What is a construction site? Does every construction site have to have a project? If there is no project, there is no project management, butmust there be a safety coordinator?

These are some of the usual doubts that arise when the work is not defined and/or designed according to the most common standards contemplated in RD1627/97.

The definition of the concept of a work is not easy to define clearly and concisely, which can lead to different interpretations.

Royal Decree 1627/1997 defines construction work as:

“any work, public or private, on which construction or civil engineering work is carried out, a non-exhaustive list of which is given in Annex I”.

Another definition of construction work is that contemplated in Law 32/06 regulating subcontracting in the construction sector, which includes any of the works listed below:

“Excavation, earthmoving, construction, assembly and disassembly of prefabricated elements, fittings or installations, transformation, rehabilitation, repair ,dismantling, demolition, maintenance, conservation and painting and cleaning works, sanitation.”

In addition to checking if our activity is included in Annex I of Royal Decree 1627/97 or if it is in accordance with the definitions of said Royal Decree or of Law 32/06 on subcontracting, it is advisable to analyze, as a whole, if the following circumstances are present.

• Jobs are temporary in nature and the workplace evolves permanently over time.
• The company performing the work is included in section F, paragraphs 41 to 43, of the CNAE.
• The works are executed with technologies specific to the construction industry.

In the event that the work is considered construction work as mentioned in the previous three points, RD1627/97 must be complied with, otherwise RD171/04 will be applied in order to carry out the CAE (Coordination of Business Activities).

If there is any doubt about the need for a safety coordinator, even without project management or project, the promoter of the work will designate a health and safety coordinator during the execution of the work whenever more than one company, or a company and self-employed workers or several self-employed workers are involved in the work. Therefore, the designation of a coordinator does not depend on the magnitude, existence of a project, volume or duration of the work.

In short, it is considered construction work, in accordance with the provisions of RD 1627/1997 and Law 32/2006, and/or when certain conditions concur, such as the temporary nature of the work, the evolution of the work site, the use of technologies specific to the sector and the fact that the company belongs to section F (41 to 43) of the CNAE; in such cases, RD 1627/1997 must be applied and, even if there is no project or project management, the promoter is obliged to designate a health and safety coordinator if several companies, freelancers or a combination of both are involved.

On the other hand, when a work is carried out in a work center where an activity is performed, the relevant information on risks must be collected.

Since the promoter is the one who best knows the site where the work is to be carried out, he should gather information on the characteristics of the site and the concurrence of different companies and self-employed workers not involved in the work that may be found at the site.

In order to integrate all the preventive measures in the construction process, the companies in charge of the execution of the work, considering the information gathered by the promoter, will incorporate the appropriate preventive measures in their work procedures.

On sites without a project, in the absence of a Health and Safety Plan * (document derived from the project safety study), the set of these work procedures will essentially form a “site preventive management document” (DGPO) which will be drawn up by the site contractor in cooperation with subcontractors and self-employed workers.

* In the absence of a Health and Safety Study (which is part of the project) on which to base the drafting of the PSS, a DGPO will be prepared.

The site’s preventive management document must be a realistic document (it must reflect the site and the environment where it is carried out), specific (focusing only on the risks and measures associated with the activities that will actually be carried out) and practical (it is the reference and consultation document for implementing the preventive measures planned).

This document of preventive management of the work, not subject to the formal approval procedures established in the case of the Health and Safety Plan, will be supervised by the promoter (through the corresponding competent technician) (in this case we understand that it should be the Health and Safety Coordinator in order to effectively exercise the functions assigned by the regulations).

From 2010 until a few years ago, it was enough for the Contractor to provide the Risk Assessment (of the executions, machinery and auxiliary means; which could be obtained from its Prevention Service) to process the Opening of the Work Center.

And although the regulations indicating this are still in force (Order TIN/1071/2010), we understand that it is necessary to provide a more practical and realistic document, also in collaboration with the contractor’s Prevention Service, which justifies a preventive planning as a whole for the specific work in question. This document would be called DGPO and would include most of the contents required for a Health and Safety Plan.

For this reason, the INSST, published already in 2015 the “Basic Guidelines for the integration of occupational risk prevention in construction works”, whose content indicates the convenience of preparing the Preventive Management Document of the Work, for the case of works without Project.

Coordination with the work center in operation

In these cases, when planning the work, a double coordination must be foreseen : coordination of the activities within the work site itself in accordance with the provisions of Royal Decree 1627/1997; and coordination between the activities of the work site itself and the activities carried out in the work center in accordance with Royal Decree 171/2004.

Application of the subcontracting law in works without a project

We understand that Law 32/2006 on Subcontracting applies to all construction works included in its scope, even when there is no project, as long as the works carried out are included in its Article 2 and are carried out by companies in the sector or subcontractors in chain.

The existence of a project does not condition the application of Law 32/2006 on Subcontracting, but depends on the nature of the work performed and the contracting structure between companies and subcontractors.

Therefore, in the case of works without a project, we must comply with Law 32/2006 and Royal Decree 1109/2007.

For this purpose :

• We will not be able to subcontract the totality of an order, since this would imply a mere intermediation.
• The company that subcontracts part of the work must directly exercise the powers of organization and direction over the work carried out by its workers on the site.
• Companies wishing to participate in the subcontracting process must register in the Register of Accredited Companies (REA).
• Contracts for activities that do not involve the execution of any work on site are not affected by the subcontracting law (for example, when only material is supplied to the site).
• As a general rule, the regulations allow a maximum of three successive subcontracts. The extension of the additional level of subcontracting, in any of these cases, requires the prior approval of the project management. The facultative management is not a mandatory figure in works without a project, so it is understood that this exception should not be applied in any case in minor works.
• Each contractor is obliged to have a subcontracting book, authorized by the competent labor authority of the place where the work is executed, in which all the information related to subcontracting will be reflected.
• In the event that a head of household, as a developer, contracts the construction or repair of his home with self-employed workers, he will not be considered a contractor. Therefore, such head of household will not be obliged to have the subcontracting book.

Limits to subcontracting

As in the case of project works, intensive or self-employed contractors:

• A company may not subcontract when the productive organization put into use on site consists essentially of the supply of labor.
• A subcontracted self-employed worker may not in turn subcontract the work contracted to him to another company or to another self-employed worker.

As in the case of project works, contractors must comply with a series of requirements in order to participate in the subcontracting process:

• To have its own productive organization, with the necessary material and personal resources and to use them for the development of the contracted activity.
• Assume the risks, obligations and responsibilities inherent to the activity, and directly exercise the powers of organization and management over the work of its employees.
• Prove that they have human resources, at the managerial and productive level, with the necessary training in occupational risk prevention, as well as an adequate preventive organization.
• To be registered in the Register of Accredited Companies, to have a number of permanent employees of no less than 30% and to have a Subcontracting Book.
• Monitor compliance with the law by subcontractors or freelancers they hire.

In short, preventive management in works without a project requires the same technical and regulatory rigor as in any other work, and it is the responsibility of the promoter and the companies involved to guarantee safety, legal compliance and the correct coordination of all the agents involved.