Articles

By Honorary Consul Kim Lovegrove MSE RML FAIB, Chairman of the International Building Quality Centre, Senior Lawyer and Law Reformer, Lovegrove & Cotton – Construction and Planning Lawyers

A number of countries have exempted their building industries from being required to shut down. The writer will not list those countries, lest, by the time of publication, additional jurisdictions are captured by industry shutdown.

Where the building industry is exempted from sector shut down by force of law, it is considered that legislatures could consider developing best practice contagion amelioration protocols to minimise the potential for harm to construction actors. Once developed, the protocols should be legislated and then enforced.

In an article published by the BBC, it was noted within the British context, that “With well over a million construction workers being officially registered as self-employed, they have a stark choice of working or their families facing hunger”.^[1] This reality is conceivably somewhat in tension with the policy consideration of enforcing social and physical distancing and keeping a vital sector of the economy alive.

A potential good practice method of protecting site workers may be by using and modifying existing legislative frameworks to operate in the new normal (a normal that is abnormal) and it is considered that Building Acts may well provide the best regulatory mechanism to achieve this. The reason being there already exist within many Building Acts a regulatory apparatus that can be leveraged to :-

• Codify best practice building industry pandemic control protocols;

• Facilitate uniform uptake of same; and

• Fairly quickly bring on stream existing human resources that can be used to educate, monitor and enforce.

The deployment of building inspectors and building surveyors could also complement the deployment of inspectorial officers from Occupational Health & Safety (‘OHS’) government agencies.  If the Occupational Health & Safety agencies are left unassisted, they may be resource challenged, and as Building Statutes invariably have operational and established inspectorial regimes, then an extension of that capability may be one way of resourcing an aberrational high-demand activity. This will be expanded on below.

The OHS agencies could cooperate with building surveyors and inspectors to provide intensive retraining on best practice safety protocols to deal with onsite risks emanating from COVID-19.

“Essential Industries”

A number of countries classify the construction industry as an essential industry; hence, the determination of many governments in ensuring that the building industry continues to operate. But it is a labour intensive industry where communities of workers are sometimes crammed into small spaces, so it is axiomatic that COVID-19 work place enlightened protocols need to be developed to ameliorate risk to building industry workers.

The development of such protocols will require collaborative inputs from:-

• Government;

• Contractor and subcontractor stakeholders;

• Trade unions;

• Lawyers experienced in formulating international good practice regulations;

• Epidemiologists;

• Doctors; and
• Law enforcers – be they building inspectors or OHS officers.

Key stakeholders have to get into a ‘tent of coalescence’, debate, thrash out and agree upon a common outcome. And it has to be done quickly, but not so quickly that logical best practice intelligent thinking is sacrificed at the altar of hasty and panicked outcomes.

We live in transcendental times where the greater good must transcend that which is subordinate to the greater good. The law reform process must be apolitical with two key objectives in mind:-

• Lowering the risk to life and limb; and

• As much as practicable preventing economic carnage, for as the old saying goes: “if you burn the village down, there’s no village to return to”.

Easily said, not too easily realised.

The Purpose of Building Controls

The overriding statutory objectives of most building acts are to deliver safe building outcomes.

Building Acts, ordinarily through subordinate regulations, typically have provisions that govern the building-in-use which extends to essential services maintenance. In addition, building legislation ordinarily gives building inspectors powers to inspect and ensure that buildings are constructed in accordance with the technical codes during the phases of post issue of building permits and prior to the issue of occupancy permit.

In a COVID-19 paradigm, the fact that legislative inspectorial regimes already exist is a fillip, as the building control fabric already possesses compliance oversight powers. Enlightened building regulations can be adapted in conjunction with other interfacing health related acts of parliament to the current setting to minimise coronavirus spread, by way of the promulgation of purpose specific and prescriptive regulations (via legislative amendment) or Ministerial Orders that would best guarantee uniform compliance uptake.

Absent the use of building regulation or complementary Acts of Parliament, expanding the footprint of compliance and protocol uptake may be ad-hoc and intermittent. Adherence to protocols that are not well thought through, despite the best endeavours of those fashioning same, may place construction actors in harm’s way. An observation was made in the Melbourne Age Newspaper that: “most said that social distancing on construction sites was almost impossible, both because of the culture of the building industry and because there is often a requirement to work in close quarters”.^[2]

Building Site Protocol Templates Are Emerging

Alberta Canada is one of a number of jurisdictions where industry has been proactive in its determination to generate anti-contagion guidelines. The Canadian Construction Association (CCA) has recently put together a pandemic planning guide of best practices to be used as a guideline for other construction contractors. Mr Bill Black,  President and COO of the CCA, was quoted as saying that “the safety conscious industry looked at everything, including managing sites, sanitising equipment and hand tools, restricting meetings and changing lunch time procedures”.^[3]

In the same piece it was stated that:-

• Cleaning protocols are widely available

• Any signs of illness have to be reported, culminating in self isolation

An interview featured in the same piece by Global News also revealed that:-

• Workers have to be 6 feet away

• Workloads are adjusted

• Priority of work is changing

• Employees who don’t follow requirements will be sent home

Many of these practices are being adopted in countries like Australia and New Zealand but what is notable about the CCA guidelines is the level of detail in the guidelines and the speed by which they have been generated.

Protocols have to be holistic, multi-faced, top-down, bottom-up

A lack of holistic protocols is very problematic; this BBC quote is instructive:

“One of the sites has thousands of people going in and out daily… Even though they have added hand sanitiser stations everywhere, people still have to use fingerprint scanners to gain access to the site when they go in or out which seemingly defeats the object of social distancing”.^[4]

The same piece quotes a builder as saying that, on a site where approximately 300 people are working, “it has a small smoking area, fingerprint turnstiles and a canteen not capable of the social distancing standard”.

There may well  be dire consequences if a piecemeal approach is adopted for protocols; reminiscent of a jigsaw puzzle, any piece that is left out could end up being a vital piece that could compromise the integrity of the entire system. Yet, until the legislatures promulgate well-consulted and well-researched good practice, the outcomes run the risk of not being holistic, hence harbor the potential for unintended consequences. 

The Potential for Litigation

The writer recently watched a TV program that revealed that litigation funders were coming on stream to potentially underwrite class actions against corporations, and even governments, who may, in the fullness of time, have been considered derelict in failing to implement and/or adhere to good practice pandemic protocols. Absent the codification of best proactive anti-contagion protocols, that which is considered to be an exemplar may be debatable. Absent that level of dexterity, in the fullness of time, and with the benefit of hindsight, some non-government sanctioned protocols might be found ‘underweight’ in terms of content and safety gravitas.

In an environment where the ‘pillars of knowledge’ are somewhat rubbery and move every day and the concept of best or good practice is fluid and dynamic, without the development of government ordained codified protocols, this does not bode well.

Within the clinical and measured laboratory of the Court room, unsuspecting potential defendants may, despite best endeavours, be found to have been wanting. This is a scary prospect for altruistic corporate citizens, and even for governments in certain settings, where they are considered to have been either tardy or misconceived in terms of measures or lack of measures introduced.

One way to diminish this risk is for the jurisdictions to promulgate holistic anti-contagion regulations along with statutory immunities, the import of which being that if the regulation is complied with on a best endeavours basis there would be statutory immunity from law suit for those that followed same in good faith.

An additional benefit of legislated guidelines and regulations is that where governments promulgate guidelines or regulations, and actors rely upon them, unlike in the case of a private corporation or association, there are certain additional hurdles in the way of a law suit against a government, particularly where the matter involves a policy decision or a decision concerning the allocation of resources. This is important in an era where societies do not want businesses that employ people hit by the costs of litigation when they are already struggling with the economic fall out of the COVID-19 pandemic.

Legislatures need to carefully turn their mind to the appropriate regulatory approach both from content and form perspectives.

The Form of the Regulatory Apparatus: Ministerial Order (or Equivalent)

The first requirement is an effective a functioning building regulatory framework which can be dance with related Health Acts of Parliament to draw upon  and modify to sufficiently maintain safety standards in circumstances where there is an additional and heightened risk posed on building sites. Currently many countries do not have the effective regulatory and compliance frameworks required to provide for the universal adoption of best practice contagion risk minimisation protocols.

Sadly, developing nations will bear the brunt of lack of enforcement apparatus; for nations where effective enforcement regimes are not already in place, it will be nigh on impossible to ‘rush it in on the run’. The Ebola epidemic in West Africa bore testimony to that fact.  The writer therefore harbours grave fears for continents like Africa whose health systems are at best fragile.

More developed countries on the other hand have in place, albeit to varying degrees, regulatory apparatuses that, if intelligently adapted, could well lower the extent of physical and mental harm. The problem is that if one has to wait for an act of parliament to introduce new regulations, parliament will have to sit in order to pass the new laws. This can take months unless there are emergency sittings coupled with a great deal of bipartisanship. There is, however, a creature of statute that can short circuit the process and yet still have legal teeth: it is the Ministerial Order.

Ministerial Orders (sometimes called a ministerial guideline) are subordinate enactments endowed with the inherent advantage of being capable of being promulgated very quickly as they do not need to go through parliamentary ratification to achieve the force of law. They are promulgated pursuant to a power delegated to a minister under the relevant primary Act or relevant subordinate regulations. A number of governments in the building space have used ministerial orders to promulgate insurance regulations. The Australian state of Tasmania utilises ministerial orders more widely than other jurisdictions in the building space, for example utilising ministerial order to regulate practitioner registration. The Australian State of NSW is currently using public health Ministerial Orders to introduce new anti-contagion protocols.

The Content of the Regulatory Apparatus: Model Protocols for Government Gazetting

The first thing would be to gazette best practice or good practice building site anti-contagion and supervision policies. Regard will be had to international good practice protocols. Policy makers would be well advised to examine and deliberate over a number of protocols to distil the best that is on offer.

Progressive templates would need to be benchmarked with published protocols with the view to developing a best practice set of protocols that can be codified in regulation and then enforced.

Precious time will be saved if reforming jurisdictions have regard to protocols that already exist in the international community. Time lost means lives lost, so there is no point in developing polices from scratch when more fully evolved polices can be accessed from abroad and further evolved.

Model Regulations for Federal jurisdictions

Many countries such as the USA and Germany have federal constitutions where the states enjoy sovereign powers to legislate in certain sectors. Australia is one such country where the 8 states and territories are home to the building statutes. It is important in Federal settings that the philosophy of cooperative-federalism is invoked whereby best practice model regulations can be called up by way of cooperative endeavour (a ‘coalition of the willing’ as it were) cross jurisdictionally to ensure uniform adoption of best practice anti-contagion protocols. This is particularly the case where work forces are mobile. Even where they are not mobile a great many companies operate cross jurisdictionally and to ensure that there is more efficient and utilitarian up take of universal protocols, model regulations that can uniformly be promulgated by local Ministerial Orders have much to commend them.

Enforcement and Compliance

Once protocols are promulgated, the next challenge is to ensure that the protocols are adhered to. This will ensure that workers do not compromise the health of their cohorts, or, through exposure to infected cohorts, place themselves in harm’s way. Equally, once the workers leave the building site at day’s end, site departure protocols need to be developed to ensure that any a-symptomatic actors do not migrate and transmit the virus to off-site actors be they family, friends or passers-by or third parties.

Without the well-resourced use and adaptation of building regulatory enforcement, compliance regimes will buckle. Acts of parliament have about the same effect as innocuous romantic paperback novels if enforcement regimes are under resourced.

The community of essential industry workers must be protected and the best way to do this is by the promulgation of laws that are applied without fear or favour to ensure universal uptake.

The law, however, need not solely be used as a blunt compliance instrument, for it can also be used as a constructive and altruistic medium for shaping a sound and cohesive community ethos. Only when constructive on site instruction is not followed must enforcement measures be brought to bear without compunction to remove the risk of harm and recidivism.

Leverage off Existing Building Legislative Inspectorial Regimes

In many countries, building inspectors or building surveyors are required by law to carry out mandated inspections at key junctures in the construction critical path. By way of a new delegated power under building legislation the relevant minister could promulgate a ministerial order giving building inspectors the power to carry out additional inspections to ensure that promulgated anti-contagion protocols are being complied with.

Building inspectors would of course need to do some crash-course training. As they would be expanding their inspectorial remit and conceivably placing themselves in harm’s way. Regulated inspections protocols would need to be developed to ensure that in endeavouring to compel compliance they do not become casualties themselves. There are some jurisdictions, the Australian State of NSW case in point, where there still exist a number of dual-qualified health and building surveyors that could be deployed if they were so disposed, to carry out anti-pandemic compliance inspections. Their task would be made easier if building site protocols are gazetted in order to avoid confusion over which site protocols would apply.

As noted by leading infectious disease Australian expert Professor Dale Fisher, Singapore Chair of WHO Global Outbreak Alert and Response Network, albeit in reference to public health officers, “[it is] difficult to implement with conventional resources… for people who are losing their jobs, give them a crash course in being public health officers…”^[5] The point gives further credence, in the writer’s view, to bolstering vital services and ramping up the work force by retraining workers who have lost, or have the potential to lose, some work flow.

If ‘retrained’ building inspectors are thus deployed they would need to receive additional remuneration, as they would be performing a vital public service.  It would be either state or local government that would underwrite the deployment. The inspectors or building surveyors would, importantly, also need immunity from law suit if their remit expands to do pandemic protocol compliance inspections. This is quite simply because insurers would be very unlikely to indemnify that sort of function in the current environment. Alternatively the state would indemnify said inspectors for any acts, errors or omissions that may inadvertently flow from the discharge of their new tasks.

Initially, inspectors could check building site protocols to ensure that the site practices are in accordance with those contained in ministerial Gazettes. In circumstances where there is non-compliance there would be expanded powers to refer matters of non-compliance to the constabulary, the relevant health authority  and/or the practitioner oversight bodies. They would also be afforded expanded random powers of entry.

As many countries already have Occupational Health & Safety officers and, in some instances, health inspectors, the deployment of building inspectors would complement the powers and resources of these officers. In circumstances where compliance is not forthcoming then OHS agencies would be copied in to the service of non-compliance documents.

The introduction of these additional powers could also serve to protect the physical well-being of the building surveyors who by law are currently required to carry out mandatory inspections. If they have the dual carriage of ensuring that said protocols are enforced they may in certain settings  be working in a safer work place themselves.

There would also need to be codified building site departure protocols to ensure that when an inspector leaves the site he or she is provided with sanitiser and decontamination equipment. Absent the provision of same and compliance with like protocols, the inspector could inadvertently become a vector that could migrate contagion from one site to another particularly if he or she is asymptomatic.

It would follow that there would be a dousing down protocol for the departure site and then a sanitisation regime before entering on to the new site. As building surveyors and inspectors may be inspecting a number of sites on any given day, protocols should be introduced  to manage this risk.

Before any jurisdictions could promulgate any new inspectorial protocols, it would be imperative for the government to have the ‘buy in’ of the building the official stakeholders representatives and the relevant health agencies and departments to ensure that there is no doubling up. Further there would be no legislative compulsion to force an inspector to expand his or her statutory inspectorial remit to become a de facto health inspector.

It would behove the governing jurisdiction to develop a ‘fast track’ training accreditation package with stakeholder curricula input to provide that accreditation.

Notwithstanding, if Occupational Health & Safety authorities are of the view that such an expanded remit on the part of building surveyors and inspectors would be unhelpful, that view would of course have overriding force. In lieu of the suggestion above in this paper, if OHS authorities held such a view, there would need to be a bolstering of OHS resources, nonetheless.

^[1] BBC, ‘Coronavirus: Construction workers fear for their safety’, 24 March 2020.

^[2] The Age, “No Distance Between Unions, Bosses on Improving Building Site Hygiene”, March 24.

^[3] Christa Dao, ‘Alberta Construction sites allowed to continue with precautions during COVID -19 pandemic’, Global News CA, 25 March 2020.

^[4] BBC, ‘Coronavirus: Construction workers fear for their safety’, 24 March 2020.

^[5] Professor Dale Fisher, as seen on the Bolt Report 30/03/2020.