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.
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An approach to interpreting the term construction work Q. How do I decide if an activity is construction work? |
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):
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(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
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(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:
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(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"
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(b) "any structure similar to anything in paragraph (a)"
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(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.
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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.
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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.
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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.
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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.
