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October 27, 2009

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Construction- With the best will in the world

In the UK, health and safety law — and particularly that which relates to construction — is often lambasted for its long-windedness, ambiguity and complex wording. Having investigated the equivalent legislation in a number of countries around the globe, John Anderson uncovered some good approaches, but concludes that words are not enough to encompass the diverse nature of the construction industry.

Ready for a trip round the world? Well, let’s start in Sweden — often cited as the only European country with a better health and safety record than the UK. Here, the primary piece of health and safety legislation states the following:

Technologies, work organisation and job content shall be designed in such a way that the employee is not subjected to physical strain or mental stress that may lead to illness or accidents. Efforts shall be made to ensure that work provides opportunities of variety, social contact and also for personal and vocational development. The employer shall, in the planning and the arrangement of work, give due regard to the fact that individual persons have differing capabilities for the duties involved.

Notice the words ‘safety’, ‘health’, ‘welfare’ or ‘risk’ are not used, which makes the wording of the UK Health and Safety at Work, etc. Act (HSWA) a bit dull in comparison. What I particularly like about the Swedish law is the emphasis on the fact that employees are all different — it shows real thought behind the words.

The Swedes also have construction regulations, in which the main duties are firmly placed on the client, who shall:
Take particular account of safety and health considerations during the construction stage as regards the positioning and design of the object or structure; the choice of building products; the choice of structures for foundation, framework systems and other load-bearing elements; the choice and design of structural completion; the choice of installations and their positioning; and the choice of interior fittings.
As a member of the EU, Sweden has to comply with the 1992 Construction Sites Directive, but the wording in Swedish law is different to that in the UK, which states:

A person appointed to attend to matters of safety and health coordination during the preparation stage and design of the project shall have such knowledge of building and civil engineering work and such competence related to safety and health matters as are needed for the project, and shall be given the powers and resources which the task requires.

Notice the UK legislation is about the matter of ‘coordination’, not the appointment of a ‘coordinator’. Note also the clear requirements to be both technically competent and competent in health and safety matters, and have the “powers and resources” required by the task. The coordination required by the Directive could therefore be provided by the lead designer, thus obviating the need for a specific CDM coordinator!  

Moving half-way round the world to New Zealand, there are no construction regulations at all (how do they manage?) but the general duties on all employers are as follows:
Every employer shall take all practicable steps to ensure the safety of employees while at work.

This immediately raises the question as to whether their “all practicable steps” is better than our “to ensure so far as is reasonably practicable”? But New Zealand defines what “all practicable steps” means in the context of its Act:

All practicable steps means all steps to achieve the result that is reasonably practicable to take, having regard to: (a) the nature and severity of the harm that may be suffered if the result is not achieved; (b) the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; (c) the current state of knowledge about harm of that nature; (d) the current state of knowledge about the means available to achieve the result; and (e) the availability and cost of each of these means.

Here is a statement of five factors that have to be taken into consideration, and three of them involve the business of being in touch with the “current state of knowledge” — an interesting and challenging concept. The state of knowledge on health and safety matters does not stand still, and keeping up to date with changes and developments would have to apply not only to those working in industry but also to those making judgements within the enforcement authority.

A further point of interest is that the NZ law is based on the need to identify hazards, not risks:

Every employer shall ensure that there are in place effective methods for systematically (a) identifying existing hazards to employees at work; (b) systematically identifying new hazards to employees at work; and (c) regularly assessing each hazard identified.

As hazards (in UK terms) are the sources of “potential harm” there is logic in this approach, but New Zealand adds a specific definition of hazard, which is a bit more ‘meaty’ than that used in the UK:

Hazard means an activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation, or substance that is an actual or potential cause or source of harm.

The New Zealand primary instrument is significantly shorter than the HSWA and, with no construction regulations, there is a great deal less legislation with which the Kiwi construction industry has to cope and comply.

A short hop over to the State of Victoria in Australia, where the functions of its enforcement authority are stipulated thus:
The Authority shall include the following function — to promote education and training by:

  • Devising, in cooperation with educational and other bodies, courses in occupational safety and health;
  • Approving courses in occupational health, safety and welfare (whether or not devised in cooperation with another body); and
  • Facilitating access to those courses.

In the equivalent section in the HSWA (s11, which defines the functions of the HSE), the word “education” is missing, and some believe this is responsible for the present uneven nature of construction professionals’ skills and knowledge on health and safety.1

In the State of Victoria, there is one set of regulations applying to all industries, which runs to a whopping 542 pages, but the final output is described in law as the production of a “safe work method statement”. There is no specific legal requirement in UK health and safety law to produce a “method statement”, but the concept of drawing up method statements is widely practised for obvious reasons. In this State of Australia it is defined as follows:

A document that (a) identifies the construction work; (b) states the hazards and risks to health and safety of that work; (c) sufficiently describes measures to control those risks; and (d) describes the manner in which the risk-control measures are to be implemented.
Criteria (d) is a particularly welcome feature, as poor implementation of the risk-control measures can lead to accidents and ill health.

Continuing to move west to South Africa, there are no CDM-type regulations here, but all three parties on a construction project can actually stop work on a site, if necessary — now that’s unusual! The first party with this power is the client:

The client shall be responsible for the following in order to ensure compliance with the provisions of the Act, namely, to stop any contractor from executing construction work not in accordance with the health and safety plan, or which poses a threat to the health and safety of persons.

Now, this could be useful in the case of a contractor making all sorts of health and safety promises to the client in order to get the contract, but failing to deliver on the promised health and safety performance once the project is underway. Notice the wording at least implies a duty on the client to take this action if lives are obviously at risk.

The second party to be able to stop the work is the designer — and that would raise a few eyebrows if we had it in the UK. Firstly, the designer is legally bound to:

Carry out sufficient inspections of the construction work at appropriate times to ensure compliance with the design.

That alone is worth having, because the UK system does not always require, or permit designers to be involved in the construction of their designs. However, in South Africa, the law requires that, following these inspections:

The designer shall stop any contractor from executing any construction work which is not in accordance with the relevant design.

The third party with the power to stop work is the principal contractor, who is, perhaps, the ultimate end product of “giving directions”.

One further point of interest is that the relevant government minister can adopt “health and safety standards” written by the South African version of the British Standards Institution. In the UK, few BSI documents on construction safety have any standing in health and safety law, but one that particularly comes to mind is BS 6164: Safety in tunnelling in the construction industry. If the minister in South Africa adopts any such South African standard, then that standard “shall be deemed to be a regulation” — in other words, given the power and force of law, there and then.

Conclusion

Even the most cursory glance at international construction health and safety legislation reveals that the drafters have difficulty in finding the right language to cover all eventualities, and this is probably down to six things:

  • The diversity of the outputs of the construction industry — from a set of houses on a greenfield site to an entire functioning nuclear power station;
  • The diversity of construction-site work activities — who starts what when, where do they take place, and what if lots of work activities overlap;
  • The diversity of construction materials themselves. It is certainly not just about steel, concrete and stone — it is also about carbon fibre, structural glass, plastics, chemicals, and all manner of historical materials waiting to be discovered in the different world of refurbishment work;
  • The diversity of the means by which construction work is procured by both the public and private sectors. In theory, this should not matter in health and safety terms, but it does;
  • The diversity of people within the industry, with differing levels of both technical and health and safety skills and knowledge, plus the baffling array of job titles and job descriptions. Some know all and some know nothing, and the rest are somewhere in between; and finally 
  • The huge diversity in what one might call “health and safety stakeholders”. This world includes not only health and safety professionals but also (under the UK system) all employers, the self-employed, clients, all manner of designers, contractors (big and small) and the special UK-only CDM coordinators.

With all this bewildering diversity is it really possible to choose the right words from the English language to frame construction health and safety law that is clear, unambiguous, and free of possible misunderstanding or misinterpretation? Perhaps it’s time we gave the drafters of our UK legislation, located somewhere in the depths of our HSE, a break.     

Reference

1    Health and Safety Commission (2000):  Revitalising health and safety strategy, Action Point 34 (p56)

John Anderson is a consulting civil engineer and expert witness.

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