Temporary or mobile construction sites

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    This text is largely taken from the brochure "The well-being of workers in the performance of their work - legal commentary on the Act of 4 August 1996" published by the FPS Employment, Labour and Social Dialogue in February 2006.

    Definition

    The concept of "temporary or mobile construction site" is described as any construction site where building or civil engineering work is carried out, the list of which is l aid down by the Crown.

    Regulatory sources

    Under Belgian law, temporary and mobile construction sites are the subject of:

    • Chapter V " Special provisions regarding temporary or mobile construction sites" of the Act of 4 August 1996 on well-being of workers in the performance of their work;
    • the Royal Decree of 25 January 2001 on temporary or mobile construction sites.

    These Belgian regulations transpose the Eighth individual Directive 92/57/EEC of the Council of the European Communities of 24 June 1992 on the implementation of minimum health and safety requirements at temporary or mobile construction sites.
    In addition, construction and maintenance work is also subject to some special measures governed by the General Labour Protection Rules.

    Parties concerned

    These parties are:

    • The client: any natural or legal person for whom a project is carried out.
    • The project supervisors:
      • In the European directive, the project supervisor is defined as any natural or legal person responsible for the design and /or execution and /or supervision of the execution of a project, acting on behalf of the client.
      • The definitions in Belgian law are inspired by these.
        The Belgian legislation actually divides the concept of "project supervisor" in the Directive into three separate persons, namely
        • the project supervisor responsible for the design;
        • the one responsible for the execution;
        • and the one responsible for supervision of the execution.
      • This is to take into account the reality on the ground.
        The project supervisor responsible for the design may be an architect (see below) or a design office, for example for the construction of engineering structures (bridges, sluices, etc.).
        Public institutions have individuals who, in the context of public procurement, must check compliance with the legislation (the leading official). In this case, the public institution is both client and project supervisor responsible for the supervision of the execution.
    • The contractors: any natural or legal person who carries out activities during the execution stage of the work, whether they are an employer, a self-employed person or an employer who works with his workers on the construction site.
      It follows from this definition that this concept is not used in this case in his usual sense, but is intended to include all persons carrying out activities during the execution stage of the work.
      However, private persons who carry out work themselves are not regarded as  contractors.
      At the same time, this concept differs from the project supervisor responsible for the execution. This is in fact the person who assumes full responsibility for the execution of a construction site, whereas the concept of contractor applies here to those who de facto carry out the work. However, this does not preclude the project supervisor responsible for the execution from being a “contractor” in the usual sense of the term. In this case, he is in practice often referred to as the main contractor.
    • The coordinator for safety and health matters at the project preparation stage: any person entrusted by the client or the project supervisor responsible for the design, with seeing to the co-ordination regarding safety and health matters at the project preparation stage.
    • The coordinator for safety and health matters at the project execution stage: any person entrusted by the client, the project supervisor responsible for the execution or the project supervisor responsible for the supervision of the execution with seeing to the co-ordination regarding safety and health matters during the execution of the project.
    • The workers.

    Specific situation of the architect

    With regard to the different persons involved in temporary or mobile construction sites, reference should be made to the specific situation of the architect.

    Under Article 4 of the Act of 20 February 1939 on the protection of the title and profession of architect, every person must use an architect for drawing up plans and supervising the execution of works for which a building permit is required.

    On the one hand, this provision means that an architect should not be used for work for which no building permit is required.
    On the other hand, the legislation provides for the possibility of waiving the obligation to use an architect for certain activities for which a building permit is indeed required. This is the case, for example, for certain repair works that do not affect the structure of the building itself, or for the construction of various technical facilities.

    This is one of the reasons why in law, the architect cannot automatically be considered as the project supervisor responsible for the design or as the project supervisor responsible for the supervision of the execution.

    In the same context, the question arises as to the scope of the tasks assigned to the architect by the Act of 20 February 1939 and in particular what is meant by "supervision of execution". According to the doctrine, this concept encompasses three elements:

    1. There is an element of management which means that the architect can give the contractor all the necessary instructions for the correct execution of the work. These instructions cover, in particular, the description of the work to be carried out, the sequence of the various types of work and certain general requirements that the contractor must take into account in order to achieve the client's objective. This management therefore aims to ensure that the provisions of the contract are respected.
       
    2. A second element concerns supervision, which means that the architect must pay particular attention to certain aspects of the construction site to avoid the occurrence of damage. However, this does not mean that the architect must be constantly present on the construction site, but rather that their presence is required at important moments so that the quality of the work is guaranteed, as well as the safety of third parties.
       
    3. Supervision basically consists of checking that what has been achieved corresponds to what was contractually agreed.

    Although these duties mainly correspond to the architect's responsibility for the execution of the work and more specifically the correspondence between this work and the requirements formulated by the client, the Court of Cassation has nevertheless accepted that the architect can be co-responsible for health and safety on the construction site. In a judgement on 31 January 1978, the Court of Cassation accepted the civil and criminal liability of the architect, along with that of the contractor, on the basis of an infringement of the General Regulations for the Protection of Work because he had given incomplete and unclear instructions for the execution of difficult work and had neglected to supervise the work carried out in his absence.

    The doctrine usually interprets this responsibility of the architect in a restrictive way. Consequently, the architect's responsibility to comply with the legislation on the health and safety of workers does not explicitly result from the architect's duties as described in the Act of 20 February 1939.
    The Well-being Act of 4 August 1996, on the other hand, assigns express obligations concerning the health and safety of workers to the project supervisor responsible for the design and to the project supervisor responsible for the supervision of the execution. Since these obligations are not directly related to the practice of the profession of architect, a provision has been introduced in Article 14 of the Well-being Act, specifying that, where the duties of the project supervisor responsible for the design and to the project supervisor responsible for the supervision of the execution are exercised in whole or in part by an architect, the latter is obliged to comply with the obligations arising from the Well-being Act that are applicable to the aforementioned project supervisors.

    If the architect's supervision assignment is interpreted restrictively, the part of the supervision which concerns the health and safety of workers must not be carried out by an architect, but may also be carried out by a consultancy firm specialising in this field, which may then be considered, for these aspects, as the project supervisor responsible for the supervision of the execution. However, there is nothing to prevent the architect from carrying out this task, but he must then comply with the provisions of the Well-being Act and the implementing decrees.

    With regard to the architect's duties during the project preparation stage of the project, the implementing decrees that have an impact on their profession must be taken after consultation with the minister responsible for small businesses.

    Duties of the parties concerned

    A distinction is made between the design and execution of the work.

    During the project preparation stage

    The client or the project supervisor responsible for the design appoints a health and safety coordinator during the preparation stage of the project.
    Given the importance of the work and the degree of risk, a health and safety plan will also be drawn up prior to the opening of the construction site.

    During the design, study and preparation phases of the project, the general principles of prevention must be taken into account when making architectural, technical or organisational choices in order to plan the various works or work phases that take place simultaneously or successively, as well as when forecasting the duration of their execution. As a result, health and safety are integrated right from the start. The person responsible in this respect, whether it is the client or the project supervisor responsible for the design, is determined by Royal Decree.

    The coordinator appointed during this stage is responsible for drawing up a health and safety plan and a file appropriate to the characteristics of the work and containing the relevant health and safety data to be taken into account in any subsequent work, among other things. This is the Post-Intervention File (PIF).

    During the project execution stage

    During the execution of the project, the client, the project supervisor responsible for the execution or the project supervisor responsible for the supervision of the execution is responsible for organising the coordination of the work of all those present on site and the collaboration between these persons. This applies both when they are working simultaneously or successively at the construction site.

    They are also responsible for appointing a health and safety coordinator during the execution of the work.

    The project supervisor responsible for the execution who is the first to intervene on the construction site sends the competent authority notice prior to the setting up of the construction site when this is required. 

    All contractors must comply with the health and safety measures laid down by Royal Decree. This includes both traditional employers and self-employed persons and employers who work on the site themselves with their workers.

    The project supervisor responsible for the execution, contractors and subcontractors will also use other contractors and subcontractors for the work.

    Here, "subcontractor" means a contractor within the meaning of this Act who performs work on behalf of another contractor.
    In order to guarantee the health and safety of all workers, a cascade system is provided for, depending on the place a contractor has in the whole.

    • This cascade system assumes  the existence of a vertical relationship, i n which a project supervisor responsible for the execution uses contractors .
    • However, it is possible that the client himself chooses various contractors without procuring the services of a project supervisor. In this case, there is no vertical relationship but a horizontal one between various  contractors operating on the same level. In this case, it must be accepted that the client himself plays the role of project supervisor responsible for execution of the project.

    The project supervisor responsible for the execution is at the top of the pyramid. He has the following obligations:

    • he must himself comply with health and safety measures;
    • he must ensure that all contractors and subcontractors involved in the execution of the project comply with them, even when he has only an indirect relationship with such contractors or subcontractors;
    • he must also ensure that the various workers comply with them.

    The contractor has the following obligations:

    • he must himself comply with health and safety measures;
    • he must ensure that they are complied with by his own direct subcontractor;
    • he must also ensure that his subcontractors comply with them as well as each subcontractor further down the chain;
    • he must ensure that the various workers comply with them;
    • he must ensure that they are complied with by any person who provides him with personnel.

    The sub-contractor has the following obligations:

    • he must himself comply with health and safety measures;
    • he must ensure that they are complied with by his own direct subcontractor;
    • he must ensure that his own workers and the workers of his own direct subcontractor complies with them;
    • he must ensure that they are complied with by any person who provides him with personnel.

    Article 32 of this Act also provides for the possibility of creating a coordination structure on the construction site. This structure may involve, among others, project supervisors, representatives of contractors and workers and Prevention Advisors. Whether or not such a structure is set up depends on the size of the construction site and the degree of the risks. The intention is that only large-scale construction sites are required to establish such a coordination structure .

    Obligations of prior declaration of work and presence registration on certain construction sites

    Title

    On 20 December 2013, the Belgian Official Gazette published the Act of 8 December 2013 amending Article 30a of the Act of 27 June 1969 revising the Decree-Law of 28 December 1944 on the social security of workers and amending the provisions of the Act of 4 August 1996 on the well-being of workers in the performance of their work, concerning the prior declaration and presence registration at temporary or mobile construction sites.

    Objectives

    This Act of 8 December 2013 has two objectives:

    1. Simplify and standardise the various declarations that must be made under different legislation (social security and well-being at work), to different bodies (the NSSO, the Directorate General of Supervision of Well-being at Work of the FPS Employment, Labour and Social Dialogue and the National Action Committee for Safety and Hygiene in Construction).

      These declarations will henceforth be made using the computer application made available by the National Social Security Office (NSSO).

      This concerns the work referred to in Article 30a of the Act of 27 June 1969 amending the Decree-Law of 28 December 1944 concerning the social security of workers, which includes:
      a) building work referred to in Article 30a of the aforementioned Social Security Act for Workers,
      b) other work/activities that must be declared with a view to protecting the health and safety of workers. 
       
    2. Establish an electronic system for registering persons in attendance on certain temporary or mobile construction sites.

      This electronic presence registration obligation applies to construction sites where work is carried out for a total amount excluding VAT of 800,000 euros or more (for work/construction sites that started between 1 April 2014 and 29 February 2016) or 500,000 or more (for work/construction sites that started after 29 February 2016).

      For the application of the presence registration  a construction site is understood to mean: each place where the building work referred to in Article 30a, §1, 1°, a) of the Act of 27 June 1969 amending the Decree-Law of 28 December 1944 concerning the social security of workers is executed.

      This system gives a clear picture of the persons in attendance on a construction site, at any given moment, whether they are working as a worker or self-employed person and for whom they are executing the work. This data is stored in a database. In addition to this database, the registration system includes a registration device and a registration medium.

      The project supervisor responsible for the execution makes the registration device available to the contractor used by this project supervisor. In turn, the contractor and each subsequent subcontractor makes the registration device available to their subcontractors. In this way, the registration device is made available to the entire subcontracting chain of the project supervisor responsible for the execution.

      The registration medium allows every person on the site who is subject to the Act to register their presence. Each employer ensures that his workers have this registration medium. The project supervisor responsible for the execution, the contractor or subcontractor using a self-employed person shall ensure that this registration medium is provided to the self-employed person.

      The Act allows the use of another registration system, provided that this system offers equivalent guarantees.

    Withdrawal and entry into force

    The Act of 8 December 2013 withdraws articles 2 to 10 of the Act of 27 December 2012 establishing the electronic presence registration at temporary or mobile construction sites. The amendments to the Social Criminal Code introduced by the Act of 27 December 2012 are maintained.

    Articles 2 to 5 of the Act of 8 December 2013 relating to declarations of work come into force on 1 January 2014.

    Articles 6 to 14 of this Act concerning the presence registration at certain construction sites come into force on 1 April 2014.

    The threshold amount at which electronic presence registration on site becomes compulsory changes to 500,000 euros excluding VAT for all building work/construction sites that started on or after 1 March 2016.

    More information, available in French and Dutch, can be found using the following links

    Implementing measures for the Act of 8 December 2013 are laid down by Royal Decree and are available on our French and Dutch pages.

    For more information:

    Concerning coordination for temporary or mobile construction sites (texts in French):

    Concerning Articles 433a to 468 of the General Regulations for the Protection of Work relating to specific measures applicable to construction and maintenance work, see the following explanations on this subject: