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Posted By Eddie1
The CDM 2007 requirement that the New F10 is signed by the client confirmimg he understands he is aware of his duties under CDM 2007 is causing major concern amongst some major clients - particularly as there is no similar requirement for the PC or CDMC to sign.
Anyone having similar problems - any solutions?
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Posted By Bob Youel
its over due - clients have got away with 1#~* for years
we are having the same trouble - all we can do is explain the situation, guide them to the law / ACOP and hope that we keep in business [as clients will always go the easy route] and hope that the HSE enforce
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Posted By CFT
Eddie
I didn't think the new style F10 was out until the 6th and what makes this quite interesting is that in 18 of the ACOP it clearly states you do not have to use the form only ensure all relevant information is supplied.
Where exactly does the client sign then?
CFT
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Posted By Eddie1
The Client signs a decleration that he understands his duties under the Regulations.
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Posted By Ron Hunter
See Schedule 1 of the new ACoP (L144)& CDM Reg 21(3) - the declaration may be made on behalf of the Client. So the CDM-C can sign on behalf of the Client? = no change?
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Posted By Eddie1
That is incorrect. The HSE have decided the F10 has to be signed by an employee of the Client. Suggest you check with the HSE hotline.
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Posted By Robert K Lewis
Eddie
Whatever the hotline says the regulations are explicit. The CDM C can make the notification on behalf of the client but has to be able to demonstrate client approval when he, as an organisation or other, notifies on the client's behalf. Such approval can be done electronically so I would envisage an email or letter attached to the notification would be all that is necessary.
Bob
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Posted By Eddie1
The Regulations say the CDMC issues the F10 to the HSE but it is signed by the Client. No where does it say the CDMC signs it nor the PC.
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Posted By Ron Hunter
The ink's not dry on the ACoP and the Regs aren't out yet,and already we have confusion!
To be blunt, I don't trust the HSE hotline.
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Posted By peter gotch
Hi Eddie.
Not necessarily signed by client but on their behalf.
What it needs is for CDM-C to check one way or other that client content with what is in F10.
Regards, Peter
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Posted By Robert K Lewis
Eddie
Read reg 21(3) carefully. It is titled Notification of Project By CDM Co-ordinator.
Having established that the CDM-C must ensure notification it then provides further detail. The form is signed either by the Client or on behalf of the Client. The normal interpretation of by the client would mean by a representative of the client organisation, thus to take "on behalf of" as meaning a client employee would be a tautology and therefore the phrase is unlikely to have such a meaning.
The intention is clearly that the client is approving the information but not necessarily actually placing a signature on the document
Bob
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Posted By CFT
Eddie
My perception is that whoever signs it is signing on behalf of the client to state that 'A declaration signed by or on behalf of the client that he is aware of his duties under these Regulations', should make little difference if it is an employee or a CDMC for the project; either way it confirms the clients acceptance of the mandatory duties within CDM 2007.
I do feel however this is quite different to the previous F10 application for the 94 regs.
CFT
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Posted By Lisa c1
I was informed during training that as the initial client and deemed competent on behalf of the chief executive and signing the F10 you are therefore liable for corporate manslaughter or subject to a HSE fine. Does this now make the staff acting as representatives for the client have a higher amount of responsibility compared to the 1994 regs?
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Posted By CFT
Lisa
Just a quick response; the 'clients agent' no longer being the representative means under CDM 2007 that there is no longer any degree of transference of liability that remains for the client. CDMC/PC will still of course have their own level of liability proportionally relating to their duties under CDM 2007 and any other supportive Acts/Regs that may apply.
CFT
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Posted By JEB
New F10 for now on the HSE web site, guidance on completing the form is minimal and certainly does not clarify who can sign on behalf of the client.
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Posted By The toecap
On the guidance notes that come with the form i notice that that it says page 1 of 2. Perhaps there is mote to come.
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Posted By Lee Mac
The f10 clearly states under the section dealing with the client "signed by or on behalf of the organisation"
What is all the qufuffle about?
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Posted By The toecap
Perhaps more to come and not 'mote' to come
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Posted By Crim
I have no problem with this one! Just quote the Regulations without interpreting them. HSE inspectors will not interpret so why should we?
I have explained to 3 Clients that they are to sign the notification (in whatever form) and they have done so.
CDM-C has no power under the Regs. so why would we expect them to sign as responsible for the safety of a project?
The only issue is when there is a Board or Management Committee and who within the Board or Committee should sign as the Client? I say it is the MD.
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Posted By CFT
Crim
Valid points, but if the CDM C signs FAOB of the Client; has the client in fact had the regulations and ACOP explained fully, and realise the implications?
Methinks there may well be some interesting developments from a prosecutable point of view as time goes by.
CFT
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Posted By Eddie1
Clarification from Senior Inspectors at the HSE and I quote:-
'Having taken advice the HSE view is this:
The declaration by the client to state that he/they are aware of the CDM
duties, should be signed by either the individual client concerned, or
in the case of a company/organisation, by a suitable officer, manager,
or employee. It was not the intention that persons from outside the
client's organisation should sign on the client's behalf'
No ambiguity there then - CDMC's beware if you intend to sign on the Clients behalf.!
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Posted By Peter Leese
Naming the senior inspectors would help - surely it is not confidential?
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Posted By James M
Had an email from a reliable source telling me that clients are going to The House of Lords to get amendments made to CDM 2007. Maybe this is now what is being offer instead of a peerage!!
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Posted By Robert K Lewis
Eddie
Totally agree with Peter - the names of the inspectors concerned are neeeded if we are to proceed with discussing your statement. The regulations are as set and whilst the HSE legal people may try to impose their view I would prefer the courts to make the judgement.
It was not so long ago that HSE legal people claimed that the same firm of solicitors representing both employer and employee was de facto a conflict of interest. The Law Society have indicated, following the issue of the New Code of Ethics, that the HSE view is not correct. I actually think that local inspectors are trying to push meanings beyond their commmon English meaning and are not therefore following the rules set down for interpretation of legislation.
I find it very strange that in the midst of all the issues surrounding last ditch attempts by clients not wanting the revisions that HSE should be stirring the pot with off the wall interpretations. It does make you wonder if the Daily Mail was so far from the truth in its recent piece on moving chairs at HSE premises.
Bob
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Posted By George Richardson
Having just checked with our in-house lawyer, the phrase "signed by or on behalf of the client" would have the meaning of; the CEO or other authorised signatory of the Company. it would never be anyone not employed by the company.
The only way anyone else could sign "on behalf of" the company, would be by assigning a legal proxy, which would have to be agreed by the Board of management and then formally assigned.
So as a previous "poster" mentioned -
CDMC's beware, if you start signing these things...
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Posted By Eddie1
This is exactly how I understand it and I've just received notification from 3 major clients that they have also sought legal advice and reluctantly they now agree that a client 'employee' has to sign the F10.
However, I don't believe we've heard the last of this matter!
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Posted By Peter Leese
Could we have the senior inspectors names please Eddie?
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Posted By Eddie1
Gents,
It's not for me to name people on this forum and then for that individual to be bombarded with queries. I don't think they would take too kindly to that - I note there has been nearly 1000 hits on this thread!
But call any HSE office and ask to speak to a construction inspector - I'm sure you will find them helpful as I do.
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Posted By CFT
All
I can confirm (as per a call to the HSE) want the client, be that an individual or corporate to sign the F10. In the latter reference this will extend to a senior person within the organisation/company as opposed to the Chairman or Chief Executive (for obvious reasons), who would sign to say they understand the duties placed upon the body corporate under CDM 2007. In all honesty there clearly has been a liability in the past anyway, under the HASAWA and this would always have taken precedence over a potential breach of regulation, recent HSE cases that usually cite HASAWA sec 2 or 3 are to a degree proof of that.
In a situation where a client has many many projects on the go and is engaging the services of a corporate based CDM C then with a letter of authorisation on file the CDM C may possibly sign the F10 and that letter on file stated the 'client' accepted and understood the duties placed upon them under CDM 2007 and authorised the CDM C to sign in their absence; this I feel would be the rarity as I believe most F10's filed are for small and medium sized projects and would be signed as detailed earlier in this post, having so said there would always be someone available to sign the F10's within a big organisation, it's just pinning someone down to actually sign and I can see a problem in that area, with incorrectly informed senior people not wishing to sign for all the wrong reasons.
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Posted By Robert K Lewis
So we have a situation where the client is a body corporate, or at least not singular ie it is an organisation, thus any nominated employee is the client. So who is the on behalf of person? It must be different to a client employee or it would be meaningless and totally superfluous. The regulations were drafted thus and therefore the drafters had something different in mind when they set the wording out.
Bear in mind that the CDM-C does have duties and a contractual arrangement with the client. Thus I argue he is clearly representing the client in some way. It is for him to ensure that the client fully undeerstands those duties and thus is competent to verify the client's agreement and approval to the notification being made.
I am amazed that there seems to be so much evidence of trying to make everything more than it is. As for the non-naming of the HSE - I am sorry but I do not think that is an excuse - if they state something they should be open about it.
Bob
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Posted By Robert K Lewis
Just re-read my LAst post and i have not made it clear that the reg states "By OR On Behalf Of" my emphasis. It does not say By AND On Behalf Of". This is a major difference for interpretation. The drafters view, and I strongly suspect the courts, is that there is two different types of legal person potentially involved
a) The client as a legal entity which means any nominated employee of that client.
b) Some other party that the client recognises as representing him and who is able and has a duty to ensure that the client understands and accepts his duties and who also has a duty to ensure that notification is done.
I will name that person in NONE
Bob
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Posted By Peter Leese
Eddie - It is not acceptable to quote a reputable source and then not reveal the source. Tell me the HSE area office and I'll pursue it that way.
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Posted By DRB
I think that you are all missing the point. The issue is not over who actually signs the form. The important thing is the declaration that the client is aware of his duties under the regs. The signature would only become relevant is the client tried to say that the form was fraudulantly signed on his behalf and he was not aware of his responsibilities. A potential defence for an errant client perhaps??
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Posted By Robert K Lewis
DRB
You are correct in the statement. Pedant that I am I am totally at a loss over the pedantic nature of the claims that the client MUST sign brigade. There is utter amazement that somebody seems to be trying to complicate the issue. I thought it was pretty clear and I will hold to that view.
Bob
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Posted By Robert K Lewis
By the way my HSE office agrees with my interpretation
Bob
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Posted By Peter Leese
I suppose I could also be called pedandic - in that if someone is going to quote an authoritive source to back up their point of view then they should be prepared to disclose the source.
Contributors/readers should draw their own conclusions to any source which is not verified, or is not verifiable, and/or is under an 'anonymous' handle.
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Posted By Robert K Lewis
Peter
And I think that they should refer to paragraph 90(b) of the acop before they make statements.
By the way you are not one of the overly pedantics.:-)
Bob
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Posted By George Richardson
As ever, something like will only ever be tested authoritively in a court of law. My Company Secretary (who is a lawyer) is however quite clear on the matter.
In this example "by the client" would be taken to mean the CEO or Managing Director of a given legal entity; "On behalf of the client" would be taken to mean any other of the listed Statutory Directors, or other properly authorised company offical (e.g. Company Secretary).
Interesting though this discussion is, I know what I'll be recommending to my Board of management.
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Posted By Clarke Kent the 2nd
Andrew East carried our a presentation for IOSH on CDM Changes.
This exact question was asked, he was of the opinion that the CDM-c could sign the F10 on behalf of the Client.
That answers the question for me.
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Posted By Steve99Jones
The responses of some people on this forum never ceases to amaze me!
One contributor has provided information that he has obtained, and in his position I would certainly not want to divulge the name of the individual inspector as to do so would be like releasing a pack of hungry wolves onto him. Give the guy a break!
Anyway what is the problem with the client signing the F10?? I cannot see any problems with it and isn't the whole idea to bring the clients more into the management of the project. From the responses I have seen above, it seems more like some individuals want to keep their clients at a distance from the work being carried out. The only logical reason for this that I can think of is that they may want to increase their fees by maintaining a shroud of mystery...
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