Posted By Paul A. Swift I wonder if anyone can help. We are working on a Construction Site on a project notified under the CDM Regs. We are a Contractor appointed by the Principal Contractor. Due to illness / shortage of personnel within the Principal Contractors Business, a situation has arisen whereby the Principal Contractors Site Manager has not arrived at site today. The Client is aware of this and has stopped all work saying that the Principal Contractor must have a presence on site at all times. I cannot see where it states this in the CDM Regs - simply that a Principal Contractor must be appointed. We have a Supervisor on Site who is competent in our view to act as a deputy for the Principal Contractors Site Manager in his absence. Is it acceptable for us to formally deputise for the Principal Contractor and their Site Manager, taking on the roles and responsibilities associated with this? Any advice / suggestions would be most welcome.

Posted By Robert K Lewis The PC does have a responsibility to properly supervise the works and whether this requires full time supervision or regular visits is a matter of judgement. As toecap has said however many clients do spell this out in the main contract. It should have been identified in your own contract with the PC in order for you to make allowances for such events. If there is no specific clause covering this then your own people will need to start a claim preparation against the PC to re-coup your financial losses for the day(s). I am surprised however that the PC has only a single person on site as this must have been a recognised risk at the time of appointment. Bob

Posted By Paul A. Swift How does the following extract from the CDM Regs fit in to all of this? "(2) The principal contractor may— (a) give reasonable directions to any contractor so far as is necessary to enable the principal contractor to comply with his duties under these Regulations;" In this unusual situation, is it not reasonable for the Principal Contractor to appoint a deputy?

Posted By Paul A. Swift Yours is the resolution I myself proposed. I have tried speaking with the Construction division of the HSE in London. I spoke to someone on the subject and his view was that while he did not feel that we could deputise for the Principal Contractor, He saw no problem with us as a Contractor continuing with our work due to us having our own Supervisor in position on site, so long as our Supervisor had all of the information he required for the work to continue in a safe manner. Unfortunately, he would not put anything in writing and when I asked him his name, he hung up. Nothing like being helpful is there!!(See my other posting today - Unhelpful HSE)

Posted By Robert K Lewis Paul As I have said this may well come down to contractual clauses, of which you should have been made aware. There is actually nothing about having a presence - merely one of adequate management. The PC cannot delegate this duty to another organisation - it would be down to the client to revoke the current PC appointment and make a different appointment. This is the reason why the HSE say you cannot deputise for the PC. The client clearly believes that he has placed a specific requirement on the PC via the contract and your recourse now is via your own claims process against the PC. You actually have no recourse against the client and should not , strictly, be conversing with him over the issue. This is now a commercial issue rather than a H&S one and your management team need to treat it as such. Bob

Posted By Robert K Lewis MAK If the client has spelt the PC presence out in the main contract it is a commercial issue. If it is not in the contract the PC can allow work to proceed even if he is not there providing he has ensured all subcontractors working on site have all relevant information. This is down to the PCs risk assessment. The issue is one of good management not one of deputising for the PC. You cannot let others not in your employ undertake your responsibilities and thus the HSE are absolutely correct. I agree with people that it is a dogmatic situation that should not have arisen as a competent PC would have made adequate plans for such situations. Plans were not made however and the commercial people now need to pick up the consequences. As a client if I have specifically required a PC presence then I am entitled to have it. If there is a cost entailed then it is the PCs problem not mine, he can deal with his own subbies and their losses. We seem to be losing track of the fact that the PC has failed to manage effectively in this situation and he thus carries the responsibility for resolving the matter. He cannot do it by simply saying to one of his subbies "you are me today"!!! Bob

Posted By Robert K Lewis Paul Which all means that, as we have said, the client cannot stop work unless he has inserted a clause in the contract insisting on full time PC presence. Without such a clause the PC has a claim against the client just as you have one against the PC. If there is such a clause then the HSE views on what can and can't be done, and those of your oppo. in the PC, are irrelevant. The PC was contractually bound to provide full time presence. The first thing that went wrong here was that the client talked directly to you rather than the PC. I know it seems bureaucratic but it is best to ensure that contract proprieties and communication lines are observed. Bob

Posted By Davelfc Paul, With regards your last post, good to see a common sense approach. Though there are wider issues. if you have a person competent to supservise, this is fine but there may be areas that your competent person may not have all the skills i.e. the inspection of collective arrangemnts such as scaffold etc and the statutiry inspection that still require to be completed and recorded. If the person standing in has all the competencies and has worked on site with the PC's manager then he would be better placed than say an agency stand in for instance. I had a similar issue in a previous role for instance company management and training meetings where all managers where expected we went low risk for that 2 hours or 1/2 day etc no roof work, no adaption of scaffold, as there was no one there for correct handover etc. The daily works where appropriately scaled down and written instruction issued as a guideline. It is different when someone is sick, and the level of risk needs to be appropriately assessed as normal & managed

Posted By MAK Paul, Well done you for manging to get an appropriate response from the HSE. Good luck with the project.

Posted By Robert K Lewis MAK I would expect a PC to understand and demonstrate clearly how he intends to manage the site. If he is to only place one manager on site then he will need to address the arrangements in case of illness or other absence from site. This of course will need to match any contract terms. The PC cannot place any responsibility on a single subcontractor for the whole site - each subcontractor can only be responsible for their own works, thus the PC is always the duty holder and one at least of his employees must be available to manage the works - in whatever manner the RA defines. If a PC does not recognise the need for proper arrangements then yes I would question their competency to undertake the project. I have actually seen a lot of responsibility "sliding" by the PC, including trying to appoint the Groundworker as PC at short notice to avoid issues of supervision such as this thread has raised. I am afraid however that many of the big players will not like to hear such criticisms as they will need to properly address the resourcing issues that are so endemic in the industry. There is always a problem when clients add additional controls on the management and supervision of sites but I can understand their desire to ensure that work is fully managed at all times. The HSE work within the vacuum of the legislation that they enforce but even they have recognised that the contractual relationship is an invaluable tool for setting standards. We admittedly do not know which way it went in Pauls case but I think both points have been fully explored Contract controls and requirements for supervision are always a bonus on top of the basic statutory minimum and I see no reason to usurp such clauses. Without the clauses then the PC carries full weight of responsibility and must always remain the duty holder. Situations such as Paul describes highlight for me some of the very fundamental issues that will need to be re-addressed in April, and as I have said to others, come to the Midland IOSH Branch conference on the 8th May and all these issues can be explored at length. Bob

Posted By Robert K Lewis At £125 for a full day and the chance of an ipod Nano if booked before Friday it is a steal:-) The boss can have the Nano if you win it after all!! Be lucky - I am sure there is plenty of work for us all in this still:-) Bob

Posted By Robert K Lewis Paul It would be good to know who is giving the client this advice or has he got a contract clause? Both CDM 94 and 07 are the same concerning the PC duties to manage - neither demand full time presence. Bob