By Dr Mary Gauci – Associate
When developing a property, the developer has a lot of legal obligations to adhere to. These emanate from a number of laws, including but not limited to planning, environmental, third party rights, building and construction, and also health and safety. When it comes to health and safety, the developers shoulder a lot of legal responsibilities, which fall under Legal Notice 88 of 2018, Workplace (Minimum Health and Safety Requirements for Work at Construction Sites) Regulations. This piece of legislation refers to the developer as “the client” so in this article, the developer will be referred to by this term. Failing to ensure adequate health and safety on-site may lead to serious criminal and/or civil liabilities.
It is important to clarify that this legislation is applicable throughout the whole project until the place is in a finished state.
The first responsibility that the client has is to appoint a Project Supervisor (in respect of health and safety issues) for the design and execution stage. The Project Supervisor’s roles and responsibilities shall be discussed in detail in another article. The client can take over the role of project supervisor if s/he is competent to do so. However, the law stipulates that if the client does not appoint a project supervisor, s/he will be deemed to be a Project Supervisor. In such a case, the client will have a lot of added legal responsibilities, which at times s/he would not even be aware of.
After appointing a Project supervisor, the client shall make sure that a health and safety plan is drawn up. Such report; together with other documentation; shall be kept by the client, who has the responsibility to make these reports available for those who may need this information. These may be requested when subsequent works take place, and when requested by the Occupational Health and Safety Authority Officers.
When the client disposes of his or her interest in the Project; for example, if the site or part of it; has been sold, the client is obliged to give all the documentation held in the health and safety file to the person who has taken over the responsibility of the site under the capacity of the client.
The law specifically states that “No client may transfer the obligation to appoint a Project supervisor to any other person except as provided for in these regulations”. This means that the client cannot ask third parties, such as contractors or turnkey contractors to appoint a project supervisor on its behalf.
Before commencing any works, the client, with the assistance of the project supervisor shall fill in a Construction Notification Form and send it to the Occupational Health and Safety Authority, if the works are planned to exceed 500 person-days or when Works are scheduled to last longer than 30 working days and on which more than 20 workers are occupied simultaneously. By law, this form needs to be sent four weeks before the project starts. If the works involved do not fall within these limits, the client is still obliged to appoint a project supervisor and the other obligations remain the same. The only difference is that s/he will not be obliged to notify the OHSA.
It is also important that the client informs the Project Supervisor about the actual starting date so s/he starts to carry out the site visits and the necessary coordination. This proċess normally entails that the Project Supervisor goes on-site, coordinates health and safety during the visit with workers, and contractors and the client sends the site visit reports to those involved in the Project. It is important that the client provides the information about the contractors (and subcontractors) to the Project supervisor so s/he can coordinate with them. It is also important that when the client receives the report, s/he takes note of the contents and if non-conformities are raised, puts pressure on the contractor to implement all remedial measures required or carry out remedial measures himself/herself. In fact, the law states that:
“In order to preserve health and safety on the construction site, the client shall take into account any report given in writing by the project supervisor, and shall take all reasonable measures to ensure that duty holders abide by their obligations within the limits of their respective responsibilities.
In order to preserve health and safety on the construction site, the client shall take all the necessary measures for the adequate safeguard of occupational health and safety.”
Failure to act on the report received by the Project supervisor, the client may be held criminally liable, this irrespective of whether an aċċident has taken place on-site or not. As a result, the client can either receive an administrative fine from the Occupational Health and Safety Authority (OHSA) or be accused of a criminal act before a Magistrate. The decision as to whether issue an administrative fine or institute proceedings before the Criminal Court is entirely in the hands of the OHSA. The maximum penalty that a Court can impose for OHS infringements is that of 2 years imprisonment and/or up-to eleven thousand, six hundred and forty-six euros and eighty-seven cents, and will be reflected in the criminal conduct and in one’s record of criminal conviction, and would lead to that person being a recidivist in case of another criminal conviction. This in addition to any civil responsibilities if damage is caused to third parties, and in such cases, there are no limitations.
Finally, it is important to note that “Where a client has appointed the project supervisor to perform the duties referred to in regulation 5, this does not relieve the client of his responsibilities in that respect.”, so the responsibility of the client does not stop the moment that s/he appoints a Project supervisor.
Health and safety shall be given the attention it deserves when carrying out a Project as it may have serious negative repercussions on the persons involved. Therefore, it is better to be safe than sorry!
In next week’s article, we are going to discuss the responsibilities of the contractor.