The introduction on Monday 29 November 2021 (subsequently replaced by directions released on 2 December 2021) the latest government vaccination directions has serious implications for those in the building and construction industry.
Which premises do these apply to?
Any “building and construction site” in Western Australia, excluding residential properties where persons currently reside.
What is a building and construction site?
Any site where activity that results in some change in land or a seabed or any structure that is erected on land or a seabed such as to form part of it, including adding to, removing, retaining or moving the land/seabed itself. This includes commercial premises where repairs or other work is being undertaken.
Mining, oil, and gas sites are not included in this definition but are covered by the Resources Workers Directions released previously.
Which premises do these NOT apply to?
Any sites that are not building and construction sites, for example, machinery repair workshops that service building sites or shopfronts where quotes are provided and materials exhibited, but no building or construction work is undertaken.
Established residential properties where a person is currently residing, for example, a plumber coming to your home to repair a blocked sink.
It might be that other directions apply to these sites, so it is important to seek advice about your particular circumstances.
Who is covered by the directions?
Any building and construction workers who access a building and construction site. This includes volunteers and unpaid persons, as well as apprentices, trainees and work experience placements as part of their formal training.
Who is not covered by the directions?
Visitors to the site, including homeowners, who are not there in their capacity as a building and construction worker.
It might be that other directions apply to these people, so it is important to seek advice about your particular circumstances.
What are the relevant deadlines?
- The deadline for the first dose vaccination is 12:01 am on 1 January 2022
- The Deadline for the second dose vaccination is 12:01 am on 1 February 2022
What exemptions apply?
As with other directions, medical exemptions and temporary exemptions are available
What records are required?
The owner of the site and/or employer of any workers on site must keep a record of vaccination status or relevant exemptions
What are penalties for non-compliance?
Penalties for being on a site (or allowing another to be on site if you are in charge of a site) in breach of the directions are a fine up to $20,000 for individuals and $100,000 for companies.
A failure to keep adequate records or produce them to officials on request will also attract those same fines.
What else should I be thinking about?
It is important to check any contracts you have with suppliers, customers, and clients to ensure that remain compliant not only with the government directions, but also with higher obligations put in place by those contracts.
If you are covered by the directions and have workers who do not wish to be vaccinated or do not provide evidence of vaccination or valid exemption, it is likely that you will be able to lawfully terminate their employment. The usual employment law principles apply in these circumstances, which require an employee to be given adequate notice of the issue (that they cannot access worksites to undertake their work), reasonable time to respond and/or address the issue and notice that their failure to do so will result in termination of their employment. When terminating employees, you should be careful to ensure that the reasons for termination are not protected characteristics or otherwise discriminatory