Articles about all aspects of CDM 15 regulations.
The UK construction sector has a health and safety record that makes it one of the country’s most dangerous industries for workers, with injury and fatality rates that are above average as well as higher than normal rates of illness from work-related causes. Therefore, it is an area of increasing concern for the Health and Safety Executive (HSE).
Competence has been a major part of the strategy used to improve the construction sector’s health and safety record. The term is directly referenced in the Construction (Design and Management) Regulations 2007 (CDM), whose success is largely dependant on ensuring that everyone involved at every stage of a construction project is competent.
However, the HSE’s proposals for a CDM revision has removed the mandatory requirement for individual competence in CDM 2015 and the CDM 2007 requirement for corporate competence. The CD261 consultation on replacement of the CDM regs from 2007 to 2015 has indicated that one of the main reasons for the proposed changes is to lower the difficulty of meeting the CDM 2007 competence requirements. For example, it cites the growth of commercial-based competency programmes and the excessive use of paperwork and other questionnaires.
A history of competence and legal definition
The definition of competence is a complicated matter and the law has been trying to accurately define it for some time. The present meaning included a combination of attributes, qualities, and characteristics.
Indicators of the legal meaning of competence can be found in some early health and safety cases. In one 1912 case, coal miners were poisoned when carbon monoxide escaped into the mine. The contemporary mining legislation required the manager and fireman to remove the workers until the incident had been investigated.
Although both men were well qualified, the House of Lords held that they did not have the necessary experience to navigate the situation and the owners of the mine were found liable.
It appears that being competent goes beyond possession of certain qualifications. It also addresses experience.
In another case, this one taking place in 1957, one employee who was well-known for playing jokes at work injured another employee. The employer was found liable on the premise that this person was not a competent employee, which under common law must be someone who behaves responsibly at work and has a positive attitude toward workplace health and safety.
Other cases make additional specifications, so it appears that there is no single universal definition of competence. It appears to depend on the processes, the circumstances, the amount of risk, and what parties are involved. It is also a standard that has to apply to companies as well as to people. Given all these variables, it is not surprising that the term ‘competence’ has created so much confusion in the construction industry.
CDM and Competence
- Under CDM 2007, “competent” individuals must be appointed to fulfil the various required roles. This also applies to companies. CDM requires all appointees to be competent, including:
- Primary contractors
- CDM co-ordinators
CDM 2007 is accompanied by the Approved Code of Practice (ACOP), which provides assistance and advice on the assessment of competence.
Under the ACOP, an individual or organisation is competent only when they have:
- Sufficient knowledge of the work to be done and the risks that the work entails
- Sufficient ability and experience with the duties involved with the project; can recognise their limitations, and take the right measures to prevent injury to construction workers and/or those impacted by the construction work
- Knowledge about the work they will be expected to carry out and the risks that this work may involve. Such knowledge may be acquired by formal or on-site training
- The right experience: workers are more apt to use safe practices if they understand why the practices are necessary and past experience is a good indicator of ability.
Under CDM 2015, the corporate competence requirement was removed and the direct requirement for individual competence included in CDM 2007 has been replaced with a new regulation 8, which states that anyone responsible for engaging a contractor for a construction project must take reasonable steps to ensure that the contractor has:
Received the required training, instruction, and information AND the appropriate supervision to meet applicable legal provisions and maintain the welfare, health, and safety of those impacted by the work. This requirement is comparatively simple and appears to be a far cry from the CDM 2007 requirements for competence. The new regulation 5 requires all projects to have management arrangements in place, and the HSE expects that the present explicit requirements for competence will be effectively replaced.
PAS 91 standardised pre-qualification questionnaires can be used to make proving competency easier for both suppliers and clients by reducing the need for suppliers to complete a variety of pre-qualification questionnaires for different clients. The result is a huge saving in time and money for both parties.
The standardised PQQ format PAS 91 helps to:
- Let suppliers know what information is required at pre-qualification
- Make it easier for buyers to identify contractors with suitable qualifications
- Improve the consistency between many pre-qualification databases and questionnaires
What are the implications?
The CDM 2015 approach to competency in construction is a much simpler approach. Its definition of competency as described in regulation 8 is based on the skills, knowledge and experience of contractors and the organisational ability of an organisation.
Regardless of these changes, everyone in the construction industry will have to demonstrate that everyone on site is competent. Not only is this a common law requirement, but it is also implied in legislation such as the Health and Safety at Work, Act, so the new principal designer will have to be proven to be competent.
Clients and other parties will have to ensure that they demonstrate competency to do the role they are engaged to do, that will pass the scrutiny of the courts. SKET cannot be randomly delivered: it must be assessed and will involve some cost and bureaucracy. For example, a training needs analysis may have to be performed. The HSE stance on competency training is that it may be accomplished using standards that are nationally agreed upon and criteria created by professional bodies.
CDM 2015 does not have an ACOP, but instead HSE produced the regulations accompanied by targeted guidance in the form of document L153, so it remains to be seen what this means for regulation 8.
SKET principles, PAS 91 pre qualified questionnaires and the guidance in document L153 are all now being used to help construction project participants achieve and demonstrate competence in construction in line with the CDM 2015 regulations.
Safer Sphere are able to advise on any aspect of CDM 2015.