As the construction industry undergoes a series of legislation updates, Duncan Weir and Duncan Astill explain how these changes will effect those working in facilities management
08 July 2005
2005 promises to be a busy year in the built environment industry as a raft of regulatory changes take place. Some of the most important issues that facilities managers need to be aware of are outlined below.
1 The Housing Grants, Construction and Regeneration Act 1996 (HGCRA)
In March last year Sir Michael Latham was appointed to begin the review process of the HGCRA by identifying areas which have proved to be confusing, unfair or unworkable. The government has now published a consultation paper which includes the following proposals relating to the payment aspects of the act:
Defining what constitutes an "adequate payment mechanism". It is proposed that contracts should be required to state when a payment is to be assessed and how the amounts are to be determined
Getting rid of the Section 110 Notice of Payment. This was thought to be confusing, particularly as there is no sanction for not serving a notice
Allowing for recovery of the cost of suspension and remobilisation when a contractor suspends performance following non-payment
In relation to adjudication, the paper includes the following proposals:
Allowing adjudicators to decide certain questions as to their own jurisdiction
Requiring adjudicators to be independent as well as impartial
The government will take on board responses the consultation paper in deciding how to proceed with amendments to the act. The paper is available at www.dti.gov.uk/construction/hgcra/hgcralead.htm or can be ordered from DTI on 0845 015 0010. The consultation period ended on 21 June.
2 Revitalising health and safety strategy
The Health and Safety Commission's 10-year strategy to improve health and safety at work reaches the half way stage this year. Within the construction industry, the programme aimed to stimulate achievement of challenging targets and plans set by the Commission at the 2001 Construction Health and Safety Summit, including:
Reduction of incidence rate of fatal and major injuries by 40 per cent by2004/05
(and 66 per cent by 2009/10)
Reduction of incidence rate of cases of work - related ill health of employees by 20 per cent by 2004/5 (and 50 per cent by 2009/10)
Reduction in number of working days lost per 100,000 workers from work-related
injury and ill health by 20 per cent by the end of 2004/05 (and 50 per cent by 2009/10)
Little progress has been made so far on these targets; fatal accidents in 2003/04 remained unchanged on the previous year at 70 while major injuries were reduced by just 30 from 4,031 to 4,001. In an effort to improve matters the HSE has developed project plans in order to target their resources. They will concentrate on falls from height, workplace transport and slips trips and falls as causes of injuries.
Meanwhile this year's summit saw the launch of the Respect for People (RfP) Code of Practice by the Strategic Forum for Construction. The vision is 'People working
in partnership, demonstrating respect for the safety and health of others by their everyday actions to create a world-class industry with exemplary working conditions.' More information can be found at www.hse.gov.uk/construction/codeofpractice/index.htm
3 Revision of the CDM (Construction (Design and Management) Regulations and the Construction (Health, Safety and Welfare) Regulations (CHSW)
Consultation on these proposed changes is underway. The idea is to introduce a clearer, simplified piece of legislation that will try to eradicate the 'form filling' approach to the current CDM regulations. The most significant change will be to replace the planning supervisor with 'the co-ordinator' who will provide advice and support to the client. The client will also have enhanced responsibilities which recognise the control that many of them continue to exert during the design and construction phases. All clients will need to ensure that suitable project management arrangements for health and safety are in place. There is also added focus on designers eliminating hazards at the outset.
Consultation is open until 29 July with many questions posed by the HSE in its 175-page document. There is concern over the suggested changes in many quarters and the final regulations are likely to be some way off. The consultation document is available at
4 The new Working at Height regulations 2005
The Work at Height Regulations 2005 came into effect on the 6 April. The regulations will apply to all work at height where there is a risk of a fall liable to cause personal injury. The last minute consultation on the retention of the two-metre rule in the construction industry led to nothing. While some believe that this will lead to the removal of safety measures by unscrupulous employers, the message is effectively 'if you did it before you do it now, but consider doing it at lower heights as well'.
The regulations place duties on employers, the self-employed, and any person that controls the work of others to the extent of their control. Duty holders must ensure:
All work at height is properly planned and organised
Those working at height are competent
The risks from work at height are assessed and appropriate work equipment is selected and used
The risks from fragile surfaces are properly controlled and
Equipment for work at height is properly inspected and maintained
There is also a simple hierarchy of rules for managing and selecting equipment for work at height. Duty holders must:
Avoid work at height where they can
Use work equipment or other measures to prevent falls where they cannot avoid working at height
Where they cannot eliminate the risk of a fall, use work equipment or other measures to minimise the distance and consequences of a fall should one occur
5 The Regulatory Reform (Fire Safety) Order
The Regulatory Reform (Fire Safety) Order was laid before Parliament for its second period of scrutiny earlier this year and subject to parliamentary approval is expected to come into force this year. The aim of the new regime is to create:
One simple fire safety regime applying to all workplaces and other non-domestic premises based on risk assessment
A duty to maintain fire precautions which are for the use of fire fighters
New duties on fire authorities for fire safety, investigation and testing
Fire certificates will be abolished and instead there will be a general duty for the responsible person to 'take such general fire precautions (which include methods of reducing the risk of fire and securing means of escape) as will ensure, so far as is reasonably practicable, the safety of any of his employees; and in relation to relevant persons who are not his employees, take such general fire precautions as may be reasonably required to ensure that the premises are safe'.
In line with health and safety legislation, duty holders will be required to undertake risk assessments to identify the risk of fire and implement control measures. Full details can be obtained from the Office of the Deputy Prime Minister at www.odpm.gov.uk
6 Construction Industry Scheme (CIS)
As FM World readers will be aware, a special tax deduction scheme for the construction industry has existed since 1972. The scheme was intended to address the 'cash in hand' culture of payment and to improve the level of compliance in the construction businesses with their tax obligations. The current CIS has been in place since 1999, but despite having been developed with close involvement from the industry, concerns about its cumbersome nature have prompted the government to request a review of the CIS. HM Revenue and Customs (HMRC), working with the construction industry, has put forward a number of proposals which aim to reduce the regulatory burden of the scheme, while improving the level of compliance in relation to tax obligations.
The chancellor announced in the 2003 Budget that the new CIS would be introduced in April 2005. To ensure a smooth and orderly transition, implementation was deferred until April next year. It is suggested that a pilot of the new CIS scheme should be introduced next year rather than a full roll-out, largely due to electronic business software development problems. However, the early indications from HMRC are that the new scheme will be rolled out fully, as envisaged, next year.
The consultation process set outs the following main proposals:
To replace the registration cards (CIS4) and gross payment certificates (CIS6 and CIS5) used in the current scheme with a verification service supported by a new computer system capable of using e-services over the internet. This will mean it will no longer be necessary to travel to present the documentation in person
The new CIS will give a choice of using either electronic, telephonic or paper processes and communications
No cards or certificates will be issued. Subcontractors will be awarded a simple 'net' or 'gross' payment status. Unregistered sub-contractors can be paid, but will suffer a higher deduction
Contractors will not be required to submit an end of year return (CIS36)
To replace the vouchers in the current scheme with periodic returns, where contractors will be required to provide 'net' subcontractors with a record of the payment and deduction
It is hoped that these proposals will create considerable savings for many within the construction industry by reducing the amount of work involved in operating the scheme.
7 Building Regulations energy efficiency provisions (Part L) and implementing the Energy Performance of Buildings Directive (EPBD)
Ongoing proposals to amend Part L of the building regulations to include further requirements to improve energy efficiency of buildings, to assist in reducing carbon dioxide emissions and to reduce the draughtiness of buildings are likely to come into effect this year. The proposals will implement the European Energy Performance of Buildings Directive (EPBD).
The EPBD's aim is to promote the improvement of the energy performance of buildings, taking into account climatic and local conditions as well as indoor climate requirements and cost effectiveness. Regular certification of buildings and regular inspections of boilers and air conditioning systems are also proposed.
The consultation on these proposed amendments concluded in October 2004 and amended guidance on gas and oil fired hot water central heating boilers, installed from 1 April 2005, has already been published. The amended Part L regulations and guidance should be available shortly.
Duncan Weir is a partner in the construction department and Duncan Astill is an associate in the commercial department of Bevan Brittan Solicitors - a corporate member of the BIFM