Can work at energy facilities (including construction sites) continue? We examine the classification of ‘essential’ and ‘non-essential’ services in relation to the continued attendance of staff at work sites for the operation, maintenance and construction of energy and renewable energy facilities.
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To assist in reducing the spread of COVID-19 within Australia, all levels of Government have introduced restrictions on various activities, commonly referred to as ‘non-essential services’.
Businesses must have regard to the classification of ‘non-essential services’, as opposed to ‘essential services’, to determine whether they can continue to operate during the current coronavirus crisis, particularly where operations involve the attendance of employees at work sites.
At present, there is limited guidance on what activities will be considered an ‘essential service’. Instead, the Federal and State Governments have set out the classification of ‘non-essential services’. Energy facilities, including renewable energy facilities, such as solar and wind farms, and energy storage facilities, are currently still considered essential, subject to the following additional requirements.
Are Energy Sector Operations Classified as ‘Non-Essential Services’?
In March 2020 the Federal Government announced restrictions on the carrying out of a suite of ‘non-essential services’, generally involving the gathering of groups of people or personal services. The list of ‘non-essential services’ includes the following activities:
- Service of food and drink (other than take-away);
- Auction houses, real estate auctions, open house inspections
- Outdoor and indoor markets;
- Beauty and personal care services;
- Entertainment venues;
- Leisure and recreation centres, including gyms;
- Galleries, museums, libraries, and community facilities
- Places of worship
Activities surrounding the construction, installation, operation and maintenance of energy facilities (including renewable energy and energy storage facilities) are not included in the list of ‘non-essential services’.
As such, subject to the application of restrictions on gatherings, work at worksites for these purposes can continue.
Restrictions on Gatherings
With effect from midnight (local time) 31 March 2020, ‘indoor and outdoor public gatherings’ will be limited to two persons only, but enforcement of this limit is being left to individual States and Territories (discussed further below). It does not appear to apply to work and business activities.
All Australians have been strongly encouraged to stay home unless they cannot work remotely.
On 28 March 2020, the South Australian Government announced that ‘non-essential’ businesses and ‘other gatherings’ should close/cease. The list of ‘non-essential’ businesses and ‘other gatherings’ mirrors the list by the Federal Government.
Activities surrounding the construction, installation, operation and maintenance of energy facilities (including renewable energy and energy storage facilities) are not included in the list of ‘non-essential services’. As such, they can continue.
In all work areas, it is recommended to try to maintain 1.5 metre distance between workers. The total number of persons present in the single undivided indoor space at the same time should not exceed one person per 4 square metres (2 by 2 metres).
As at the date of this Alert, South Australia is not enforcing the Federal Government’s direction to limit indoor and outdoor gatherings to 2 persons only.
On 26 March 2020, the Victorian Government further extended the list of ‘non-essential business activity’ that will be shut down or restricted across the State.
Activities surrounding the construction, installation, operation and maintenance of energy facilities (including renewable energy and energy storage facilities) are not included in the list of ‘non-essential business activity’. As such, they can continue.
However, construction sites are exempt from the definition of ‘mass gatherings’ as directed by the Victorian Government direction on 25 March 2020.
On 26 March 2020, the ACT Government extended the list of restricted ‘non-essential services and undertakings’.
Activities surrounding the construction, installation, operation and maintenance of energy facilities (including renewable energy and energy storage facilities) are not included in the list of ‘non-essential services and undertakings’. As such, they can continue.
The New South Wales Government have not included energy or construction in their published list of ‘non-essential activities’. There is a full list of public health orders prepared by NSW.
Construction sites remain exempt from the mass gathering restrictions as at the date of publishing.
The Directions published by the Chief Health Officer of Queensland has not included the energy industry, or related activities, in their list of ‘non-essential business, activity or undertakings’. This list was most recently updated on 31 March 2020.
Western Australia has also taken the same view as the Federal Government and does not include energy as a prohibited activity. Construction sites remain exempt from the limit on mass gatherings. The advice has been published on the State Government website.
The Tasmanian Government has also implemented the Federal Government list of ‘non-essential services’. The list does not include construction or energy activities. The management measures were published on the Premier’s website on 25 March 2020.
Aside from the Federal Governments list, the Northern Territory have categorised ‘Construction Sites’ as an ‘essential service’ to continue operating during the coronavirus crisis. Businesses in the energy industry, such as solar installation are currently not classified as a restricted activity.
What are the Travel Restrictions for Energy Sector Personnel Travelling into the State or Territory?
On 24 March 2020, the Prime Minister announced a ban on Australians travelling overseas under the Biosecurity Act 2015.
There are limited exceptions, for example to allow people to return home if their normal place of residence is overseas. This process is managed by the Department of Home Affairs.
From 11:59pm on Saturday 28 March 2020, all travellers arriving in Australia via air or seaports will be subject to the Australian Government’s mandatory 14 days of isolation in the city of their arrival.
In addition, individual states and territories have enforced their own limits on entry into their states from other states. Outlined below.
| State/Territory | Quarantine required? | Current Travel Restriction |
|---|---|---|
| South Australia | No - considered to be Essential Travellers and therefore exempt from the requirement to self-quarantine for 14 days. | Under the Cross Border Travel Direction 2020 people who arrive in South Australia from a place outside of South Australia, other than Essential Travellers, are required to self-quarantine for 14 days (among other things). |
| Victoria | No | Currently, there are no restrictions on interstate travel into Victoria |
| New South Wales | No | Currently, there are no restrictions on interstate travel into New South Wales |
| Australian Capital Territory | No | Currently, there are no restrictions on interstate travel into the Australian Capital Territory |
| Queensland | No - considered to be Essential Travellers and therefore exempt from the requirement to self-quarantine for 14 days. | Border controls were implemented in Queensland on 26 March 2020. Individuals who provide critical services, including energy, are exempt from the 14 day quarantine, however they must apply for an entry pass in advance. |
| Western Australia | No - considered to be Essential Travellers and therefore exempt from the requirement to self-quarantine for 14 days. | Travel restrictions for non-essential workers were rolled out in Western Australia from 1:30pm on 24 March 2020 as part of the Self-quarantine. Following Interstate Travel Directions, workers providing specialist skills of a time-critical nature are exempt from the restrictions. |
| Northern Territory | No - considered to be Essential Travellers and therefore exempt from the requirement to self-quarantine for 14 days. | Border controls are being enforced in the Northern Territory with a 14 day self-quarantine applying to all non-essential travellers. Workers with specialist skills that are critical to key services or businesses will be exempt from the requirement to isolate. |
| Tasmania | Perhaps. There is no blanket exemption for workers in the energy and construction industry, however if it can be demonstrated that they have specialist skills critical for industry or business continuity they will be considered an ‘Essential Traveller’. | The Tasmanian Government declared a State of Emergency on 30 March 2020. As a result all persons arriving in Tasmania will be required to self-isolate for a 14 day period, with the exception of ‘Essential Travellers’. |
There is no reason why activities surrounding the construction, installation, operation and maintenance of energy facilities (including renewable energy and energy storage facilities) should cease, provided employees observe social distancing procedures and other health-related protocols.
This information is current as of 2 April 2020. The speed with which COVID-19 is spreading and the varied responses both internally within Australia and externally change on a daily basis. It is important that you regularly keep up to date with all relevant information and be prepared to respond as the landscape in which the virus is moving changes.
This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.
