Posted By Mark H We are a telecoms company involved in external cable installations and associated minor civils works (excavation) and are about to commence a new contract under which we will be subcontracting to a principle contractor. We normally provide all statutory information to our employees i.e. risk & method statements, site rules, guidance materials etc in the form of a site Gang HSQE Pack. However, under this new contract the principle contractor is insisting that our teams work to the principle contractors Gang HSQE Pack (their RAs & MSs) and is trying to impose a charge of £100.00 per Gang HSQE Pack. I believe this 'charge' to be a breach of section 9 of the Health & Safety at Work Act and the duty not to charge employees for anything done to comply with statutory duties. However, the wording of section 9 refers to 'employees' so I need clarification on whether there is anything in legislation that imposes the same duty on the principle contractor to provide info to persons other than employees without charging for it. I understand that it is against the general principles / intentions of both CDM and the Act but is there anything specific? As always if anyone can shed some light on this it would be much appreciated.

Posted By Lukasz Can not you argue that your RA/MS are based on your work experience and their method differ from yours and this same in case of accident it would be their responsibility as their telling how to do job to which you have been employed?

Posted By Arran Linton - Smith Mark, If you are the telecoms company and the principal contractor is imposing a fee of £100 per pack, then it is up to your company to take the hit or offset the higher cost as an 'extra' if you can argue that this was not identified prior to you tendering for the work. Section 9 only applies to employees.

Posted By Peter F Section 9 applies to all personal protective equipment. (PPE)

Posted By Phil Rose Mark I reckon that S9 may apply, as the courts may apply the the underlying principle that the law is getting to (the golden rule) . Also they may interpret that a subcontractor is an 'employee' of the contractor for the purposes of S9. They may not! However, the PC owes a duty to the contractor under S3 (plenty of case law) Also if the PC insists on the contractor working to the PCs risk assessments then clearly they should provide them and provide them free of charge. Making a charge for this is absurd at best. It would be like me issuing a contractor with a hot work permit and then charging him for it! I don't think so! Swan Hunter is a good case of course (S2) In addition to MHSW R12 try R3 (PC has a duty to assess the risks to others) R10, R11. Hope this helps Phil

Posted By Peter F Phil, regulation 12 applies of the management regs apply. I think you will find that section 9 applies to PPE. If you cannot sell r/a's etc how do consultants make their money. I carryout a risk assessment I then sell it to the company. They then have to share it with whoever is working for them, employee's contractors, sub contractors etc.

Posted By Mark H Thank you all for your responses, some have provided me with some ammunition, some just make me shake my head in disbelief.

Posted By Ron Hunter This "master/servant" relationship in the context of the HASAWA does not (IMHO) readily correlate with the employer/contractor realtionship in contract law.

Posted By Mark H Phil, Thanks for that post, it's clarified the main points for me nicely. If anyone's interested I'll post on the outcome of the 'discussion' with the PC's H&S dept.

Posted By Peter F Phil, you're right. This provision originally applied only to the specific requirements of relevant statutory provisions, but most have been repealed by virtue of the PPE Regs. Section 9 now applies to all personal protective equipment deemed necessary by those regulations. At least that's what the book I have says, The Health and Safety at Work 2008/09 17th edition. Norman Selwyn. Page 108 3.114.

Posted By Peter F Phil, I agree that it is outrageous to charge for information that under legislation should be shared. Control of contractors actually says that all information with regards to the health and safety at work must be communicated to the contractor. Where I work we meet with the contractor and share information prior to attendance on site.When the contractor enters the site we meet with the employees to ensure that they have read there own paperwork that has been submitted and then share ours if need be. We then insist that the contractors sign to say they have read it and understand the information given. Ours is slightly different to most sites as the contractor is then escorted and remain with one of our escorts throughout the time on site.

Posted By Martyn Hendrie Robert, I agree with you to the extent that the PC appears to be taking more responsibility for the works of his contractors than would normally be the case. In so doing he would be more likely to bear the brunt of any HSE investigation were something to go wrong. However, I disagree with your statement "The section 2 duties are therefore transferred fully to the PC as he is making ALL decisions with regard to work and the subcontractor is merely supplying labour without any form of supervision. The key is the contract." Irrespective of what is in the contract an employer putting men to work (the contractor) cannot get away from having to fulfil their section 2 duties. In reality this may mean reviewing the PC's proposed RA/MS and if they are happy with them working under them. If however, they are not happy the proposed RA/MS would ensure safety they should not carry out the works. Only if the workforce were being supplied on a "labour only basis" (which is NOT the form af agreement indicated) would the PC be considered their employer and have the S2 duties Regards Martyn

Posted By Robert K Lewis Phil It is not unusual - see the position of temporary workers. The PC is effectively taking the people on as labour and materials only and deciding all other matters. Obviously in more general terms the subcontracting employer has a duty to ensure that the PC does not put his employees at risk but the situiation posed is so vague that i am having to talk in general principles only. Again though I have to say the purpose intended by a regulation is uppermost in a judges mind and he is not going to apply a piece of legislation in circumstances different to those set out in the regulations/sections themselves. S9 addresses a particular issue and not employer/employer relationships. I can contractuially require payment for documentation I am going to supply to each work gang. It is not usual but I have encountered it and is often designed to prevent subcontractors "losing it" willy nilly on every job. Remember there is often a lot of time and effort involved in these manuals. I am not defending the practice but only looking at the facts as we have them and the best ways to move forwards. Whilst overall employer duties cannot be negated one cannot prevent management arrangements being made by contract which should ensure the proper protection of your labour while working under other persons control. This is precisely where a section 36 defence may be provable or not as the facts can be determined. The Merseyside and Docks Harbour Board V John McFarlane thence Coggins & Griffiths show the intricacies of who is the real employer very neatly. Supervision and control together with methods of work figure strongly in the decision. The PC is following what can be a dangerous path by assuming this level of control and perhaps is not aware of the dangers. I as organisation A can charge you, organisation B, any amount that is contractually agreed for the provision of documentation on site. If you do not want to pay then do not take the contract or seek an amendment before signature and award. If you do not read the contract then that is a problem for you not me. It is a hard statement but veery true. As an employer you are competent to make decisions on the acceptance of contract clauses and thence must make the agreed payments and charges as specified. Bob

Posted By Robert K Lewis Phil Clearly section 2 is going to have an impact but this does not have a bearing on section 9 interpetation. By charging the contracting company £100 per set the employee is not being charged and thus S9 cannot apply. I am not, I think, saying you can contract out the key S2 duties but the facts of the dividing line about who is the effective employer at the time is a critical matter and this one could go either way in court. We simply do not have the detail to make a full determination. Unfair contract terms do not generally apply in the commercial world and is primarily a protection for domestic consumers. Employers are deemed to have enough savvy to deal with the matters and understand the contracts they are making. Mark has been remarkably quiet concerning detail and I think it is fruitless trying to explore the situation further without that detail. I personally suspect that this may be a hypothetical case, at least until greater detail is provided. When we know the detail of any contract then we can be firmer in our comments. In the meantime the essence is that S9 cannot apply to employer relationships whatever we may think about it being unfair or otherwise. Bob

Posted By Phil Rose Definitely one of the most interesting threads for a while. On a slightly more light hearted note though - for a contract to be binding both parties must have the 'legal capacity' to make the contract. 'Legal capacity' usually means that both parties must be sane, sober and over 18! I wonder if you might have an escape route after all Mark. Just claim that you had been up the pub at lunchtime and at the point of signing the contract you were ......... not sober! Phil

Posted By Phil Rose OMG I wasn't going to add anything more Bob. I have never come across the 'ostensible employer' scenario as such (except in relation to the supply of agency workers who are under the direct control of the user employer). You seem to be saying that the PC is ostensibly the EMPLOYER and has therefore the S2 responsibility. IF that is the case (which I might add I don't agree with as Mark has made it quite clear that they are a company in their own right) then surely he would have the S9 duty as well and his charge for the packs would be in breach of S9? Only a thought - unless I have misinterpretated your post!

Posted By Martyn Hendrie Sorry should be "is accurate" not "is not accurate" as stated

Posted By Arran Linton - Smith Just an observation, but over the last twenty years I don’t think that I have ever heard or know of anyone (or organisation) being prosecuted under Section 9. Whilst this piece of legislation is often quoted, the reality is that it does not appear to be used in anger!

Posted By Mark H Jeez, did I open a can of worms? I see that I should have been a bit more clear on my own opinion. Although the charge may not be an actual breach of HASAWA / CDM it is definitely not in keeping with the 'spirit' in my opinion regardless of what the contract terms are. Thinking about it again, it's a statutory duty for the PC to supply safety info to 'persons other than employees'. To charge for said information clearly implies that the information will not be supplied unless payment is received. Surely such a situation is then a breach?

Posted By Mark H Bob, Disagree - the spirit has been broken. The charge may be from one employer to another but the central point is that the information being provided is intended for employees for use by employees to ensure their safety and as such should not be chargeable in my opinion. Charging for this info is not mentioned in the contract. However, that really doesn't matter to me, what grates is that another practitioner is trying to charge for info which is intended to keep people safe. Just wrong.