COVID19-001

Introduction

This is an outline of issues relating to the relevant considerations for subcontractors in the Queensland building and construction industry.

Executive Summary

Do not think that putting any of the following words somewhere on a piece of paper or in an email will solve your problems or strengthen your position somewhere in the future:

Coronavirus;
Covid 19;
severe acute respiratory syndrome coronavirus 2 or (SARS-CoV-2);
Force Majeure; or
Frustration;

They can in fact make your situation worse or cause you problems in the future;

Surprise surprise, you are going to have to administer your contracts;

You are going to need some artfulness in framing your notices of delay;

If you need help, we are still in operation so do not hesitate to contact us.

Clear statement

There have been a number of statements as what is prohibited, required or exempt. The media reports have been a bit vague and focused on the more socially volatile aspects.

If you want a clear statement of what you can and cannot do, this site is sufficiently detailed without all the emotional baggage.

Essential information https://www.australia.gov.au/

Building and construction

For the time being, construction work is still not on the prohibited list.

However, there are still issues concerning workplace health and safety and contractual obligations that need to be considered.

This is necessary as some sites have been shut down due to infected personnel entering those sites.

Workplace health and safety.

This is not medical advice and we are not experts in disease control. If you consider that the comments below do not go far enough or are in anyway lax then you should take any advice which is more detailed or stringent from an expert.

The first issue is that the mandated social distancing rules do apply to construction sites.

This will affect

The number of people that can be transported by hoists or lifts;
Occupation of site offices;
Population of the workface;
Lunchrooms; and
Residential facilities.

The next set of issues arise out of an employer’s obligations with respect to negligence. In that regard:

The social distancing issues outlined above must be addressed;
Take steps to ensure that infected individuals do not enter or remain on the site;
Gloving and mask issues need to be addressed, including but not limited to:

Methodologies for taking gloves off so as not to contaminate the hands that were in the gloves or any surfaces they are placed on; or
Gloved hands should not be used to handle objects which are going to be handled later without gloves (unless the object is sanitised in the meantime);
Gloved hands should not touch eyes, nose or mouth;

While hand sanitisers are good, they are not the best and the courts are likely to regard a failure to provide hand washing facilities with soap as negligent;
Those facilities probably need to be hands free, more numerous and strategically placed than the normal sanitation requirements;
Failure to provide the means to sanitise lunch room surfaces is also negligent.

The contract.

There is no legal basis for an assumption that a court will automatically excuse any lapse of performance in light of the current pandemic.

The reason you do not want to go anywhere near the legal issues of “frustration” or “force majeure” is that they terminate the contract. That is usually not in a subcontractor’s interests.

The other aspect of concern is that the courts look at the amount of time involved when assessing whether the contract really was frustrated or the subject of force majeure.

While relatively rare, there were cases involving the SARS virus. One citable example from another jurisdiction found that a ten day hiatus caused by the outbreak did not amount to force majeure or frustration

Given the risks associated with the more extreme legal options, subject to the usual legal ifs, buts, however and maybes, it would seem that the best course of action to adopt is the artfully worded notice of delay.

If you have any queries about this, contact us.

The legal framework

The Federal Government is presently governing by edict, restricting public behaviour and causing businesses to close without any reference to parliament.

The government is entitled to take that action pursuant to the Biosecurity Act 2015.

Section 52 is the section that enables the Minister for Health to make a declaration from which all things follow.

The declarations made to date which are enabling the current processes are

If you are interested in how all things flow from the making of a declaration and the consequences this is a very good outline

COVID-19 Human Biosecurity Emergency Declaration Explainer https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2020/March/COVID-19_Biosecurity_Emergency_Declaration