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Continuing professional development | Health and safety According to the Chartered Institute of Personnel and Development (CIPD), Continuing Professional Development (CPD) can play an important part in helping an individual keep their professional knowledge up to date and improve their capabilities. By focusing on what you learn, and formally recording your learning, you can show that you're actively committed to the development of your career. This new CPD related section is designed to help you reflect on your learning by linking your professional development to reading up on the latest expert guidance on employment law and health and safety issues. The questions and answers that follow the articles are formulated to help you reflect on what you've learnt.

Competence is the key: CDM guidance Maria Anderson and Simon Toseland demonstrate how to ensure compliance under the Construction (Design and Management) Regulations (CDM). The Construction (Design and Management) Regulations (CDM) 2007 came into force on 6 April 2007, completely replacing the previous CDM 1994 Regulations and the Construction Health, Safety and Welfare Regulations 1996. CDM 2007 applies to all construction work in the UK comprising: ‘construction, alteration, fitting-out, commissioning, renovation, repair, upkeep, redecoration or other maintenance, decommissioning, demolition or dismantling. It also includes site preparation, exploration and surveys.’ There are five defined duty holders under the CDM Regulations; namely the Client, Designer, CDM Coordinator, Principal Contractor and Contractor, all of which have their own statutory responsibilities. 30

Should a project be expected to exceed 30 days in duration, or 500 person days, then it is deemed to be ‘notifiable’ and the HSE needs to be informed. The Client The definition of a Client in CDM 2007 is fairly broad and effectively embraces any company, organisation or individual for whom a construction project is carried out, or who carries out a project

himself (with the exception of domestic clients). Although CDM does not apply to domestic clients, it does not necessarily exclude domestic premises, e.g. if you are a Local Authority, landlord or housing association you may well have responsibilities for the upkeep of residential properties. CDM 2007 recognises the influence that a client has over the health and safety of a construction project, as they

Figure 1. Successful CDM 1994 prosecutions (all categories): April 1995 – March 2006 (total 276 cases).

appoint the project team and can determine the timescales of the project. Good planning and communication also represent two essential elements of well managed construction projects. In either case, Clients play a significant role. They set the agenda, should make their expectations of high health and safety standards clear to their supply chain, and should also ensure that they and others pass on the

Figure 2. Successful CDM 1994 Client prosecutions: April 1995 – March 2006 (total 144 cases).

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The inference is that it was relatively straightforward for an HSE inspector to determine whether a client had complied with Regulations 6 and 10, regardless of whether or not an accident had occurred. It would have been less clearcut for an inspector to show non-compliance regarding the other Regulations (8, 9, 11 and 15). Equally, it is likely that compliance with these Regulations would only be tested if an accident occurred. The CDM-C Where the project is notifiable the Client will need to appoint a CDM-C. This is a legal requirement under CDM 2007. It is anticipated that a Client who initially seeks advice from a Designer will at some stage be made aware of the CDM Regulations. For notifiable projects, Designers have a responsibility to check that the Client is aware of their duties and that a CDM-C has been appointed. While the Client must take ultimate responsibility for decisions, the CDM-C is there to provide key www.workplacelaw.net

advice on construction health and safety management matters, including the appointment of competent contractors and the adequacy of safety management systems. The CDM-C should also ensure proper coordination of health and safety and design aspects, and prepare the health and safety file. This file is a record of information for the Client or end user. The contents should contain information about the specific health and safety risks that need to be addressed during subsequent maintenance and renovation work. It should be noted that until such time that the appointment of a CDM-C has been made, the Client retains the role. The longer this appointment process takes, the less of an opportunity there will be to influence design in terms of safety. In 2007 the Royal Institute of British Architects put forward the view that delays in appointing a CDM-C remain an industrywide concern. They argued that the value of the Coordinator’s role could be compromised if late appointment means they are unable to influence the work of Designers or others from an early stage. For non-notifiable projects, the Client is directly responsible for implementing health and safety management arrangements, and fulfilling a number of other duties, including assessment of the competency of Contractors and Designers, vetting health and safety documentation, and preparing / updating the health and safety file. The Client is therefore reliant on the competence of the health and safety advice they have in place. Any shortcomings will impact on the safety success of the project. The level of health and safety information that a Client provides, and to

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necessary information that facilitates effective planning for safe work. Interestingly, there have been more prosecutions against the Client under CDM than any other duty holder.Figure 1 shows the percentage of prosecutions against each duty holder under CDM 1994 between April 1995 and March 2006. There were, in total, 144 successful client prosecutions. Since publication of these statistics, the CDM 1994 Regulations have been superseded. Under the revised CDM 2007, the role of planning supervisor has been revoked in favour of a new role, CDM Coordinator (CDM-C). The breakdown of the 144 client prosecutions is shown in Figure 2.

“The key ingredients that make up an individual’s or organisation’s competence are ‘qualifications, experience and ... an appreciation of their own limitations and constraints’. The Client should have an understanding of these competency barometers when making personnel appointments.” whom and when it is provided, can also be governing factors in identifying and mitigating health and safety hazards and risks at an early stage. For Clients with existing property portfolios, there is often a considerable amount of data that can be collected and fed into the design process. Such information may include existing health and safety files, asbestos reports and details about other hazardous materials (e.g. lead), plans and drawings, mechanical and electrical manuals, listed building status, ground reports and information about flood risks. This information can be invaluable, and failure to provide it may

prove expensive to the Client over the life cycle of the building. Such failure may, for example, result in survey duplication and inaccurate estimation of project cost. It is also a legal requirement under CDM for the Client to provide all relevant information that is on record or is reasonably obtainable. Such information should be provided directly by the Client’s organisation or through the CDM-C if the construction work is notifiable. Where information is not readily available then measures must be in place to obtain it. It may, for instance, be necessary to undertake building surveys or to commission soil and ground investigations. 31


Continuing professional development | Health and safety The quality and timing of information to potential contractors may also influence their decision as to whether they tender for the work. Assuming the timescale allowed fits in neatly with their current workload and the availability of resources, this may lead to a competitive bid. Equally, the information may lead to a decision that adequate resources are not available – and thus persuade them to decline. A properly written and maintained health and safety file adds considerable worth to the assessment of forthcoming construction work. The contents will assist in identifying and mitigating health and safety hazards and risks, as well as eliminating the need for superfluous investigations. Under CDM 2007, Clients are advised to appoint Contractor(s) at the earliest possible stage. In theory, this maximises the opportunity to draw up design and construction techniques that will have a positive influence on safety. According to the CDM Regulations Approved Code of Practice, the key ingredients that make up an individual’s or organisation’s competence are ‘qualifications, experience and … an appreciation of their own limitations and constraints’. The Client should have an understanding of these competency barometers when making personnel appointments. At the beginning of any selection process, the client should have a clear concept of the project’s size, scope and special requirements. This will provide an understanding of the competencies required by a Contractor to perform the task. Likewise, the Contractor needs to have a full understanding 32

of the extent of the project plans in order to engage an adequately resourced and skilled workforce. The means of assessing competence may not be immediately clear. Where a Client chooses to rely solely upon a formal assessment scheme, it is essential to have knowledge of its parameters and how it works. There are a number of initiatives that label themselves as a means of demonstrating either corporate or individual competency. For example, the Contractors Health and Safety Assessment Scheme (CHAS) accredits organisations that have a proven safety management system, and the Construction Safety Certification Scheme (CSCS) recognises individual competence. The Association for Project Safety is an example of an organisation that provides both corporate and individual membership. Such schemes can be used as a tool for Contractors, Designers and CDM-Cs to demonstrate competence. The Designer The CDM Regulations require Designers to play a significant role in minimising the hazards associated with construction, operation, maintenance and demolition of a building at as early a stage as possible. However, in order to reduce hazards, Designers need to be aware of what hazards exist on construction sites, what problems are faced by those required to maintain, repair and refurbish structures, and what the real issues are that face those using structures as workplaces. Designs should eliminate, as far as possible, the need to work at height. This can be done by eliminating the need for plant to be located at height, e.g. on roofs, and service runs could be designed for maintenance access from the floor above.

Trusses, for example, could also be designed to allow preassembly and lifting. However, where it has been established that working at height cannot be avoided, Designers should aim to assist the Contractor / end user by applying the following hierarchy of control in their design: 1. Facilitate the provision of fall prevention measures (to make temporary work at height during construction safe); 2. Facilitate the use of temporary access equipment, e.g. scaffolds; and 3. Facilitate the provision of fall arrest measures. This is in accordance with the definition in the CDM Regulations at Regulation 2: 'Design includes drawings, design details, specification and bill of quantities (including specification of articles or substances) relating to a structure, and calculations prepared for the purposes of a design.' The Principal Contractor Principal Contractors are required to prepare a Construction Phase Plan for the project. The Plan needs to set out the organisation and arrangements for managing risk and coordinating work. The Plan should be tailored to the particular project and risks involved. Once a site is handed over to the Principal Contractor, they become fully responsible for the health and safety management of the site, which includes, but is not limited to: • preparing and enforcing site rules as required; • giving reasonable direction to Contractors; • preventing unauthorised entry;

• providing the plan to those who need it; • promptly providing the CDM-C with information for the file; and • liaising with the CDM-C in relation to design changes. The Construction Plan should be seen as a live document that is updated and revised throughout the Construction Phase of the project. A Principal Contractor’s ability to communicate and exchange information with others is influential in shaping the direction of health and safety on a construction project. Companies with a positive safety culture are often characterised by effective communication, founded on the importance of safety and mutual trust, as well as confidence in the effectiveness of preventative measures. Safety communications can affect safety behaviour and outcomes such as work related injuries. It is for these reasons that the mechanism for communication should be addressed within the Construction Phase Plan. The Principal Contractor should not assume that a single delivery of health and safety statements will suffice. A survey of construction workers in October 2003 revealed that 41% had been with their current employer for less than a year and that 52% had been working on their current contract for six weeks or less. A criticism of CDM 1994 was that too much unnecessary generic paperwork was produced by duty holders. The spirit of CDM 2007 is for a reduction in bureaucracy. However, it is important that documentation produced for a project is capable of producing an audit trail. In the event of a failure, procedural arrangements are likely to be used as evidence in the case of an accident investigation. www.workplacelaw.net


About the authors Maria Anderson is a Health and Safety Consultant at Workplace Law and has experience in implementing management systems such as ISO 14001

and OHSAS 18001. Simon Toseland is Head of Health and Safety at Workplace Law and is registered on the Association for Project Safety approved list of CDM 2007 coordinators.

Further information www.workplacelaw.net/training/display/id/219 The Construction (Design and Management) Regulations (2007): www.opsi.gov.uk/SI/si2007/20070320.htm

Questions – compiled by Simon Toseland, Head of Health and Safety, Workplace Law 1. If a charity wishes to build or repair its premises, and the work will take more than 30 days, and it plans to use volunteer labour, giving their services free of charge, is this project notifiable? 2. What does ‘satisfied that requirements of (welfare facilities) will be complied with during the construction phase’ mean?

3. If you have an overseas client who wishes to carry out construction work in the UK using a UK Contractor, how would you apply CDM to the overseas Client? Is there anything that specifically needs to be looked at? 4. Construction work is due to take place in a building, during which time some staff will continue to work in the building. The areas where construction works are taking place will be sealed off

and no staff will have access. A CDM Coordinator has been appointed for the duration of the work. Is the employer of the staff that remain in the building required to undertake a risk assessment before the work starts? 5. As a Principal Contractor, if one of your site operatives signs a disclaimer that they do not wish to wear PPE (in this case safety footwear) will it have any legal value?

Answers 1. There is no exception for charities undertaking construction work. A charity that is building or renovating premises is a Client because it is, in ‘the course or furtherance of business,’ seeking or accepting the services of others to carry out the project, and it is not necessary for those services to be paid for. Check that there is insurance in place to cover the works and any potential personal injury to volunteers. 2. This is a requirement on the Client by Regulation 16, where the project is notifiable. The Client must ensure that the construction phase does not start unless he is satisfied about the provision of welfare. Since this is in the context of notifiable work, there will be a Principal Contractor. The level of checking required will depend on the size, scope and complexity of the project, and the particular contractor involved. 3. In practice, the CDM Coordinator will advise the Client and treat it in the same way as a UK Client, but applying CDM to a non-UK Client is slightly more difficult if they are also based overseas. The overseas Client

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is responsible for fulfilling its duties under the CDM Regulations for the project in this country; however, if the Client has no assets in this country and there is a problem, any prosecution following a breach of Client duty would be difficult. For the CDM Coordinator, this means that if a problem arises and there is an HSE investigation, they could be prosecuted more easily. 4. The responsibility to protect employees and ensure the security of the site rests with the Principal Contractor. It is, however, one of your Client’s responsibilities (under the CDM Regulations) that these issues are adequately addressed within the Principal Contractor's Construction Phase Health and Safety Plan before work starts. However, you can seek advice from your CDM Coordinator as to the adequacy of this plan. Where you have people moving desks you will need to consider and assess a change in workstation layout (as required under the Display Screen Equipment Regulations). In addition, the new layout may affect fire travel route distances and you may need to make

temporary arrangements for raising the fire alarm should the system go offline while the construction works take place. As a result you may need to review your fire risk assessment for the premises – a requirement under the Regulatory Reform (Fire Safety) Order 2005. On completion of the project, should the building configuration change and if staff are required to move fixtures and fittings (computer desks, hard drives etc.), this will fall under the Manual Handling Operation Regulations. 5. The employee owes a duty of care to his work mates in how he behaves and carries out his work. Under the Management of Health and Safety at Work Regulations (Regulation 7) every employee shall use any equipment (including PPE) provided to him by his employer in accordance with any training or instruction. However, if an employer is aware of an employee working unsafely then he would be duty-bound to take action. The concept of vicarious liability renders the employer liable for the acts of his employees carried out in the course of their employment.

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