Legal Insights

‘Stage 4’ COVID restrictions affecting development sites in Metropolitan Melbourne

By Paul Woods & Branevan Shankumar

• 10 September 2020 • 4 min read

The Chief Health Officer has issued further directions which imposes added obligations and restrictions on employers in connection with construction works.

The purpose of the Workplace Directions (No 2) and Workplace (Additional Industry Obligations) Directions (No 4), issued on 8 August 2020 and 16 August 2020 respectively, is to limit the spread of COVID-19 by reducing the number of people attending work.

These Directions are expected to be in place until the middle of September. They may be extended beyond that date. The Maddocks construction team has been advising a number of clients on how to navigate the new arrangements and keep some semblance of activity moving on site. We summarise below the current position.

Common Obligations

The Workplace Directions require an employer at a construction site, regardless of the type of construction, to ensure that:

  • all workers have a Permitted Worker Permit which permits them to leave home and attend work on site.
  • all reasonable steps are taken to ensure workers are wearing face coverings unless it not safe to do so (or another exception applies)
  • movement of workers between multiple sites (including supervisors and on-site specialists) is limited unless it is not reasonably practicable to do so (exceptions apply).
  • they limit people in shared spaces (such as lunchrooms) and areas accessible to the public
  • they keep a Business Attendance Register of the attendance of workers and visitors presently for longer than 15 minutes
  • shared spaces and spaces accessible to the public are cleaned on a regular basis
  • they notify DHHS, Worksafe and any on-site OHS representation if there is a suspected or confirmed COVID-19 case
  • a PPE training plan and a COVID Safe Plan (Universal or High Risk depending on the site) is implemented and complied with at all times.

An ‘employer’ is defined as a person that “owns, operates or controls a Work Premises and includes a person who is self-employed”.

The Additional Industry Obligations Directions impose additional requirements specific to construction sites, intended to reduce staffing levels but with some exceptions.

‘Critical and Essential Infrastructure’ sites are exempt. They are:

  • construction or maintenance (whether privately or publicly funded) where the Victorian Government has deemed, and the Chief Health Officer has endorsed, that it is urgently required for the purposes of sustaining human health, safety and wellbeing
  • activities deemed by the Government from time to time as 'State Critical Infrastructure Projects'
  • construction for the purposes of national security or defence.

There is a list of ‘State Critical Infrastructure Projects’ available on the DHHS website, and updated from time to time. It is unlikely that any projects on that list will affect greenfield or infill development sites.

The directions impose staffing restrictions on all other construction sites depending on whether they are:

  • Early stage residential land development sites
  • Large-scale construction sites
  • Small-scale construction sites.

Early stage residential land development sites

An early stage residential land development project comprises all civil works undertaken on open air, large greenfield sites associated with and preparatory to construction of multiple individual residential dwellings or industrial or commercial development on that site. This includes site remediation and site preparation works, construction of utilities, roads, bridges, stormwater/flood management works and trunk infrastructure.

On these sites, worker numbers are restricted to 10 per hectare at any one time.

A site will cease to fall under this category upon subdivision. Once construction of a dwelling commences on a subdivided site, the site becomes a ‘small-scale construction site’ (see below).

Large-scale construction sites

A construction site is ‘large-scale’ where one or more of the following criteria satisfied:

  • it is for the construction of a building where a planning permit has been issued in relation to the site for a building that is greater than 3 storeys tall (excluding basement levels)
  • the site size is more than 1,500m2 in floor size (inclusive of all floors)
  • it is for construction of a premises that is predominantly for office use or that is the internal fit out of a retail premises
  • it is for construction of a premises that is predominantly for industrial or large format retail use.

On large-scale construction sites, staff must be reduced to 25% of workers on site at any one time calculated based on the daily average number of workers on site across the project lifecycle (mobilisation to handover) as derived from the large-scale construction site’s resourcing plan as of 31 July 2020.

Small-scale construction sites

A small-scale construction site is any site that is not a ‘large scale’ site or early stage residential land development site. A maximum of 5 workers at a time (excluding the site supervisor) may work on a small-scale site.

Conclusion

Navigating these directions is no easy task. For example, there is some uncertainty as to what is meant by the reference to a site having a ‘floor size’ of 1500m2, when determining if a site is ‘large scale’ or ‘small scale’.

Need more information on the Directions?

Get in touch with the Construction & Projects team.

By Paul Woods & Branevan Shankumar

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