In-depth: CDM consultation timing and the impact on the industry
The construction sector is awaiting the consultation on the latest revision to the Construction (Design and Management) Regulations, although the timing is uncertain and appears to be more political than procedural. John Carpenter considers what it might mean for those working in the industry and how they can shape the final regulations.
Industry is expecting the Government to bring into force the third version of the Construction (Design and Management) Regulations, the latest incarnation of a regulatory framework that was first introduced in 1995.
Arguably, never has one set of regulations generated so much good. Equally, never has a set of regulations generated so much unnecessary bureaucracy and uncertainty accompanied by continued debate (yes, even after almost 19 years) as to what they mean, and how they should be implemented.
Whatever the phasing of the consultation period for the revision it comes at a critical time. Make no mistake, industry has a lot on its mind at present as it tenuously climbs out of recession. The last thing it needs is anything that introduces unfamiliarity or upsets current methodologies. The means by which the introduction of the revision, including any new guidance, is handled will be crucial to its success.
The latest revision has arisen because the European Union has seen the need to include matters that it considers were previously omitted (primarily relating to the inclusion of the domestic client as a duty holder), and for which the UK was in danger of EU legal proceedings.
It is also a result of the Government’s strategy to minimise regulations in general and, specifically, to avoid ‘gold-plating’. In this latter regard, the Government has its eye on the fact that there are subjects in the current regulations which do not appear in the originating EU Directive, specifically competency, and designer duties. It is anticipated that these will be omitted.
The CDM co-ordinator will probably also disappear with such necessary duties then allocated to a ‘lead designer’ — where they should always have been. As a result, the revised regulations will mirror the directive (an approach known as ‘copy-out’).
It is likely that the approved code of practice (ACoP) will also disappear or be very significantly reduced. Instead, it will fall to industry, probably under the auspices of the HSE, to write any supplementary guidance.
In a nutshell, this means new regulations, a new ACoP (or none at all) and new guidance. By any yardstick, a major change.
However, the duties on the various parties (with the exception of domestic clients, although these will be delegated) will hardly change.
Rather it is the perception that is of concern; for example the removal of competency requirements from explicit regulation to guidance (even though it is implicit in other legislation). It is particularly unfortunate that the items being considered for removal are those which have caused the most problems and misunderstanding.
It is important to remember that the CDM regulations have helped move the industry forward significantly. For instance, they have improved everyone’s general awareness of the need to consider the well-being of people, and brought clarity to the responsibilities that everyone holds.
The regulations provide an excellent and solid foundation for good business management. Parallel initiatives such as John Prescott’s 2001 summit conference and the ‘Working Well Together’ campaign have used the regulations as an underpinning base.
In turn, this has led, for example, to a ‘cards for all’ approach, site inductions and security, whereby contractors now know who is on-site, not to mention some significant cultural changes. Even health is now beginning to make the agenda.
In recent months the HSE has been at pains to emphasise that the revocation of the head protection regulations did not infer that hard hats were no longer necessary.
In a similar fashion, it will take a carefully orchestrated campaign to get the message across to industry that the omission of, say, competency requirements from the revised regulations does not mean appropriate checks and standards fall by the wayside.
The issue here has been the inappropriate implementation rather than the approach itself, set out in appendix 4 of the CDM ACoP (and
now in PAS91, which has been endorsed by the Government, the HSE and industry).
For contractors, where the regulations have been generally successful, the revisions should present the opportunity to bring some sense to the whole panoply of ‘risk assessment’, ‘method statements’ and ‘safe systems of work’.
Much of industry still has difficulty in understanding what is required and this is exacerbated by unnecessary demands from others to include superfluous data. The tail is wagging the dog. Action is in hand but it needs industry support. [1]
The omission of designer duties may have less impact as those who were endeavouring to comply will no doubt continue in their own way.
However, those who are currently paying lip service are likely to gradually reduce their efforts. The omission will be detrimental to those designers that have clients who demand to see where ‘the requirement is’ for taking a particular action. What will remain a constant is the fact that neither industry nor the HSE understands ‘how far to go’ in eliminating hazard and reducing risk in an area where there is no case law to provide practical guidance and where contract arrangements often act contrary to good safety risk management.
When a legal procedure has not been understood for such a period of time,
it is clearly not good law. This is the last opportunity to clarify the practical interpretation and give emphasis to proportionate action.
So the message here is for industry leaders, across all duty-holders, to ensure that the maximum opportunity is taken to gain benefit from the changes, even if we do not fully support them.
It is to identify those aspects which currently generate paperwork rather than value and to bring clarity where there is longstanding uncertainty.
John Carpenter is an independent consultant. He also authored appendix 4 of the CDM ACoP and the CITB-Construction Skills ‘Guidance for Designers’
References
1 Carpenter J. ‘Safe systems of work for construction contractors: unravelling a serious muddle’, Institution of Civil Engineers tbp report
[vc_row][vc_column width="2/3"][vc_column_text]
The Safety Conversation Podcast: Listen now!
The Safety Conversation with SHP (previously the Safety and Health Podcast) aims to bring you the latest news, insights and legislation updates in the form of interviews, discussions and panel debates from leading figures within the profession.Find us on Apple Podcasts, Spotify and Google Podcasts, subscribe and join the conversation today![/vc_column_text][vc_empty_space height="15px"][vc_btn title="Listen here!" color="success" link="url:https%3A%2F%2Fwww.shponline.co.uk%2Fthe-safety-and-health-podcast%2F|target:_blank"][/vc_column][vc_column width="1/3"][vc_single_image image="91215" img_size="medium"][/vc_column][/vc_row]
In-depth: CDM consultation timing and the impact on the industry
The construction sector is awaiting consultation on the latest revision to the Construction (Design and Management) Regulations, although the timing is uncertain and appears to be more political than procedural. John Carpenter considers what it might mean for those working in the industry and how they can shape the final regulations.
Safety & Health Practitioner
SHP - Health and Safety News, Legislation, PPE, CPD and Resources Related Topics
New cladding fire risk identified and could be “tip of iceberg”
Council votes to urge government to make change for inclusive PPE
Company fined £450k and director and site manager sentenced following death of labourer
Having read this I’m not convinced that it is correct in it’s entirety for the following reasons:
CDMC – is pivotal to projects as some Lead designers can somtimes have clouded judgement & can be the worst at providing information, not having impartial view of CDMC could be disastrous, it is how CDMC is undervalued/used that is a major concern.
RAMS/SSOW – Standard template for all contractors?? I run a training dept. and ask all delegates who attend when they last read them, the answer varies but is very often can’t remember or never, this is purely because any activity won’t change but whats around you will, RAMS should be short and to the point? Would it not be sensible to tour sites first of all at induction stage to look at hazards/risks to mitigate.
COMPETENCY – Surely not removed but a list of requirements to work on any site or piece of equipment that is standard?
It is paramount that Directors/Contractors are made to attend CDM courses & better understand their obligations under CDM.
TENDERS – Surely this should be included and is what must be looked at with paramount importance as all too often it comes down to price & we all know that safety is first thing that suffers.
Regards
Mark
Well said Mark, especially the very last paragraph.
Everyone states, Safety is the first consideration. but when it comes down to it, cost cutting, accepting lowest prices, and when the contract is over running safety is out the window to get the job done at any cost.
A disaster waiting to happen. CDMC to be replaced by a lead designer? The one person involved who has no idea about H&S is normally the lead designer. It’s hard enough to get a design risk assessment out of most of them now (what do you need? is the normal response and what is that? in worst cases). Most designer’s H&S knowledge is basic at best. With no independent CDMC, site H&S wil fall by the wayside. And the accident statistics rise accordingly.
This re-write of the Regs will put the industry back 10 yrs as regards accidents. As stated in most other posts on here the Lead Designers are not interested in H&S, I train designers and half of them don’t want the new role and are not interested in doing it. The CDMC and the ACOP are the only thing that came out of the current Regs that worked, what happened was a side line in competence requirements that spiralled out of control along with the 200+ CSCS cards that were needed. People just got sick of the CDM Regs. They work if applied correctly.
Thanks, John. A timely piece. It has taken a generation of consistent legislative pressure to change cultures and behaviours in construction. The result? Construction fatalities below 40 for the first time ever and UK stats. amongst the lowest in Europe. Well done HSE! We need to be confident of our achievements (but not complacent) and export our safety culture, not the other way round.
Points:
a) The TMCSD (57/92/EC) draws no distinction between clients, domestic or otherwise. The current UK treatment of domestic clients is pragmatic. Imposing duties now will significantly increase bureaucracy. The HSE knows this so is proposing a ‘smoke and mirrors’ fudge anyway to exclude them, so why bother to change?
b) Regarding co-ordination, what matters are the duties rather than specifically who carries them out. The client should be free to appoint the person best placed and qualified to carry out the role, rather than being tied into having to appoint a designer. That person could be the client themselves, the PM, the designer, the QS, a dedicated co-ordinator or even the contractor, if appointed early enough. The TMCSD does not mandate a designer for the role, so under copy-out why should we? Freedom, not constraint!
c) It has taken along time to get to SSiP and PAS 91. They are excellent and the last thing we need now is to lose the legal mandate to impose them by withdrawal of Reg. 4. As JC says, Appendices 4 and 5 need refinement, not abandonment.
d) Removal of direct duties on designers and replacement by implied duties via. the client will be retrograde. Fine, where you have a professional services contract with your designer, but what about the myriad of small works where there is unlikely to be any written contract at all? These jobs are precisely where the problems lie. What price the life of David Cairns and others like him?
e) Removal of the ACoP will create some legal black holes that the industry-sponsored guidance document suite will only partially address. The law abhors a vacuum. Europe is going the other way and introduced Non-binding guidance for the TMCSD because of its perceived vagueness and ambiguities. Where will I now be able to go to get a quasi legal quote that says ‘paperwork can be dangerous…’?
I tend to agree with comments thus far.
However I come from an engineering industry that embraces the ethos of CDM but find that the regulations although worthwhile have been written in such a way, as to be construction specific only. I therefore wanted to get further training for engineers with experience (chartered / similar) to a standard that is recognised by the APS. What do I do now with regards to the change that is pending? Although some of them may not have ALL the attributes of Appendix 4, they do have experience and competence in our field that I feel suffices given further training. I am still unsure as to going forward with booking them onto such a course now?
I understand the need for a CDM-C, who understands the aspects that are relative to Safety. That is what these regulations are supposed to do.
I find that some CDM-Cs rarely visit site or participate with giving the Client the support that they may need. This is where the bureaucracy comes in, as I am a great believer in that, “if there is no worth in opinions or comments” then why make them.
Time after time I see CDM-Cs making the Client jump through hoops and taking a stance far way from the actual Project that is taking place.
This is where I feel that the CDM Regulations have failed. If we have a CDM-C with the knowledge and know how to actually become the Clients best friend instead of sometimes being extortionate in cost then we will never get past this. Give me a pro-active participating CDM-C who is motivated by the project and that in itself, sells and offers the support and control that the Client needs and expects.
I do not feel that “lead designers” will have an impact on making things better.
It is about having the
Right People
Right Place
Right Time…
This we always try to apply to the PC and Contractors. Well I think that this should have the same recognition for the CDM-C or whatever the coordinating role will be after the probable legislative revision.
John
The CDM Regs were reissued in 2007 basically to give the HSE access to Client’s for prosecution following their failure to get further up the line than the track inspector in events like Hatfield. Making the Client ultimately liable they had to give them a responsible person to advise on H & S matters. Hence the CDMC replaced the Planning Supervisor, but with little in the way of increased authority. HSE made a fuss about CDMC competency, indeed issuing a massive document by way of guidance. When you hear of CDMC’s failing to advise on asbestos and being unaware of a temporary works co-ordinator, yet failing to be prosectuted, it is evident the problem lies with CDMC competence not the role.
If we are cynical, the plan to abolish the CDMC and replace with a PPM, is purely based on the fact that domestic projects are proposed to be included to comply with EU. The powers that be do not want the domestic market to be hit with additional (obvious) costs so to say the PPM should be the lead designer conveniently hides that cost. But there will be a cost! What lead designed in their right mind would undertake this additional role free of charge when the liability could affect their core RIBA professional indemnity insurance? Consequently, the PPM must be a separate duty holder and, if so, to preclude independent consultants would be somewhat of a conflict with monopoly legislation.
Removal of the CDM-C is a complete backwards step. Our Enforcing Authority said themselves when the regulations were revised in 2007 that the role of the ‘Planning Supervisor’ was not considered a success as they neither Planned nor Supervised any of the works. The Planning Supervisor was, normally, the designer who just wanted to add an extra fee to their package by assuming this role.
With regards to the training element, personally I feel that being as explicit as the current regulations have been has proved a success for industry. If you just leave industry to decide themselves, they will not do anything until something goes wrong, however, we now have site teams being well trained in areas such as SMSTS, SSSTS etc.
I think these changes are a complete joke, and make a mockery of what safety professionals and industry leaders have been fighting for over the past years!
There is a general consensus here that if applied sensibly, correctly and pragmatically the CDM Regs work. This is also my view.
The problem with CDM application and H&S regs as a whole is the inability of too many ‘professionals’ and wannabes to understand risk management as a whole. They take elements in isolation and apply controls, standards and procedures without understanding the foundation principles or risk assessment. Thereafter their guidance or leadership gives CDM and H&S a bad reputation.
Personally I believe any overly simplified guidance will just fuel the problem. If someone cannot take legislation and guidance and apply pragmatic risk based interpretation to varied situations why should there be any faith in their ability to think offline and come up with better ways of working. Someone who cannot problem solve with help, has little or no chance when no help is available.
As a final addition to the post…I would fell less confident going to a surgeon who was unable to study using medical journals and anatomy references because their intelligence limited their understanding of the body to ‘Shoulders, Knees and Toes’ by Janet and Jane. Safety is no different, if someone cannot interpret and understand legislation, they should not advise.
I agree simplification of some guidance will be helpful, but fundamentally the current CDM Duties work well if the whole picture of how they fit together is understood correctly.