OCCUPATIONAL SAFETY AND HEALTH IN THE CONSTRUCTION INDUSTRY (OSHCIM) ANOTHER CONSTRUCTION DESIGN MANAGEMENT (CDM) IN DISGUISE?

​OCCUPATIONAL SAFETY AND HEALTH IN THE CONSTRUCTION INDUSTRY (OSHCIM) ANOTHER CONSTRUCTION DESIGN MANAGEMENT (CDM) IN DISGUISE?

I am re-writing this article on Occupational Safety & Health in Construction Industry Management (OSHCIM), after having much clarity as to where it begins. OSHCIM is just another hybrid of Construction Design Management (CDM) UK and Design for Safety (DFS) Singapore and a direct adoption of Construction soon to be enacted, will be another matter to be dealt with by the construction industry. It adds up additional cost, 2% out of the developer's pocket, well much decent compared to the architect's fee.
 
So to speak, this new regulations will significantly shift the risks upstream back to the architect. Blatantly erred, to say that architect like it or not, has to owned up to their design liabilities and what has this regulation imposed are not much the different. Yet, they forgot negligence has to be proven. As this legislation that foresee to be gazetted 6 months down the road, Singapore took 6 years, imposed a self-declaration of design liabilities, that they called risks, voluntarily into a document called risk-register. This document will be expended as it snowballs downstream right to the occupier.
 
The question remain to be seen is, how easy would the occupier take this document to find faults with each and every party in the delivery system, since it is already a self-confessed 'sin'? This document has no privileges in evidence law. One may say, just 'simply' do it and make it as ambiguous as possible?
 
Nay, CIDB will imposed a self-regulatory mechanism with a paid consultant monitoring this processes, full time at your expanse via the weekly OSHCIM meeting. They will not provide solutions to the problem as they would not want a piece of the design liabilities from the architect, they are basically checker to make sure that the architect crosses the T n dots the I, in their self-imposed declarations of liabilities. Least to say, they imposed strict rules for the architect to owned up to their liabilities under the spirit of if you fail to plan you should first plan to fail, in that way you will minimize risks downstream. In reality the architect's risk has not reduced an ounce but has increased significantly as it includes other risks as well particularly from the builders.
 
It becomes clear that CIDB via this mechanism manage to pass the buck of their conundrum upstream to the architect in a subtle way as the dialogue now imposes that architect is responsible for Contractor's safety on site and the ministry buys it! Given the scenario of below cost acceptable tender sum is taken by foreign contractors and 0.5% dirt cheap architectural fees were forced through our throats, now, plaguing the profession and the construction industry at large, do the architects want to support it?
 
A PAGE FROM Construction Design Management (CDM) UK:
 
To critically-evaluate the ‘health and safety’ duties imposed upon contractor, one has to consider what are the common-law and Construction Design Management Regulations 2015 (CDM2015) enforced in the UK? How would Employer’s positions be different if Employer acted as both principal-designer and project-manager?
 
Historically, Health and Safety at Work Act 1974 (1974 Act) empowers Construction Design Management (CDM) – Regulation 1994 (CDM1994)[1]; with employers’ duty ensuring, health, safety and welfare at-work, applied to the other-persons[2]; without-risk[3]. Prior to 1974Act, workers-welfare was governed by Factories Act1961, applied in the construction-industry. Failure to integrate CDM-regulations into ‘non-domestic’[4] construction-practices[5] are criminal-offences[6]; HSE-inspectors empowered to inspects/take documented-copy/samples[7]. CDM has since been improved/updated from CDM1994, CDM2007 to the current, CDM2015; promotes identification-elimination of Health and Safety risks from ‘project-lifecycle’ commencing, ‘pre-construction-phase’, right-up to post-occupational, i.e. building-decommissioning; with different Health and Safety role/responsibility vested-upon different stakeholders, i.e. principal-designer/Architect/Engineer/Client[8] at ‘pre-construction-phase’[9]; principal-contractor at ‘construction-phase’[10]; QS/Procurement-Managers at ‘procurement’ right-up to Maintenance-managers/End-users at ‘post-occupational’. CDM2015 required the HS-File to be kept, maintained, updated and transferred from one stakeholders to another, throughout the project-lifecycle.[11] In addition, it will be necessary to ensure that right-people appointed-early, have time-to-review materials and involved in setting-up processes.[12] If none-appointed, client obliged to-carry out these-duties.[13]
 
Rationales are, client is key-role-stakeholder[14], has overall-control; can properly-managed at all-stages[15]; if insufficient-knowledge/resources, he employs designer/competent-people to-assist[16]; managing-project, i.e. ‘suitable-project-management’. “Suitability”, means work without-risk[17]. He makes-available ‘pre-construction information’ i.e. drawings, Health and Safety-file, surveys, to designer/contractor, ensuring phase-plan completion, where designer/contractor complies with duties, allocation of sufficient-‘time/resources’, continue ‘maintained/reviewed’ Health and Safety risks[18]; and future-appointments[19]; provide facilities such-as sanitary, washing, drinking-water, changing-rooms and rest-facilities.[20]  
 
Traditionally, CDM2007 was meant to stamp-out deficiencies arising from tight-budget, care-less site-cultural/attitudes, and motivates promotion of safe-place on construction-work. A stricter-legislation would influence construction-workers be more-observant to Health and Safety risks. Thus, common-law on man-slaughter since codified, as Corporate-Manslaughter and Homicide Act2007 (The-Act), to address weaknesses of ‘identification-principle’ formerly, only “hands-on” directors were-convicted, instead of ‘main-culprits’.[21] The-Act determines corporate-liability by judging management-adequacy across organisation.  Penalties imposed, unlimited-fine; remedial-order; publicity-order; compensation-order; prosecution-costs order; and victim-surcharge, with sentencing not-less than £500,000.

However, CDM2007, issues with interpretation, bureaucracy, and onerous-competency resulted lack-of-coordination in preconstruction-phase; coordinators’ late-appointment, lack of resources and failure to-include coordinators into design-team. Changes/amendment to CDM2007 were logical. CDM2015 devised to address Health and Safety concerns, previously vested-upon ‘competent-person’, now to designers/client whom are influential from the outset; reduce overlapping-trend of multiple-accreditations, by removal of ‘Approved-Code-of-Practice’; embedding CDM2015 into smaller-projects, where majority accidents-occur, by requiring ‘construction-phase plan’. Construction-industry stakeholders have to be aware of duties prescribed to them; when project becomes notifiable to the relevant-authority, i.e. notice be-given, in-writing to HSE prior to construction.

Moreover, CDM2015, although instituted significant-additions, has weaknesses i.e. ‘domestic-client’ often unaware of such-duties by-default, unlikely to be appointed-to contractor/architect; confusion in appointing principal-designer for ‘pre-construction’, and principal-contractor for ‘construction-phase’; domestic-premises are ‘small-timer’ ignorance of CDM, will typically fall-out from the often-changing threshold-notification to HSE[22]; where 1974-Act are oblivious to most domestic-work; adding-up bureaucratic red-tapes, i.e. HS-File cum Health and Safety Coordination-Meeting; differing-opinions to the absent of CDM-Coordinator; for costs-reduction having architect, double-up as principal-designer with additional-burden/responsibilities; if failing to-appoint, client takes-upon himself, such-extra-burden; even if architect willing, it will not be ‘pro-bono’[23]; obscurity of ‘designer’, a contextual-term devoid of any professionally-linked core-competency but merely Health and Safety administrative role; such principal-designer ‘necessary-skills’ in-lieu of CDM2007’s-‘competence’ are mere-semantic; opportune upon others to-provide ‘training-ground’ as ‘cash-cow’;  HSE’s-premise, ‘client, most-influential throughout the-project’ will not-change the fact that ‘client is-king’, often CDM worst-offenders[24]; that takes-account client assuming principal-designer has added vested-duties, include those outside CDM-Coordinator’s scope.

In Contractor’s positions as principal-designer, its role, focus for Health and Safety issues rather than ‘outsourcing’ it; the definition of “designer”, not-exclusive, can also be client/contractor.[25] The term-“Design”, includes drawings, design-details, specification, generally assumed by Architects, Engineers, Surveyors, others; anyone who specifies/alters design, specifies use of particular-method of work/material; who-specifies building-layout; MAP-Engineers; contractors; and temporary-works engineers, but under CDM2015 designers are ‘unique-position’ for-purpose of risks-reduction/hazards-identification with responsibilities, not-confined to construction-phase but to-covers Health and Safety issues, post-completion.
 
Contractor will resumes Health and Safety duties[26], to ensures his-awareness(as Client, too), i.e. know client’s-duty, the work-amount; risks-elimination, i.e. take-account of general-principle of prevention[27], pre-construction information, in place, eliminate-foreseeable risks[28], maintain/cleaning the-structure, alongside cost, fitness-for-purpose, aesthetics and environmental impact[29], ensuring other-designers compliance[30], cooperation[31], liaise with principal-contractor[32]; providing design-information[33], delivered-effectively; includes providing other “significant-risks” information; to identify risks-arising from design-integration; with design-reviews scope made-available. Designers do-not have-to, take-account of, unforeseeable-hazards and risks; possible future-uses of structures; to-specify construction-methods; to-exercise any Health and Safety management function over contractors. Principal-designer is not by-qualification but by safety-influences, i.e. in organisational-abilities.[34]
 
Contractor’s positions as project-manager(PM), under CDM2015, is obliged-to resume principal-contractor’s role covering ‘construction-phase’ under non-domestic, notifiable-project, and to provide relevant-information to HSE, allowing them to monitor projects; accordance to HSE-thresholds[35]; with additional-information[36], i.e. planned-commencement/duration; time-allocation[37]; workers-number(max); and CDM-compliance declaration.[38] Principal-contractor[39] is person-appointed with specific-duties[40], in influencing Health and Safety management in ‘construction-phase’, i.e. particular-work on ‘design-technical-organisational’[41], ‘general-prevention’ of risks[42], manage other-contractors[43]; consult-engage with workers[44] via, site-induction[45]; unauthorised-access prohibition, facilities[46]; principal-designer liaison[47]; specific-obligations[48], i.e. competent-workers[49]; work-supervision[50]; information to workers[51]; unauthorised-access prevention[52]; welfare-facilities[53]. Whereas, ‘construction-phase plan’, “set-out Health and Safety arrangements and site-rules” for dangerous-risks[54]; a ‘living-document’; criteria are relevancy; sufficient-detail; proportionate to project-scale/complexity. Health and Safety File made by principal-designer; kept up-to-date.
 
Concluding, notwithstanding the noble-intention of CDM2015 to document risks-preventions, it is not without its-setbacks; although CDM has been adopted in various-jurisdiction[55]; the same uncertainty-fears permeate among industry-stakeholders. Contractor’s position as both principal-designer and PM, are indifference as of the overarching client’s-duty under CDM2015; applied from ‘preconstruction’ to ‘post-construction’ phases.      

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[1] Part1.1974Act
[2] S.2-3.1974Act
[3] S.4.1974Act
[4] Regulations make distinction between “domestic”, i.e. work-done on their private-home and “nondomestic”, i.e. work in-connection with furtherance of business
[5] Construction-work includes building/engineering-works; retrofitting, renovations, demolition, etc; also include, preparation-planning; pre-fabs assembly; waste-removal; maintenance-repairs; exclude mining and its related-works. Structure is construe as, building, either temporary/permanent-materials; railways; dock-harbour; tunnel-bridge; etc. include formworks/scaffolds.
[6] S.20-22.1974Act
[7] Health and Safety(Enforcing Authority)Regulations1998
[8] Reg.4 or 8, or in Reg.6.CDM2015:notifibility
[9] Via ‘client-brief’ stating, main-function and HS-requirements; time-frame and budget; design-direction with “risks-nature”, relevant HS-standards and maintenance; design-team’s expectations/scope in risk-management; identifying commissioning-arrangements of new-building.
[10] Reg.2(1),CDM2015
[11] Schedule-3,CDM2015:document identifies risks encountered/managed/mitigated, with processes/arrangements in-place; site-rules and specific-measures to-mitigate, are required for projects with more-than-one contractor, prepared by principal-designer
[12] Reg.8CDM2015
[13] Reg.5(3)-5(4)CDM2015
[14] Part2.1974Act
[15] Part4.1974Act
[16] Part3.1974Act
[17] Reg.4(2)CDM2015
[18] Reg.4(1)-4(3)CDM2015
[19] Reg.4-5CDM2015
[20] Schedule-2CDM2015
[21] P&O European-Ferries[1991]93AppR72
[22] <https://www.shponline.co.uk/legislation-and-guidance/review-cdm-regulations-2015-part-1/>:30-days or 500-person-days to include more than 30-days and have more than 20-workers working simultaneously; or exceed 500-person-days
[23] <https://www.shponline.co.uk/legislation-and-guidance/review-cdm-regulations-2015-part-1/>:HSE-Impact-Assessment estimated £23-million saving per-annum is overly-optimistic
[24] <https://www.shponline.co.uk/legislation-and-guidance/review-cdm-regulations-2015-part-2/>:83/69 convictions(April-1999 to May-2014)equals 5/annum
[25] Reg.2(1),CDM2015
[26] Reg.11-12,CDM2015
[27] Reg.11(2),CDM2015
[28] Reg.11(3),CDM2015
[29] Reg.11(1),CDM2015
[30] Reg.11(4),CDM2015
[31] Reg.11(5),CDM2015
[32] Reg.11(7),CDM2015
[33] Reg.11(6),CDM2015
[34] MWH v Wise[2014]EWHC427(Admin)
[35] Reg.6,CDM2015
[36] Covers forwarding-date; site-address; local-authority; brief-description; contact-details of project-team
[37] Reg.4(1),CDM2015
[38] Schedule-1,CDM2015
[39] Reg.13-14,CDM2015
[40] Reg.13,CDM2015
[41] Reg.13(1),CDM2015
[42] Reg.13(2),CDM2015
[43] Reg.13(3),CDM2015
[44] Reg.14,CDM2015
[45] HSE:Construction-Information-Sheet(No.59)
[46] Schedule-2,CDM2015
[47] Reg.13(5),CDM2015
[48] Reg.15,CDM2015
[49] Reg.15(7),CDM2015
[50] Reg.15(8),CDM2015
[51] Reg.15(9),CDM2015
[52] Reg.15(10),CDM2015
[53] Reg.15(11),CDM2015
[54] Schedule-3CDM2015
[55] Occupational-Safety-and-Health in Construction-Industry(Management)2017(OSHIM):Malaysia; Design-for-Safety:Singapore, <https://www.wshc.sg/wps/PA_IFWSHCInfoStop/DownloadServlet?infoStopYear=2014&infoStopID=IS2010012500120&folder=IS2010012500120&file=DfS_Guidelines_Revised_July2011.pdf>