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April 17, 2014

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CDM Regulations: the potential changes

Stephen Coppin, CFIOSH, principal occupational health and safety consultant for Parsons Brinckerhoff, breaks down the proposals for the CDM Regulations 2007, and weighs up the risks and opportunities

Stephen Coppin will be presenting at the IOSH conference

After two years of internal proposals and reviews by the Health and Safety Executive (HSE) with the Construction Industry Advisory Committee (CONIAC) on the main changes to the existing CDM Regulations 2007, we finally received confirmation and availability of draft proposals to replace the existing Construction (Design and Management) Regulations 2007 (CDM 2007), as part of a 10 week consultation period rather than the proposed 12 week period.

As we can now see, these draft proposals contain 38 regulations within six parts. Three schedules contain the following main changes:

  • Some additional client duties;
  • Introducing a duty on information, instruction, training and supervision to replace the duty to assess competence;
  • Coordination duties required earlier;
  • The new role of principal designer;
  • Removal of the CDMC co-ordinator;
  • The threshold of Notifiable projects slightly altered;
  • Construction Phase Plan required on all projects by either the appointed principal contractor or contractor;
  • Placing client duties for domestic projects with the first appointee;
  • These Regulations will apply to existing and future projects once they come in force — therefore no transition or phasing in period;
  • Removal of the ACoP and reliance of supporting guidance.

CDM 201x Structure below contain 38 regulations within 6 parts and now 3 schedules:

 

The concerns are: why change these Regulations, when if applied thoroughly they have improved the industry? however, we could make slight improvements.

Loftstedt did state in his first report “Reclaiming health and safety for all:  An independent review of health and safety legislation” that CDM 2007, which enacts the requirements of the Temporary or Mobile Construction Sites Directive (TMC SD) (89/391/EEC of June 1992 and 92/57/EEC), would be evaluated by April 2012, “to ensure there is a clearer expression of duties, a reduction of bureaucracy and appropriate guidance for small projects”.

In his following report, “Reclaiming health and safety for all: a review of progress one year on”, he stated that: “HSE published the evaluation of CDM 2007 on time and I note that they have gone further than my recommendation, with work already underway to consider how these Regulations could be simplified and rationalised without reducing standards”.

Clients are encouraged to set up new due diligence and gateway processes to capture and plan projects with more than one contractor when appointing principal designers and principal contractors well before the project is envisaged to be notifiable.

Up until last October 2013, there were strong hints by the HSE that with removal of the CDMC role would result in two new co-ordinator roles — co-ordinators for safety and health matters at the project preparation stage and co-ordinators at the project execution stage.

Therefore the lead designer would have responsibility to also carry out the role of the pre-construction stage coordinator (PCSC) or pre-construction stage manager (PCSM). The principal contractor would be responsible once commencing work for the responsibility to carry out the role of the execution stage coordinator (ESC).

There is also the matter of the project supervisor role, which has been omitted possibly to prevent the risk of clients offloading their legal duties to a project management organisation0, as we had in CDM 1994 (and removed in CDM 2007).

I have seen project managers that have been given contractual responsibility to totally focus on cost and programme at the expense of safety, and the CDMC has been either appointed late or excluded from being involved with any significant changes to the scope of works or design. Yet project managers are still not accountable under CDM, except possibly in extreme cases, which would require a number of facilities and a clear audit trail to show that they were clearly responsible.

Using the diagram below for a typical design and build project, there could be potential risks at bid stage to the tendering contractor around whether pre-construction information, significant risks in the design, and whether safe access for maintenance has been addressed by the client, principal designer or designer.

 

 

Either way, there are potential benefits and risks with these proposed changes, depending on how organisations see and apply themselves as one of the key duty holders. Particularly this applies to the client, principal designer and principal contractor.

In line with the current L-Series, industry guidance has been drafted to clarify the HSE’s interpretation of these Regulations, which is currently going through internal review to replace the current Approved Code of Practice. The revised duty holder guidance, which is being drafted ready for final review during May and June, is aimed at small and medium size enterprises, and currently appears to be on track. However, issues such as managing temporary works, excavations and working near underground utilities still need to be clarified.

A clear positive within these proposals is the requirement on the client to ensure safety co-ordination is applied earlier than we currently experience, in instances where a project has more than one contractor. The HSE is of the view that co-ordination will become accepted as a core business function of the pre-existing  project team (undertaken by those who currently have a design function) rather than an outside co-ordinator.

However, it is viewed by others as either a conflict of interest. Where is the independent ensurance that the respective parties are fulfilling their duties?

Typical Gateway Process:

 

The competence core criteria for the assessment of individual and corporate competence is currently found in Appendix 4 and Appendix 5 of the CDM 2007 ACoP. It has been proposed that his should be removed, having been flagged up as being too detailed: “adding significant costs to construction  projects with often little benefit.”

Although it states in the consultation document that: “Promoting competence within the construction industry remains a key priority and developing individual competence is crucial to reducing accidents and ill health.”

It then states that: “HSE now believes that Regulation 4 should be removed because competence is  most  effectively promoted by industry on a non regulatory  basis and focused on adding value and not bureaucracy.”

This relies upon the duty in Regulation 5 for clients to ensure adequate management arrangements are in place for each project and finally in Regulation 8, that any person that is responsible for appointing a  contractor to carry out work on a construction project (e.g. client, project manager, architect, design engineering or principal contractor) must ensure, so far as is reasonably practicable, that the contractor has received the necessary information, instruction and training; and has appropriate supervision. 

Professional safety practitioners and CDMCs alike all know we should not look at these Regulations solely in isolation. Focus should be on a holistic risk management approach, to encompass the principles within the existing Management Regulations and the Health & Safety at Work Act.

Finally it states: “HSE believes that the competence of construction industry professionals should be overseen by, and be the responsibility of, the relevant professional bodies and institutions.”

There is not an opportunity for IOSH and other professional membership bodies to get together with HSE to set the bar in line, as with other register schemes.

Not forgetting the proposed Transitional Requirements, there clearly will be no phasing-in period should these Regulations go through. As it stands, where a project has started before these Regulations come into force, but will be completed afterwards, the client must appoint a principal designer and principal contractor if there is more than one contractor working on the project, as soon as is practicable.

Clients will need to ensure they carry this out in writing, otherwise they will be deemed the principal designer and/or principal contractor. This implies that all duty holders must comply with these Regulations once they come in force, which at the time of writing, is April 2015.

We should notice that we have not covered the proposed requirements on domestic clients and projects in any detail. However, these will be covered in detail at a later date.

Should these Regulations come into force in April 2015, for the first 18 months to 2 years, the number and type of material breaches and prosecutions may set legal president on the way.

The consultation is open from 31 March until 6 June 2014. The full document can be found here.

 

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Bob Pedley
Bob Pedley
9 years ago

On the whole I believe the proposals are reasonable however the use of the title “Principal Designer” will confuse. Most will not see this as a safety management function. Even the Principal Contractor duty is not understood by a large section of the construction community who fail to understand the requirements of the existing role. If we are to replace the title “CDM Coordinator” it would be more informative to use titles and descriptions from the Directive (89/391/EEC of June 1992 and 92/57/EEC). The same can be said for the Principal Contractor. Across all sections of industry there is an… Read more »

David Aukett
David Aukett
9 years ago

Please could I have an proof-read copy of this article as it makes no sense in several places E.g. what does “misunderstanding where a project’s do or do not not have more than Contractor during duration of the works”, the double negative implies ” do or do have” so there is no logical dependency on this condition?.

I am about to commence a project and so have been following these developments with interest.

Ian Mitchell
Ian Mitchell
9 years ago

I think some of the role titles will not assist the construction health and safety practitioner in explaining duties to stakeholders! As pointed out, there is still not a total understanding in the industry of the existing roles, particularly among smaller parties.

I don’t want to denigrate the author as I am sure he will be an excellent speaker, but on more than one occasion I found the grammar almost unfathomable.

Khalida Suleymanova
Khalida Suleymanova
9 years ago

Hi, we have written a paper that digests the CDM changes in simple terms and more importantly highlights what exactly does it mean for the engineering construction industry and what organisations need to do to prepare. You can find a copy of this article, called “CDM 2015: Time to transition” from our website http://www.armsa.co.uk/downloads.php . Leave your comments either here or please send them directly to me [email protected]

Mark Light
Mark Light
9 years ago

The new Regulation proposals seem to lose the safety focus in the titles and that is the crux of the matter for CDM.

Designers would probably be the first to admit they sometimes do no fully understand their duties regarding safety issues and adding principal Designer would be to the detriment of safety, as designers are clearly not safety professionals.

Could someone clearly explain why the changes or removal of CDMC is beneficial in aiding on-site safety on any project?

Regards

Mark Light

Nick Chivers
Nick Chivers
9 years ago

CDM Regulations Revision: Planning, managing and monitoring the pre-construction phase of a project is absolutely vital, but needs huge emphasis on early appointment and engagement.

However, the title / term “Principal Designer” simply doesn’t fit the description and is misleading for the type of individual / company required to provide such crucial project safety consideration, in the design phase.

Peter J Carter
Peter J Carter
9 years ago

How about calling the PD the “Design Safety Co-ordinator” – which is just what he will be doing. Just calling them the “Safety Co-ordinator” will lead them to believe they can pontificate over the PC’s (much like the CDM-C’s do now!). The new regs. will ensure that the project is managed far better in two distinct phases with two distinct Safety orientated managers.

shponline
shponline
9 years ago

Thanks for pointing out the Grammar issues. The wrong version of the article was uploaded by mistake. We apologise for the confusion caused, and have updated the text.

Stephen Butler
Stephen Butler
9 years ago

My god, I’m glad I left the UK when I did, at the end of 2007. After implementing the new (then) CMD regs across Balfour Beatty Utilities and acting as CDM-C I am amazed at how broad, confusing and pointless these new changes appear to be. Although Australia usually follows the UK with regard to OH&S it has clearly omitted to have any part in CDM whatsoever, and with bloody good reason too.

I wish you well in reinterpreting the new changes to CDM, along with the new job titles and confusion that will no doubt ensue across the industry.

steve wood
steve wood
9 years ago

Fully agree with Mr Pedley’s comments. The Principal Designer does not have any design responsibility under the revised regulations. At least the EU directive relates to the function.

T Read
T Read
9 years ago

Like Steve I think Mr P hits the main points and the general points in the article are justified. However, like Mr A says – it is a pity that the article was not proof-read before publishing – the phrasing and grammar are appalling. From a ‘professional body’ I expect better.