As a member of the working party that drafted the 2007 CDM regulations, Rudi Klein explains why the 2015 update represents a retrograde move for the construction industry
The new 2015 Construction Design and Management (CDM) regulations will be in force shortly, on 6 April. I have more than a passing interest in the new regulations. I was a member of a Health and Safety Executive (HSE) working party which drafted the 2007 regulations.
I was also involved in a body set up by HSE in 2010 to evaluate the 2007 regulations. In my view CDM 2015 is a retrograde step.
Before I go into the reasons I should explain a little about the background. The first set of regulations - CDM 1994 - were enacted in the wake of the EU Temporary or Mobile Construction Sites Directive. The Directive was issued to achieve greater co-ordination and co-operation among those delivering projects to improve the management of health and safety risks. Those two words - co-ordination and co-operation - are extremely important. In addition competence and communication are very relevant in this context.
Over the 21 years since CDM 1994 was introduced I do not believe project participants have been working closely together as a team to reduce or eliminate risks. Traditional procurement and contractual demarcation lines are major barriers to working together in this way. In many cases health and safety risks are treated like any other species of risk which can be off-loaded.
Paragraph 44 of CDM 2007’s Approved Code of Practice (now swept away) sought to address this: “Co-operation between parties and co-ordination of the work are key to the successful management of construction health and safety. Co-operation and co-ordination can only be meaningful if the relevant members of the project team have been appointed early enough to allow them to contribute to risk reduction. This is particularly important during the design stage when both clients and contractors should contribute to discussions on buildability, usability and maintainability of the finished structure.”
But CDM 2015 is not intended to make this happen. The changes are part of the government’s drive to reduce red tape and the “gold-plating” of regulations derived from EU law.
CDM 2015 will do little to improve the management of health and safety risk. It has already given rise to truckloads of guidance which, in all likelihood, will not be internalised by most in the industry
Any revision to CDM should have reinforced paragraph 44. There should have been a regulatory requirement for a project health and safety risk register to set out how it proposed to manage out or reduce the identified risks. Such a register would have to have had input from all key participants, including the contracting supply chain. Until the register was signed off by the key participants and filed with HSE, construction work could not begin. In this way it would have been more likely that co-operation and co-ordination would have been achieved. What do we end up with? Some weasel words in regulation 4 to the effect that: “A client must make suitable arrangements for managing a project, including the allocation of sufficient time and other resources.”
We now have a principal designer (taking on the role of the previous CDM co-ordinator) and the continuation of the principal contractor - both roles simply perpetuating the outdated division of silo-bound design and construction.
Under CDM 2007 no dutyholder could be appointed unless reasonable steps were taken to ensure that they were competent. Appendix 4 to the ACOP defined the core criteria for competence. These were incorporated in PAS 91, the standard pre-qualification questionnaire. CDM 2015 has changed this regime for something more wishy-washy. Where dutyholders are organisations, they must have the appropriate organisational ability. In assessing this PAS 91 is a “useful aid”. But how can clients be sure that firms have the right organisational ability?
Some argued that the core criteria spawned a “vetting industry” of myriad pre-qualification schemes. This is absolute nonsense. The core criteria were introduced to provide a clearer definition of competence. It was clients - particularly local authorities - which were responsible for insisting that firms belonged to a particular scheme (usually on payment of a fee).
There is precious little communication between project participants when it comes to addressing health and safety risks. Almost five years ago SEC Group carried out a survey among specialist engineering firms on their experience of CDM. One of the questions inquired into the extent of communication with the principal contractor prior to firms beginning work on site. The overwhelming majority of the 300 plus respondents said there was little or no communication. Improving communication is not addressed in CDM 2015. In fact CDM 2015 has abandoned the requirement that there should be a period of mobilisation prior to entry on site. This was introduced in CDM 2007 but was rarely enforced.
CDM 2015 will do little to substantively improve the management of health and safety risk. It has already given rise to truckloads of guidance published by HSE, CITB and others which, in all likelihood, will not be internalised by most in the industry. It could, ironically, end up costing industry more in implementation than the value of any benefit it is likely to deliver.
Professor Rudi Klein is a barrister and CEO of SEC Group