NSW Construction Industry Shut Down – Partial re-opening as of 31 July 2021
On Wednesday 28 July 2021, the NSW Premier took steps to re-open certain construction sites in parts of Greater Sydney following the earlier construction industry shut down orders which came into effect on 17 July 2021.
Amendments have been made by the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 17) Order 2021 effective from 31 July 2021 (the Amended Orders).
- certain works can recommence on construction sites which are deemed both unoccupied and occupied sites outside of ‘affected areas’.*
- While the restrictions on unoccupied construction sites have been relaxed somewhat, there are still heavy restrictions at occupied places of residence .
- Works performed at occupied places of residence must be ‘necessary’ and ‘prescribed work’ as defined by clause 22B(4) and (5) of the Amended Orders.
Work on construction sites:
- In areas not deemed as ‘affected areas’, it appears that general construction works on ‘construction sites’ can recommence provided that workers comply with the requisite conditions on performance of those works and comply with all Covid-19 safety protocols as stated under the Amended Orders.
- All works performed on an unoccupied construction site, not in an ‘affected area’, must be performed in accordance with a Registered Covid-19 Safety Plan.
- A plan must be written by both Principal/Owners and Contractors.
- Prudent Contractors should, moving forward, use the Safety Plan as part of a contractor’s daily tool box talk and further, should form part of the daily Job Safety Analysis plan.
- This would assist employers and Head Contractors ensuring that staff on site are aware of the Safety Plan and any updates each day before commencing works.
- While not mandatory, we would also suggest that persons performing works on occupied construction sites should also Register a Covid-19 Safety Plan in order to ensure the safety of themselves and those persons around them.
- For those seeking assistance the following link provides all necessary information for Principals and Contractors relating to submission of a Covid-19 Safety Plan: https://www.nsw.gov.au/covid-19/covid-safe/construction-and-tradespeople
- Omitted from the Amended Orders are any conditions relating to non-residential occupied construction sites.
- It is presumed for the health and safety of all persons that these types of works should be performed under a hybrid categorisation of unoccupied and occupied construction works. Accordingly, where the Orders make no comment on these types of works, we suggest the working conditions should be relative to the same restrictions on occupied residential premises being a maximum of 2 people per room and a maximum of 5 people in total in larger individual areas with any occupants not being in the same space as persons performing works.
* Please note there are no formal guidelines provided in this regard.
Work at places of residence
Clause 22B of the Amended Orders provides that a person cannot enter a place of residence to carry out prescribed works unless those works are:
- in a non-affected area*; and
- no more than 2 workers are visiting the place of residence to carry out any work (what so ever); and
- no person other than another worker is present in the same room as the works are being undertaken, unless the works are taking place in an ‘outdoor’ setting where a maximum of 5 works may attend.
Works able to be undertaken at a place of residence are still limited and only include works where:
- the work is urgently required to be carried out;
- to ensure the health, safety or security of the place of residence or persons residing at the place of residence, or
- because of an emergency, or
the work is:
- for the installation, maintenance or repair of an essential utility, including a water, gas, electricity, internet, television or telecommunications service, or
- for fire protection and safety, or
for prescribed work that is cleaning or repairs and maintenance — the work is carried out:
- at a place or residence that is unoccupied when the work is being carried out, and
- because it is necessary for the sale or lease of the place of residence.
By way of example, this means that if you are occupying your home during renovations, works at your home cannot take place unless they are necessary prescribed works.
Prescribed works include:
- repairs and maintenance;
- alterations and additions to building;
- work carried out as part of a trade, including electrical work or plumbing.
- Workers performing works on constructions sites or places of residences as set out above, must not be from an ‘affected area’ or travel into a ‘affected area’ unless they are deemed an authorised person.
Workers from/to an affected area
- For those workers wondering if they are able to attend their construction sites outside of their LGA, please see the following link which identifies authorised persons who are eligible to leave their LGA. https://www.nsw.gov.au/covid-19/rules/authorised-workers
- The works which are permitted on a construction site within an ‘affected area’ are as follows:
- to ensure the safety or security of the construction site;
- to deal with environmental risks;
- to maintain and ensure the integrity of critical plant, equipment or assets, including partially completed works, that would otherwise deteriorate;
- to receive deliveries of supplies that would otherwise deteriorate;
- to maintain public utilities;
- to ensure the safe operation of existing transport infrastructure;
- by or on behalf of NSW Health in response to the COVID-19 pandemic;
- because of an emergency.
Works in an affected area
At this time only persons located within an affected area may perform works in that specific area. Accordingly, where the above works may need to be performed, you will need to consider whether your usual contractors have capacity to perform those works.
The above listed works are very similar to those works which were permitted under the previous clause 24AB(1) of the Orders which affected all of Greater Sydney. Accordingly, we refer to our article dated 21 July 2021 which breaks down what works can be performed in this context.
Performance of Works in relation to Strata Schemes
- For those persons either residing in or managing Strata Schemes, it appears that the same rules apply for both single dwelling and multi dwelling occupied residential premises.
- At this time, the only delineation of what works are permitted any what is not, is focused solely on whether the building resides in an ‘affected area’ noting that there is a requirement for persons in ‘common property’ areas in strata schemes wear masks at all times.
- If you are a contractor contracted to perform necessary prescribed works in an individual lot in a Strata Scheme, it appears that renovation works may be performed but you will be restricted to a maximum of two persons performing those works within any lot and a maximum of 5 persons within common property areas, provided those works are not deemed necessary works.
- If your contractor lives within an ‘affected area’ then they are not permitted to perform works unless they are a deemed, authorised person.
- In so far as your owners corporation’s right to refuse access to individual lots in a strata scheme to Contractors, you should consult the relevant by-laws and liaise with your strata manager to determine whether your scheme is able to prevent certain persons from passing through the common property to gain access to your individual lot to perform the prescribed works.
Disclaimer: The above is not to be considered legal advice and that you should seek your own independent legal advice should you have any queries regarding the above or the newly amended Government Orders.
*Note these amendments do not apply to sites located in the ‘affected areas’ as identified in our earlier article: