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Construction Industry to Shut Down for 2 Weeks after Vaccinations made Compulsory

The Victorian government has just announced a sudden shutdown for construction sites.  From 11.59 last night, all construction sites in metropolitan Melbourne, the City of Ballarat, the City of Greater Geelong, the Surf Coast Shire and Mitchell Shire will be shut down.  Limited exemptions apply for workers to attend sites for emergency or urgent and essential work to ensure sites are safe and secure.

Employers will need to stand down workers and ensure their force majeure clauses allow for the delay in scheduled work.  Workers will need to apply for government assistance while owners are likely to have to cop the delay.

This is a blow for the construction industry which is already reeling from work restrictions and the recent announcement about compulsory vaccinations.

For those that missed it, all construction workers across Victoria will need to show evidence to their employer that they have had their first dose of a COVID-19 vaccine by 11:59pm on Thursday 23 September 2021.  In this article, we cover everything you need to know about the recent developments, including who needs to be vaccinated, the obligations of employers and the consequences of not getting the jab.

Who Needs to be Vaccinated?

The mandated vaccine extends to all construction workers and includes anyone attending a construction site. The government specifically requires the following persons to be vaccinated:

  1. All construction workers;
  2. Subcontractors;
  3. Union officials;
  4. WorkSafe, Victorian Building Authority or others who attend for the purposes of compliance and enforcement activities;
  5. Building owners;
  6. Delivery drivers who need to leave their vehicle and step onsite;
  7. Visitors including volunteers.

When is the Deadline?

A first dose of the vaccine must be received prior to 11:59pm on 23 September 2021 and is a prerequisite to being allowed to return to site. However, a worker can be allowed on site up until 2 October 2021 if they can show proof of a first dose vaccine appointment. This will allow some leeway for workers that cannot get immediate access to the vaccine.

Exemptions

If a worker has an exemption evidenced by an authorised medical practitioner, they will be able to work on site without having received the COVID-19 vaccination. If there is an exemption, we recommend:

  1. Checking that the medical practitioner falls within the category of practitioners that can provide exemptions;
  2. Checking that the exemption is in the form of a medical certificate or letter; and
  3. If it is an exemption for a temporary medical condition, the exemption will likely have an expiry date. To avoid any incidental breaches, ensure that a new exemption is obtained, or a first dose of the vaccine is received prior to its expiry.

Although the government has not announced any other exemptions, it may be that further exemptions are permitted in line with the aged care industry. These may include a further temporary exemption due to the inability to access a COVID-19 vaccine and/or a temporary exemption due to a critical workforce shortage.

Employer Obligations

The mandatory vaccinations will place obligations on employers to sight evidence that their employees have received the first dose, proof of a vaccination appointment for the first dose by 2 October 2021 or an exemption.  The evidence to be sighted includes:

  1. For those who have received the first dose: a copy of their Australian Immunisation Register record. This will list their vaccination history. For those who have had both doses of the vaccination, a copy of the COVID-19 digital certificate is to be sighted;
  2. For those who have booked an appointment for their first dose: an email or text confirmation of the appointment;
  3. For those who have a medical exemption: sighting the actual medical exemption.

Once the evidence has been sighted, employers are required to keep up to date records. Limited guidance has been given as to what ‘records’ are required, but it would likely be sufficient to have a spreadsheet with the list of employees, what evidence was sighted, the date of sighting and by whom. This record must be regularly updated and further evidence sighted and recorded for second vaccination doses.

Who is an Employer?

An employer is only required to comply with the above sighting and record keeping requirements if they are construction site operators. For those employers who are not construction site operators, they may opt to sight and keep that information, but are not legally required to do so.

Consequences of not having the Jab

Construction workers that do not have the first jab, a booking for the first jab by 2 October 2021 or hold a medical exemption, are prohibited from entering a construction site. This extends to construction workers who have not produced evidence to be sighted by the employer.

One consequence for employers will be how this affects the worker’s employment status and entitlement to receive their wage. In our view, employers may have grounds to stand down the employee under the fair work legislation. Employers must first check whether the employee can be usefully employed elsewhere in the business. If not, the employer may stand down the employee without pay.

If you or your business are affected by the mandatory vaccinations, we recommend you seek legal advice and contact one of our experienced team members at Taurus Legal Management on (03) 9481 2000 or info@tauruslawyers.com.au.

Posted by Taurus Legal Management