The Nature and Scope of the Construction Industry - Coursework Example

Supply Chain Introduction: The supply side is involved in almost every phase of the construction industry and health and safety risks are largely posed on this front. It is largely management and supervision at construction sites that has been shown to be instrumental in the levels of safety that are maintained at work sites. According to Yates and Epstein, delays in construction projects for example, may be initiated right at the commencement stage itself due to poor management within the supply chain.1 The question of creation of risk arises from the supply side, since it is the designers who create the plans for building structures. Similarly, the manner in which the work is managed on site with adequate provisions for maintaining safety at heights or when dealing with heavy or hazardous substances, is largely the responsibility of the supply side of construction services. Construction work involves building, renovating or repairing buildings, both for residential and commercial purposes. Construction poses risks to workers in the dangers that exist on the site, especially where demolitions or renovations are being carried out. The use of defective materials or inadequate implementation of safety measures on construction sites could further aggravate the problem, especially if designers have created high rises and building structures that are complicated to execute during the construction process. Construction also poses risks to workers by way of ill health arising out of hard physical labor or being crushed or wounded through the use of heavy building materials. There is increased scope for accidents that could arise on such sites, especially since workers may be unaware of safety risks. The construction industry workers: The construction industry largely employs unskilled, male laborers who are not educated enough to accurately gauge risks that could arise in construction sites, thereby posing risks to their safety and well being. Moreover, since laborers are largely transitory, contractual labor, employers may not be bound to provide them with all the benefits that are laid out in employment, including the right against unfair dismissal and the provision of health and medical benefits. Current laws also do not make adequate provision for unusual working conditions such as atypical contracts where a worker may be hired as and when required and thus finds it difficult to prove continuity of service for purposes of claims against unfair dismissal.2 Moreover, in cases where a worker may be hired by an employer/client using the intermediary services of an agency, such workers do not qualify as employed by the employer, neither do they qualify as self employed under the definition of worker set out in Section 230(3) of the Employment Act. Rather they fall into a class known as “sui generis” – “the contract is not a contract for services but a contract sui generis – a different type of contract from either of the familiar two.”3 Similarly, in another case, a worker who had been supplied through an agency was found not to be in a contractual relationship with the employer/client because of the intermediary role of the agency.4 As a result, there are difficulties created in regulating health and safety for workers on construction sites and ensuring that their health and safety is assured with adequate remedy from the employer in the case of ill health or injury caused by their working conditions. Legislation to address the needs of workers: In order to address the needs of workers on construction sites, the health and Safety at Work Act of 1974 was included in the law, to specifically require employers to assume responsibility for the safety and health of the workers that they employ5. Section 3(1) of the Act requires that persons working for an employer should not be subjected to any risks to their health and safety, “so far as is reasonably practicable”. Therefore, this is a recognition of the fact that the supply side of the construction industry is often the source of risk for workers and needs to be addressed. It is those who design and implement and supervise such projects who are responsible for ensuring that the work is executed through minimum risk to workers. Additionally, the Management of Health and safety at work regulations 1992 also lays out regulations that govern the duties of employer sin managing the health of employees and specific guidelines have been drawn up for high risk industries such as construction. In 2004, the Health and Safety Executive issued a set of standards that employers can follow to minimise their chances of being caught out by the Health and Safety at Work Regulations 1999. They focus on how employers can avoid putting undue stress on staff, and consequently avoid legal ramifications. The Management Standards cover six areas of work design that, if not properly managed, are associated with poor health and wellbeing, lower productivity and increased sickness absence. These are primarily (a) demands, including workload and work patterns (b) control – allowing employees greater say in carrying out their work (c) support – provided to workers by the management, supervisors and colleagues (d) relationships – ensuring that employees understand how to coordinate and work cooperatively. The Courts have not been hesitant to enforce compensation for employees who are subjected to injury while working in a dangerous and stressful environment.6 Further recent legislative amendments also includes the Health and Safety (Miscellaneous Amendments) Regulations 2002, among which several measures have been included that specifically address the risks involved in the construction industry, such as working with asbestos, fire safety, working at heights, and dealing with hazardous substances.7 Project Management: Weeks (no Date) has provided a detailed and comprehensive assessment of hazards that workers may incur on construction sites8. This includes heavy loads, the risks associated with working at a height and possibly falling, the need to maintain awkward postures, fumes and plaster dust, exposure to heat while welding, noise and body vibration and high levels of stress due to the constant exposure to the risk of danger while working in dangerous and awkward positions with dangerous and heavy materials. Bomel Ltd has carried out a comprehensive study of the risk of falling from heights which is most prevalent in the construction industry9. They acknowledge that there are risks in the construction environment, especially to carpenters and employees falling from heights. However, they have also pointed out that many of the risks to the health and safety of the employees are posed by inadequate and inefficient management practices, a lack of coordination between various sub-contracted services and the lack of awareness among employees of risks to health and safety. On the basis of their findings, the authors have recommended some measures to deal with health and safety issues in order to ensure the well being of employees. They recommend that (a) level of awareness among workers about potential dangers must be improved by increased participation of individuals from the design and supply services of the construction (b) construction workers must be educated and trained about inherent and potential dangers on site and encouraged to adopt good and safe working practices (c) the design of construction equipment must be improved and strict liability must be assessed for supply of defective equipment (d) good supervision on construction sites and coordination between the various elements in order to carry out the work safely and provide forewarning when accidents are likely to occur (e) periodic health checks and health advice on protecting themselves to be provided to employees. Vicarious liability also imposes a responsibility on the part of employers to know what is going on in the workplace or at least what their employees are up to.10 However, Barrett11 has pointed out that the Courts also recognize the inherent dangers and risks in the construction business and have therefore only required that the employer to be liable if the employee has been asked to bear more than what the contractual terms require, because while some jobs are naturally stressful, employees are accordingly paid more.12 Employer liability for employee stress is therefore based upon its obligations under the statutory duty of care that exists in contract.13 Legislative measures: In order to improve project management, the Construction (Design and Management) Regulations were introduced in 1999.14 The problems accruing from the supply side are specifically sought to be addressed. For example, Section 13(2) deals with those persons designing construction projects. These persons are required to ensure that in respect to any design that is prepared, reasonable care be taken to “avoid foreseeable risks to the health and safety of any person carrying out construction work” and “to combat source risks to health and safety” and “to give priority to measures to measures which will protect all persons at work.” 15Similarly, an obligation has also been placed upon planning supervisors to ensure that health and safety files on the project are amended beforehand to take into account and potential risks that must be addressed, as well as providing an appraisal of health and safety measures at the end of every phase of construction. Section 15 of the CDM specifically lays out the specific measures that are to be taken by supervisors and individual contractors in ensuring health and safety of employees, which also includes the need to make workers aware of their rights to health and safety protection from their employers. Additionally, Regulation 11(2) (b) of the Management of Health and Safety at Work regulations 1992 also requires that risk assessments of the working environment must be made in consultation with experts and these must also be communicated to employees. However, since the Regulations have not proved to be as affective as desired, the Health and Safety Executive is now taking steps to redraft the CDM, which will come into force in April 2006. New provisions are being included to protect the occupational health of those workers who work with high noise and vibration equipment which causes Hand-Arm vibration. Existing Noise at Work regulations of 1989 have been replaced by new regulation in effect since February 2006, whereby a limit has been set to exposure of workers to noise and first and second level action levels have been spelt out. The dangers posed by hazardous substances are dealt with under the new Control of Substances Hazardous to Health regulations (Amendment) 2004. The Work at height Regulations in force from April 2005 introduce new provisions, such as banning the use of ladders, ensuring that people who work at heights are competent to do so and provided risk assessment and training. Conclusions: On the basis of the foregoing, it may be noted that the nature and scope of the construction industry is such that most of the dangers that are posed arise out of the supply chain of services – such as the work of designers, builders, supervisors, sub contractors and suppliers of building materials. There is a need to coordinate and regulate the management of construction activity through effective coordination between the various units, in order to protect the health and safety of workers. Moreover, the exhaustive regulations and amendments that have been introduced in the area of health and safety for construction workers further illustrates the recognition by law makers of the dangers posed through the supply chain in this industry. Such legislation is specifically targeted towards causal labor and temporary workers such as those in the construction industry who may not be entitled to all the benefits that regular employees receive, but who are nevertheless subjected to high levels of risk and stress in their jobs. On this basis therefore, it appears that the statement made by the National Audit Office is quite a reasonable conclusion to draw, taking into account the circumstances of the construction industry and the need to minimize risks through effective coordination between all personnel involved in construction, including the workers. Risk assessments and the implementation of adequate precautions are likely to be effective in curtailing the level of risk and preventing accidents to the maximum extent that it is possible to do so, thereby ensuring that responsibility is attributed to all the elements in the supply chain. Bibliography * Barrett, Brenda, 2004. “Employers Liability for stress at the workplace: Neither tort nor breach of contract” Industrial law Journal, 33: 343 * Bomel Ltd, report, 2004. “Improving health and Safety in Construction. Phase 2 – depth and Breadth.” [online] available at: http://www.hse.gov.uk/research/rrpdf/rr234.pdf * Health and Safety regulation – a short guide.” [online] available at: http://www.hse.gov.uk/pubns/hsc13.pdf * Health and Safety (Miscellaneous Amendments) Regulations 2002. [online] available at: http://www.opsi.gov.uk/si/si2002/20022174.htm * “Provisions for Health and Safety” in the CDM. [online] available at: http://www.opsi.gov.uk/SI/si1994/Uksi_19943140_en_2.htm#mdiv9 * “Response to the dti Discussion document on employment status in relation to statutory employment rights’ [online] available at: http://www.aut.org.uk/media/html/employmentstatusresponse1.html * Weeks, James L. (No date). “Health and safety hazards in the construction industry” [online] available at: http://www.cdc.gov/eLCOSH/docs/d0200/d000279/ilochap93.html * Yates, J.K. and Epstein, Alan, 2006. “Avoiding and minimizing construction delay claim disputes in relational contracting.” Journal of Professional Issues in Engineering, Education and Practice, 132(2): 168-179. (April 2006) Cases cited: * Banks v Ablex Ltd [2005] EWCA Civ 173 * Construction Industry Training Board v Labour Force Ltd (1970) 2 All ER 220 * Levy v Allied Dunbar Assurance plc [2000] WL 33148711 * Melville v The Home Office [2004] EWCA Civ 06 * Serco Ltd v Blair (1998) EAT 345 * Sutherland v Hatton (2002) EWCA Civ 76 * Smith v Baker [1891] AC 325 per Lord Watson at p 353 Read More