Legislation Updates
Changes in legislation can influence the buying policies of plant hire companies. Companies must take into consideration a variety of legislative and environmental requirements such as management responsibilities for health and safety, exhaust emissions, noise, vibration, rollover protection etc. This section of the website is devoted to reporting this kind of news item.
Legal | Health & Safety | Transport
Legal
The New Construction Act - How will it affect Plant Hire?
Click Here to Download Information on the New Construction Act
The Bribery Act 2010 came into force on the 1st July 2011.
On the 30th March 2011, the Ministry of Justice released the official Guidance to the Bribery Act 2010.
The official Guidance sets out the recommended procedures which should be implemented in order to have in place ‘adequate procedures’ to prevent bribery. In this respect, it is very similar to the draft Guidance previously published last year. However, the official Guidance is based on six amended principles and now has ‘proportionality’ as the common theme running throughout.
Further information was published alongside the official Guidance, in the form of a ‘Quick Start Guide’ summarising the key points of the Act.
The principles and procedures which may constitute ‘adequate procedures’ to prevent bribery within one company; may be entirely different from those which are appropriate for another company. For this reason, it appears the official Guidance focuses on what is ‘proportionate’ in the circumstances. For instance, it would not be proportionate for a small family run construction company to implement the same procedures as would a large international construction company. The smaller company would not have the same finances, resources or time to devote to implementing the same policies or conducting the same training as the larger company. Whatever the size of the company, however, it is equally as important to ensure the official Guidance is adopted so far as possible and in proportion to the circumstances/risks facing them. The risks of non-compliance with the Act are significant, both for individuals and the company itself, which is why the official Guidance should not be ignored.
The six principles for implementing ‘adequate procedures’ to prevent bribery
Whilst they maintain the same general purpose and intent, the six principles in the official Guidance contain significant differences to those contained in the draft Guidance.
The six new principles are:
1. Proportionate procedures
The procedures implemented by a company must be proportionate to the potential bribery risk it faces. The first suggested step in implementing this principle is to carry out a company risk assessment to identify the nature and extent of potential bribery related risks.
It is acknowledged that the size of the company will play a large part in this procedure, i.e. the larger the company, the more extensive procedures will be necessary. However, this is not always the case and in some circumstances, a small company will face more bribery related risks that a larger company due to the nature and location of the business in which it operates or third parties it deals with.
The procedures implemented by a company must also be clear, practical, accessible and effectively implemented and enforced (through principles 2 to 6)
2. Top level commitment
The management of a company should ensure an anti-bribery policy is implemented throughout the company. It should be made clear the company has a ‘zero tolerance’ approach to bribery.
Whatever the size of the company, the official Guidance suggests this principle should be implemented in two stages: 1. communication of the anti-bribery company policy; and 2. implementation of that policy through various bribery prevention procedures.
The policy may be issued as a formal statement and should be communicated to all new and existing employees.
3. Risk Assessment
Whilst it may be adequate for some companies to implement this principle through the first principle as a general company risk assessment, some companies will require a more formal stand alone risk assessment proportionate with the nature and complexity of the work it carries out.
The exercises and procedures implemented under this principle may also coincide with those under principle 4, due diligence.
The intention behind this principle is to identify and prioritise the bribery risks which the company faces. External risks may be categorised under the following categorises: country, sectoral, transaction, business opportunity and business partnership risks. The company may also face internal risks including a lack of understanding or training of employees as to the bribery risks, a ‘bonus’ culture within the company which may benefit from taking risks or a lack of clarity on the anti-bribery policy or policy on corporate hospitality.
4. Due diligence
The company should implement a due diligence policy explaining the enquiries and due diligence exercises that should be carried out in relation to new clients, agents, joint ventures and similar parties. These enquiries must, however, be proportionate to the potential bribery risks.
Due diligence should be carried out using a ‘risk based’ approach, whereby risks are mitigated by carrying out background research or obtaining references on third party agents or companies with whom the company deals with, where appropriate.
5. Communication
Once anti bribery policies have been established, they must be effectively communicated throughout the company. This may also involve appropriate training of employees on a regular and continuous basis.
The company should also enhance awareness between all employees in relation to the consequences of bribing. It may also be appropriate to provide reassurance and protection to those employees who report any incidents of bribery.
6. Monitoring and review
Anti bribery policies should be kept constantly under review, with any necessary changes being implemented following any incidents of bribery.
The company may also wish to encourage internal or independent recommendations for its anti-bribery policies.
Corporate hospitality
The official Guidance has helpfully clarified the often grey area of corporate hospitality and when it amounts to bribery.
The official Guidance promotes cooperation between businesses through corporate hospitality which is seen as a good way of cementing relations and enhancing knowledge within the sector. The Act is not intended to prevent or discourage companies from getting to know their clients by criminalising all corporate hospitality, as it is recognised as being an important part of doing business.
It is unlikely that the ‘incidental provision of a routine business courtesy’ will amount to bribery, particularly where the hospitality is commensurate with the ‘reasonable and proportionate norms’ for the industry.
Generally, the official Guidance confirms that the more lavish the hospitality or the higher the expenditure in relation to the hospitality, the greater the inference that it is intended to influence the official to grant business or a business advantage in return.
Conclusion
Now that the new Act has come into being, companies should:
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implement a clear and accessible anti bribery policy;
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communicate the policy to all staff and suppliers;
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identify and prioritise potential bribery risks, both internal and external;
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carry out due diligence exercises on third parties; who deal with the company;
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offer regular training and reviews of the anti-bribery policy; and
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keep records of any corporate hospitality
implement a clear and accessible anti bribery policy;
communicate the policy to all staff and suppliers;
identify and prioritise potential bribery risks, both internal and external;
carry out due diligence exercises on third parties; who deal with the company;
offer regular training and reviews of the anti-bribery policy; and
keep records of any corporate hospitality
Jonathan Hawkswell - Hawkswell Kilvington Solicitors
New Compensation limits announced for 2012
The Employment Rights (Increase of Limits) Order 2012 has been published and came into force on the 1st February 2012. The Order increases the limits applying to certain awards of Employment Tribunals and to other amounts payable under employment legislation.
The main changes are:
● Maximum amount of a 'week's pay' for the purpose of calculating a redundancy payment or the basic or additional award of compensation for unfair dismissal or payments to employees in the event of insolvency - increases from £400 to £430.
● Limit on the amount of compensatory award for unfair dismissal - increases from £68,400 to £72,300.
● Limit on the daily amount of statutory guarantee payment - increases from £22.20 to £23.50.
The increases apply where the event giving rise to the entitlement to compensation or other payment occurs on or after the 1st February 2012.
The date is determined differently depending on the type of claim brought. In unfair dismissal claims, this date is the effective date of termination of employment. In guarantee payment claims, it is the day in respect of which the payment is due.
New statutory payment amounts announced for 2012 / 2013
The Government has announced the proposed new rates for Statutory Sick Pay (SSP), Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) for the tax year 2012 / 2013. The new rates came into effect in 6th April and are as follows:
● The standard weekly rate of SMP and the weekly rates of SPP, SAP and Maternity Allowance will rise to £135.45.
● The weekly rate of SSP will rise to £85.85.
● The lower earnings limit for qualifying for SSP, SMP, SPP and SAP will rise from £102.00 to £107.00 per week.
The Government has announced the proposed new rates for Statutory Sick Pay (SSP), Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) for the tax year 2012 / 2013. The new rates came into effect in 6th April and are as follows:
National Minimum Wage
On the 1st October the National Minimum Wage rates were increased from £5.93 to £6.08 per hour for workers aged 21 and over.
The rate paid to workers aged between 18 and 20 were increased from £4.92 to £4.98 per hour; the rate for workers aged 16 to 17 were increased from £3.64 to £3.68 per hour.
The apprentice rate increased from £2.50 to £2.60 per hour.
The draft National Minimum Wage (Amendment) Regulations 2011 can be viewed on the UK legislation website.
Health & Safety
Quick hitches - what you need to know
Quick hitches on excavators continue to be a source of concern in the industry, and CPA, ConstructionSkills, HSE and other bodies have been working to help owners and users tackle the problem. Semi-automatic quick hitches are not "illegal" or banned - you can continue to supply them on hire equipment. Provided they are used in accordance with the manufacturer’s instructions, they can be used safely. However, all hire companies must check that all quick hitches are in full working order and are complete - the proper safety pin must be supplied with semi-automatic hitches. Any hire company or other supplier that provides incomplete or inadequately maintained quick hitches will almost certainly be prosecuted by the HSE.
Hire company operators must be trained and competent to use any quick hitch fitted to their machine. They need to have read and understood the manufacturer’s instructions about attachment, pin placement on semi-automatic hitches, and how to check visually and through operating the controls that the bucket is attached properly. They also need to know how to carry out daily checks on the hitch mechanism - and most important, they need to understand and recognise that all these procedures are essential and must be done. Otherwise, they may face prosecution and jail for causing the death of another worker.
Hire companies that provide equipment with quick hitches fitted for their customers to use must provide the hitch manufacturer's instructions on attachment, pin placement, checking and inspection. Again, any failure to do so is likely to lead to prosecution.
CPA have produced a summarised guidance sheet aimed at helping your customer understand their duties - this is available free from CPA. Stickers are also available from CPA to go inside the cab to help remind the driver to check that the pin is in.
Training materials for excavator drivers using quick hitches are available from CPCS. Because of the serious safety implications in the use of quick hitches, ConstructionSkills have agreed to make the materials from relevant module from their CPCS training programme available to the industry at no charge - see www.cskills.org/centreandschool/cpcs/index.aspx.
Quick hitches - what CPA is doing
At the end of 2008, CPA were asked to organise and chair a new Plant Safety Group, to be part of the Strategic Forum for Construction.
The Plant Safety Group - chaired by Colin Wood - called industry experts together for a special meeting concerned with quick hitches on 16 January. Nearly 50 people attended, including manufacturers, operators, unions, principal contractors, safety specialists, clients, CPA Members and HSE.
The first part of the meeting was an open forum and heard some very candid descriptions of experiences with quick hitches, and useful explanations from all parties. The group then identified the steps to take next, and looked at the whole range of engineering, management, operational and training issues. After a lot of discussion, the group agreed to priorities that need to be dealt with.
- The Construction Equipment Association (CEA) has agreed to act as liaison for users to be able to pass information and contribute to the process of re-writing the relevant European Standard, EN474.
- CEA will organise a meeting of quick-hitch manufacturers to explore any engineering, provision of information, or other steps they can take.
- CPA will write guidance on hire companies' responsibilities for provision of equipment and information.
- A task group will draft guidance on best practice when using quick hitches, including working practices, management and supervision issues as well as driver behaviour and competence.
- Other sources of supply of second-hand hitches in the UK will be tackled to ensure that quick hitches are complete and appropriate information is passed on.
A smaller focussed group will meet to take the projects forward, with the larger group who attended the first meeting being kept in contact by email. Future meetings will look at communication and implementation of the Best Practice Guidance.
Tower cranes register
A call for a register of tower cranes was made by the DWP Select Committee in 2008, after they had taken evidence from the Battersea Crane Disaster Action Group. Although Government initially rejected these proposals, the Select Committee did not withdraw their concern. As a result, towards the end of 2008 the Secretary of State asked HSE to revisit the issue of register. HSE then asked CPA for input, to help identify options.
HSE's initial report was considered by the HSE Board on 28 January, together with issues of public concern over tower crane safety. The HSE Board decided to recommend to the Secretary of State that a voluntary register should be established first, maintained by HSE or the Health and Safety Laboratory. After the register had been developed to run efficiently and effectively, it should then be put on a statutory footing. No timetable for implementation was discussed by the HSE Board.
CPA will continue to work with HSE as the register is developed.
Transport
Driver CPC (Certificate Of Professional Competence)
Members are reminded of three important points when looking at purchasing Driver CPC periodic training.
- For existing goods vehicle drivers, any periodic training delivered before the 10th September 2009 will not count towards the 35 hours of total training needed to be completed by September 2014. Periodic training must be delivered within a fixed five-year period, which for LGV drivers does not start until the 10th September 2009.
- There is no direct public funding available for Driver CPC periodic training. It may be possible for some training undertaken to achieve a National Vocational Qualification (NVQ) to double-up as Driver CPC periodic training - provided the course meets the criteria to be approved by the Joint Approvals Unit for Periodic Training (JAUPT) and is delivered by an approved training provider (known as the 'centre'). In some cases it may be possible to obtain funding for NVQs, but it should be remembered that an NVQ is a very different type of qualification to the Driver CPC. Gaining an NVQ requires the driver to reach a certain standard and this can take time in preparation and assessments. This commitment should be fully understood before a driver embarks on this type of qualification.
- Ensure that any periodic training undertaken (after the 10th September 2009) is approved and the training centre is approved to deliver that particular course. This can be checked by visiting www.drivercpc-periodictraining.org/approved-centres-courses.
Further information on the Driver CPC can be found in the FTA's compliance guide, which can be downloaded at http://www.fta.co.uk/information/driver-cpc/.
