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Due to the ongoing COVID-19 pandemic and resulting border controls and travel restrictions, only certain critical resources sector fly-in fly-out (FIFO) employees can travel interstate to carry out their duties. In this article Partner, Damian Roe and Solicitor, Hannah Watson discuss the current and past travel restrictions for workers in the resources sector and the potential long-term implications of those restrictions.

Over the past few weeks, we have seen the implementation of various measures by both the State and Federal governments to prevent the spread of COVID-19. This has included the restriction of what has been determined to be “non-essential services”.  For further information on essential services, please see this factsheet by Partners, Damian Roe and Jonathan Fulcher.

The resources sector currently continues to be regarded as an essential service. Despite this, border restrictions and quarantining requirements have raised concerns about the ability of sections of the resources sector to continue to operate as a result of a workforce that is predominately FIFO.

First Direction

On 25 March 2020, the Queensland Chief Health Officer issued Public Health Direction - Border Restrictions (the First Direction) which, from 12:01am on 26 March 2020, placed restrictions on persons entering Queensland from another state or territory, unless they were regarded as an ‘exempt person’ and had applied for an exemption pass.

An exempt person included mining workers where the company had a plan to manage and prevent the transmission of COVID-19 (a health plan). FIFO workers were also considered exempt where the worker could confirm that they were travelling to a worksite or work camp, and provided the following information:

1. the name of their employer;
2. evidence that they are a FIFO worker;
3. evidence that they are entering Queensland to go directly to work; and 
4. evidence of the location of the worksite or work camp. 

A health plan template provided on the Queensland Health website addresses a range of matters including:

• in relation to mine camps: ensuring social distancing, increasing infection control, providing self-quarantine accommodation, restricting ‘hot bedding’ and limiting movement of workers into the broader community; and
• in relation to transport: ensuring avoidance of close contact during transport, providing temperature testing, implementing a no travel rule for anyone with symptoms (and requiring they immediately isolate), a reduction in vehicles utilised (both on buses and aircraft) and in the number of FIFO and drive-in drive-out (DIDO) required during the COVID-19 pandemic.

Second Direction

The First Direction was replaced on 31 March 2020 when the Chief Health Officer issued Public Health Direction – Border Restrictions (No. 2) (the Second Direction). This Second Direction amended the requirements to be met by a mining worker and a FIFO worker effective from 11:59pm on 4 April 2020, meaning they would only continue to be an exempt person if they met the criteria identified in the First Direction, and were also a critical resources sector employee. 

A critical resources sector employee is a person that:

1. is required to be appointed under the Coal Mining Safety and Health Act 1999; the Mining and Quarrying Safety and Health Act 1999; or the Petroleum and Gas (Production and Safety) Act 2004 and the position is mentioned in the list published on the Queensland Health website; or
2. has been approved by the Chief Health Officer as a critical resources sector employee.

This Second Direction restricted FIFO workers able to travel to those that are required to be appointed under the relevant legislation, and includes workers such as a senior site executive, open cut examiner, underground mine manager, ventilation officer, site safety officer and others.  

In order to fall under (b), an application can be made to the Chief Health Officer to be included as a critical resources sector employee. These employees include those that cannot work remotely, cannot be replaced by local workforce and:

• are essential to the safety of the workforce;
• are essential to the operations;
• their absence from the site would result in a significant impact to production; or 
• are required to undertake time-critical work. 

Outside of the above, a non-exempt person could still enter into Queensland, provided they self-quarantined for a period of 14 days.

Third Direction

On 2 April 2020, the Second Direction was replaced when the Chief Health Officer issued Public Health Direction – Border Restrictions (No. 3) (the Third Direction). This direction amended the restrictions on arrivals into Queensland, providing that:

1. prior to 12:01am on Friday 3 April 2020, anyone entering Queensland was required to self-quarantine for a period of 14 days, unless they were regarded as an exempt person; and
2. after 12:01am on Friday 3 April 2020, a person will not be able to enter Queensland unless they are an exempt person. 

This Third Direction is the current guidance on entry into Queensland, and now only those who are exempt persons and hold a border pass can enter Queensland. 

As a result of these Public Health Directions, some companies have moved and are continuing to move FIFO employees, and their families, into Queensland to allow mines to continue to operate. Federal Minister for Resources, Water and Northern Australia, the Honorable Keith Pitt, has suggested the COVID-19 crisis may change the way that mining operates in the future, with less of an emphasis on FIFO workers and a focus on employing people from surrounding communities.

Whether there is a long-term impact of the structure of employment at resources projects remains to be seen. What is clear, however, is that whilst resources projects do hold a privileged position in the Australian economy and both the State and Federal government are anxious to ensure they continue to operate, they are not immune from the public health regulation associated with the COVID-19 crisis and need to ensure they implement appropriate planning to ensure adequate personnel are on-site to enable continued operations and production.