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pip306  
#1 Posted : 03 November 2021 09:20:17(UTC)
Rank: Forum user
pip306

Hi All 

Hoping the hive mind might have some opinions (I have my own) on when a PD is a PD or just a designer.

So the scenario is ... 

"Commercial client tendering for a new fire alarm to a specified standard (likely based on insurance request) but doesn't provide any futher info e.g. drawings, tech specs, survey info etc" company tendering provides drawings, carries out survey and instructs on placement of detector heads cabling panel etc. 

Company tendering then sub-contracts out the install - but they do commission the system... 

Cheers

Alfasev  
#2 Posted : 03 November 2021 10:32:13(UTC)
Rank: Super forum user
Alfasev

The installation of fire alarm is not construction work unless there is a substantial amount of building works associated with it or it is carried out as part of a larger construction project. Therefore the CDM regulations may not apply. The fire alarm system has to be designed but a lot of the time it is designed & installed by a specialist.

Ian Bell2  
#3 Posted : 03 November 2021 11:07:06(UTC)
Rank: Super forum user
Ian Bell2

Why is this not 'construction work' as defined in the CDM definitions Reg 2 (1) captures just about everything.

How many contractors are there on this project? If more than 1, then the client must appoint the PD in writing. If not appointed, then the client takes on PD duties.

thanks 2 users thanked Ian Bell2 for this useful post.
chris42 on 03/11/2021(UTC), signals on 05/11/2021(UTC)
Ian Bell2  
#4 Posted : 03 November 2021 11:10:47(UTC)
Rank: Super forum user
Ian Bell2

Reg 2 (1) e

achrn  
#5 Posted : 03 November 2021 13:55:48(UTC)
Rank: Super forum user
achrn

Since it's not a 'domestic client' sitiuation, if they've been appointed in writing as PD they are PD.  If not, they are not.

Seems fairly simple to me.

If there is no-one appointed in writing by the client, there is no PD, but the client attarcts all the duties.

thanks 2 users thanked achrn for this useful post.
pip306 on 03/11/2021(UTC), signals on 05/11/2021(UTC)
firesafety101  
#6 Posted : 03 November 2021 16:12:30(UTC)
Rank: Super forum user
firesafety101

How many contractors are needed to install a fire alarm system.  My guess is 1.  In that case there is no requirement to appoint a PD.

pip306  
#7 Posted : 03 November 2021 16:52:47(UTC)
Rank: Forum user
pip306

Hi so this is construction work as pointed out and defined in the CDM regs no escaping that. 

1. no appointments are officially ever provided (un-educated clients) they will say we did in a contrsct however the CDM terms are never used as far as i can tell at present

2. sometimes the client instructs a PD as a consultant sometimes not - that mkaes life easier however the PD never does the H&S file 

3. installs are to the specifications of relevant british standards however deisgns for exact locations - wiring etc are done - makes at least designer - arguement is client is PD as they instruct what the specification is (interesting concept)

4. company tendering is designer (100%) and also principal contractor as per tender requirements but may never work on the project and the sub-contractor (often only 1) does all work and comissioning (yes i know what the comments will be) 

so any further guidance or comments welcome... 

Edited by user 03 November 2021 17:02:47(UTC)  | Reason: wrong phrase used

thanks 1 user thanked pip306 for this useful post.
stevedm on 03/11/2021(UTC)
Holliday42333  
#8 Posted : 03 November 2021 17:08:21(UTC)
Rank: Super forum user
Holliday42333

I would suggest the company tendering is the PD and PC given the info provided

firesafety101  
#9 Posted : 03 November 2021 22:24:25(UTC)
Rank: Super forum user
firesafety101

Originally Posted by: pip306 Go to Quoted Post

Hi so this is construction work as pointed out and defined in the CDM regs no escaping that. 

1. no appointments are officially ever provided (un-educated clients) they will say we did in a contrsct however the CDM terms are never used as far as i can tell at present

2. sometimes the client instructs a PD as a consultant sometimes not - that mkaes life easier however the PD never does the H&S file 

3. installs are to the specifications of relevant british standards however deisgns for exact locations - wiring etc are done - makes at least designer - arguement is client is PD as they instruct what the specification is (interesting concept)

4. company tendering is designer (100%) and also principal contractor as per tender requirements but may never work on the project and the sub-contractor (often only 1) does all work and comissioning (yes i know what the comments will be) 

so any further guidance or comments welcome... 

Referring to number 2.  The PD is responsible for the H&S File and supplying it to the Client.  The PD may be a company having an employee compiling the H&S File but it is always the PD's duty.

Alfasev  
#10 Posted : 04 November 2021 10:46:51(UTC)
Rank: Super forum user
Alfasev

You cannot consider reg (2) a- e in isolation in deciding if CDM applies. That is a misinterpretation of the regulation and you need to apply the two part test. This has been discussed before on the forum but here a link that explains it in more detail.

 https://www.iosh.co.uk/~/media/Networks/Branch%20and%20group/Branch/Chiltern/Definition%20of%20CDM15%20Work.pdf?la=en

The wording is “construction work” means the carrying out of any building, civil engineering or engineering construction work and includes— . You must consider the literal meaning of includes and all the wording of the regs for that matter. Includes means part of the whole, to contain something as a part of something else.

a-e is intended to make it clear if any of the mention tasks/work are carried out during a construction project CDM applies to them.

If you consider 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, CDM 2015 would apply to all sorts of work. For example replacing light bulbs and fuses, annual gas boiler inspection, putting up a large visual screen, ethernet network etc.

CDM is intended to control significant hazards as defined in L153, not necessarily those that involve the greatest risks, but those (including health risks) that are not likely to be obvious, are unusual, or likely to be difficult to manage effectively. There is plenty of other legislation and regulation that tackles other hazards and risks.

It is however upto the project team to make the decision if CDM applies.

firesafety101  
#11 Posted : 04 November 2021 11:15:35(UTC)
Rank: Super forum user
firesafety101

Possibly throwing a spanner in the works you then need to decide if the project is notifiable.  That's another question ?

Ian Bell2  
#12 Posted : 04 November 2021 12:32:25(UTC)
Rank: Super forum user
Ian Bell2

I would still disagree - ufortunately the original post doesn't indicate what other building activities might be going on while the fire alarm is installed.

I would argue Step 1 of the document applies as'building work' as the document also says where 'construction skills' are required. Installing a fire alarm system is likely to require the use of construction tools - drilling holes in walls as a minimum - hence skills, the use of scaffold/work at height possibly

Step 2 applies by virtue of Reg2(1) e as previously mentioned.

The devil is in the details - which were not given in the original post.

The problem with CDM - is the very obvious requirement to cover the whole possible range of contruction and maintenance activities in 1 set of regulations. They are far too generic and woolly. Hence why there is endless questions as to whether CDM apply to a particular activity.

peter gotch  
#13 Posted : 04 November 2021 16:51:36(UTC)
Rank: Super forum user
peter gotch

Alfasev, I have to say that yours is an interpretation at odds with that of most of those who deal with CDM on a day to day basis and is not in line with the article you mention (though I might have some concerns about the contents of the article as well)

The definition of "construction work" in CDM almost entirely derives from the definitions previously in Section 175 of a "building operation" and "work of engineering construction" - the only real difference is that in the drafting of CDM 1994, HSE chose to close some perceived loopholes in the application of what were the Construction Regulations 1961 and 1966. 

There is lots of case law on what constituted a "building operation" and no reason to see why the Courts would not see that case law as being authoritative in the interpretation of "construction work" under CDM.

"include" has to be interpreted literally - if the work is any one of the many activities set out in sub-paragraphs (a) to (e) it is "construction work" as will be any other work that is "ancillary to, but necessary for" the "constructon work".

The key word in sub-paragraph (e) is "services" - the fire alarm fitting is not services but the cabling between fittings is. If you mess around with both the cables AND the fittings then all will be "construction work".

In its reply to inform the article to which you refer, HSE muddy the waters a bit. Clearly a carpet is not part of a "structure" so its cleaning or replacement would not be "construction work". In contrast I find HSE's assertion that alterations to the floor underneath would not be "construction work" very unlikely to withstand legal examination.

HOWEVER, whatever HSE say about the application of CDM, it would still expect appropriate coordination of any contractual works to enable compliance with legislation inclusive of HSWA and the Management Regs - in its input into the article HSE does note that one can apply CDM to an entire "project" rather than individual elements.

When you then apply this thinking to the subject of the original question in this thread, it means taking a proportionate approach - once one decides that CDM applies, it doesn't mean that the "construction plan" needs to be a long document nor even entitled "construction plan". 

Guidance before L153 )e.g. from HSE and CIRIA) was much clearer, noting that the definition of "construction work" in CDM has hardly changed since 1994, with the exception of the exemption of archaeological site investigations associated with construction projects from the definition in CDM 2015 - an exemption that I don't think would stand legal test as a result of the case law.

Alfasev  
#14 Posted : 05 November 2021 13:09:04(UTC)
Rank: Super forum user
Alfasev

Originally Posted by: peter gotch Go to Quoted Post

I have to say that yours is an interpretation at odds with that of most of those who deal with CDM on a day to day basis 

What evidence have you got to substantiate this comment?

 I do work day to day in construction and in my experience there is a lot of confusion about CDM 2015 fuelled by having no ACOP, a lack of leadership by the HSE and fee generating by some consultants. My interpretation comes straight from a HSE document originally posted by IOSH construction group. I agree the article is not the best and the HSE muddy the waters but I have now found the original document at  http://www.hctg.net/wp-c...s-construction-work.pdf.  This interpretation was also confirmed in legal advice that was sort some time ago and where the explanation about using the literal meaning of words came from. I accept other can have a difference of opinion or been given other advice. For me it makes sense and I repeat it is for the project team to decide.

Case law can be very specific and difficult to apply to other situations. In court it will be the jury who ultimately decides what constitutes construction work, given particular circumstances of a case. A HSE document outlining the two stage approach would be a significant piece of evidence. Barristers may make legal argument on points of law by bringing up case law directly with the judge, who may then make a ruling. I have found it difficult to research any CDM cases as you tend only to find a brief report, however Peter if you have knowledge of a relevant case please post the details.

I could think of 101 example of why (a) to (e) should not be considered in isolation and the two part approach should be applied. For example upkeep, could mean anything from cleaning to minor repairs. Redecoration means that painting a room or putting up wallpaper, other maintenance again could mean anything from unblocking a drain to fitting a new lock. I cannot see how these can be considered construction.

Clients should be wary in automatically assuming work mention in (a)-(e) is construction work when it may not be. It implies that they are going to comply with all their duties, which are demanding and far more wide ranging than just appointing a PD and PC.

Everyone can make their own minds up.

peter gotch  
#15 Posted : 05 November 2021 17:31:00(UTC)
Rank: Super forum user
peter gotch

Alfasev

I think that the HSE document that you refer to makes interpretation unnecessarily complex...

Step 1 – the project/activity must fall within one or more of the three categories set out in the definition, those being the carrying out of any; • building work, • civil engineering work, or • engineering construction work

In ye olden days "building work" would be what was formerly defined as a "building operation" - that definition included much of what is in the current definition of "construction work" including the bit about installation etc of services attached to a structure.

....and "civil engineering work" and "engineering construction work" fell either into the definition of "building operation" or that of "work of engineering construction". Whilst Section 176 of the Factories Act 1961 set out a definition of WEC it was amended by two extensions.

It's incredibly unlikely that it will fall to a jury to come up with an AUTHORITATIVE interpretation of "construction work" as such a judgment would be made by Judges at the Court of Appeal or Supreme Court.

Given the wording of the definition of "construction work" it is inevitable that those Judges will be referred back to the authoritative judgments of what constituted a "building operation" [Nobody ever seems to have argued about WECs].

Since that means that "Step 1" is intrinsically linked to "Step 2" it follows that Step 1 is redundant.

...and to answer one of your QQ, I was an HSE Inspector enforcing the Construction Regulations 1961 and 1966, so dealing with the interpretation of "building operation" on a regular basis. Later I sat on the CIRIA working party which oversaw its original guidance on CDM for Clients (Report 172) and Planning Supervisors (Report 173).

Reports 172 and 173 (and the Approved Codes of Practice which supported CDM 1994 and 2007) provided much clearer guidance on the interpretation of "construction work" than L153 does.

So, given that the definition in CDM 2015 is to all intents and purposes identical to that in CDM 1994 and 2007, perhaps you should go back to earlier HSE guidance on the topic. 

In practice, the issue is rarely of much importance as if CDM doesn't apply then its requirements are largely implicit in HSWA and the Management of Health and Safety at Work Regulations 1999.

So, to take a very historic example, one of my former colleagues investiated a fatal accident where a man was doing some final measurements on a roof before re-roofing was due to start the following week. This was before HSWA and my colleague thought that the work was NOT part of a "building operation" and hence there was no prospect of prosecution being successful. However, in the civil case that followed, the Court held that the work was "ancillary to, but necessary for" the building operation and hence was part of the "building operation".

If this had occurred a few years later, my colleague could simply have collected the evidence to proceed towards prosecution for breach of HSWA. 

pip306  
#16 Posted : 08 November 2021 10:41:21(UTC)
Rank: Forum user
pip306

Thank you all for a really interesting discussion it is very useful and still shows that there is a vast difference in opinion. Having been taught CDM by various industry bodies all conclude that installation is CDM... in this instance yes the whole alarm system panel, cables, detector heads, sounders etc are being installed as a solo project. Other projects are sprinklers, AOV and emergency lighting. I deem this to be caught by CDM 2015. But if anyone has any legal case law to suggest otherwise that would be very interesting.

The project is often only one contractor installing (not an issue) but sometimes 2 or more installing depending on timescales for install. There is always the company tendering and at least 1 sub-contractor on every project.

I am sure if an accident did occur during the project the HSE would look at whether CDM applies and who is performing which role in addition to the obvious safe systems of work and normal H&S requirements for. 

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