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HSE consultation on CDM 2014 revision

IMPORTANT UPDATE (JAN 2015): CDM Regulations 2015 and Guidance NOW Published

HSE are scheduled to publish draft revised CDM Regulations 2014 in the coming weeks. This will be followed by a public consultation period.

It is expected that the revision with be based on a ‘copy out’ of the EC Directive 92/57/EEC and in our recent posts we summarised the principal requirements of the EC directive.

The Construction Industry Council (CIC) report – The Potential Implications of the CDM 2014 Revision Being Based on an EC TMCS Directive 92/57/EEC – sets out the considered view of a Working Group set up to review the potential implications of the proposed revision of the CDM 2007 Regulations.

The CIC report Executive Summary is reproduced below and the full report provides a useful comparison of the Directive requirements and the CDM Regulations 2007 which may assist those considering their response to the HSE consultation.

See also our view on the CDM-C and design under CDM 2015

See also all our News on CDM 2007

CIC REPORT EXECUTIVE SUMMARY

“This report sets out the considered view of a CIC CDM2014 Working Group set up to review the potential implications of the proposed revision of the Construction (Design & Management) Regulations being based on a ‘copy out’ of the EC Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (TMCS Directive).

The Group have considered the broad brush implications together with the more detailed implications relating to design, coordination and competence. The implications relating to contractors and the construction phase have not been considered in detail.

A straight ‘copy out’ of the EC TTMCS Directive raises a number of issues and would result in key changes to the CDM Regulations. These are summarised below.

The TMCS was prepared over 20 years ago, yet technology and practice have moved on since then. Copy out could be “going backwards” which is against principles established in Directives and the Health & Safety at Work Act.

The Directive is very broad and open to a wide range of interpretation, although it should be noted that non-binding guidance on interpretation was published by the EC in 2011. It is considered necessary to ensure that revised regulations are clear, adequately define requirements and are more precise.

Application of Client duties to domestic clients

The removal of the current GB exemption is not considered to be up for debate as EC action would be taken if GB fails to adopt this aspect of the Directive. The client’s duties can, however, be carried out by a project supervisor appointed by the client. However, it should be noted that the client assumes any project supervision duties which have not been delegated to an appointed project supervisor. Therefore, in order to address the issue of domestic client’s lack of ‘competence’ in relation to H&S matters, it is suggested that the first point of contact, e.g. designer or contractor, should become the project supervisor by default unless alternative arrangements are made – see below.

Project Supervisor role

This will be a new function in GB legislation. It is not considered necessary, however, to ‘invent’ a new role within the GB CDM framework to undertake the project supervisor duties. It is suggested that the lead designer or project manager would be the natural party to carry out this function unless alternative contractual arrangements are made to appoint an independent party or another member of the project team as project supervisor.

Coordinator roles and duties vary slightly from the current CDM arrangements

Coordinators are required on any project on which there is more than one contractor. Arrangements need to be workable, effective and achievable. Several possible models for the project supervisor and coordinator appointments are possible ranging from fully independent of one another to various combinations of these roles.

There will be a requirement for the market to have available suitably identifiable and capable individuals to provide the necessary resource to deliver the project supervisor and coordination functions. Industry will need to be clear about its delivery of any of the co-ordination models and the adoption of appropriate performance standards or practices.

Project Preparations Stage Co-ordinator role

To address the issue of a workable, effective and achievable way forward it is suggested that the lead designer, or a project manager if appointed, should carry out this function unless alternative contractual arrangements are made for the early appointment of an independent third party co-ordinator. This would resolve the current problem of late appointments. Competent specialists or experts may need to be engaged by lead designers to support them if they are appointed to carry out this function, especially on more complex projects.

The role of Project Execution Stage Co-ordinator has not been specifically addressed in this report other than in general terms.

Designers only have implied duties

The responsibility for the consideration of the health and safety implications of the design lies with the client or project supervisor and the preparations stage coordinator – see figure 1.

The removal of the general designer duties is not considered to be an issue of concern as the Health & Safety at Work Act and the Management of Health & Safety at Work Regulations duties address the general responsibilities for considering the impact of designs on others. However, as no such duty seems to exist in other H&S legislation, there may be a need for a reciprocal duty on designers to cooperate with the client, project supervisor and preparations stage coordinator to enable them to comply with their duties to ensure that the principles of prevention are applied and adequate information provided. Also, if the broader duties for designers are not included in the revised CDM Regulations, it is considered essential to make the application of HSWA and MHSWR duties clear to designers via a revised CDM ACoP.

.It is suggested that the dropping from CDM of the designer duty to take account of the provisions of the Workplace (Health, Safety and Welfare) Regulations would be better addressed through the WHSW Regulations and/or Building Regulations. Such an approach would avoid accusations of ‘gold plating’ the TMCS Directive.

There are no requirements regarding competence in the TMCS Directive

The removal of the requirements for assessing competence of appointees is seen as positive step towards removing bureaucracy. However it is considered appropriate to include reference to competencies for all duty holders and specifically a duty not to accept an appointment unless competent. The aim should be to make membership of professional institutions the recognised assurance of individual competence in relation to design risk management and coordination. Specific training in design risk management may be needed beyond that in degree courses, possibly mirroring site management courses for contractors, especially for individuals who are not members of recognised professional Institutions. It is suggested that the CIC considers establishing a forum to develop a voluntary code and a mechanism for verifying application of such a code.”

This article was posted on 14th August 2013