021 • 8 min read

From 2 October 2021, operators of construction sites are required to collect, record and hold information on the vaccination status of workers who attend their site or will attend the site in the future, as stated in the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No. 6) (Directions). The term worker means any person performing work at the construction site, and includes employees of the operator, volunteers and contractors.

From that date, any person who has not yet received at least one dose of the COVID-19 vaccine will not be permitted to attend a construction site, unless a medical exemption applies. Site operators must take all reasonable steps to ensure unvaccinated workers do not enter or remain on the premises.

Who is required to collect vaccination information?

The obligation to collect, record and hold vaccination information, as well as exclude unvaccinated individuals from sites falls to the “operator” of the site. The operator of a construction site is, by default the owner, unless a principal contractor has been appointed for the construction work by the owner.

Operators who do this should be aware that they have the obligation under the Directions, and may need to take steps to verify the information provided to them is accurate. Under the Occupational Health and Safety Regulations 2017 (Vic) (Regulations) a principal contractor must be appointed for projects entered into after 1 July 2014 that have a value of more than $350,000.[1] The principal contractor obligations under the Regulations do not apply to projects with a value under the specified threshold value and, in our view there is no utility in appointing a principal contractor in circumstances where the obligations imposed on principal contractors by the Regulations do not apply. In circumstances where the value of a construction project does not meet the threshold value, we believe that the ‘owner’ will remain responsible for ensuring compliance with the Directions. It is then a matter of how the owner discharges those obligations imposed by the Directions. For example, the owner could require the head contractor or building contractor to gather information and regulate site access in order to discharge contractual obligations to comply with all relevant laws. We believe site owners should consider conducting audits and spot checks to ensure compliance or have the contractor provide evidence of compliance on projects under the threshold value. It appears that the Directions did not contemplate construction sites under $350,000 and we can provide further advice if you are confronted with this issue.

Where an owner has appointed a principal contractor, we believe as a matter of best practice owners should maintain the right to audit, conduct spot checks or require the principal contractor to provide information upon request to enable the owner to assess compliance with the Directions and invoke contractual remedies where non-compliance is identified.

When does an operator have an obligation to collect information?

For the time being, these Directions (in so far as they apply to the construction industry) are only applicable to attendees at a “construction site.” Therefore, operators are only required to ensure the vaccination status of workers who attend premises at which civil works, building or construction activities are taking place, including nearby premises such as a site office.

The obligation on site operators to collect information of vaccination status will not apply to workers attending premises which are not a “construction site.” For example, these Directions do not currently apply to workers attending premises to conduct routine maintenance or minor repairs. However, with the introduction of the COVID-19 Mandatory Vaccination (Workers) Directions (No. 1), employers have certain obligations to ensure the vaccination status of workers who perform work at places other than that workers’ ordinary place of residence. This will capture certain categories of maintenance, repairs and manufacturing which occur at premises not purely limited to “construction sites.”

How can an operator obtain the requisite information?

Essentially, there are two ways in which a site operator may confirm the vaccination status of workers who are attending site by:

  1. requesting the information individually from each worker and making a record of the information you have sighted; or
  2. receiving a declaration from the employer of each worker who will enter the site and then recording that the declaration has been received. If this method is used, site operators are still responsible for ensuring the records of this information are correct in the event it is audited. Additionally, where a declaration from a worker’s employer is received, an operator is still able to directly request evidence from a worker.

The content of the information stored may include a worker’s name, vaccination status, details of who checked the evidence of compliance, the date the evidence was recorded and/or the nature of the evidence the worker provided (such as via the COVID-19 Digital Certificate, an Australian Immunisation Register Record or medical evidence if exempt). Notably, operators do not need to store a copy of the evidence itself. The State Government have released a suggested format for a vaccination status register to record this information, which is accessible here.

Worker obligations

Site operators may legally exclude any worker from a construction site who is not at least partially vaccinated as of 2 October 2021, or cannot produce evidence of their partial or full vaccination status, or has a legitimate medical exemption. Therefore, workers should ensure they have the appropriate evidence ready to be produced to the operator when attending a site.

Evidence may be produce by way of the electronic COVID-19 Digital Certificate or, for partially vaccinated individuals, by producing a record from the Australian Immunisation Register.

Employer obligations

Employers who are not site operators do not have express obligations under the Directions to be collecting information or ensuring the principal contractor (where one is appointed) is complying with their duty to collect and record information. However, employers of certain categories of workers have obligations regarding the vaccination of employees under the COVID-19 Mandatory Vaccination (Workers) Directions (No.1).

Categories covered by these Directions, and which are relevant to construction, include manufacturing workers, outdoor maintenance, repairs and cleaning, critical repairs, commercial cleaning, some public sector employees and professional service workers. Employers of these workers have similar obligations as those outlined in the preceding paragraphs, including the requirement to collect, store and record vaccination information, as well as ensuring workers who are unvaccinated do not attend certain premises to perform work after 15 October 2021.

The Directions are worded broadly such that they apply to the defined classes of workers who are ‘scheduled to work outside the worker’s ordinary place of residence on or after the relevant date’ being 15 October 2021. We know of reports of workers who do not wish to be vaccinated and who are proposing to take annual or long service leave, or work from home and therefore ‘wait out’ these Directions. It is not clear whether the future Directions will address whether vaccination is an ongoing requirement for these defined classes of workers if they are attending work outside their home in, for example, January 2022. Employers will need to monitor this.

If you are an employer who would like to discuss your obligations arising out of the COVID-19 Mandatory Vaccination (Workers) Directions (No.1), please contact us for further advice.

Additionally, employers have a primary duty under the Occupational Health and Safety Act 2004 (Vic)[2] to, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health. At a minimum, this may require employers seeking some assurance that site operators are complying with the Directions and that employees being sent to work on sites operated by others are aware they must be able to provide evidence of their vaccination status.

Privacy

Records of vaccination status collated by operators must be kept private, and may only be disclosed to comply with the obligations under the Directions.

While fulfilling their obligations under the Directions, operators must also ensure they adhere to the relevant Federal and Victorian privacy legislation, including the Privacy Act 1988, Privacy and Data Protection Act 2014 and Health Records Act 2001. Accordingly, operators may be required to inform workers about why their vaccination status is being collected, ensure they are only collecting and retaining the minimum amount of information required and taking reasonable steps to keep the information secure. Information should only be used and disclosed on a need to know basis.

[1] For projects entered into prior to this date, a principal contractor must be appointed for projects greater than $250,000 in value.

[2] And equivalent duties in all other States and Territories of Australia.

Looking for more information on the mandatory vaccination regime on construction sites?

Contact our team.

By Dale McQualter & Sarah Tucker

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