COVID-19 NSW Public Health Order applicability to construction sites

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By Scott Laycock, Partner, Aaron Gadiel, Partner and Camilla Counsel, Lawyer

We have received a number of requests for further explanation of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW Government Gazette number 65 of 30 March 2020) (Public Health Order) and how it relates to construction sites.  For more information on COVID-19 related risks and your current, or future, construction contract, you can access our previous article here.

By way of summary, the Public Health Order obligates people to comply with the following:

  1. persons must remain at their premises, unless travelling for a ‘reasonable excuse’;
  2. persons must not gather in a public place, unless:
    1. it is a gathering referred to in Schedule 2;
    2. for the purpose of work; or
    3. other purposes identified in Part 3;
  3. owners, occupiers and operators of premises must not permit certain gatherings (the 500/100/4sqm limits), unless it is a gathering referred to in Schedule 2.

The Public Health Order will expire at the end of 29 June 2020, unless revoked earlier.

You can access the Public Health Order here.

Persons to remain at their residence

Part 2 of the Public Health Order directs people to remain at their residence, unless they have a reasonable excuse for leaving.  Schedule 1 includes a non-exhaustive list of ‘reasonable excuses’ that can be relied upon if a person wants to leave their residence.  Item 2 in this list is:

“travelling for the purposes of work if the person cannot work from the person’s place of residence

A construction worker cannot work from the person’s place of residence and must work at a construction site.

This means that the direction to stay at home does not apply to a construction worker attending a construction site.

Public gatherings

Part 3 of the Public Health Order orders that no person may participate in a gathering in a ‘public place’ of more than two persons.

We consider that this direction therefore does not apply to a fenced construction site.

If there is a gathering of construction workers outside of a fenced construction site (for example, on the public road pavement and/or footpath) the direction may apply, other than when there is an exception.

Relevantly, the following exceptions apply:

  1. clause 6(2)(b), being “a gathering of persons for the purposes of work”; and
  2. a gathering referred to in Schedule 2, which includes gathering at a construction site necessary for the normal operation of that site (see below).

Construction workers who are gathering for a work purpose in, for example, the public road reserve for the purpose of the normal operation of the site, will unlikely be the subject to the ban on gatherings of more than two people.

Requirements of owners, occupiers and operators of premises

Part 5 of the Order directs that owners, occupiers and operators of premises must not:

  • for premises comprised of an outdoor space — allow 500 or more persons to enter or stay on the premises at the same time;
  • for premises comprised of an indoor space — allow 100 or more persons to enter or stay on the premises at the same time; or
  • allow persons to enter or stay on the premises (whether comprised of an outdoor or indoor space) if the size of the premises is insufficient to ensure there is four square metres of space for each person on the premises.

(the “50/100/4sqm limits”).

When these Orders don’t apply

A general exception to the above directions is if the gathering relates to an ‘essential gathering’ listed in Schedule 2 of the order.  Item 11 in that schedule relevantly says:

“a gathering at [a]…construction site that is necessary for the normal operation of the…site”

Accordingly, as per our previous article, any gathering of construction workers within a construction site that is necessary for the normal operation of the construction activity is not subject to the 500/100/4sqm limits.

For the purposes of these particular provisions of the Public Health Order, a construction site could (in our view) be wholly or partly in a public place.  For example, if there is an approved on-street works zone for loading or unloading associated with construction, we consider that that zone would form part of the construction site.  Accordingly, we consider that a gathering for the purposes of that loading or unloading would be covered by the ‘essential gathering’ exemption.

As the term ‘construction site’ is not defined in the Public Health Order, whether activities outside the boundary of the site is considered a construction site for the purpose of the Public Health Order would depend on the activity being conducted and would need to be assessed on a case-by-case basis.

Notwithstanding these gathering restrictions do not apply to construction sites, persons with relevant duties under the NSW Work Health and Safety legislation should consider their obligations under that legislation (and the relevant construction contract) to protect workers from health risks and consider whether additional protection measures should be adopted in the current circumstances.  For example, operators of sites may consider implementing staggered start, break and finish times to prevent unnecessary interaction between workers.

Extension of working days

The Environmental Planning and Assessment (COVID-19 Development-Construction Work Days) Order 2020 (NSW Government Gazette number 68 of 2 April 2020) (Work Days Order) permits the carrying out of:

  1. any building work;
  2. work; or
  3. the demolition of a building work,

on a Saturday, Sunday or public holiday.

The carrying of this work must be carried out in accordance with the conditions of the consent, other than any condition that restricts the hours of work on a Saturday, Sunday or public holiday.  The subject work, naturally, must be the subject of development consent (which could be a complying development certificate).

In carrying out the work on a Saturday, Sunday or public holiday, the work or operation must:

  1. comply with the conditions of the consent in terms of restricted hours of work or operation as if the conditions applied to work on a Saturday, Sunday or public holiday;
  2. not involve the carrying out of rock breaking, hammering, sheet piling, pile driving or similar activities on a Saturday, Sunday or public holiday; and
  3. take all feasible and reasonable measures to minimise noise.

The introduction of this order suggests that the NSW Government is committed to ensuring the stability of the construction industry during these uncertain times.

Should you require any assistance in interpreting the NSW Government Orders and how it applies to your site, please contact us.

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