Two key legislative updates affecting building sites have been implemented due to COVID-19:
- order under section 10.17 (COVID-19 pandemic—Ministerial orders) of the Environmental Planning and Assessment Act 1979 (EP&A Act) (Development Consent Order)
- Environmental Planning and Assessment (COVID-19 Development—Construction Work Days) Order 2020 (Working Days Order).
The Development Consent Order allows the Planning Minister, in consultation with the Health Minister, to make an order to authorise a development to be carried out on land without the need for any approval under the EP&A Act or consent from any person.
The Health Minister must be reasonably satisfied that the making of the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic, and the order could remain in force until 25 September 2020, or for a longer period if extended by regulation.
The Working Days Order allows construction activities to occur on a Saturday, Sunday and on Public Holidays from 2 April 2020, irrespective of any conditions in the relevant development consent, provided that:
- Social distancing rules are complied with
- No noisy work, such as rock breaking, rock hammering and sheet piling, is undertaken
- The hours of operation that apply to the working week are complied with.
While the orders are designed to allow projects to be more flexible, cash to be injected into the construction industry and construction jobs be kept secure, the following practical considerations arise:
1) The Contract: What does the contract actually say about working hours and days? Is it the case that the Contractor must only comply with the relevant Conditions of Consent, or that the working hours and days are set by the Principal, with changes to be approved by the Superintendent (in writing)? In the former case, the Contractor can simply go ahead and make the change to the working hours. In the latter case, they would not be able to do this without approval, despite it being law, because changes are subject to approval.
2) Budget impacts: Who will be bear the cost of working on the weekend or public holidays? Weekend and public holiday rates will inevitably lead to higher labour costs. Parties will need to consider if this is dealt with under the contract, and how this will affect the overall project budget.
3) Work health and safety (WHS) risk: Are extended hours putting employees at risk? Contractors will need to ensure their employees are not working overtime hours that are in breach of employment laws or that such extended hours do not put their employees at risk of injury or accident.
4) Modern slavery: Are the orders putting vulnerable workers at increased risk of modern slavery? The construction industry is a high risk industry for modern slavery instances. Parties need to ensure the increased economic pressure businesses face due to COVID-19, together with high weekend rates, do not lead to the exploitation of vulnerable workers.
5) Social distancing breaches: How are social distancing rules being applied on work sites where close contact is required? Confined space work, or WHS considerations which require two workers to be in close proximity to one another will inevitably breach social distancing rules. Parties will need to ensure their workers are safe from the risk of contracting COVID-19 by following social distancing rules, where practicable, and performing certain physical checks on workers before they are permitted on site (e.g. temperature checks).
The construction industry has had to adapt to COVID-19. New legislative orders aimed to support the construction industry are encouraging, but parties need to ensure that measures are practical and that worker safety remains paramount.
By Holding Redlich partner Scott Alden and associate Victoria Gordon
A construction and infrastructure partner at national law firm Holding Redlich, Scott Alden advises private and public sector clients on large scale strategic infrastructure projects. He acts for owners, contractors and bidders in relation to all aspects of a project including construction, procurement and probity. Scott has specific expertise in government infrastructure projects, general contractual and legislative advice and the tendering process (at all levels of government), government and private sector capital and services procurement and infrastructure contracts.
A construction and infrastructure associate at national law firm Holding Redlich, Victoria handles matters across the government, property and construction sectors, with primary focus on procurement and construction contracts. She has extensive experience advising on all stages of the procurement process, including drafting and advising on a range of standard and bespoke construction contracts and commercial agreements.