Construction Law International – December 2021 – Country Updates: Australia
Job or jab? New South Wales’ mandatory vaccinations for construction workers
Corrs Chambers Westgarth, Sydney, Australia
It wasn’t that long ago that Australia was the envy of the world, boasting its control over the pandemic and largely Covid-free status in most states. After months of frequent lockdowns, stringent international and domestic border measures and cautious social-distancing procedures, slowly life returned to pre-pandemic bliss: restrictions were eased, cranes sprung back up and hope for normalcy was restored.
Then, in June 2021, the Delta variant reached Australia’s shores. Suddenly, more than half of Australia’s population was placed in immediate lockdown with some of the harshest restrictions the world has seen.
Specifically in New South Wales, in an attempt to stop the spread of the virus, the NSW government implemented one of the most controversial restrictions: a complete pause on all construction sites for a period of two weeks from 19–31 July 2021. All work on major Sydney infrastructure was temporarily halted, including the construction of the WestConnex Motorway and elements of the Sydney Metro rail project.
With this drastic construction shutdown costing the governing approximately AU$1.4 bn, the NSW government’s solution was to mandate the vaccination of construction workers in specific local government areas of concern.
This article explores the implementation of compulsory vaccinations for construction workers in NSW. This is done by first providing an overview of the government’s general legislative powers to respond to the Covid-19 outbreak, and second identifying the relevant legislation requiring mandatory vaccinations. This is followed by a consideration of the effectiveness of the mandatory vaccination laws, having regard to current vaccination rates and the easing of restrictions.
This article reflects the current Covid-19 laws in New South Wales as of 14 September 2021.
NSW government’s legislative powers
The NSW government has issued a plethora of laws and regulations relating to the pandemic since March 2020. These laws relate to a number of issues including self-isolation, interstate travellers, gathering and movement, aged care, and, most recently, Delta variant outbreak restrictions. All public health orders are available on the NSW government’s legislation website.
The NSW government’s powers to legislate on matters that affect public health are derived from the Public Health Act 2010 (NSW) (the ‘Act’). Specifically, section 7 of the Act allows the Health Minister to issue ‘Public Health Orders’ if the Minister considers ‘on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health’.
Under section 7, the Minister has broad powers to respond to the public health risk. For example, without limitation, the Minister may issue directions to: 
• reduce or remove any risk to public health in an area;
• segregate or isolate inhabitants of an area; and
• prevent, or conditionally permit, access to an area.
Failure to abide by the Public Health Orders exposes an individual to a civil penalty of up to AU$11,000 or six months’ imprisonment, or in the case of a corporation, a fine of up to AU$55,000.
Once a Public Health Order has been made, the Health Minister may issue amendments to the order on an ad hoc basis. These amendments are incorporated into the Order, and the most up-to-date consolidated order is published.
The latest influx of restrictions, including the vaccination provisions, are made pursuant to the Public Health (Covid-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (the ‘Delta Public Health Order’). Due to the ongoing restrictions and rise in Covid-19 cases, these public health orders are volatile and change on a daily basis.
Mandatory vaccination laws for construction workers
In NSW, construction workers are affected by two types of public health orders: orders specifically for construction sites; and orders relating to ‘authorised workers’. A construction worker is an authorised worker for the purposes of any relevant legislation.
Both orders are limited to workers who reside in, or work in, an ‘area of concern’. An ‘area of concern’ is a local government area that has recorded a high number of Covid-19 cases, or has experienced ‘clusters’ of reported cases. NSW currently has 12 areas of concern prescribed under the Delta Public Health Order. This means that over 2.5 million residents are subject to these stricter mandatory vaccination orders.
Together, the two types of orders mandate that all construction workers must receive at least one dose of a Covid-19 vaccine; and construction workers living in an area of concern cannot leave that area of concern (including for the purposes of work) unless the worker has received at least one dose of a Covid-19 vaccine by 19 September 2021.
The relevant provisions are as follows:
Section 5.8 in relation to construction sites provides:
‘5.8 Vaccination required to work on construction sites in Greater Sydney
(1) A person whose place of residence is in an area of concern must not enter or remain on a construction site in Greater Sydney unless the person –
(a) has had 2 doses of a COVID-19 vaccine, or
(b) has had 1 dose of a COVID-19 vaccine at least 21 days ago, or
(c) has had 1 dose of a COVID-19 vaccine within the previous 21 days and has been tested for COVID-19 within the previous 72 hours, or
(d) has a medical contraindication certificate issued to the person and has been tested for COVID-19 within the previous 72 hours.
(2) The occupier of the construction site must not allow the person to enter or remain on the construction site unless satisfied that the person has complied with this clause.
(3) The person must, when entering or on the construction site –
(a) carry the required evidence, and
(b) produce the required evidence for inspection if requested by –
(i) the person’s employer, or
(ii) the occupier of the construction site, or
(iii) a police officer, or
(iv) an authorised officer.’
In addition to this, the relevant authorised worker orders provide:
‘4.3 Leaving area of concern for work
(3) An authorised worker who is at least 16 years of age must not leave the area of concern for work unless the worker:
(a) has had at least 1 dose of a COVID-19 vaccine, or
(b) has been issued with a medical contraindication certificate.
(3C) From the beginning of 9 September 2021 until the end of 19 September 2021:
(a) an authorised worker is taken to comply with subclause (3) if the authorised worker has an appointment to receive a COVID-19 vaccine on or before 19 September 2021, and
(b) evidence of the appointment is taken to be the worker’s vaccination evidence for the purposes of the required evidence in subclause (3A).’
The effectiveness of the mandatory vaccination laws
Since returning from the two-week construction shutdown and implementation of the mandatory vaccination scheme, construction works continue to operate in NSW under stringent rules, including rapid antigen testing and registered Covid-19 Safety Plans.
No study or data has yet been released that evaluates the specific effect of compulsory vaccinations on the construction industry. Therefore, the effectiveness of the mandatory vaccination laws for construction workers must be viewed in light of the collective statistics covering all general population vaccinations and mandatory vaccinations for healthcare, airport and quarantine workers.
In order to consider this, it is important to note the position prior to the mandatory vaccination laws. At a high level, Australia’s overall vaccination levels prior to the Delta outbreak were noticeably low in comparison to worldwide figures. Statistics published by the Australian Department of Health show that prior to the implementation of NSW’s stay-at-home orders on 26 June 2021, NSW’s daily vaccination doses were fewer than 40,000 doses a day for the period 16–25 June 2021.
The low vaccination rates were a result of a variety of factors, including:
• The government’s initial vaccination programme. Australia currently offers both AstraZeneca and Pfizer Covid-19 vaccinations. Initially in NSW, a rollout of AstraZeneca commenced with the elderly population, slowly opening up eligibility for certain age groups (eg, people aged 60+, people aged 50+ and so on). The Pfizer vaccine was rolled out soon after, for the 40+ age group. In addition, the Therapeutic Good Administration (TGA) originally recommended a longer period between the two doses. This has since been reviewed and reduced.
• Vaccine hesitancy. The Australian government limited the AstraZeneca vaccine to the older population based on the risk of thrombosis. It was not until the Delta outbreak that those under the age of 40 were encouraged to seek consultation from their general practitioner and consider the AstraZeneca vaccine.
• Low daily Covid-19 cases.
• No mandatory vaccination laws.
Following the two-week construction lockdown, mandatory vaccinations for construction workers came into force on 11 August 2021. Following this, daily doses steadily rose from approximately 50,000 until numbers peaked at approximately 148,000 doses on 30 August 2021. As of 14 September 2021, 79.46 per cent of NSW’s eligible population has received one dose of a Covid-19 vaccination, with 47.54 per cent of the eligible population being fully vaccinated.
Based on the statistics alone, the implementation of mandatory vaccines in NSW (in conjunction with marketing encouraging the general population to vaccinate) has resulted in an incredible surge in the percentage of the vaccinated population. This rise is particularly seen between the period of 12 and 30 August 2021, being immediately subsequent to the implementation of the mandatory vaccination laws.
The spike in vaccination statistics and push for the easing of restrictions has resulted in the NSW government releasing a ‘roadmap to freedom’ for the fully vaccinated population. The ‘roadmap’ outlines that NSW’s harsh stay-at-home orders will be lifted on the first Monday after NSW reaches the 70 per cent double vaccination target. This is predicted to be in late October 2021.
New South Wales is currently the only state to require mandatory vaccinations for construction workers. Its laws are still in the early days of implementation but depending on the long-term public reception and success, these laws may pave the way for other Australian states to implement similar legislation. In fact, Victoria may be the next state to mandate vaccinations for construction workers in the near future after a number of building sites have been affected by Covid-19 outbreaks.
While this compulsory vaccination order for construction workers has received mixed reception since its implementation, the mandatory laws nonetheless allow an essential billion-dollar industry to continue to work safely and efficiently during the Delta outbreak.
 Construction work was only permitted in limited exceptions, including to ensure the safety or security of the construction site (see 24AB of the Public Health (COVID-19 Gathering Restrictions) Order (No 2) 2021) (now repealed).
 Caitlin Fitzsimmons, Lucy Cormack and Tom Rabe, ‘Construction shutdown to come at $1.4 billion cost to NSW economy’ Sydney Morning Herald (Sydney, 18 July 2021) www.smh.com.au/national/nsw/construction-shutdown-to-come-at-1-4-billion-cost-to-nsw-economy-20210717-p58ajx.html accessed 14 September 2021.
 NSW government, Covid-related legislation, https://legislation.nsw.gov.au/information/covid19-legislation accessed 14 September 2021.
 Public Health Act 2010 (NSW) s 7(3).
 Ibid, s 10.
 Ibid, s 7(4).
 Ibid, s 7(5).
 NSW government, Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 https://legislation.nsw.gov.au/file/Public%20Health%20(COVID-19%20Additional%20Restrictions%20for%20Delta%20Outbreak)%20Order%20(No%202)%202021_210914.pdf accessed 14 September 2021.
 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (No 2) (NSW) clause 4.2(4) Note 1 – A list of authorised workers is published on the NSW Government’s website at www.nsw.gov.au/covid-19/rules/authorised-workers#construction accessed 14 September 2021.
 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) Schedule 1 Part 3.
 NSW government, Rapid antigen testing, www.nsw.gov.au/covid-19/health-and-wellbeing/rapid-antigen-testing accessed 14 September 2021.
 NSW government, Construction and tradespeople, www.nsw.gov.au/covid-19/covid-safe/construction-and-tradespeople accessed 14 September 2021.
 Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (as at 14 September 2021).
 Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2021 (as at 14 September 2021).
 Australian Government Department of Health, Vaccination numbers and statistics, www.health.gov.au/initiatives-and-programs/covid-19-vaccines/australias-covid-19-vaccine-rollout accessed 14 September 2021. This data is used by the Sydney Morning Herald to produce daily interactive trackers: www.smh.com.au/coronavirus-pandemic.
 See www.smh.com.au/coronavirus-pandemic accessed 14 September 2021. This website is updated daily.
 The Moderna vaccine has recently been approved by the TGA and will be implemented in Australia in the near future.
 Australian Government Department of Health, Is it true? Does the Vaxzevria (AstraZeneca) COVID-19 vaccine cause blood clots? www.health.gov.au/initiatives-and-programs/covid-19-vaccines/is-it-true/is-it-true-does-the-vaxzevria-astrazeneca-covid-19-vaccine-cause-blood-clots accessed 14 September 2021.
 Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Amendment (No 23) Order 2021, https://legislation.nsw.gov.au/file/Public%20Health%20(COVID-19%20Additional%20Restrictions%20for%20Delta%20Outbreak)%20Amendment%20(No%2023)%20Order%202021.pdf accessed 14 September 2021.
 See n 16 above.
 NSW government, ‘Roadmap to freedom unveiled for the fully vaccinated’ www.nsw.gov.au/media-releases/roadmap-to-freedom-unveiled-for-fully-vaccinated accessed 14 September 2021.
 See n 16 above.
 Sumeyya Ilanbey and Aisha Dow, ‘Mandatory jabs being considered for Victorian construction workers’ The Age (Melbourne, 14 September 2021) www.theage.com.au/national/victoria/mandatory-jabs-being-considered-for-victorian-construction-workers-20210913-p58r7n.html accessed 14 September 2021.
Amanda Staninovski is an associate at Corrs Chambers Westgarth in Sydney, Australia, and can be contacted at email@example.com.