Can a Client charge the Principal Contractor for making their welfare facilities available to workers during the construction phase?

Provision of welfare facilities is part of the contractual engagement. If it is not contracted it cannot be charged.

Both sides will be culpable as the contractor should have asked, and where unavailable from the client, costed as part of the tender.

Similarly if the client had facilites but wanted a contribution towards maintenance this should have been discussed up front.

Sounds like two parties working on assumption - both that provision would be made by the other.

Hi Frank

Assuming that this is subject to CDM and doesn't involve a "domestic client", then Client, Principal Contractor (assuming a PC is required) and each and every Contractor (including the one person self-employed subbie) has a statutory duty to make sure that the welfare facilities set out in Schedule 2 of CDM are provided:

Client - Reg 4(1)(b)

Principal Contractor - Reg 13(4)(c) 

Contractor - Reg 15(11)

But unless what is to be provided and by whom is set out in the contract, it might not happen.

Well before CDM the more competent clients and their advisors had this in hand.

So, as example, I used to work for a consultancy who often did the designs for projects and usually had some role in administering the subsequent construction contract(s).

So, supposing we would have a contract administation team of 10 people to monitor progress on what might be a large construction contract (Numbers dependent on method of procurement and scale/complexity of the project) the contract specification would include for exactly what minimum facilities were to be proved by the Contractor for our staff - assuming that we would not be using the Client's facilities).

10 desks, 10 chairs, conference room with X tables, Y chairs, welfare facilities, all sorts of equipment, at least 10 hard hats, hi viz clothing etc etc etc and provision for cleaning, maintenance, replacement etc etc.

This could be written into the CDM pre constructon information, but if not stipulated in contract, the Contractor is going to start arguing and nobody likes a "claim"!!!

Right

Schedule 2 of CDM describes the “Minimum welfare facilities required for construction sites” and as Peter said there are duties in the regs on various parties to see that these are made available:

• Clients under, Reg 4(2)(b)  they ensure that “the facilities required by Schedule 2 are provided in respect of any person carrying out construction work”

This implies an absolute duty in respect of anyone on site.

• Principial Contractor under Reg 13 (4)(c) they ensure that: “facilities that comply with the requirements of Schedule 2 are provided throughout the construction phase”

Again an absolute duty

• Contractors under Reg 15(11): “must ensure, so far as is reasonably practicable, that the requirements of Schedule 2 are complied with so far as they affect the contractor or any worker under that contractor's control.”

So a qualified duty there.

So based on that I would suggest that the main duty rests with the client, and they can’t turn around and say we will not provide you with welfare facilities unless you pay, once the work has started. As has been said what seems to have happened here is no-one took the lead and assumed someone else would provide the facilities.

Of course I know nothing about CDM and I could be completely wrong.

Because the CDM Regs have a duty on the client to ensure that there is adequate welfare provision.

But it is silent on who pays for it.

Originally Posted by: antbruce001

The duties that are placed on both the client and the PC are exactly the same. As such, there is no clear legal duty on either party as to who actually provides the welfare facilities, just that they ensure someone has

Doesn't that track to a fundamental principal under CDM "Co-operation"?

You could actualy read as "For the avoidance of doubt you are equally culpable and therefore NOT allowed to point blame at other parties, rather you must prove you have derived amicable and suitable arrangements."

These forums normally full of posts wanting someone other than ourselves to hold legally accountable

We have to remember that each of three iterations of CDM has happened at a time when the Government of the day [along with previous Govts] was desperate to avoid "gold plating" EC Directives, in this case the Temporary or Mobile Construction Sites Directive so adopted a "copy out" approach to transposing the Directive via Regulations.

This does have a level of advantage as it means that CDM permits flexibility to suit the diversity of projects and their procurment but at the same time leaves lots of grey areas including, in particular, the rather woolley duties on the Client(s).

....and why the (c) after Client?

Simples, the Interpretation Act 1978 says that unless the contrary is clear any word in the singular includes the plural and vice-versa.

Many construction projects can and do have multiple people who meet the CDM definition of client.

The only effective way to sort out the grey areas (when things may go wrong) is to make sure that the contract spells out who is reaponsible for what.

This doesn't matter when things DON'T go wrong. If the four households in our building bring in a contractor to fix our roof, we never bother to spell out that if the workers need toilet and washing facilities they can use the ones in our flat. 

But on the larger projects it makes sense to spell things out. On lots of projects the Client will make its facilities available and offers to do work can take that into account. If the Client wants the contractor to provide the facilities then they should specify this and expect tenders (or other offers that end up forming part of the "contract") to price accordingly.

Originally Posted by: johnb

The PC is responsible for providing the welfare facilities on a construction site. The client ensures that they are provided prior to the work commencing.

The question however was can the Client charge the PC for access to existing facilities?