COVID-19 Orders affecting the NSW Construction Industry

UPDATE: 12 AUGUST 2021

On 11 August 2021, the following amendments to the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Amendment (No 20) Order 2021 commenced:

Additional restrictions for Penrith

The 8 excepted local government areas (LGA) of Greater Sydney are now defined as a declared area. The following suburbs within City of Penrith have been added to the declared area: Caddens; Claremont Meadows; Colyton; Erskine Park; Kemps Creek; Kingswood; Mount Vernon; North St Marys; Orchard Hills; Oxley Park; St Clair; St Marys.

The current restrictions and vaccination requirements on travelling outside of a declared area for the purposes of work will therefore apply.

Please check the website of NSW Health for any updates on what areas are deemed a declared area.

Re-opening of all constructions sites and vaccination requirements of construction workers from a declared area

All constructions sites in Greater Sydney may reopen (including those in a declared area) but subject to capacity restrictions of either the lesser of: 1 person per 4 square metres; or if there is a current resourcing plan for the construction site, 50% of the maximum daily workforce of the construction site.

Construction workers are now added to the list of authorised workers, subject to vaccination or testing requirements.

Construction workers whose place of residence is in a declared area cannot enter or remain on a construction site unless they have had:

1. 2 doses of a COVID-19 vaccine; or
2. one dose of a COVID-19 vaccine at least 21 days ago; or
3. 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
4. a certified medical contraindication and has been tested for COVID-19 within the preceding 72 hours.

Construction workers whose place of residence is in a declared area can travel outside the declared area for the purposes of work on a construction site but must carry and produce the required evidence for inspection, if requested by a police officer, including:

1. proof of residence; and
2. evidence from the Australian Immunisation Register that the person has had 1 or 2 doses of a COVID-19 vaccine, or that the person has been tested for COVID-19, or a certificate specifying a medical contraindication.

Construction workers whose place of residence is in a declared area must carry the required evidence with them on site and produce that evidence for inspection if requested by their employer, the occupier of the construction site, a police officer or an authorised officer.

Occupiers of a construction site must not permit a person whose place of residence is in a declared area to enter or remain on a construction site unless the occupier is satisfied that the person has complied with the vaccination or testing requirements and is carrying the required evidence.

Construction workers will be prioritised for vaccination at a designated clinic at the Sydney Olympic Park Vaccination Hub on 15 August 2021. Vaccination exemptions will are available.

Temporary restrictions for other areas of NSW

The current restrictions which apply to Greater Sydney extend to:

• Newcastle and Hunter area until the beginning of 13 August 2021;
• Armidale area until the beginning of 15 August 2021; and
• Tamworth area and Northern Rivers area until the beginning of 17 August 2021.

PUBLIC HEALTH ORDERS APPLICABLE 29 JULY 2021 – 11 AUGUST 2021

On 29 July 2021, following the closure of construction sites and halt on trades in Greater Sydney, the NSW Government issued the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (Order) allowing construction work and trades to resume except in 8 local government areas (Excepted LGAs), where there are ongoing restrictions.

The Excepted LGAs are City of Blacktown, City of Campbelltown, Canterbury-Bankstown, Cumberland, City of Fairfield, Georges River, City of Liverpool and City of Parramatta.

In summary:

1. construction work may be carried out at sites in Greater Sydney (not including the Excepted LGAs) provided that physical distancing is observed and a COVID-19 safe plan is in place;
2. construction work cannot be carried out at sites within the Excepted LGAs, except in limited circumstances;
3. there are additional restrictions and requirements regarding construction work at residences where a person lives (both in Greater Sydney and in the Excepted LGAs);
4. construction workers who reside in the Excepted LGAs may not travel outside of their LGA to attend work / the site;
5. authorised workers involved in the construction supply chain may attend work, but if they reside in the Canterbury-Bankstown or City of Fairfield LGAs, they are required to comply with regular COVID-19 testing;
6. workers who reside in Greater Sydney may attend work that is more than 50km outside of Greater Sydney, but must comply with regular COVID-19 testing;
7. financial support is available for eligible workers and businesses involved in the construction industry.

When is the Order in effect?

The Order is in effect from 31 July 2021 until 12:01am on 28 August 2021.

The Orders are subject to frequent changes, so must be continually reviewed.

Construction sites in Greater Sydney

Outside of the Excepted LGAs, construction sites are permitted to reopen in Greater Sydney, subject to a one person per 4sqm rule and having a COVID-19 safe plan in place.

However, construction workers who reside in the Excepted LGAs may not leave their LGA to attend work / the site (more on this below).

Construction sites in the Excepted LGAs

There are ongoing and additional restrictions in relation to work which can be carried out on a construction site within the Excepted LGAs.

Work cannot be carried out on a construction site in one of the Excepted LGAs unless the work is urgently required for one or more of the following purposes:

1. to ensure the safety or security of the construction site;
2. to deal with environmental risks;
3. to maintain and ensure the integrity of critical plant, equipment or assets (including partially completed works that would otherwise deteriorate);
4. for the receipt of deliveries of supplies that would otherwise deteriorate;
5. to maintain public utilities;
6. to ensure the safe operation of existing transport infrastructure;
7. by or on behalf of NSW Health in response to the COVID-19 pandemic; or
8. because of an emergency.

Work at a residence where a person lives

Restrictions are in place in Greater Sydney and the Excepted LGAs for work at a residence where a person lives.

The type of work which can be carried out at a residence where a person lives includes (i.e. “prescribed work”):

1. cleaning;
2. repairs and maintenance;
3. alterations and additions to buildings; and
4. work carried out as part of a trade, including electrical work or plumbing.

For any prescribed work carried out in Greater Sydney (outside the Excepted LGAs):

1. no more than 2 workers are visiting the place of residence at any time to carry out work (or 5 workers if all workers are carrying out work in an outdoor area); and
2. no person, other than another worker, is in the same room as the worker when carrying out work.

There is a category of prescribed work which has been classified as “necessary”. If the prescribed work is necessary, then work can be carried out at a residence where a person lives (including within an Excepted LGA). Further, the restrictions on numbers of workers at a site do not apply to necessary work (but physical distancing must be observed).

The work is necessary if:

1. the work is urgently required to be carried out to ensure the health, safety or security of the residence or residents, or because of an emergency;
2. the work is for the installation, maintenance or repair of an essential utility (including water, gas, electricity, internet, television or telecommunications service) or for fire protection and safety.

If the work relates to cleaning or repairs and maintenance, the work must be carried out at a residential premises that is unoccupied when the work is being carried out and because the work is necessary for the sale or lease of the residential premises.

Restrictions on construction workers who reside in the Excepted LGAs

Whilst construction work in Greater Sydney may resume, there are restrictions on workers who can attend work based on where they reside.

Workers cannot travel outside an Excepted LGA if they reside or are temporarily staying in one of the Excepted LGAs. The exception is if they are an “authorised worker”.

Construction workers are not authorised workers and therefore, cannot attend work even if the site or premises is outside of the Excepted LGAs that they reside.

However, authorised workers who work in the construction supply chain, including the manufacture of building supplies to support construction can continue to attend work. A full list of authorised workers can be found here.

Authorised workers who reside in the Canterbury-Bankstown or City of Fairfield LGAs must obtain (and retain evidence of having obtained) a COVID-19 test every 72 hours in order to attend work outside the LGA in which they reside.

If an authorised worker lives in any of the Excepted LGAs and works more than 50km from Greater Sydney (including the Blue Mountains, Central Coast, Wollongong and Shellharbour LGAs), they must obtain (and retain evidence of having obtained) a COVID-19 test every 7 days in order to attend work which is more than 50km from Greater Sydney.

Restrictions on workers who reside in Greater Sydney and attend work outside of Greater Sydney

A worker who resides in Greater Sydney (other than in the Excepted LGAs) cannot attend work that is more than 50km outside Greater Sydney unless they have been tested for COVID-19 within 7 days prior and can provide evidence of that test on request by an employer or a police officer.

COVID-19 Safety Plan

A safety plan is now required for construction on any site that is not an occupied residence in Greater Sydney. It is essential that businesses have a copy of their COVID-19 Safety Plan on site at all times. Please find the link to the COVID-19 Safety Plan checklist to be completed by businesses here.

A COVID-19 Safety Plan must include:

1. wellbeing of staff and customers;
2. physical distancing;
3. hygiene and cleaning; and
4. record keeping.

What financial support is available for businesses in the building and construction industry?

Construction businesses or contractors may be eligible for government financial support. Businesses should check their eligibility on the Service NSW website before making an application for financial assistance.

This article was written by Sheldon Garcia, Partner and Maria Mansi, Solicitor.