This article was written by Larissa Buriak and Nicole Morris
The effect of the Public Health (COVID-19 Gathering Restrictions) Order (No 2) Amendment Order (No 3) 2021 (Amending Order) is that an 'Occupier' of a 'Construction Site' in Greater Sydney must have a COVID-19 Safety Plan in place on and from 31 July 2021.
A 'Construction Site' is defined broadly and includes a place at which work is being carried out to "erect, demolish, extend or alter a building or structure".
An 'Occupier' in the context of a Construction Site is defined as "the person who has the management or control of the site".
Risk allocation in respect of compliance with the Amending Order will be guided by the terms of the relevant building contract or applicable development agreement. Typically, we would expect a building contract to:
- require a contractor to be responsible for all work, health and safety matters which relate to the construction site / works;
- authorise the contractor to have management and control of the site for the purposes complying with the contractor's obligations as 'principal contractor' (if applicable); and
- require the contractor to comply with all relevant law.
If, under the terms of the relevant contract, the owner or developer has retained the management and control of the construction site (i.e. is considered to be the 'Occupier'), then the owner or developer will be responsible for ensuring that a COVID-19 Safety Plan is in place.
It is advisable to review the terms of all existing and future building contracts, development agreements and agreements for lease to confirm whether responsibility for management and control of the construction site has been allocated or passed through to the head contractor.
Please get in touch if you would like to discuss the Amending Order.
