NEC FOR NEWBIES #5 | Tip Series 5 of 6

Access to Site? File Out in an Orderly Fashion!

From both the Employer and the Contractor’s point of view, the Starting Date should always be on or before the Access Date set out in the Contract Data. It is important to note the Employer is also entitled to impose certain condition precedents for site access – contractual requirements that must be met, in this case, before the Contractor will be allowed to access the site or parts of the site to commence site-based activities.

Having an approved health and safety file along with all the other associated documentation is a common – though not widely known – precedent for site access, and arranging one timeously is the only way to save yourself a world of pain.

To fully appreciate their significance, think of them as the construction compliance equivalent of printing out your own forms before going to Home Affairs.

A health and safety file is a full record of the information relevant to the management of construction health and safety for a particular project or a specific part of the project. Essentially, it draws the parties’ attention to the significant health and safety risks that need to be addressed for the duration of the project activities, and it serves as proof of compliance with specifications in accordance with the Occupational Health and Safety Act, 1993 and the Regulations of 2014.

Of course, like so much in the gloriously carefree world of compliance, trying to compile one and get it approved can pose health and safety risks of its own; to avoid the onset of not-being-onsite hypertension, bear the following in mind:

Where a health and safety file must be approved by the Employer before site-based activities can commence, partial approval won’t be sufficient. This means that even if the Contractor is ready to access the site, they’ll be waiting at the gates like your Uber Eats driver at the wrong office park until such time as the health and safety file is found to be in good order. The (similarly) serious consequence is that the time for project completion starts to run, whether the Contractor has access or not.

Top tip: The preparation and submission for approval of a health and safety file can be time consuming. Additionally, certain Employers (such as SOEs and parastatals) require a physical hard copy of the health and safety file. It can take time to print and compile that too, so it’s important to be aware of whether or not a hardcopy is necessary to avoid wasting time unnecessarily.

A further factor to consider is the agreed contractual time period the Employer has to approve the health and safety file, being the period for reply, and it’s stated in italics which means it’s hella important to pay attention to. It constitutes what’s known as an ‘identified term’ in the Contract Data, which has to be completed at the tender stage by the Employer (part one) and the Contractor (part two). The period for reply has to be filled out by the Employer in Contract Data part one. Although the clock starts ticking the moment the health and safety file is received, the Employer can take the full period for reply to approve or reject the file… which can add to the delay in accessing site for the Contractor.

Condition precedent criteria, such as the need to have an approved health and safety file, can be as difficult to get one’s head around as those massive signs on the side of highways telling you not to take your eyes off the road. However, not fully understanding what’s required can lead to far great difficulties for the Contractor.

Fortunately NSDV is here to help! Come chat with us about your construction projects at staude@nsdv.co.za. Arrive (on site) alive.

#NSDVConstructionLaw #NECForNewbies #ConstructionHealthAndSafety #SouthAfricaConstructionLaw