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HoweD  
#1 Posted : 18 March 2022 14:33:23(UTC)
Rank: New forum user
HoweD

Where an item of work equipment (sand blaster) is provided by an employer, but for the exclusive use of a contracted company who maintain part of the business premises, can the duty of complying with PUWER (maintenance and inspection) for this item be moved onto the contracted company? Could the contracted company arguably 'be in control' of the work equipment and subsequently be responsible for complying with PUWER? Thanks in advance

Kate  
#2 Posted : 18 March 2022 15:00:11(UTC)
Rank: Super forum user
Kate

If the contractor is employing people to work with this equipment, I can't see how they could *not* have the legal duty for the maintenance of it (even if this maintenance is actually done or arranged by someone else such as the client who owns the equipment).  That's because they are the employer of the equipment users and it is the employer that the duty falls on.

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HoweD on 22/03/2022(UTC)
Roundtuit  
#3 Posted : 18 March 2022 17:15:12(UTC)
Rank: Super forum user
Roundtuit

But the contracting company had no say in its specification before purchase ergo even if they know the task there was no opportunity for them to design out potential hazards by selecting possibly more appropriate engineering controls which may have been cost options the client has refused to pay for.

The client should not have made the purchase if it was not for their direct use.

Would you purchase ladders for use by the window cleaner or make it part of the contract they provide suitable equipment?

thanks 2 users thanked Roundtuit for this useful post.
HoweD on 22/03/2022(UTC), HoweD on 22/03/2022(UTC)
Roundtuit  
#4 Posted : 18 March 2022 17:15:12(UTC)
Rank: Super forum user
Roundtuit

But the contracting company had no say in its specification before purchase ergo even if they know the task there was no opportunity for them to design out potential hazards by selecting possibly more appropriate engineering controls which may have been cost options the client has refused to pay for.

The client should not have made the purchase if it was not for their direct use.

Would you purchase ladders for use by the window cleaner or make it part of the contract they provide suitable equipment?

thanks 2 users thanked Roundtuit for this useful post.
HoweD on 22/03/2022(UTC), HoweD on 22/03/2022(UTC)
peter gotch  
#5 Posted : 19 March 2022 15:58:22(UTC)
Rank: Super forum user
peter gotch

Hi D Howe

Why not approach the Q from a different level?

If the Contractor is using the sandblaster as part of works to maintain a structure e.g. its steelwork, then CDM is going to apply and the Client sets the tone for compliance by its supply chain.

But even if CDM didn't apply you could use exactly the same principles via HSWA and the Management of Health and Safety at Work Regulations 1999.

For ease of visualisation suppose you replace the sandblaster with a metal cutting guillotine supplied without guarding by the Client to the Contractor.

Would anybody be likely to point the finger at the Contractor before taking issue with the Client for specifying the use of dangerous equipment [assuming that this supply is known]?

This sounds like the sort of scenario in which the Client decides to outsource work previously done by its own staff and then thinks it can offload all the risks.

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HoweD on 22/03/2022(UTC)
antbruce001  
#6 Posted : 22 March 2022 13:29:56(UTC)
Rank: Forum user
antbruce001

PUWER places duties on the User of the equipment, not the supplier or owner.

If an 'employer' agrees to use a peice of equipment they are the 'User' so take on all the legal duties under PUWER like ensuring it is suitable for the task, CE marked, suitable training is provided etc. 

Clearly they also take on the reasonibility (and legal accountability) for ensuring the equipment is suitably maintained and fit for continued use. This cannot be transfered through contract. You can debate who should organise and even pay for that maintenance, but the User (employer) of the equipment must ensure it is completed as required if it is available for use by their employees. 

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HoweD on 22/03/2022(UTC)
John Elder  
#7 Posted : 23 March 2022 15:54:55(UTC)
Rank: Forum user
John Elder

Looking at the original post the words employer and subcontractor. Employer and employee or Client and Subcontractor in the context of PUWER the Client is the Employer and the subcontractor the employee.

Taking this into account the client/employer is providing the sand blaster equipment for the subcontractor/employee to use.

PUWER Regulation 3 (2) The requirements imposed by these regulation on an employer in respect to work equipment shall apply to such equipment provided for use or used by an employee of his at work.

In this instance I am assuming that the employer is providing the equipment for use and not the subcontractor, so they are responsible for PUWER as they are fulfilling the act of provision in these circumstances under PUWER if they installed it for use.

If however it was given to the subcontractor to have e.g. inferred ownership during its use upon site or upon completion of the contract and it wasn’t connected to anything e.g. energy supplies when provided, then the subcontractor is responsible if they installed it for use, as PUWER is conducted upon installation, relocation, or modification. And they would therefore be responsible for the maintenance and inspection through the inferred ownership.

I hope the above makes some sense.

Kate  
#8 Posted : 23 March 2022 18:41:32(UTC)
Rank: Super forum user
Kate

But isn't there more than one employer involved here?  The employer referred to in the OP is the client (Company A).  The client makes equipment available to another employer, their contractor (Company B).  The contractor expects their own employees to use this equipment.  Then it is Company B that is the employer with PUWER responsibilities.  Company A does not have an employment relatioship with the employees of Company B.

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HoweD on 08/04/2022(UTC)
Roundtuit  
#9 Posted : 23 March 2022 21:35:12(UTC)
Rank: Super forum user
Roundtuit

But Company A specifed & purchased the equipment (one can argue without the involvement of the actual hands on employer Company B). If I were Company B the equipment would be rejected as it is my employees I am concerned with and I have legal responsibilities towards.

thanks 2 users thanked Roundtuit for this useful post.
HoweD on 08/04/2022(UTC), HoweD on 08/04/2022(UTC)
Roundtuit  
#10 Posted : 23 March 2022 21:35:12(UTC)
Rank: Super forum user
Roundtuit

But Company A specifed & purchased the equipment (one can argue without the involvement of the actual hands on employer Company B). If I were Company B the equipment would be rejected as it is my employees I am concerned with and I have legal responsibilities towards.

thanks 2 users thanked Roundtuit for this useful post.
HoweD on 08/04/2022(UTC), HoweD on 08/04/2022(UTC)
Kate  
#11 Posted : 24 March 2022 03:43:42(UTC)
Rank: Super forum user
Kate

I agree - if I was representing Company B, I would at the least be asking some questions about whether this equipment was suitable. 

But that's my point: it is company B that has the duty and the right to be determining this.  They can't just leave it to Company A on the basis that Company A is the one providing the equipment.

thanks 1 user thanked Kate for this useful post.
HoweD on 08/04/2022(UTC)
John Elder  
#12 Posted : 24 March 2022 07:47:59(UTC)
Rank: Forum user
John Elder

I do think the point is either being missed or perhaps not explained clearly.

The item is a Sand Blaster this is not portable equipment so would need to be installed as a fixed installation on the premises and would therefor require its PUWER Assessment to be completed by the persons asking for it to be installed.

Company A (The Client/Employer) provided the equipment, so I am assuming that they have installed it on their premises and are allowing it to be used by company B (Subcontractor/Employee) and that it wasn’t delivered on a pallet for company B to install themselves.

If company A installed it for the use of company B, then Company A are required to have it PUWER assessed before handing it over. If not when company B conducts their risk assessment prior to using the equipment they should identify it hasn’t been PUWER Assessed and either get company A to complete this on their behalf or have it done themselves.

Either way PUWER should be captured.

The question originally asked who should carry out the ongoing maintenance and inspections for ongoing compliance with a PUWER assessment that has been completed, not who should do the PUWER assessment in the first instance.

In this instance it is reasonable to expect that company B take on this action and responsibility as they have its exclusive use so are the only persons using the equipment, therefore they are obliged to maintain and inspect it.

Company A can rightly pass on this responsibility as long as this has been explained to company B and understood by both parties.

Company A still have liabilities though as the equipment is connected to their energy supplies and used on their site by an employee e.g. company B.

If an accident were to happen they could be found to be partially responsible down to lack of management and supervision of their contractors under the health and safety at work act.

thanks 2 users thanked John Elder for this useful post.
Kate on 24/03/2022(UTC), HoweD on 08/04/2022(UTC)
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