As a CFIOSH with 15+ years IOSH involvement & nearly 25 years in construction safety business in many countries - I need help…. and so am using this OSH discussion forum for the 2nd time.... We have 2 situations where Project Managers maintain the work they will be doing (managing) is not 'Construction Work' - as defined in CDM, my default opinion/response (unless respondents here convince me otherwise) is 'Yes, it is Construction Work" - therefore we assume the duties of a CDM Contractor.

However in the interest of avoiding a blinkered/closed approach I'd appreciate some consensus on each of 1 & 2 below please. For clarity, this is not about the personnel safety of those deployed, the pre-task planning for them individually will be carried out regardless. Rather, it's whether the individual work scope's constitute 'Construction Work' as defined in CDM, thus we attract/assume duties + become/take the role of 'CDM Contractor', and thereafter the implications of applying our internal procedures for such a role.

#1
Environmental team sending personnel to a greenfield site to dip depth testers into the boggy ground to ascertain peat depth (this the full extent of the stated work scope). Its part of PCI collation in preparation for a potential future project. Its surveying, and its not merely topographical - as indicated in CDM- it is invasive. So my position is that it is 'invasive survey' which is deemed construction work, therefore the CDM Regs (CDM Contractor suite of duties) and our internal 'CDM Contractor' procedure applies (with it's attendant resource and systems requirements).
So, am we correct? - should this work scope be deemed 'Construction Work' for the purposes of CDM?

#2
Projects team deploying commissioning personnel to cold commission a substation. During the commissioning the controls will switch in circuit breakers and disonnectors, but with the substation off service (cold commissioning). This one is a little more straightforward for me- 'commissioning' is part of the definition of Construction work in CDM, (and the controls circuits would I assume have to be live at low voltage) but the argument is that they will not be doing any work with the substation live or energised +its a an individual deployed to a client site to sit in a finished control room working at a PC. Working on SCADA controls programming at a PC is the full extent of the stated workscope.
So, am we correct? - should this work scope be deemed 'Construction Work' for the purposes of CDM?

Personally, I am looking hard at the 'C' in CDM and am struggling to fit either of your examples into this in any way shape or form.
I appreciate that its good practise to run any project to CDM standards or 'similar structure' but I do not think the spirit of the Regulations had these sorts of things in mind - the 'Construction' link is tedious IMO.

Open to be shot down as always - just my two penneth.

1) I think you are confusing yourself here as the invasive surveys I believe refer to structures and not ground surveys - although one anticipates one has done preparatory desktop checks and site services locations if required. This is not invasive and outside of CDM scope altogether

2) if commissioning is the end point of a project then it should have been part of the overall CPP and thus the PC should be managing this with you.

As Claire says unless the notification threshold is crossed there is nothing more than good management practice involved.

Bob

Guys I do appreciate the replies and your time taken to post them but I am unsure if this can help me. While a plethora of simple 'yes' or 'no' responses to the questions (as posed) might be desirable and deemed consensus.....for me it is more critical the response(s) are combined with some reasoned explanation of why, as a professional you feel this way.

The assertions that "CDM is no more than managing the job safely / good management practice" infers my employer would not be remiss to fail to identify applicability of a regulation and the specific duties (e.g. reg 13 implications/ actions and deliverables, regardless of notification threshold) within, my feeling is there is bit more to it than that. Also as a UK Safety Manager I believe I should also help keep the business in compliance (and positioned to demonstrate that) - as well as provide/maintain an SMS which provides for personal safety management (i.e. the 'managing the job safely / good management practice' bit - so perhaps that why I am 'hung up' on it) + monitoring the SMS application (actual application of that SMS is primarily others, such as line mangers, responsibility).

Ron, you could swap my 2 questions (as posed) for "whether or not you apply your internal 'CDM Contractor' procedure" - this is dictated by whether we are a CDM Contractor, or not - defined as: "A Contractor means any person who carries out or manages construction work" (shortened definition from the regs). Whether we do or don't (carry out or manage Construction works) relies on whether the contract (workscope, which our business must deliver) has explicit or implicit 'Construction Work' within. This in turn relies on the definition of 'Construction Work' (definitions from actual CDM Regs, not other publications etc.)

As I stated this is not about employees personal safety - we are confident we can demonstrate such whether we are deemed a CDM Contractor or not - so we are not "hung up on whether CDM Regs apply or not" - from that perspective. Also, notification threshold is not even a consideration if we cannot identify if the work scope we take on has actually 'Construction Work' within.

Getting clarity on the work scope and the 'context' is of course critical. If I was to proffer that #1 is "investigation work in preparation for an intended structure" (reg 2,1,b) and #2 is "commissioning of a structure" (reg 2,1,a) (e.g. commissioning of soft systems monitoring and controlling of say, a windfarm - i.e. the 'structure/s') .................. would this affect your responses?

Re Bob's 2nd point- unsure what is meant by "should be part of the CPP"- in that stated scenario there likely should be interface for coordination purposes, but how that by itself could deem our workscope to be 'Construction Work' or not, is unclear to me.

If we have a contractual relationship with a commercial client / customer we are only a Contractor in 'contract parlance / terminology' (supplier is better terminology?) whether that work scope relates to a 'Project' or not (see CDM Reg definition of 'Project'). Does this mean we attract CDM Contractor duties if our work scope cannot be confirmed to be / include 'Construction Work'? - theoretically swapping us out for another 'contracted' supplier (onsite security provider, canteen/servery operator) where it is definitively known their contract / work scope does not contain 'Construction Work' might help with thoughts on this.

It is actually the definition of 'Construction Work' as per the actual regulations I am looking for professional consensus on, mine is opinion or course - which is why I ask for several of yours and I posted on HSE web communities too (apples and oranges as I expected) but all responses are appreciated and helpful in making a decision.

Graham,

I believe you are 100% correct and that the regulation is very clear viz:

“construction work” means the carrying out of any building, civil engineering or engineering construction work and includes—

b) the preparation for an intended structure, including site clearance, exploration, investigation (but not site survey) and excavation, and the clearance or preparation of the site or structure for use or occupation at its conclusion;

(e) the installation, commissioning, maintenance, repair or removal of mechanical, electrical, gas, compressed air, hydraulic, telecommunications, computer or similar services which are normally fixed within or to a structure,

I don't think that it could be any clearer. If the investigation of ground conditions is for the purpose of "...preparation for an intended structure,..." than the regulation clearly applies.

The second case is even clearer in my view, the work is quite clearly "commisioning (of) electrical...computer or similar services"

OK, since febuary 7th this post has attracted one 'nay' (damelcfc), one 'yeah' (BigRab) and one 1/2 & 1/2 (boblewis)...apples & oranges I'm afraid.

bobllewis - you feel 'I have misled myself' + indicate "Boring into ground to take core samples, or say sheer vane testing, is not within construction work" at what point in the range of site investigations techniques do you feel would it become 'construction work'?... slit trenches? extensive numbers/size of slit trenches?

I'd appreciate anyone elses professional opinion (reasoned opinion- not what you/your emplyer does - but what and 'why').

Graham

I think your first example is invasive survey, nor invasive investigation such as taking a drilling rig to a site. So it's a No to me unless you remember the case law for what constituted a "building operation" as defined in the Factories Act 1961 Section 176.

Anything ancillary to but necessary for the building operation is in itself part of the buillding operation. Horsley v Collier and Catley Ltd [1965]2 All ER 423 and other judgments.

Note - Definition of "construction work" = "building operation" + "work of engineering construction" as defined in FA1961 and subsequently extended + HSE took the opportunity to close out a couple of perceived loopholes.

Hence when the courts come to look at this they have precedents to refer to.

But I don't think HSE's corporate memory extends to the case law on "building operation" as para 14 of ACOP refers to construction proejcts that include operations that are not construction work.

Second scenario Yes - specifically in definition - your cold commissioning just happens to be a very low risk element of a broader construction projects.

In practice, I agree with other respondents that it makes very little difference whether you deem CDM to apply or not.

JohnW
'I've come to this thread late (i.e. didn't read it in Feb) so just to give an example to Greham of when something similar 'becomes construction work', I've been involved with a company who install a flare system on top of landfill sites, so there's trenches dug, bore holes, gas issues, sometimes asbestos risks from the landfill etc., and a flare/structure is erected and left in place'

The above doesn't sound similar at all and is clearly construction work.

.....I approached the HSE regarding archaeological investigative (AI) works and their relationship with CDM. This was another grey area but I managed to get clarification from the HSE (eventually). To cut a long story short, the HSE's response was that 'The CDM Regs apply only to AI occasioned by development - they do not apply to research investigation, work undertaken by voluntary groups, etc'

Simon