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The lowdown on CDM regulations, by Stagesafe

A number of regular readers have expressed a great deal of interest in the Construction (Design and Management) Regulations (CDM Regulations) that are intended to ensure that health and safety issues are properly considered during a project’s development so that the risk of harm to those who have to build, use and maintain structures is reduced.

They were introduced in 1994 following publication of European Directive 92/57/EEC on minimum safety and health standards for temporary or mobile construction sites. The CDM Regulations were revised in 2007, and it is proposed that a further revision will come into force on April 5th 2015 when they will cover the entertainment industry.

Until now they have covered our industry but the HSE decided that other regulations such as the Health and Safety at Work at and the Management of Health and Safety Regulations were more appropriate and less burdensome than CDM but recently the situation changed and the HSE announced that they were required by European Law to enforce CDM on all our industry or the Government could face persecution. 

CDM summary

The Regulations are designed to integrate health and safety into the management of the project and to encourage everyone involved to work together to:

  • Improve health and safety by the planning and management of projects from the very start and to identify hazards early on, so they can be eliminated or reduced at the design or planning stage so the remaining risks can be properly managed;
  • Have the right people for the right job at the right time
  • Focus on effective planning and manage the risk – to target effort where it can do the most good in terms of health and safety; and discourage unnecessary bureaucracy and paperwork

It is possible to explain what CDM will not do rather than what it will do, for example, it will not dictate how operations will be physically carried out or what, where or when PPE will be required by those working on site. It is designed to ensure that the organisation management of the project is in place and the project is properly managed, the clue is in the name – Design and Management Regulations.

Everyone controlling site work has health and safety responsibilities. Checking that working conditions are healthy and safe before work begins, and ensuring that the proposed work is not going to put others at risk, requires planning and organisation. This applies whatever the size of the site.

The HSE policy was that the CDM Regulations did not provide a useful regulatory framework for temporary structures used in the entertainment industry. This was because the CDM Regulations were specifically drafted for the procurement and delivery of projects in the construction industry but that situation has now changed.

Consultation on proposed changes to the Construction (Design & Management) Regulations 2007 (CDM) were completed on 6th June 2014 by the Health & Safety Executive (HSE) with the aim of introducing Construction (Design & Management) Regulations 2015 in April next year but a large number of consultation questionnaires from the entertainment industry were rejected by the HSE as they were considered  as “campaigns” against the regulations as opposed to consultation because the all contained the same answers and objections that were proposed as standard answers by trade associations for members to use.

In its consultation document the HSE set out a number of policy objectives which explain why an update to the current CDM 2007 was required:

  • Maintain or improve worker protection;
  • Simplify the regulatory package;
  • Improve health and safety standards on small construction sites;
  • Implement the Temporary or Mobile Construction  Sites Directive (TMCSD) in a proportionate way (this  is a European Directive);
  • Discourage bureaucracy; and
  • Meet better regulation principles.
  • HSE also cite external research into CDM 2007 within its consultation document which concluded:
  • CDM 2007 was viewed more positively by duty holders than the 1994 version; its broad structure was fit for purpose;

Problems generally arose through mis-interpretation and over-interpretation of the Regulations; significant concerns remained, however, in several areas:

  • The Regulations had not borne down on bureaucracy as hoped;
  • The Regulations had led to an industry approach to competence which was heavy-handed and in many cases burdensome, particularly on SMEs;
  • The co-ordination function in the pre-construction phase was not in many cases well-embedded.
  • These objectives are all admirable and I would have thought that everyone would agree with them. Irrespective of the final format of the revised CDM Regulations, due to come into force in April 2015, certain issues are known:
  • The Regulatory package will be much simpler in format than the current regulations
  • The onus will be on duty holders to comply with the regulations through implicit rather than explicit requirements;
  • Reliance on guidance documentation will be much greater than currently
  • SME Contractors will have to get their act together with regard to CDM as they will have much greater responsibilities, including taking on client duties if they are working on a domestic project
  • There will no longer be an independent CDM Coordinator to provide clients, and others, with advice and assistance regarding construction health and safety
  • In many cases the first designer appointed will have to take on the health and safety coordination role currently dealt with by the CDM Coordinator
  • Health and Safety coordinators must be appointed for any construction project that will have more than one contractor working on site
  • Contractors will self-assess the contents and suitability of their Construction Phase Plans.

The main concerns of the entertainment industry surround some construction-centric management roles and responsibilities that it is feared may be difficult to map across to our sectors and may lead to enhanced liabilities for some and we do  not know how and to what extent the regulations will be enforced, CDM is not just about structures, it’s also about management systems, the way events are planned and sites are managed and that may get complicated for event organisers particularly smaller, armature event organisations. .

The HSE seem to have been caught between a rock and a hard place. They are looking to improve on the current CDM 2007 Regulations but have to meet Government requirements to reduce the regulations down to the absolute minimum. We also know that the UK Government has to change the regulations to meet the European Temporary or Mobile Construction Sites Directive (let’s just call it the TMCSD) otherwise they could face an embarrassing prosecution. If the issue was just meeting the TMCSD to ensure the UK did not face prosecution, then changes could be easily made without incurring the likely disruption and cost that the HSE’s proposals look to bring to the industry.

The current and proposed CDM Regulations implement a European directive, which does not permit exceptions for particular types of construction work, including erection and dismantling of temporary structures for TV, film and theatre productions and live events, wherever it is carried out. The definition of construction work is broad and encompasses a wide range of activities in the entertainment sectors from high to low risk work including rigging and power instillation/distribution work as well as building and dismantling structures.

As we have noted, HSE has had a policy of not actively enforcing the current CDM Regulations in the entertainment industry, but they have now been advised that a blanket policy of not enforcing regulations in a particular sector is unlawful and could lead to the Government being prosecuted under European law so in October 2104 the HSE finally announced that CDM would in future apply to the entertainment industry.

Five strands

The HSE see that entertainment as five strands, they are: TV & Film, Venues, Theatre, Outdoor Events and the Voluntary/Charity/Church sectors. All will be covered by CDM when there are two or more contractors working on the event, which could be a marquee company and a caterer as an example. The list below shows the various roles and responsibilities required under CDM, these have to be transposed into each of the five entertainment strands and converted from construction terminology the relevant entertainment sectors terminology.

The HSE expect the entertainment industry to write the Guidance to the Regulations for our sector but the question is, Guidance to what? At present we don’t know what the regulations are and the HSE can’t tell us as they are still in draft. We have not seen the new regulations so it’s not possible to write about something we have not seen, and then who is going to pay for it, previous experience shows it is a time consuming and very costly process and the HSE will not pay.

The HSE were in the middle of a business engagement assessment for the entertainment sector but this is now on pause, we believe it is because they have already discovered how much CDM will cost the industry and now they want to find ways to offset some of this, they are frightened because they thought the cost would be nominal but now they have discovered it will be millions of Pounds.

We also think two HSE departments are in conflict with each other over CDM in entertainment, the Construction and Entertainment divisions, but of course they are not allowed to show or admit this.

CDM 2007 introduced the need to ensure that all duty holders were competent in their role.  This put additional responsibilities particularly on Clients to ensure that those they appointed in the various roles had the skills and competence to carry out their duties.  Competence checking is not a role exclusive to the Client under CDM 2007, however, HSE cite this as a particularly bureaucratic process and proposed the following within their consultation document:

HSE plan to retain a general requirement under the revision of CDM (new regulation 8) for those appointing others to carry out construction work to ensure that they have received appropriate information, instruction, training and supervision to allow them to work safely. This aligns with the general requirements under Sections 2 and 3 of HSWA and is something we should have always done but the events industry is very poor on carrying out these assessments, usually only risk assessments and method statements are asked for and then they are just placed on file and assessments are not properly executed. 

HSE believes that the competence of industry professionals should be overseen by, and be the responsibility of, the relevant professional bodies and institutions.

It will be very interesting so see how this will work in practice, particularly when there are Health and Safety incidents which require investigations by HSE, and especially how those appointing duty holders can demonstrate that ‘duty holders have received appropriate information, instruction, training and supervision to allow them to work safely’

In summary, the proposed changes to the current 2007 CDM Regulations are:

  • Significant structural simplification of the Regulations
  • To replace the ACoP with a smaller slimed down document and more guidance
  • Replacement of the CDM co-ordinator role with a new role, that of the ‘principal designer’
  • Removal of explicit competence requirements and replacing with a specific requirement for appropriate skills

HSE state that CDM will have little effect on the larger and more professionally run events and festivals but they do not mention how they see the impact of CDM on SMEs in the entertainment industry, I predict that smaller, less professional and voluntary run events such as Voluntary/Charity/Church events and those that have less formal management systems and/or do not follow normal event industry methodology and terminology may have considerably more work (and costs) in order to comply and the regulations could also have a profound effect on cooperate events such as conferences where the Client currently is generally seen to have no health and safety responsibilities, I predict the new edition of the regulations could radically change the cooperate event sector as well as having hitting the smaller events and festivals but in some cases this should do some good by filtering a number of new festivals that lack experience and funding. 

Bureaucracy

I have personally believed for a very long time that provided the bureaucracy is cut to a minimum and that management responsibilities that are designed for the construction industry are not difficult or even impossible to apply and do not lead to extra liabilities, that the basic skeletal framework of CDM is just what some industry sectors need as they currently do not follow many the basics such as the Health and Safety at Work Act, the Management of Health and Safety at Work Regulations, the Workplace Health and Safety at Work Regulations, RIDDOR and the First Aid at Work Regulations as the safety management structure and the application of safety management and facilities in many areas of the entertainment industry is very confused and unclear often to the level of non-existent,  All that CDM does is put responsibilities to roles – used properly, it can make life easier for us, however, right now there are so many unanswered questions as to how where and when the regulations will be applied I must reserve judgment until such time as we are given full information.

Uncertainty 

The current situation is simple, we simply do not know how, where at to what level CDM will be applied to the entertainment industry and it appears that even the HSE don’t have the answers so the ball is currently firmly in the HSEs court, the latest information came from the HSE last week in an open letter from Cameron Adam, the HSE Chair to the Joint Advisory Committee on Entertainment an extract from which is reproduced here:

“HSE’s policy of targeting higher risk industries and poor performers for proactive intervention will continue beyond April 2015 when CDM 2015 comes into force.  HSE’s plans for proactive inspection in the industry are limited to a small number of events involving higher-risk TDS erection and dismantling.

In many production and smaller scale event related construction activities in the entertainment sectors, where risks are generally considered to be lower, CDM management provisions will be of limited relevance beyond what is required by other health and safety legislation.  In accordance with HSE’s Enforcement Policy Statement and Enforcement Management Model, where interventions do take place, the priority will be to consider the effectiveness of risk management, not compliance with CDM administrative arrangements.  The need to consider CDM compliance for such activities by HSE post April 2015 will be rare.

HSE recognises however that the industry will wish to be a position where it can demonstrate compliance with CDM.  In practical terms, duty-holders who currently have effective arrangements in place to manage risks arising from construction activities will need to do little more to comply with the CDM 2015 Regulations.  Both HSE and industry stakeholders need to arrive at a common understanding of what compliance with CDM 2015 will look like in practice.  This is pivotal to ensuring a sensible and proportionate approach to both regulation and compliance and to ensure that the outcome of the, currently paused, Business Engagement Assessment, provides a meaningful analysis of the impact of CDM within the industry.

I do not pretend that this will be a simple or straightforward process, however I am sure you will agree that the only way we can achieve this common understanding is by working together to create sector specific, industry supported guidance, which HSE will reflect in operational guidance for regulators. I therefore encourage JACE members and the wider industry to actively engage with HSE in creating this guidance.  With your help we intend to set up some working groups to take this forward.

Deadline 

I understand your concerns and the strength of feeling around the current position. I hope, however, that you are reassured that HSE remains committed to working with you and others to ensure a sensible and proportionate approach to health and safety regulation within your industry”.

So, that is the currect situation, HSE now have until Janaury 5th 2015 to publish the regulations to enable the agreed lead in time and produce the guidance.

All I now have to say to you all is haave a very Merry Christmas and a Happy New Year, I hope to hear from you and work with you in the New Year but for me I am sorry to say Christmas is just Humbug.

Chris Hannam, Stagesafe