IMPLICATIONS FOR PC UNDER CDM REGULATIONS 2015
Principal contractor responsibilities set to extend under HSE plans
The discussion surrounding proposals for CDM 2015 has focused on HSE plans to scrap the CDM-C role and replace competence requirements with those relating to training.
However, the Principal Contractor (PC) duties under CDM 2015 look set for a change in a way which increases PC legal responsibility for the construction work carried out by contractors working on a project.
PC and contractor duties under CDM 2007
The key Principal Contractor legal duty under CDM 2007 is to:
“plan, manage and monitor the construction phase in a way which ensures that, so far as is reasonably practicable, it is carried out without risks to health or safety”
By contrast the key duty of contractors under CDM 2007 is to:
“plan, manage and monitor construction work carried out by him or under his control in a way which ensures that, so far as is reasonably practicable, it is carried out without risks to health and safety”
The PC is therefore responsible for planning, managing and monitoring the construction phase whilst the contractor is responsible for planning, managing and monitoring the construction work
The legislators clearly intended there to be a difference between PC and Contractor duties although HSE enforcement practice and parts of the ACOP imply a PC duty to supervise the construction “work” of others.
For example, ACOP para 157 states the principal contractor duty includes “supervising and monitoring work to ensure that it is done safely”. However, elsewhere the ACOP states (para 175) that
“principal contractors do not have to undertake detailed supervision of contractors’ work”.
Many PCs have encountered this contradiction when facing prosecutions, enforcement and fee for intervention charges based on the failings of contractors.
CDM 2015 plans more onerous PC duty
The HSE Consultation on revisions of CDM 2007 ended in June 2014. The proposed regulations include a small but important change to the PC duty.
It is proposed that the key PC duty will be to:
“plan, manage, monitor and coordinate the construction phase ….. to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety”
Under the proposed changes the distinction between PC accountability for the ‘construction phase’ and contractor accountability for ‘construction work’ will effectively be removed and the PC will become more strictly accountable for contractor ‘work’ and any offences, or charges, arising from those failings.
The proposal would reduce the ability to the PC to defend prosecutions or fee for interventions charges on the basis that the contraventions were solely or primarily those of the contractor.
Guidance is currently being produced which may clarify where PC duties start and stop under CDM 2015.