CONSTRUCTION REGULATIONS 2014 – APPOINTMENT STRUCTURES ARE THEY CONFUSION OR ARE WE CREATING THE CONFUSION

Scenario
From statistics supplied by Federated Employers Mutual, it is evident the construction industry still experiences high fatalities (chart 1). Frequency rates show an improvement but can this be the measurement when these figures reflect only approximately 50% of the construction industry. It is not difficult then to grasp why the Department of Labour found it necessary to review and amend the Construction Regulations.

imagea

Presumption
Would it be safe to presume that government builds legislation not to anticipate unreasonable or unfair consequences? That legislation must change and adapt to community changes (construction community), balancing different interests with different individuals’ rights and duties?
If this is the case then can we assume the Construction Regulations were not intended to create unrealistic obstructions, but rather from experiences and developments within the industry provide a platform to improve health and safety performance?

Diversity
The Construction industry is diverse in that projects may be anything from a few thousand rand to a multi-million rand project; to expect the written law to cover every eventuality would be expecting to see a massive set of regulations, a thousand pages or volume upon volume of regulations.

To believe that one management structure would be suitable for implementation on all sites or that one organisation’s structure will suit every company would be ingenuous. Legislation encourages the baseline risk assessment as a beginning point. Giving the project team a broad overview in order to determine the risk profile of the entire project. Could it be expected that the legislator anticipated that linking this risk profile to identifying staffing requirements would qualify as mitigation? What are the hazards and associated risks, what competencies, experience, knowledge would be required not only to manage the project productively but also manage the health and safety exposures effectively?

Once this is determined, the management team are appointed. This process should be applied all through the project stages and duplicated by all the appointed contractors, whether stated in the Health and Safety specifications or not. Who is the best person to deal with the complexities of this contract, both operationally and managing health and safety aspects? Relying on the Construction Regulations to determine who is appointed into what position would never be the intention of the legislator. That the person appointed into a specific position has the necessary knowledge, experience and competencies must most certainly be the intended outcomes of the regulation.

Once we have determined the persons most competent to manage the project and fill the required structures I would like to believe it is then that we go to the Construction Regulations to identify what appointments are appropriate to achieve the intentions of the legislation namely improving health and safety performance.

Paperwork compliance
Companies tend to get bogged down with ensuring that the correct clauses are observed without realising the impact of the practical application. Will the public prosecutor advise prosecution due to the incorrect number appointment used or would they be far more interested in the competencies of the person appointed into the position? The definition of competent person suggests that the person displays knowledge, training, experience and qualifications related to the project appointed to. A direct reference for the company to ensure they appoint the correct persons into positions of authority.

Of course, the promulgated regulations must apply and the structures as suggested followed, but I do not believe the legislator could not tolerate common sense when the absolute objective of the regulations is to reduce injuries.
When a person is appointed into a position of responsibility, it is the employer’s duty to ensure they have the necessary “knowledge, training, experience and qualifications related to the project appointed to”. Importantly too is that the person is supported with the necessary authority to apply the principles of the appointment structures.

Structure (Large / complex projects)
The Construction manager
• is appointed in terms of CR 8(1)
• Depending on the size and complexity of a project, contractors other than the principal contractor may feel the need to appoint their own CR 8(1) appointee.
o Example; a multi-million rand project would have contractors whose portion of the works would exceed 13 million rand and more. Their site establishment and site structures may be just as complex as the principal contractors’ structures.
• Assistants to the Construction manager are appointed in terms of CR 8(2), the intention to allow for situations where the Construction Manager has section engineers managing their own specific areas of work.
• Under CR 8(1) it is permissible to appoint “an alternative” the intention here was to address the very real situation where the appointed CR 8(1) cannot be on site, due to leave of absence. We must remember that the legislators’ intention with the regulation was to ensure responsible persons are in charge of the construction works, at all times.

Specialist contractors
Considering our earlier presumption that the law is not intended to result in unreasonable and unfair consequences which includes unreasonable financial burden, project stoppage, work loss etc.
The question then is should a “small” contractor appoint a “Construction” manager for every project where the projects vary; some a few hours spent on site and some a few days at a time?
What is the “intention” of the legislation?
Definitely to ensure “Competent persons” are “in charge” of construction activities, from the very highest level all the way down to the lowest level, and at all times.
• A specialist contractor operating a number of sites at the same time in different locations for short periods of time cannot realistically be expected to have the resources to appoint a CR 8(1) to manage every site. They are however still required to address legal responsibilities;
a. “Who is in charge?” At each individual work site is there a person who takes operational control? Who makes the call for materials?
b. Does that person have the competencies (as per definition) to make informed decisions regarding the health and safety of the persons reporting to them?
c. Can they be held responsible and accountable?
• In this instance the company may choose to appoint their Contracts manager CR 8(1) to manage the sites, duties and responsibilities clearly identified.
• Then persons who take charge of the site works are appointed under CR 8(8), that person must still have “competencies” applicable to the complexity of the work, address a, b and c above.

The Construction Regulations are not provided with a preamble but had it been and this preamble was based on that of the Constitution of South Africa we could have expected something like this;
PREAMBLE
We, the construction stakeholders of South Africa,
Recognise the injuries and deaths of the past;
Honour those who suffered debilitating injuries for working in construction;
Respect the families of those who have lost their lives in pursuance of completing the project; and
Believe that construction in South Africa belongs to all who work in it, united in our diversity.
We therefore, through our freely elected representatives, adopt these Construction Regulations as the supreme law of the construction industry so as to;

Heal the unnecessary loss of life of the past and establish an industry based on best practise values, and fundamental human rights;
Lay the foundations for an industry in which rule is based on the will of the stakeholders and law equally protects every stakeholder;
Improve the health and safety performance and free the potential of each person; and
Build a united and democratic construction industry able to take its rightful place as an excellent industry in the family of industries.

May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

DOUG MICHELL

CHS Specialist.