Find out what clients are being told about how much time they should give you to mobilise.
The issue relating to the new Construction (Design and Management) Regulations 2007 on which we are being asked to advise is the requirement to provide the principal contractor with a 'mobilisation period'. This is the period for planning and preparation before construction work is expected to start on site.
Clients are unsure what considerations should be taken into account when deciding how long this period should be. It may help to understand why this mobilisation period has been included in the CDM Regulations. While the 1994 CDM Regulations focussed heavily on improving the principal contractors' health and safety records, the new CDM Regulations impose greater duties on the client and prevent responsibility for these duties being passed to an agent.
It is the client who drives factors such as time and cost, and who therefore has the greatest influence over risk management and can have the greatest impact on the health and safety of all site workers. Ensuring sufficient time is given to all duty holders (including the principal contractor, other contractors and designers) at all stages of a project is a theme running through the CDM Regulations.
Clients have a duty in all projects (notifiable and non-notifiable) to provide every designer and contractor with pre-construction information which must include all relevant information affecting the site or construction work. Guidance on what should be included is contained at Appendix 2 of the Approved Code of Practice. Regulation 10(2)(c) states that this pre-construction information must include the "minimum amount of time before the construction phase which will be allowed to the contractors appointed by the client for planning and preparation for construction work".
Where a project is notifiable, the CDM co-ordinator must provide the client with suitable advice and assistance on the adequate time to be allowed to a principal contractor for mobilisation, although this is ultimately the client’s decision. The CDM co-ordinator will notify the Health and Safety Executive of the agreed mobilisation period and the principal contractor must in turn inform each contractor (i.e. the sub-contractors) of the minimum amount of time they will each have to plan and prepare before work commences on site.
One of the main aims of the CDM Regulations is to 'apply the principles of prevention' meaning that all parties must be allowed sufficient time to consider and plan the construction phase in order that potential health and safety hazards can be identified and minimised. If this planning is hurried, hazards may be over looked which could lead to accidents during the actual construction phase. Principal contractors, in conjunction with other duty holders, should have enough time to review all information, plan the construction phase, find adequate numbers of competent staff and collect and mobilise appropriate resources, including onsite welfare facilities.
There is no one time period that can be used for every development. Each project is different and will have different requirements. The mobilisation period for each development should be properly thought-out and analysed, taking into account the underlying principles of communication, co-operation and good management contained in the CDM Regulations.
The size, resource available to the principal contractor and the activity to be undertaken are all relevant factors. It may be the principal contractor is large enough to mobilise all site facilities and staff in a matter of days. Other companies, due to their size, other commitments or the activities that they are performing, may require several weeks. It may be that due to the complexity of a development, special resources and disciplines must be sought, resulting in the required mobilisation period being several weeks longer.
In the event of an investigation by the Health and Safety Executive, a short mobilisation period may be taken as a lack of proper planning and therefore a breach of the CDM Regulations. It may also amount to a breach of sections two and/or three of the Health and Safety at Work Act 1974 ("the HSWA") for failing to ensure, so far as is reasonably practicable, the health, safety and welfare of your employees and others.
Failure to comply with the CDM Regulations and the 1974 Act is a criminal offence. Directors, officers and managers of your business may also be vulnerable to personal prosecution for breaches of the legislation where the breach is shown to have been committed with their consent, connivance or to have been attributed to their neglect. The penalties for individuals include both fines and potential imprisonment.
While developments are naturally driven by time constraints, stepping back and allowing time for proper preparation may avoid unnecessary accidents, save lives and minimise the risk of prosecution.
This Article appeared in Contract Journal on 26 September 2007