Changes to construction health and safety regulations

The Work Place (Minimum Health and Safety Requirements for Work at Construction Sites) Regulations became part of Maltese legislation on the 14th May 2004. These regulations essentially transposed Council Directive 92/57/EEC, having been designed to prevent risks by establishing a chain of responsibility linking all the parties involved in temporary or mobile construction sites, that is to say any construction site at which building or civil engineering works are carried out. The transposed regulations are currently found in Legal Notice 281 of 2004 [under the Occupation al Health and Safety Authority Act (Chapter 424)].

These regulations signified inter alia that:

1. As a general rule, clients, namely the person for whom the project is carried out, are obliged to nominate project supervisors (for both the design and execution stage), who in turn would be jointly responsible for on site health and safety coordination;

2. The project supervisor would also need to ensure that before work starts at the site, a health and safety plan is drawn up. These plans should take account of preventive measures having regard to the specific architectural and/or organisational aspects and estimated timelines governing the project;

3. Where works are expected to take longer than 30 days and more than 20 workers would occupy the site simultaneously, or where the volume of work is scheduled to exceed five hundred person-days, the project supervisor is obliged to inform the Health and Safety Authority at least four calendar days before commencement of works using a standard form;

4. The project supervisor has an obligation to prepare a health and safety ‘plan’ (that is to say, a document establishing the rules applicable to the construction site and the specific measures concerning work which falls within one or more categories of Schedule II of the said Legal Notice) and subsequently ensure that employers and self-employed persons have regard to that plan;

5. The project supervisor shall also prepare a health and safety ‘file’ (namely, a file appropriate to the characteristics of the project containing relevant health and safety information to be taken into account during any subsequent works);

6. The project supervisor is also obliged to organise cooperation between contractors, including successive contractors on the same site and secure coordination of their activities with a view to protecting workers and preventing  accidents and  occupational health hazards.

Even so, the regulations state in no unclear terms that the client is not exonerated of his/her responsibilities through the appointment of the supervisors.

Needless to say, these regulations have imposed substantial ‘burdens’ on ‘clients’, not least those individuals who are not regular property developers. For this reason, the upcoming Legal Notice 88 of 2018, which is set to take effect in the coming weeks, attempts to facilitate matters for domestic clients, though slightly, without compromising the strategic objectives of the Council Directive.

In fact, domestic clients (namely, clients for whom a project is being carried out which is not in the course or furtherance of a business of that client) would no longer be bound to appoint a project supervisor for the design and execution stage, provided however the following conditions concurrently subsist:

• only one contractor (a contractor is an employer whose workers undertake, carry out or manage construction work, and who supplies materials and, or labour to carry out such work) for the whole project will be involved;

• works are not scheduled to last longer than 30 working days with more than 20 workers occupying the site simultaneously;

• the volume of work is scheduled to be less than 500 person-days;

• Works do not entail any of the risks listed in Schedule II of the Legal Notice, such as interventions on wells, underground earthworks and tunnels.

That being said, it should be clear that all clients, whether domestic or otherwise, would still remain obliged to take all reasonable measures to ensure that duty holders abide by their obligations within the limits of their respective responsibilities.

This means that the domestic client is not exonerated from taking all the necessary measures to ensure that his premises are adequately safeguarded against health and safety risks. In other words, were a domestic client to be challenged before a Court of Law for failing his or her health and safety obligations, he or she would still need to show that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy his or her duties or that there was no better practicable means than those adopted.

In addition, the upcoming regulations contemplate another significant change. Namely, when a client fails to appoint a project supervisor, the former will ipso facto be deemed to be the project supervisor for the purpose of these regulations. That is to say that failing to appoint a health and safety project supervisor when required by law means that the client would automatically assume such important legal responsibility regardless of his or her competence.

Dr Robert Musumeci is an advocate and a perit. [email protected]