On Easter Monday, 6 April 2015, the new regime for construction health and safety came into force in the form of the Construction (Design and Management) Regulations 2015 (CDM 2015). These replace the previous regulations (CDM 2007). The new regime has been described as the biggest health and safety change in the construction industry for a decade.
Significance for the Minerals industry
The new regulations will also be of significance to the minerals industry.
This is because the wide definition of “construction work”, both under the CDM 2007 and CDM 2015, means that a great many construction and maintenance projects are caught by the regulations.
Even if the work is carried out by external contractors, significant duties are placed under the regulations on the client.
However, the regulations do not apply to the core activities of the exploration for or extraction of mineral resources, or to “preparatory activities carried out at a place where such exploration or extraction is carried out” (Regulation 2(1) CDM 2015).
The main changes
The changes have been made partly to bring the CDM Regulations more into line with EU requirements. For example the previous, fairly wide, exemption for domestic clients from CDM 2007 was considered to be in breach of the relevant EU Directive. Instead, the duties of all clients are set out generally in CDM 2015, but in the case of domestic clients, most of them are then passed to another duty holder under Regulation 7. A domestic client is a person who has construction work done on his own home or the home of a family member which is not done in connection with a business. The flipside of this approach is that there is a new emphasis on the duties of non-domestic clients.
Generally there is a greater emphasis on the non-domestic client fulfilling his responsibilities himself, with the assistance of competent advisors as necessary, rather than transferring him to others. The general duties of clients as regards managing projects are strengthened.
There has also been an emphasis on simplifying the structure of the Regulations to make them easier for SMEs to understand and apply. This follows a conclusion of the review of CDM 2007 that the previous regulations were not well understood by SMEs and that health and safety incidents are now more common on smaller construction sites.
To accompany CDM 2015, new guidance has been published by the Health and Safety Executive (HSE). The new guidance is shorter and provides useful checklists for compliance. In line with recent HSE practice it is not an Approved Code of Practice (ACOP). However many of the respondents to the 2014 consultation on the new regime indicated that they would prefer an ACOP, and the HSE stated on its website that it would seek views in 2015 on whether to replace the guidance with an ACOP. Nothing further had appeared on the website at the time of going to print.
Key further points are:
- New Principal Designer (PD) – The most fundamental change in CDM 2015 is the introduction of the new role of PD, replacing the CDM co-ordinator (CDM-C) role (which is abolished). The PD is responsible for co-ordinating health and safety during the pre-construction phase and, as such, CDM 2015 requires the client to appoint a PD as soon as practicable and in any event before construction begins.
- CDM 2015 provides that the PD must be a 'designer', which is defined as including any person who arranges for or instructs another person under its control to prepare or modify design. It is anticipated that entities that have previously acted as CDM co-ordinators under CDM 2007, but who are not designers, will seek to continue acting by being appointed as a sub-consultant to the PD.
- Skills, knowledge, experience and organisational capacity – CDM 2015 removes the bureaucratic and supplier requirements under CDM 2007 to ensure that duty-holders are “competent”. Instead, all duty-holders (other than the client) must have the “skills, knowledge and experience” and “organisational capacity” to carry out their respective roles. Clients are required to “take reasonable steps” to ensure designers and contractors meet these requirements and duty-holders must not accept an appointment if they do not. The HSE has made it clear that it is down to the relevant professional bodies and institutions to ensure that these standards are met across the industry.
- Notification of projects – All projects that are scheduled to last more than 30 working days and have more than 20 workers working simultaneously at any point or that are scheduled to exceed 500 person days must be notified to the HSE by the client. CDM 2007 required notification for projects likely to involve more than 30 days or 500 person days of construction work. The change should reduce the number of notifiable projects.
- More than one contractor? – However, notification no longer triggers additional duties to appoint a CDM-C and principal contractor (PC), as was the case under CDM 2007. Instead, under the new rules, the duty to appoint a PC and PD applies whenever there is more than one contractor, irrespective of whether the project is notifiable. This will catch smaller projects on smaller sites. Should the client fail to appoint a PC or PD, he is obliged to fulfil the roles himself.
Transitional provisions were put in place for projects which started before 6 April 2015 and finish after that date:
- Where a CDM-C was appointed on a project that started before 6 April but was certain to reach completion before 6 October, the CDM-C could continue its role without the need for a PD to be appointed.
- During this “period of grace”, the appointed CDM-C had to comply with the duties in Schedule 4 of CDM 2015 (which largely reflect the existing requirements under CDM 2007).
- For projects which commenced before 6 April but would not be completed before 6 October, the client was to appoint a PD as soon as practicable. The PD would take over and the CDM-C would have no further role.
- Where a project continued beyond 6 October and the client failed to appoint a PD, the client would become responsible for fulfilling the duties of the PD.
- Where a project began before 6 April and had only one contractor, that contractor was required to draw up the construction phase plan as soon as practicable after 6 April. For similarly timed projects involving more than one contractor but no PC, the client was to appoint a PC as soon as practicable after 6 April. The PC would be responsible for the construction phase in such circumstances.
Final practical thoughts
Clients find themselves with increased responsibility to check and review their health and safety arrangements through the life of a project under the CDM 2015. While clients will look to pass on many of their duties, they will still retain that responsibility. To ensure that all parties on a construction project follow the new rules, clients should make certain that building contracts and appointments are brought up to date – the JCT and other industry bodies are producing amendments to their standard form agreements. As breaches of the rules attract criminal liability with a maximum of two year’s imprisonment and/or an unlimited fine, clients should act now to ensure that both projects already underway and future projects are fully compliant.