Lieven Peeters and Jacques Périlleux, advocaten/avocats
The Safety Co-Ordinator(s) On Your Building Site In Belgium
For building projects for which the development and design study starts after 1 May 2001 and during which more than one contractor will be active on the building site, a new player in the team is to be welcomed : the safety-coordinator, or better the safety-coordinators. A coordinator is to be appointed as soon as possible after the start of the development/study/architectural phase ("co-ordinator-design"), afterwards a coordinator for the execution phase is to be appointed ("coordinator-execution"). One qualified person can perform the tasks of both coordinators. The architect, the contractor or even an employee of the principal can perform the tasks of the coordinators insofar as they fulfil the requirements set forth in the Royal Decree.
The coordinators are to ensure the safety and security measures for employees on the site during and in the construction.
If the development/study/architectural phase had been launched prior to 1 May 2001, the provisions of the Royal Decree of 25 January 2001 can be partially by-passed. In case the implementation of the development/ study/ architectural phase starts prior to 1 December 2001, only a coordinator-execution is to be appointed. By doing so, the legislator wanted to avoid that considerable amounts of study work had to be re-visited by a coordinator-project stepping in at a later point in time. The picture of a stand-still in the building sector due to revisiting of the studywork of pending projects caused the legislator to be somewhat flexible. The execution phase can start with the symbolic first stone or the placement of the construction workers' shed on the building site.
Even if only one contractor is working on the building site, which will be exceptional for larger projects, certain measures and principles are to be respected.
All parties involved, be it the principal, the contractors and the "building director" (e.g., architect, principal contractor, etc.) are to apply the prevention principles set forth in the Royal Decree as of 1 May 2001. It is to be noted that the concept of "building direction" ("bouwdirectie/maître d'ouvrage") is new to Belgian law.
It is advisable to appoint the coordinator-design at the start of the preliminary studies, in order to avoid having to rework parts of the studies due to remarks of the coordinator. The coordinator-execution on the other hand is to be appointed at the start of the executory phase, which in itself commences with the first intervention at the site.
In principle, it is the principal who appoints the coordinators, except for non-commercial projects pursued by a non-professional private person (e.g., redoing a bathroom or a kitchen in his house). In the latter case, the building director needs to appoint the coordinators in due time.
A written agreement between the principal and each of the coordinators is required, even if the coordinator is an employee of the principal or the architect involved as building director of the site. If the building director is required to appoint the coordinators, he needs to provide explicitly a clause in the agreement with the coordinator as a result of which the fees of the coordinator are to be paid by the non-professional principal.
During the planning of the timing of the building site, one should take into account the following formality. In the majority of the projects, the building site will need to be notified fifteen days in advance to the start thereof with the Direction of Technical Inspection of the location where the building site will be established. The notification is to be clearly posted at the building site as well at least ten days in advance. The main contractor (or the first contractor working on the site) is responsible for the fulfilment of this obligation. Authorities aim to make it possible in the nearby future to notify building sites at the e-desk of the relevant authorities.
At the provisional acceptance of the works, the principal shall have to receive a security and safety plan, a coordination diary and a postintervention file. Only at this point in time, the intervention of the coordinator-execution terminates. These documents and files remain utterly important, as at the occasion of the partial or entire transfer of the realised constructions of the building site, a copy of the postintervention file is attached to the authentic deed of transfer. The postintervention file is also to be kept available for all tenants of the constructions at the site. If at anytime in the future, works are to be executed to the constructions, the newly appointed coordinators (or the contractor) are to demand for and are to examine the relevant parts of the postintervention file.
As the Law of 4 August 1996 on the well-being of employees (which is the legal basis for the Royal Decree of 25 January 2001) provides for criminal sanctions, it is worth while to comply with these regulations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.