Developing FM
| FM legal update |
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| Written by Kelly Mansfield, 2007 | |
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Kelly Mansfield rounds up some of the key issues that are - or should be - on every facilities manager's agenda. In what FM situations does the new service charge code apply?How does the smoking ban impact on the facilities manager's role? From construction work to smoking, 2007 will see the implementation of numerous pieces of legislation that will have a significant impact on facilities managers. One of the most controversial pieces of new legislation this year is proving to be the Construction (Design and Management) (CDM) Regulations 2007, with debate raging over whether the revised Regulations should have come into force or not. While CDM 2007, introduced in April, does not place specific requirements onto facilities managers, they are a set of Regulations that most definitely should not be ignored. CDM RegulationsThe revision of CDM is based on the question of whether clients (and facilities managers!) should do more when it comes to managing health and safety throughout the life of a construction project. The Health & Safety Executive thinks they can, which is why CDM 2007 places added emphasis on the role that clients play. The key aim of the new Regulations, which bring together provisions from the existing CDM Regulations 1994 and Construction (Health Safety and Welfare) Regulations 1996, is to integrate health and safety into the management of a project and to encourage everyone involved to work together to:
The Regulations are also intended to assist those who ultimately use the building as a workplace, and facilities managers who maintain the building, to fulfil their obligations under the Workplace (Health, Safety, Welfare) Regulations 1992. The Regulations go some way to recognising that failure to call on FM expertise during the design phase can lead to structural and operational flaws that range from the irritating to the downright dangerous. While facilities managers do not have any direct responsibilities under CDM 2007, unless they are acting as client, Ken Mosley, Group Safety Officer with Henry Boot plc believes that "CDM 2007 should be viewed as an opportunity for facilities managers to expand their role at the outset of a construction project. If facilities managers use the experience that no other party has, they could help clients to reduce recurring maintenance costs." Fighting the FM corner may not always be easy but it is essential if a building is to be fit for purpose. "You must attend all site meetings even if the project manager says there is no need for you to be there. If not, you risk missing something vital and it can save a lot of time later, for example knocking down a wall that you didn't want built in the first place," comments Marion Furlonger, Customer Services & Group Facilities Manager at The Hyde Group Housing Association. Waste disposalA big issue for facilities managers in the next 12 months, and beyond, will be the disposal of old electronic equipment. The Waste Electrical and Electronic Equipment (WEEE) Directive came into force on 2 January 2007, with full producer responsibility kicking in from 1 July. Under the WEEE Regulations producers - manufacturers, importers and resellers - are to be made directly responsible for financing the costs of the collection, treatment, recycling and recovery of the WEEE they generate. Take-back obligations will be imposed on retailers. Under the Regulations producers will be responsible for collecting, via producer compliance schemes, any waste equipment purchased after 13 August 2005. For equipment brought before 13 August 2005, if it is being replaced by similar products on a like-for-like basis, it can be taken away as the new equipment is being delivered. If it is not being replaced it is up to the business to pay for it to be recycled or sent for disposal. In March the DTI published guidance explaining exactly what implications the Regulations will have for producers and retailers, as well as consumer and business users of electronics and local authorities. However, this guidance is not to be considered definitive; it will be updated as and when new issues crop up. An independent WEEE advisory body will be responsible for making recommendations for improvements to the guidance. Service chargesFacilities managers and building managers could very likely feel the impact of a new Royal Institution of Chartered Surveyors (RICS) revised service charge code, which has come into effect for service charges commencing on or after 1 April 2007. It has been given the status of a guidance note by RICS in order to recognise how important service charges are in today's property market, and therefore is regarded as 'best practice'. Mark Heighton, Partner at CMS Cameron McKenna, comments that the Code, "has been specifically designed for larger properties and if it is to be used for smaller properties this will require managers and occupiers to apply common sense as to the scale and applicability". The new Code aims to:
Building RegulationsAfter the implementation of the Regulatory Reform (Fire Safety) Order (RRO) in October 2006, this year sees further changes to fire regulation - namely to Part B of the Building Regulations. A review of the current Part B (Fire Safety) of the Building Regulations began in 2003 because, explains Mark Hillier of Butler and Young, "The current document is considered to be confusing; an aim of the new document is to clarify and simplify the information it contains." This review has been concluded and changes to Approved Document B came into force on 6 April 2007. The changes affect future building work in England and Wales - including the erection, extension or material alteration of a building. The kind of information that is clarified in the new document includes information on: means of escape, exit capacity, guidance for small premises, doors on escape routes and panic exit ironmongery. In non-domestic buildings, the key change for facilities managers is a new requirement to ensure occupiers are made aware of their building's fire protection measures so as to assist with the preparation of fire risk assessments under the new Regulatory Reform (Fire Safety) Order regime. This means that facilities managers will be given a fire safety manual that includes all the information in one place needed to create a fire risk assessment for their building. Building control will not issue a building completion certificate until this plan is done and handed over. Appendix G of the document sets out what should be included in the manual:
SmokingOne development that facilities managers will be unable to avoid in 2007, and which will have a large impact on the buildings they manage, is the smoking ban which, from 6.00am on 1 July 2007, sees virtually all enclosed or partially enclosed public places and workplaces, including vehicles, become smoke-free environments. Employers, managers and those in charge of smoke-free premises and vehicles will need to: display "no smoking" signs, take reasonable steps to ensure that staff/customers/visitors are aware that premises are smoke-free, and ensure that no one smokes in smoke-free premises or vehicles. Any facilities manager considering erecting a smoking shelter, or adapting an existing shelter, needs to ensure that it does not fall under the categories of enclosed or substantially enclosed, as laid out in the regulations. To comply with the legislation any smoking shelter should have less than 50 per cent of its walled area, not including doors and windows, open. As local authorities have wide powers to issue control notices if cigarette butts are not disposed of properly, facilities managers should consider the issue of smoking-related litter as employees are driven outside to smoke. Barrister Angela Philip, of Eversheds Solicitors, comments that, "providing outside smoking bins is a good idea, but these must be cleaned and maintained regularly". Ensuring employees don't litter could become even more important in the light of recent Defra consultation, which proposes that litter created by employees around their workplaces, including discarded cigarette ends, should become the responsibility of businesses to clean up. Local authorities have also been designated to enforce the smoking ban and have been given wide-ranging powers to enter and search premises. They will also be able to use covert surveillance. Under the smoke-free legislation, businesses owners will face fines of £200 if the proper signage is not displayed and, potentially, fines of £2,500 if they do not enforce the ban correctly. The futureThe future for facilities managers, and businesses in general, is going to be green. The appearance of the Stern Report last year, unprecedented wholesale utility prices, new measures to combat climate change and stakeholder pressure on businesses to become better corporate citizens have kept energy at the forefront of commercial building users' minds. In March the Government published its draft Climate Change Bill, the first of its kind in any country, and accompanying strategy, which set out a framework for moving the UK to a low-carbon economy. The draft Bill will be subject to a full public consultation alongside pre-legislative scrutiny in Parliament, before coming into force next year. The Government's energy White Paper, expected soon, will further underline the fact that energy is an issue that is here to stay and that businesses will be expected to play their part. As Mick Dalton, Immediate Past Chair of the BIFM, cautions, "Ignore the issue of energy at your peril." About the author Kelly Mansfield is Head of Network at Workplace Law Group. Please visit www.workplacelaw.net/ |
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