NEWS

CDM UPDATE NOVEMBER 2014: CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS 2015 (“CDM 2015”)

21/11/2014 15:11 HRS

Background: as proposed CDM 2015 requires the Construction Sites Directive to be applied to any project which includes construction which is defined as working on a structure (erecting/maintaining/disassembling). Whenever there is more than one contractor working on a project a Principal Designer and a Principal Contractor must be appointed in writing by the Client and those appointed must perform specified duties.

All sectors of the broader entertainment industry are captured by CDM 2015. Is this appropriate to “theatre”? As explained below  the HSE’s position seems to be- at the moment carry on as you are, you are on the whole a safe industry with your own methods of ensuring safety on site so continue doing that for now until such time as you as an industry tell us, the enforcer, what compliance with the  European Directive will look like.

In June this year the ABTT, both as a representative body and via many individual members, contributed to the significant response to the HSE’s consultation on these new Regulations which will be enforced in the theatre industry for the first time. The response registered our industry’s great concern about the potential impact of the Regulations on the  theatre sector. The application of CDM 2015 will impose a “construction industry” model which has been previously recognised by the HSE as inappropriate:

“…HSE policy is that the CDM Regulations do not provide a useful regulatory framework for temporary structures used in the entertainment industry. This is because the CDM Regulations were specifically drafted for the procurement and delivery of projects in the construction industry. The processes and management arrangements in the entertainment industry can be significantly different.”.

Further concern was raised by the fact that the impact assessment published for consultation did not consider the financial impact of the Regulations on the entertainment industry.

Following the major industry response to consultation the HSE embarked on an impact assessment (known as a Business Engagement Assessment (BEA)) specifically in relation to the entertainment sector. The ABTT closely supported SOLT and UK Theatre in providing a theatre specific contribution.

As part of the BEA, details of the anticipated practical impact the proposed changes would have were submitted. Before commencing work to identify likely costs, confirmation was sought from HSE that the Regulations had been correctly interpreted.  HSE have recently paused the BEA process.

The latest development is that the HSE has circulated a set of “key principles” regarding compliance with CDM 2015 in the entertainment industry.  The full statement by the HSE is here, but to summarise:

  • Legal:  the European Directive which CDM 2015 will implement does not permit exceptions for particular types of construction work and, although the HSE has had a policy of not actively enforcing the current CDM Regulations in the entertainment industry, it has been advised that this is unlawful.  It appears therefore that the application of CDM 2015 to the theatre sector cannot be avoided;
  • Enforcement/compliance:  HSE’s current risk-based and proportionate approach to enforcement will be applied to CDM 2015 in the entertainment industry, and HSE will continue to focus on health and safety outcomes.  In practical terms, this means that duty-holders who currently have effective arrangements in place to manage risk arising from construction activities will need to do little more to comply with CDM 2015;
  • Implementation and guidance:  to provide clarity and assurance to the industry about what proportionate compliance with CDM 2015 should look like, HSE will work with the industry to develop this regulatory approach and guidance for duty-holders.  The BEA process will be paused while a shared understanding of proportionate compliance is established.  HSE will support the industry in finding ways to achieve compliance without incurring unnecessary cost.

The next steps are as follows:

  • HSE/industry working groups to be set up to develop a shared understanding of what compliance with CDM 2015 should look like;
  • the BEA to be finished;
  • guidance to be produced for each sector of the entertainment industry.

HSE has stated that the steps are not time-bound by the implementation date of CDM 2015 (April 2015)

The HSE Statement issued at the meeting of the Joint Advisory Committee on Entertainment at HSE, Mary Sumner House, Westminster on Thursday 13th November 2014:

Complying with the CDM 2015 Regulations in the entertainment sector – a set of key principles.

By their very nature these principles are high-level and will be underpinned by practical guidance.

 

Legal

1. 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 activity in the entertainment sectors from high to low risk work.

2. HSE has had a policy of not actively enforcing the current CDM Regulations in the entertainment industry, but we have been advised that a blanket policy of not enforcing regulations in a particular sector is unlawful.

 

Enforcement/compliance

3. HSE recognises that existing risk management systems within TV, film and theatre productions and live events differ significantly from those in traditional construction procurement. HSE also recognises that these existing systems have the potential to achieve the equivalent health and safety outcomes to the CDM 2015 Regulations.

4. HSE‘s current risk-based and proportionate approach to enforcement will be applied to the CDM 2015 Regulations in the entertainment sector. HSE will continue to focus on health and safety outcomes. In practical terms, this means that 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. This approach will be guided and supported by HSE’s Enforcement Policy Statement, Enforcement Management Model and the BIS Regulators’ Code.

Implementation and guidance

5. HSE recognises that the level of risk to those working in most parts of the entertainment sector is often low in comparison to traditional construction sectors. HSE’s intervention strategy will continue to reflect this.

6. To provide clarity and assurance to the entertainment industry about what proportionate compliance with the CDM 2015 Regulations should look like, HSE will work with the industry to develop this regulatory approach and guidance for duty-holders. HSE will also develop operational guidance for its inspectors and local authority officers, which reflects this approach.

7. The BEA process has already proved helpful in demonstrating where guidance is needed to improve understanding of action needed to meet CDM requirements. We will take a pause in the BEA process while we establish a shared understanding of what proportionate compliance with CDM should look like.

8. HSE will support the industry in finding ways to achieve compliance without incurring unnecessary cost.

9. Development of this regulatory approach and practical guidance for duty-holders and inspectors is not time bound by the implementation date of the CDM 2015 Regulations. During this development period, HSE and the entertainment sector should continue to focus on health and safety outcomes.

HSE, Nov 2014

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