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COM 2015 – Is the HSE fit for purpose?

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Guild of Builders, COM 2015 – HSE

The HSE have now issued their final version of the new Construction (Design and Management) Regulations 2015.

These new Regulations are due to be placed before Parliament in the coming weeks, with a view to implementing them on 61 April 2015. If Parliament approves the final version we predict a “disaster” for the construction industry in terms of fatal and serious injuries to building workers.

The Construction (Design and Management) Regulations 1994 were introduced as a result of the European Directive 92/57/EEC to implement a minimum standard of safety and health on temporary and mobile construction sites.

The Regulations were then replaced with the Construction (Design and Management) Regulations 2007 which represented a significant improvement over the original 1994 Regulations.

The HSE have now consulted on a revision to these Regulations to create the Construction (Design and Management) Regulations 2015.

The HSE’s recent consultation document stated that the reasons for the changes were as follows:

  • The shortening and structural simplification of the Regulations with the removal of the Approved Code of Practice (ACoP) and its replacement with straightforward guidance aimed at specific industry sub-sectors.
  • To replace the COM co-ordinator role with the Principal Designer.
  • To replace the explicit requirement for individual competence with new regulation and removing   COM’s explicit requirement for corporate Competence.
  • To ensure that the clients’ duties also include domestic clients.
  • To reduce the threshold for appointment of the co-ordinator role.

Some of these changes are required as a result of ongoing non-compliance with the original EU Directive, and some changes were designed to remedy perceived faults with the way that the existing Regulations were being implemented.

The proposed changes have been under consideration for many years now, but have been delayed significantly because of problems with the solutions that have been developed. The new Regulations are now being pushed through at the last moment in order that they can be implemented before the General Election. The guidance documents were released literally at the last moment permissible to allow this process to take place, and they do not appear to have been considered adequately. We are very concerned that the legislation and guidance has been rushed through in an ill-considered format simply to achieve the deadline imposed by the General Election and the suspension of Parliament.

The HSE released a consultation document relating to proposed changes between March 2014 and June 2014. There were 1427 responses to the consultation.

However 65% of the responses were from COM Co-ordinators and the entertainment industry. The outcome of the public consultation has stated that these responses were essentially ignored as these responses constituted “campaigns”. We understand that this is a legitimate tactic used by Government in order to drive through legislation. However most responses were in fact balanced views of the proposals, and we are aggrieved that these and our views could be so simply dismissed.

Our concerns are that this latest set of Regulations has been poorly thought through and will:

  • Create a significant step backwards in health and safety regulation in the construction industry, endangering workers.
  • Create significant duties for designers, who are often poorly qualified to complete them.
  • Create significant duties for Clients, without them having the automatic advice that was afforded to them by the COM Co-ordinator.
  • Increase the cost of compliance in the construction industry, instead of the stated aim to reduce cost.
  • Will increase costs to all homeowners carrying out construction works in their own homes.

The new ‘final’ HSE draft confirms that the 2015 Regulations will not exclude temporary and   mobile structures (unlike COM 2007, which made a specific exclusion).

This will have a significant impact of the entertainment and events industries. Any construction project (now including temporary structures) where there will be more than one contactor on site will fall under the proposed Regulations and will require the Client to perform their duties as outlined in the draft guidance and the appointed Principal Designer (presumably the set designer?) to discharge their duties. This introduces a huge amount of projects which were not previously subject to COM 2007 e.g. construction of a Film/TV set, music events, sports events etc.

Possibly the most significant effect of the new regulations is the removal of the client advisor role provided by COM Co-ordinators. Previously the COM Co-ordinator was legally required to “give advice and assistance to the client undertaking the measures he needs to take to comply with these Regulations …” In the 2015 revision the duty on the Principal Designer extends only to providing advice with respect to Pre-Construction Information.

This change will leave clients for construction works, many of whom have no construction experience, exposed to criminal duties without the automatic advice that was afforded to them by COM Co-ordinators.

We have spoken to many high-profile clients who are extremely concerned as to how they will be exposed under these new Regulations. The HSE Guidance document does recommend that Clients may need to “draw on competent advice”, but this is now not automatically provided to them by the COM Co-ordinator.

 

We have a close working relationship with several hundred designers, in particular architects, and we have consulted with them on the how these proposals will influence them.

The proposed changes forces upon them the expectation to fulfil the role of Principal Designer, (this role replaces the COM Co-ordinator). Most of the architects that we have spoken to feel ill-equipped to fulfil this role, and as a result they are seeking to subcontract the duties to firms of specialists.

The replacement of the COM Co-ordinator with the Principal Designer will simply lead to a situation whereby, far from reducing construction costs as intended by the new regulations, architects will seek a quotation from other consultants and will then in all likelihood mark these up to cover the additional responsibility of being named ‘Principal Designer’. Since broadly speaking the same documentation needs to be produced, the costs are not simply going to vanish as hoped by the HSE; they will just be subcontracted and marked up. We are advised that both the APS and RIBA are currently drafting sub-consultancy contracts to be used in these new circumstances.

The COM Co-ordinator was a source of specialist health and safety advice throughout the construction process. The role has been split between clients, designers and contractors. Frequently clients and designers have little or no understanding of health and safety. The removal of the specialist COM Co-ordinator role will create a disjointed approach throughout the construction process, and in many cases, will remove the one duty holder who did understand health and safety and provided advice. This will undoubtedly have a negative effect on health and safety on construction sites.

The proposed solution to the non-compliance issue in the EU Directive is to pass domestic client duties to the Principal Contractor by default. This solution is unworkable as it ignores the fact that many Client duties need to be fulfilled prior to the appointment of a Principal Contractor.

The new Regulations will undoubtedly affect the cost of small scale domestic construction works, as contractors will need produce additional documentation and fulfil more onerous duties.

The HSE have stated on numerous occasions that the main area of focus needs to be at the SME end of the construction industry. We agree with them. However, the new Regulations change the threshold of notification to the HSE from being “30 working days, or 500 person days” to “30 working days with 20 or more people on site, or 500 person days”. This will reduce the number of smaller projects notified to the HSE substantially.

In the Construction Industry Training Boards’ Guidance Notes they give rather banal advice to Principal Designers on actively encouraging designers to work together as a team “You can support their communication by providing breakfast for an early meeting or by celebrating project milestones.”

We appreciate that there may be wider political issues including the government’s goal of “reducing red tape”, but we are sure that when the public express concerns about health and safety legislation they are concerned with low risk environments, and not construction, which is one of the most dangerous industries in the UK. We also appreciate that there is a requirement to deal with the under-compliance with the EU Directive, but these proposed changes are ill-considered, are being forced through in the final months of Parliament, and will have far reaching effects on the construction industry for years to come.

We suggest that the Coalition Government think again as they will be seen as responsible for the predicted increase in fatal and serious injuries to construction workers. What a legacy to leave!

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