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Paul B  
#1 Posted : 25 January 2016 11:34:48(UTC)
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Paul B

Client wants to break one contract into three smaller contracts so as not to meet F10 notification criteria, PD etc. Your opinions on the legalities of this would be welcome.
Alfasev  
#2 Posted : 25 January 2016 12:13:46(UTC)
Rank: Super forum user
Alfasev

You cannot contract out of statute law and if they are manipulating the contracts to avoid an F10, PD etc. to just save money then they are contravening the CDM regulations. If however the scheme has a break for example between demolition and new build for genuine reasons then I believe they are not. You must be confident that any reasons will stand up to scrutiny. For example a lot of sites are demolished with planning permission for a new build that are unlikely to go ahead in the short term. However the regulations refer to a project as a project which includes or is intended to include construction work and includes all planning, design, management or other work involved in a project until the end of the construction phase. Therefore you have to be careful for example if the demolition and new build are back to back contracts then you should submit an F10, have a PD etc.
Ron Hunter  
#3 Posted : 25 January 2016 12:44:03(UTC)
Rank: Super forum user
Ron Hunter

Client has a very poor understanding of CDM 2015. PD appointment is not bound by Notification status, rather number of separate contractors involved. 3 separate PD appointments, duplication of PCI and CPP work etc. would surely end up costing much more!
westonphil  
#4 Posted : 25 January 2016 12:47:18(UTC)
Rank: Super forum user
westonphil

Paul B wrote:
Client wants to break one contract into three smaller contracts so as not to meet F10 notification criteria, PD etc. Your opinions on the legalities of this would be welcome.
I think you need to give some more details about the work/job involved, but without giving information which could identify the client etc. Regards
Paul B  
#5 Posted : 25 January 2016 13:38:38(UTC)
Rank: Forum user
Paul B

Ron Hunter wrote:
Client has a very poor understanding of CDM 2015. PD appointment is not bound by Notification status, rather number of separate contractors involved. 3 separate PD appointments, duplication of PCI and CPP work etc. would surely end up costing much more!
3 separate contracts would mean a reduction in the length of contract working days/man working days so it does not fall within the notifiable criteria. Hence refurbishment work on 3 separate buildings (same complex) simultaneously, would be done one after another. Next building's work does not start until the first building is completed etc
Paul B  
#6 Posted : 25 January 2016 13:50:11(UTC)
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Paul B

The client is preparing a PCI and we will have a CPP in place when we have all the pertinent info.
RayRapp  
#7 Posted : 25 January 2016 15:52:40(UTC)
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RayRapp

Well it's not within the 'spirit' of the CDM Regs, but I could not say it would be illegal to do it either. Even it was a breach of the regs I doubt with the resources the HSE have it would register on the richter scale. Given the extra work which would be required it seems a bit churlish i.e. 3x CPPs, etc. I would be tempted to tell the client to man-up and notify.
6foot4  
#8 Posted : 26 January 2016 10:33:59(UTC)
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6foot4

More than one contractor likely to be involved with the project? Principal Designer and Principal Contractor must be appointed. Notification then comes into it if the project: (a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or (b) exceed 500 person days. Splitting it into three distinct projects is possible and if each one is not notifiable then so be it. It is legal. However, the cost of notifying the project is negligible and it's unlikely that splitting it into three projects will avoid the cost of having to appoint a Principal Designer and Principal Contractor. So can't see where the savings will be in that respect.
Redders  
#9 Posted : 26 January 2016 11:16:36(UTC)
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Redders

F10 notification puts the project on the HSE 'radar'. One of our sites (notified) had a visit from the HSE. When asked directly, the inspector agreed that without notification he wouldn't have been aware of the work and therefore wouldn't have visited. Clearly by avoiding notification reduces the chances of enforcement/FFI bills!
Alfasev  
#10 Posted : 26 January 2016 11:18:23(UTC)
Rank: Super forum user
Alfasev

The fact that the works occur on three separate building does give the client options. However these separate contracts must be match by the procurement process, three sets of PCI & CPP, budgets etc. that can clearly demonstrate that the works have always been considered by the client as three separate projects. I have worked on large complexes where this was the case. If this is not the case and at the last minute they have split a larger contract into three smaller separate contracts employing the same contractor without an robust reason (which there appears not to be) then they contravene the CDM regulations. If it looks and feels like a single project the HSE may deem it so but I suspect it will only be an issue if something goes wrong. However as others have pointed out the bid trigger in CDM 2015 is multiple contractors and not the F10.
JohnW  
#11 Posted : 26 January 2016 13:24:56(UTC)
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JohnW

Redders wrote:
F10 notification puts the project on the HSE 'radar'. One of our sites (notified) had a visit from the HSE. When asked directly, the inspector agreed that without notification he wouldn't have been aware of the work and therefore wouldn't have visited. Clearly by avoiding notification reduces the chances of enforcement/FFI bills!
But if there's a serious accident the HSE will attend and be looking for the F10....
stonecold  
#12 Posted : 26 January 2016 13:32:01(UTC)
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stonecold

If the client is happy to try and twist the CDM regs so it suites their own needs e.g no notification, its makes you wonder what other safety legislation they might try to twist to also suite their needs...
6foot4  
#13 Posted : 27 January 2016 13:18:29(UTC)
Rank: Forum user
6foot4

JohnW wrote:
Redders wrote:
F10 notification puts the project on the HSE 'radar'. One of our sites (notified) had a visit from the HSE. When asked directly, the inspector agreed that without notification he wouldn't have been aware of the work and therefore wouldn't have visited. Clearly by avoiding notification reduces the chances of enforcement/FFI bills!
But if there's a serious accident the HSE will attend and be looking for the F10....
I would suggest that they would be looking for the Construction Phase Plan as it is required for all construction work. They would then also be asking why a Principal Contractor or Principal Designer were not appointed if they find multiple contractors on site. They would have found the site already by virtue of the fact the accident was either reported through the RIDDOR channels, or reported to them via other sources, so the F10 notification status remains less of a priority. Notifying the project is important but people in construction who get hung up on this betray lack of knowledge as to what the real CDM priorities are: ensuring there are suitable H&S arrangements in place, appointments have appropriate skills, knowledge, experience and organisational capability, there is appropriate site setup and welfare, communication and cooperation etc etc etc.
6foot4  
#14 Posted : 27 January 2016 13:25:12(UTC)
Rank: Forum user
6foot4

Redders wrote:
F10 notification puts the project on the HSE 'radar'. One of our sites (notified) had a visit from the HSE. When asked directly, the inspector agreed that without notification he wouldn't have been aware of the work and therefore wouldn't have visited. Clearly by avoiding notification reduces the chances of enforcement/FFI bills!
Valid point regarding FFI - but please bear in mind there will be ALOT of non-notifiable construction work taking place as the threshold for notification has increased. An average of 10 construction operatives working on a site for 49 days is less than the 500 person day threshold - how many projects are there like that? Think about all the domestic construction work too.
peter gotch  
#15 Posted : 27 January 2016 13:37:05(UTC)
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peter gotch

Redders When I worked in Construction at HSE, my boss told me NOT generally to visit on the basis of F10s as those with F10s were likely to be better than notifiable projects without F10s. Also told me to keep an eye on my patch which meant taking routes parallel to the trunk roads from time to time. Following one fatality I was on the same site in South Lanarkshire on 15 separate days over a 3 month period. On day 15 I drove back along the B road to the east of the M74 - roofing contractor simply could not believe that I had NOT had a complaint about their site, but I hadn't!
Ron Hunter  
#16 Posted : 27 January 2016 16:04:07(UTC)
Rank: Super forum user
Ron Hunter

6foot4 wrote:
More than one contractor likely to be involved with the project? Principal Designer and Principal Contractor must be appointed. Notification then comes into it if the project: (a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or (b) exceed 500 person days. Splitting it into three distinct projects is possible and if each one is not notifiable then so be it. It is legal. However, the cost of notifying the project is negligible and it's unlikely that splitting it into three projects will avoid the cost of having to appoint a Principal Designer and Principal Contractor. So can't see where the savings will be in that respect.
You're out-of-date. Notification is on the basis of those limits applying on SITE, not the whole Project. Could be that Notification thresholds aren't relevant on multiple-site projects. A subtle change from CDM2007 to CDM2015 requirements.
Paul B  
#17 Posted : 27 January 2016 16:05:03(UTC)
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Paul B

Thanks for all the input everybody. The client has now been persuaded to notify .
6foot4  
#18 Posted : 27 January 2016 18:05:33(UTC)
Rank: Forum user
6foot4

Ron Hunter wrote:
6foot4 wrote:
More than one contractor likely to be involved with the project? Principal Designer and Principal Contractor must be appointed. Notification then comes into it if the project: (a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or (b) exceed 500 person days. Splitting it into three distinct projects is possible and if each one is not notifiable then so be it. It is legal. However, the cost of notifying the project is negligible and it's unlikely that splitting it into three projects will avoid the cost of having to appoint a Principal Designer and Principal Contractor. So can't see where the savings will be in that respect.
You're out-of-date. Notification is on the basis of those limits applying on SITE, not the whole Project. Could be that Notification thresholds aren't relevant on multiple-site projects. A subtle change from CDM2007 to CDM2015 requirements.
Enjoy a good argument do you Ron? Opening a comment by say "You're out-of-date" is sure way to get one if you are not sure of your facts. I've quoted directly from the CDM2015 guidance and regulations where it states PROJECT, not SITE. Perhaps I should have put the exact words in: "A project is notifiable if the construction work on a construction site is scheduled to — " For definition: "“project” means a project which includes or is intended to include construction work and includes all planning, design, management or other work involved in a project until the end of the construction phase" Notification only ever had the dates of the construction phase anyway, although under CDM2007 one would get the notification off as soon as possible during the design phase whereas CDM2015 only requires it as soon as practicable before the construction phase starts. "Could be that Notification thresholds aren't relevant on multiple-site projects." Could be? That's not a very factual statement for someone pointing out that "you're out-of-date". On the matter of multiple sites, I'll quote directly from the online F10 notification: "Check this box if this project has multiple site locations". Have a look for yourself, it's over here: https://extranet.hse.gov.uk/lfserver/external/f10 The term "beyond sell-by-date" springs to mind.
Ron Hunter  
#19 Posted : 28 January 2016 10:43:58(UTC)
Rank: Super forum user
Ron Hunter

As it happens, I do enjoy a good argument, but prefer a constructive one. Brevity (on my part) was not intended to result in volatility, and I offer you my apologies for any unintended slight. There remains a significant difference for the basis of notification criteria from CDM2007 to CDM 2015, with an emphasis now on 'the site'. This is one of several changes to the Regulations to bring them into alignment with the TMCS Directive 92/57/EEC (Article 3 in this instance): "3. In the case of constructions sites: — on which work is scheduled to last longer than 30 working days and on which more than 20 workers are occupied simultaneously, or — on which the volume of work is scheduled to exceed 500 person days, the client or the project supervisor shall communicate a prior notice................" HSE F10 online form may well be out-of-step, but I'll stick with the Regulations. I'm sure you're well aware that use of the HSE's F10 system is their preferred, but NOT mandatory, method for written notification. Schedule 1 of the Regulations details that which MUST be notified.
Kevin Crocker  
#20 Posted : 28 January 2016 11:02:57(UTC)
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Kevin Crocker

sorry to come in here at the end but it would appear that this seems to be happening a bit more often than we think. Could anyone say (apart from the obvious if something did go wrong) what would be the ramifications to a client and a contractor(single) carrying out the works on a project that was not notified and had been completed but was reported at a later date?
paulw71  
#21 Posted : 28 January 2016 11:43:54(UTC)
Rank: Super forum user
paulw71

Kevin Crocker wrote:
sorry to come in here at the end but it would appear that this seems to be happening a bit more often than we think. Could anyone say (apart from the obvious if something did go wrong) what would be the ramifications to a client and a contractor(single) carrying out the works on a project that was not notified and had been completed but was reported at a later date?
Very little I would suggest. I dont think the HSE have the resources to pursue what is a relatively minor infringement (when considered against some of the issues they deal with), especially if works have already been completed without issue. If it was part of a larger prosecution case against a Client/PC they would throw it in for good measure to aid their case however, as a standalone breach I would have thought a FFI was the very worst you could expect.
boblewis  
#22 Posted : 28 January 2016 12:36:22(UTC)
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boblewis

6foot4 Interesting to note that the definition of project includes ALL work before the construction phase as well as the work on site. Now how many companies have I seen around a design meeting table?? Two separate architects Landscape architect Electrical Designer Mechanical designer QS Foundation Designer Built Environment Designer Client Client H&S Consultant Client Project Manager Good eh
westonphil  
#23 Posted : 28 January 2016 13:42:11(UTC)
Rank: Super forum user
westonphil

Kevin Crocker wrote:
sorry to come in here at the end but it would appear that this seems to be happening a bit more often than we think. Could anyone say (apart from the obvious if something did go wrong) what would be the ramifications to a client and a contractor(single) carrying out the works on a project that was not notified and had been completed but was reported at a later date?
I would suggest that the HSE have brought in some requirements they cannot fully enforce. I think in some cases they are ensuring that when something does happen they can show a breach of something in order to secure a punishment. We would need to await the outcome of several court cases to find out what happens if this happens and that happens and so on. Regards
RayRapp  
#24 Posted : 28 January 2016 14:05:15(UTC)
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RayRapp

Oddly enough I worked on a project some years back where we had a large number of sites with fairly similar tasks spread around the south east. It was decided to lump all of them together under one F10. Separating them into different F10s, CPPs, etc, would have been difficult but not impossible.
Kevin Crocker  
#25 Posted : 29 January 2016 11:59:09(UTC)
Rank: New forum user
Kevin Crocker

All many thanks for the feedback kind regards
Bigmac1  
#26 Posted : 30 January 2016 18:05:28(UTC)
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Bigmac1

Why are they affraid to notify? What have they got to hide, notification doesnt cost anything for christ sake.
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