Access Western Australia construction and building sites – To Vax or Not Two Vax

On December 2, 2021, the Acting Director of Health issued directions under the Public Health Act 2016 prohibiting unvaccinated people from entering building and construction sites in Western Australia unless they are an exempt person. On December 23, 2021, further instructions were issued which have now been supplemented by instructions issued on February 5, 2022 requiring eligible persons to obtain reminders.

What do you want to know

From January 1, 2022, only people who have received a single dose of a COVID-19 vaccine will be able to enter or stay on a building or construction site. As of February 1, 2022, this restriction is limited to fully vaccinated individuals.

From February 5, 2022, anyone previously eligible for a booster vaccination who has not obtained it is not authorized to access the worksites. Anyone becoming eligible for a booster vaccination after February 5, 2022 must get the vaccine within one month of becoming eligible or face restrictions.

Employers of building and construction workers, owners, operators, occupants or persons in charge of building and construction sites must:

  • Collect and maintain records of worker vaccination status
  • Only list and work permit of vaccinated workers
  • Allow only vaccinated or exempted persons to enter or stay on a construction site

What is a building and construction site?

A place where construction and/or construction work is carried out, but no work:

  • Made in relation to a dwelling in which a person resides
  • For which, in accordance with Section 41 of the Building Regulations 2012 (WA), planning permission is not required
  • At any other place designated as a construction site in writing by the Chief Medical Officer of Health or by any person authorized by him for this purpose

When only part of a room is used as a building and construction site, the instructions do not apply to the rest of the room which is not used as a building and construction site.

What is an exempt person?

No, playing tennis does not count! Only building and construction workers who can prove on request that they have a medical exemption or temporary exemption will be allowed on unvaccinated sites. Medical exemption means a medical exemption recorded in the Australian Immunization Register and displayed on the individual’s immunization history record.

Penalties

AUD 20,000 for individuals and AUD 100,000 for corporations.

Conclusion

To comply with public health guidelines, stakeholders should consider and implement systems and processes to ensure that entry to sites is strictly controlled and that vaccination records are kept up to date and available for inspection.

Main contractors may find it ultimately their responsibility to ensure that sub-contractors comply, as they are likely to be held responsible for building sites and controlling entry.

Directors and owners will also need to ensure that they meet their obligations to keep records and control entry to sites in circumstances where they have not properly delegated obligations to contractors in their contracts or have indemnified against a contractor’s non-compliance with the law.

Contracts generally provide for how risk and liability are allocated if a change in legislation impacts a project after the date the contract is entered into. These clauses are normally limited to changes that affect the physical works or particular activities.

Is the clause of your contract sufficiently broad? If this is the case, this may recover any resulting increase in costs and delivery times.