Obligation
Health and Safety Coordination is a regulated service governed by:
- Royal Decree of 25 January 2001 concerning temporary or mobile construction sites
- Law of 4 August 1996 on the well-being of workers in the performance of their work
Client (Maître d’ouvrage): private individual or company that commissions and pays for the works.
Project manager (Maître d’œuvre): architect or main contractor who supervises or carries out the works (implementation).
The appointment of a Health and Safety Coordinator is mandatory for all construction sites where more than one contractor will be working at the same time or successively.
This applies to both new constructions and renovations.
Works carried out by a single contractor without any subcontractors are not subject to this obligation.
Any person or company with a VAT number is considered a contractor and is therefore not under worker or employee status.
A subcontractor is any other company or self-employed person, other than the General Contractor, present on the site, either simultaneously or successively during the works.
=> In practice, except for very limited works, no general contractor has all trades in-house and subcontracts certain works
In principle, the client must appoint the safety coordinator. There is an important exception to this general rule. Private clients whose construction project is not intended for commercial or professional purposes are exempt from this obligation. In their place, the architect must appoint the safety coordinator. If there is no architect supervising the works (e.g., for renovation works where their involvement is not required), the contractor with whom the private client first entered into a contract must ensure the appointment of the safety coordinator. The person appointing the safety coordinator must ensure that the coordinator can perform their task correctly.
The safety coordinator must draw up a safety and health plan and specify the measures to be taken by the contractors, for example the installation of nets or barriers. They must ensure that the various contractors do not hinder each other (co-activity risks). This should significantly reduce the number of accidents on construction sites.
Project and Construction: safety coordination consists of two parts.
A Project-phase safety coordinator must be appointed no later than during the design phase. This coordinator assists the architect in incorporating prevention principles and safety rules for the execution of the works into the plans and the final specifications. The coordinator must also draw up a safety and health plan as well as a Subsequent Intervention File (S.I.F).
Before the works actually begin, an construction-phase safety coordinator must be appointed. This coordinator ensures that the safety and health plan is applied during the works and adapts it where necessary. They also coordinate the prevention of risks during the various execution phases. They finalise the S.I.F. based on the works actually carried out (as-built).
In the majority of cases, both functions are performed by the same person.
Who pays the safety coordinator?
The project manager must include in their tender a separate estimate for the prevention measures and resources provided for in the safety and health plan. If the architect (project manager) also takes on the coordination task – which should be rare – the client must include in the contract a clause specifying this task and clearly separating the cost of this task. The client pays the safety coordinator’s fees and the costs of any measures to be taken.
We have established a pricing procedure that takes into account, depending on the site, the legal documents to be produced as well as the services (visits and reports).
Good to know: most turnkey construction companies often include safety coordination in their contract. The independence of this coordinator can then be questioned.
Not only must these companies provide a separate item for health and safety coordination, but you are not obliged to accept their coordinator. Indeed, you appoint the coordinator independently.
Who can act as a safety coordinator?
The safety coordinator must meet the capacity requirements set out in the regulations. The following may work as a safety coordinator: an independent expert, a coordinator employed by a specialised firm, an architect or a contractor who has completed specific training and successfully passed an examination before an approved jury. The client’s own architect may act as a safety coordinator provided they meet all the requirements.
What does the Subsequent Intervention File (S.I.F) cover?
In the case of a new construction or major renovation, the safety coordinator must also keep a post-intervention file up to date. This file contains all documents that may be important for future maintenance, renovation or demolition works. The coordinator must hand this file over to the architect, who in turn passes it on to the client. The client must keep the file and, in the event of future works, pass it on to the coordinator (or, in their absence, to the contractor). When selling the property, the file must be handed over to the new owner. The notary cannot finalise a sale without this document if works requiring the involvement of a coordinator were carried out after January 2001, and by extension for any new building after that date.
If no coordinator is involved (e.g., if working solely with a single specialised contractor) and an S.I.F exists, the client must maintain the subsequent intervention file themselves or entrust this task to the architect, the contractor or a health and safety coordinator.
When to appoint the safety coordinator?
The project-phase coordinator must be appointed during the design phase. It is in everyone’s interest to make the appointment as early as possible in this phase, or even before, so that the project manager can fully benefit from the assistance and advice of the project-phase coordinator. The design project manager (architect) cannot begin implementing the project until the project-phase safety coordinator has been appointed.
If too much time passes before appointing the coordinator (for example, until just before the start of the implementation phase), there is a risk that the design work will have to be completely redone to take account of the design-phase coordinator’s advice.
An construction-phase safety coordinator must be appointed on all sites where two or more contractors carry out works simultaneously or successively. The construction-phase coordinator must be appointed before the start of the works, i.e., before the first physical activity on the site. No contractor may begin an activity on the site before the construction-phase safety coordinator has been appointed.
How?
- From the earliest stages of the project, the Health and Safety Coordinator (HSC) will raise awareness and advise the architect on health and safety by ensuring integration into the construction phases, planning for future interventions and general use. The HSC helps you assess candidate companies in terms of their health and safety policy. They begin drafting the S.I.F They will require each contractor or stakeholder to submit a Specific Safety Plan that will raise the stakeholder’s awareness of health and safety and highlight the dangerous phases of the site. They draw up the “Safety and Health Plan”.
- During the construction of the project, they will coordinate the various phases of the works according to co-activity risks. They will provide regular reports on their site visits and make remarks concerning behaviours or activities where the risk is too high. They will organise site meetings to highlight risks and inform stakeholders. The S.I.F will be completed and finalised based on the “as-built” and handed over to the client.
Sanctions for failure to appoint an HSC!
OBLIGATION TO APPOINT AN HSC
In addition to the fact that the Labour Inspector may close the site due to the absence of an HSC or a manifestly insufficient HSC,
- Legal consequences of failure to appoint an HSC:
The Law of 4 August 1996 on the well-being of workers in the performance of their work makes coordination of all safety and health measures on temporary or mobile construction sites mandatory.
In Chapter 11, Article 80 and following define a series of criminal provisions regarding the legal consequences of failing to appoint an HSC (Articles 16(1) and 21(1) of the law). For temporary or mobile construction sites, this appointment falls on the client, the architect or their “agents or representatives”. They are commonly referred to in the law, and subsequently in the recently published Royal Decree, as the “project manager responsible for design or project manager responsible for monitoring the execution of the works”.
In general and at any time for absence of an HSC, under Article 80, the labour inspection may at any time and on any site, even without an accident having occurred, make the necessary findings and prosecute the actors mentioned above.
Maximum sanctions as at 30/4/2003 | Imprisonment | Criminal fine | Administrative fine | Total |
Projet phase | 1 year | 4,760 € | 2,480 € | 7,240 € |
Construction phase | 1 year | 9,915 € | 4,760 € | 14,675 € |
... total | 2 years | 14,675 € | 7,240 € | 21,915 € |
In the event of recidivism within 3 years, these sentences and fines may be doubled!
- Criminal consequences in the event of an accident:
If an accident occurs on the site when no HSC had been appointed, the labour auditor will prosecute the project manager. The sentences and fines are identical to those in the table above. In addition, such a breach of the Well-being Law is considered a serious and intentional fault, and the persons representing the “project manager” risk being prosecuted by the Public Prosecutor’s Office under Articles 418 to 420 of the Criminal Code for involuntary manslaughter or involuntary assault and battery due to lack of foresight and precaution.
The Public Prosecutor’s Office combines the two cases, which will be handled by the court of first instance.
These sentences and/or fines can never be covered by insurance, nor generally the defence costs in the event of criminal prosecution.
- Civil liability:
The finding of a breach of the Well-being Law could lead “compulsory insurers” to take civil action (Articles 1382 to 1384 of the Civil Code) with a view to obtaining damages (or recovering damages paid to victims by the insurers).
Insurance companies that normally cover professional liability for construction professionals (that of project authors and non-private clients) do not intervene if such a (serious) breach of the law is established.
In addition, the project manager may still be held liable for all additional damages resulting from the accident:
- Damage to third parties
- Loss of wages and other indirect damages suffered by the victim, not covered or only partially covered by insurance
- All other indirect costs resulting from the accident (damage to equipment, damage to the construction or building, site delays, loss of business, etc.).
A Belgian insurance company recently estimated the total cost of an accident in the construction sector, in which a worker was completely and permanently paralysed following a fall on the site, at nearly €1,830,000.