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CDM in maintenance

CDM 2015: Maintenance schedule

What repair and maintenance jobs fall under the new regulations? Fewer than we thought. 

Like many lawyers who have examined the Construction Design and Management (CDM) Regulations 2015, I concluded that most maintenance, cleaning and repair activities would now not only be caught within the spirit of them – and so require construction phase plans, for example – but also that the formal requirements would apply to many jobs.

 

An approach to interpreting the term construction work
 

Q. How do I decide if an activity is construction work?
A. The definition of construction work as set out in Reg 2(1) in CDM 2015 is broad, non-exhaustive and is largely the same as it was in CDM 2007. Construction work may take place within many industry sectors and CDM will apply if the activity falls within the definition. Whilst it is not HSE’s role to provide a definitive interpretation (which only a court can do), there follows general pointers as to how it should be construed in cases of uncertainty.
There are two steps to determining whether an activity falls within the definition of construction work, and therefore whether CDM 2015 applies.
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
  • civil engineering or
  • engineering construction work*
If the activity falls within any of these three categories, CDM 2015 does apply. If the activity does not fall into any of the three categories, CDM 2015 does not apply and Step 2 is not relevant.
*Note: The Engineering Construction Industry Association sets out engineering construction work as the design, construction and maintenance of process plant across the oil and gas, water, environmental, steel and metal, cement, glass, paper, brewing and distillation, food, power generation, nuclear waste reprocessing, pharmaceutical production, petrochemical and chemical sectors.
Step 2 – If the activity falls into one of the three main categories, then the list of specific construction activities in (a)–(e) are relevant and provide the second stage to determining if an activity is construction work.
When considering (a)–(e), note that the activities in each relate to specific actions in respect of a structure within the project, and should not be considered as interchangeable. There may be activities similar to those listed which may be considered, but they should be seen in the context of the functions, and not just ‘made to fit’.
(a) the construction, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration or other maintenance (including cleaning which involves the use of water or an abrasive at high pressure, or the use of corrosive or toxic substances), decommissioning, demolition or dismantling of a structure;
This relates to activities involved with the building, alteration, upkeep etc decommissioning, demolition or dismantling of a structure.
(b) the preparation for an intended structure, including site clearance, exploration, investigation … and excavation … and the clearance or preparation of the site or structure for use or occupation at its conclusion;
This relates to the preparation of a site for an intended structure and the preparation of the site or structure for its occupation or use at its conclusion.
(c) the assembly on site of prefabricated elements to form a structure or the disassembly on site of the prefabricated elements which, immediately before such disassembly, formed a structure;
This relates to the assembly or disassembly of prefabricated elements on site to form or take apart a structure.
(d) the removal of a structure, or of any product or waste resulting from demolition or dismantling of a structure, or from disassembly of prefabricated elements which immediately before such disassembly formed such a structure;
This relates to the removal of a structure or waste from demolition or dismantling of a structure.
(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;
This relates to the installation, commissioning, maintenance, repair or removal of a system of services (ie heating system, plumbing system) normally fixed to or within a structure rather than an individual component of any such system.
Note: The definition provides for certain activities that are exempt from CDM 2015. These are: site surveys; pre-construction archaeological investigations and the exploration for, or extraction of, mineral resources, or preparatory activities carried out at a place where such exploration or extraction is carried out.
We also asked for clarification on how CDM would be managed in lifecycle contracts if an organization contracted out maintenance or repairs to an asset manager or facilities provider for several years. The regulator suggested the construction phase plan in such cases “should be provided for the project, not each task associated with a project”. However, it also noted: “It is for the client to decide how a lifecycle contract for a period of years is managed in relation to health and safety. The CDM 2015 framework allows the flexibility to manage a contract of this sort as one construction project or more than one, depending on the circumstances.”
Source: HSE

This seemed likely to present new challenges for businesses, which previously had not worried themselves with CDM’s intricacies except when they were procuring new builds and extensions.

But a request to the Health and Safety Executive (HSE) for clarification suggests that the regulator takes a more relaxed view of when repairs and maintenance fall under the regulations.

The legal interpretation

Maintenance and repair are referred to in CDM 2015’s definition of construction work as follows (our italics):

  • (a) “the construction, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, decoration or other maintenance (including cleaning which involves the use of water or an abrasive at high pressure, or the use of corrosive or toxic substances), de-commissioning, demolition or dismantling of a structure”, and at
  • (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.”  

 A “structure” is then defined widely as:

  • (a) “any building, timber, masonry, metal or reinforced concrete structure, railway line or siding, tramway line, dock, harbour, inland navigation, tunnel, shaft, bridge, viaduct, waterworks, reservoir, pipe or pipeline, cable, aqueduct, sewer, sewerage works, gasholder, road, airfield, sea defence works, river works, drainage works, earthworks, lagoon, dam, wall, caisson, mast, tower, pylon, underground tank, earth retaining structure or structure designed to preserve or alter any natural feature and fixed plant” 
  • (b) “any structure similar to anything in paragraph (a)”
  • (c) “any formwork, falsework, scaffold or other structure designed or used to provide support or means of access during construction work.

The regulations also note that “any reference to a structure includes part of a structure”. 

There has been little official interpretation of these clauses. The HSE has so far declined to publish an approved code of practice to the new regulations. The general guidance, L153 (www.hse.gov.uk/pubns/priced/l153.pdf), doesn’t expand on the definition; nor do the sectoral guides issued by the tripartite industry committee CONIAC.

This part vacuum has left many dutyholders, from hotel owners and housing associations to manufacturers and logistics companies, wondering which maintenance and repair work falls under CDM 2015 even a year after the regulations came into effect. The breadth of the definition led some dutyholders to wonder whether cleaning a surface with bleach might fall within the regulations, since it involves a toxic substance.

The HSE’s perspective

For this article we asked the HSE for clarification on what constitutes maintenance and repair under CDM. It provided the general statement that “where maintenance activity involves construction processes, requires construction skills and uses construction materials, it is most likely to fall within the term ‘construction work’.

General maintenance of fixed plant which mainly involves mechanical adjustments, replacing parts or lubrication is unlikely to be construction work.”

The executive said it had encouraged and supported industry bodies to draw up tighter definitions for their particular sectors where needed.

But it also sent us a Q&A briefing document produced by its Construction Division to help inspectors interpret whether work falls under CDM. This document has not been widely published so we have reproduced it in the box below.

Scenario planning

We explored a few scenarios with the HSE to test whether they would count as maintenance under CDM.

  • Tree cutting or landscaping. The HSE said that if these activities formed the concluding stages of the build of a new structure they would be considered to be within a whole construction project and managed through CDM. But if the activity was not related to building, civil engineering or engineering construction work, they would not fall under CDM.
  • Office facilities management. The HSE confirmed that activities including pressure washing premises’ steps, fixed wiring inspections and the use of mechanical floor washers would not generally fall under CDM. However, they would if they were carried out in conjunction with construction work.
  • Hotel maintenance. The HSE confirmed that activities including servicing a boiler or lifts, and odd jobs such as door, floor or carpet repairs, would not generally fall under CDM for the same reasons.
  • Utilities business maintenance. Meter repair work, cleaning solar panels, switching activities in an electrical substation or fault detection work on an electrical or gas network would also be exempt if they are separate from a construction project. Of course, engineering projects or new builds would It is useful to have the executive’s interpretation to show a zealous local authority environmental health officer still fall under the HSE definition, so planned outages for repairs or undergrounding cables would be caught.

We also asked for clarification on how CDM would be managed in lifecycle contracts if an organization contracted out maintenance or repairs to an asset manager or facilities provider for several years. The regulator suggested the construction phase plan in such cases “should be provided for the project, not each task associated with a project”. However, it also noted: “It is for the client to decide how a lifecycle contract for a period of years is managed in relation to health and safety. The CDM 2015 framework allows the flexibility to manage a contract of this sort as one construction project or more than one, depending on the circumstances.”

Clearer now

Our view is that this interpretation by the HSE is not an obvious interpretation under CDM or the L153 guidance, but it is helpful.

Since many dutyholders’ interpretation of what falls under CDM will be judged by HSE inspectors if anything goes wrong, they can take some comfort in the guidance it has issued to field staff. 

For those in sectors not regulated by the HSE, it is also useful to have the executive’s interpretation to show a zealous local authority environmental health officer inclined to define CDM more narrowly.

However, the regulations are a transposition of European law and, as the HSE’s own advice to inspectors notes, it is for the courts to interpret them.

Finally, we asked the HSE whether it had any further advice or ideas for businesses looking at their CDM compliance obligations in relation to maintenance, repair, upkeep and cleaning? In short, its response was that CDM should be considered a framework through which dutyholders can manage risk and should provide flexibility and minimise bureaucracy.

Mary-Lawrence-affiliate-member-of-IOSH

Mary Lawrence, affiliate member of IOSH, is partner and head of the health and safety team at solicitors Osborne Clarke, www.osborneclarke.com. She also sits on IOSH’s Council.   

Comments

So, looking at this if one of the DIY warehouses i.e. B & Q, Wickes, Homebase for example enter into a contract with a domestic premises then you as the house holder are classed as the "client", the DIY warehouse then serve as Principle Designer, with the contractor they appoint to actually do the "fit out" being the Principle Contractor. That should be interesting !!!

Would it be possible to get similar information and advice in relation to Domestic Clients duties and small contractors.
I have been in touch with various trade organisations in relation in particular to the replacement window and conservatory manufacturers and installers namely FENSA and the Glass and Glazing federation neither of who had even heard of CDM

I then contacted all of the Major Organisations in this field posing as a potential client and asking if they would take on my duties as a domestic client and with the exception of one company who have an industrial arm none of them knew what I was talking about.
Following this I contacted organisations who fit kitchens, plumbers, small builders, roofing contractors not one of them had heard of CDM.
I have even had a situation where one contractor has been excluded from a tender by a domestic client because he made the client aware of his duties as a domestic client and advised the client that he would take on these duties at no cost to the client.
He was told that none of the other companies the client had asked to tender for the Job had mentioned health and safety as an issue and was virtually scared off by the contractor in question.
It would appear therefor that small businesses and client are totally unaware of these regulations and this concerns me greatly as a Health and Safety Consultant making every effort to ensure that small businesses comply with current legislation.

The clarification by the HSE is welcomed; however it does not address the relationship with "fixed Plant" which is a structure under the regulations. So if lift and boiler maintenance in a hotel is not construction work, what is construction work? Para (e) includes gas and electrical fixed within or to a structure? What is fixed plant if boiler and lifts are not?
This then raises the question when is maintenance construction work? In a lifecycle contract if you treat every little job as a project in its own right they would not be construction work if it concerned plant! Also the use construction materials, tools and skills in a door repair are not construction work, what is?
An HSE inspector suggested to me when the man comes to service my boiler at home he would need a suitable CPP.
This is why we need an ACOP with clarity

I would be interested in the HSE's interpretation of "Fixed Plant"
Is it a machine or mechanism fitted within a structure and therefore becomes part of a structure? (extraction / ventilation)
Or
Is it Plant or Machinery that is bolted to a workshop floor or wall. This could also be interpreted as Workplace Equipment. (lathe or steel press) With it being bolted or fixed to the structure is this then Fixed Plant or Workplace Equipment or both?
The root of the question is "does the removal of said lathe or steel press fall under CDM 2015?"

What an excellent article. Pointed clear and concise and desperately needed for those practitioners in HA's immersed daily in the fog of regulation, seeking to interpret the regulatory mind-set on behalf of busy maintenance teams whilst trying at, the same time to avoid the accusation of over cautiousness. Surely this adds further weight to the pleas from fellow professional's that sector guidance in the form of an ACOP is much needed to provide clarity and promote proportionate health safety solutions in this sector. Well done.

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