Impact of Queen Elizabeth II National Day of Mourning on construction programs and delay entitlement

With the recent announcement by Prime Minister Anthony Albanese that Australia will have a one-off public holiday on 22 September 2022 to mourn the death of Her Majesty, Queen Elizabeth II, parties to construction contracts ought to turn their mind to the effect on their programs.

Impact on construction programs

While construction contracts generally have public holidays built into baseline or contract-issue programs, it is clear this was an unplanned public holiday that could not have been accounted for when calculating program.

The question arises as to which party bears the risk for this delay.

Check the contract

Ultimately, the answer depends on the provisions of each construction contract.

A typical qualifying cause of delay definition is limited to acts, omissions or defaults of the principal and its agents and other nominated events, and will not include an express reference to public holidays.

However other avenues of relief may be available for contractors.  For example, most construction contracts include time and cost relief for contractors on the occurrence of a post-contract change in a legislative requirement.  Often, a change in a legislative requirement is separately nominated as a qualifying cause of delay, which may then give rise to an entitlement on the part of a contractor to apply for an extension of time.  It is likely that this public holiday will be caught by the definition of ‘legislative requirement’ (once again, depending on the definition in each contract).

Often, a contractor’s ability to successfully claim an extension of time is subject to short notification periods.  As a result, we recommended that all parties review their contracts as soon as possible to determine how, and by when, any contractual claim relating to the public holiday may be made.

Summary

It is likely that construction contracts will not have dealt head on with the public holiday. If, over this period, you have concerns or require advice in relation to determining who bears the risks for the public holiday or if you want advice around applying for an extension of time on your project, please feel free to contact Thomson Geer’s Construction & Infrastructure team.

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