CIC Blog: 2016

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Don't Sign Standard Forms - Contracts are about trust not terms

Sarah Fox

Speaker, contract strategist, lawyer

500 Words Ltd

Ever since corporations decided to reduce the costs of procuring construction projects, there has been a trend towards standardisation of processes, contracts, laws and regulations. The first industry standard form (heads of conditions for a builder’s contract) appeared in 1870 and the first engineering contract (the model form for electrical works) followed in 1903.

Fast forward nearly 150 years and the construction industry is unrecognisable from its 19th century predecessor. We are ‘blessed’ with a cornucopia brimming with standard form contracts, designed (allegedly) to meet the needs of the UK construction industry.

But do the cross-industry boards, drafting committees of professional bodies, or sponsoring law firms publish contracts that actually meet the needs of 21st century businesses? Do we have contracts that are fit for today’s purposes? Do they reflect human-to-human selling, fast global procurement methods, electronic information sharing and storage, and collaborative project strategies based on trust? Or are we just stuck in the dark ages?

Familiarity Breeds Laziness

Although our standard forms are regularly updated, and new forms heralded with fanfares (before struggling to gain market share), we rarely see fundamental shifts in drafting philosophy, style and tone of voice, or usability. The only thing we can be sure of is that each new edition will be longer than the last!

With over 140 standard forms of construction contract, the market is dominated by contracts of staggering complexity, sprinkled with legal phrases and jargon, and a veritable plethora of options, annexes and supplementary sections. Together these create an almost impenetrable barrier to new users. Many organisations stick with their favourite contract - lazily clinging to the familiar, rather than adopting a coherent contract strategy that meets their business’ needs and values.

Contracts or Trust?

Refusing to budge from the contract with which you are most familiar is not the same as actively choosing a contract based on trust. Users tend to justify this ‘strategy’ by saying “well, the contract hasn’t gone wrong so far”, which is hardly a ringing endorsement. One reason for avoiding change is mistrust of other standard forms. If you’ve never used a contract, then with up to 100 pages and 50,000 words, the learning curve for knowing how to use it properly is too steep. Frankly, unless it’s a deal-breaker, why would you even contemplate it when the other contract provides no guarantees of being more effective?

20 years ago, a whopping 58% of the construction industry said standard forms encouraged conflict and 38% said they created mistrust (Latham Report 1995). My 2015 Survey showed that a pitiful 14% of contract users said current UK standard form contracts create trust.1

This does not bode well for the Government’s Construction Strategy 2025 with its aim of a strong, integrated supply chain thriving on productive long-term relationships while simultaneously lacking trust in each other!

It is self-evident that you should not enter into a contract with a company you don’t trust. So should you demonstrate your trust in your project team through adopting complex or simplified contracts?

There are essentially two opposing approaches to how to create contracts: one is characterised by low trust where the contract acts as a safety-net. This sort of relationship requires the standard form to comprehensively cover every possible angle, tie up every loophole and create a knot of clauses to ‘save the parties’ in the event of a dispute. The project team trusts the contracts to provide the answer.

The other approach is characterised by high trust where there is a simplified framework of terms, on which the parties hang project specifics2. The contract does not have all the answers, enabling and encouraging the project team to trust each other and to solve issues which arise, within a clear framework.

Supporting Long-Term Relationships

The best ways to create long-term relationships is to adopt a collaborative ethos (reflected in processes and contracts) and to avoid disputes which damage those relationships.

Despite years of toying with terms to refine and improve them, each Annual ARCADIS Global Disputes Survey demonstrates that the most common cause of construction disputes is a failure to administer the contract. The other causes listed – incomplete contract, failure to operate specific procedures, incomplete claims – also arise from the users being unable to use the contract effectively.

To use a contract (and its procedures) accurately and effectively, it is critical that you can read and understand the standard form. However, our current standard forms positively discourage you from reading them, dissuade you from understanding them, and make it impractical (if not impossible) to use them.

Surely developing processes and contracts that help avoid disputes should be on everyone’s urgent and important to-do list?

Perhaps the solution is to tear up the rule books and the lengthy standard form contracts, and start with a large dose of trust. We can then decide the strategies, processes and contracts we need for a 21st century industry.

Constributor: Sarah is a professional speaker, trainer and contract strategist. She helps construction professionals to write simpler contracts, so they can build trusting relationships and avoid disputes. www.500Words.co.uk

Sarah will also be speaking at the Construction Industry Summit as part of the 'Working with the Enemy – Sharing, Collaboration & Trust' Session.


1 - 10% of respondents said the same contracts create mistrust!

2 This is how the engineering model forms in engineering were intended to be used as the publishers recognised the huge array of project differentiators could not be accommodated in one standard contract.

Tags: Contracts, collaboration, trust,
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Challenging constructors to tackle illegal working

Robert Biggs

Scheme Ambassador and Former Chairman

Considerate Constructors Scheme

Ensuring the legitimacy of the workforce is one of the key challenges facing the construction industry. Employing illegal workers isn’t just against the law; there is an undeniable relationship between illegal workers and those subjected to modern slavery.  

The statistics speak for themselves: the National Crime Agency has pinpointed the construction sector as the sixth most prevalent for labour exploitation; and in 2013 the government identified 53 “potential victims of modern slavery” within the industry. 

What everyone is clear about is that it is very damaging for those individuals concerned, and the industry’s image as a whole. This can lead to widespread reputational damage at a time where portraying the industry in a very positive light is critical to attracting and retaining skilled workers to meet the pipeline of future work.

As the Government’s recent actions have demonstrated - with Operation Magnify starting last autumn and the Modern Slavery Act being applied from 1 April 2016 - there is growing pressure on the Industry to make sure that all of the checks and balances are in place to assess and monitor their workforce.

But valuing the workforce by ensuring their legitimacy to work shouldn’t just be a ‘kneejerk’ reaction to the Government’s latest actions - it should be part of the day-in, day-out routine of every element of construction activity throughout the UK. To help this become a reality and continually raise standards in this area, the Considerate Constructors Scheme introduced a new question in its Monitors’ Checklist earlier this year; specifically challenging constructors registered with the Scheme on ensuring the legitimacy of their workforce:

How does the site assess and monitor the legitimacy and competency of the workforce?

This question challenges contractors and their supply chains to take greater responsibility for the way they recruit their workforce. It requires a structure to be put in place which ensures that suppliers and subcontractors provide evidence to show they have effectively assessed the legitimacy of the workforce.

By challenging sites to explore how they currently assess and monitor the legitimacy of their workforce, the Scheme believes that in the not-so-distant future, all registered sites, companies and suppliers will have a routine in place. This will ensure that when they are questioned by the Monitor, they will provide a ‘standard’ response, intrinsic to their organisation.

The Scheme is in a prime position to effect real change amongst the industry and it is great to see that the CIOB’s CPD module ‘Stamping out illegal working on every site’ includes a question about the new Checklist.

Sites, sub-contractors and suppliers should establish a transparent culture whereby workers feel able to highlight to management when they have concerns over colleagues.

The recent recognition from the Government in how the Scheme is helping to tackle this issue also underlines the impact the Scheme will have. Immigration Minister James Brokenshire said: “Our work to stamp out illegal working involves close collaborative working with lead industry bodies. We are fully supportive of genuine efforts, such as this scheme, to drive compliance with the rules.

“Employers within the construction sector have a crucial and ongoing part to play in helping combat illegal working by ensuring they carry out the straightforward ‘Right to Work’ checks on potential employees.”

As ever, the need to continually drive improvement and progress within the industry means that much more still needs to be done.

While this is the case, it is really important to highlight that there are numerous examples throughout the Industry of tremendous improvements which have been made over the last decade in how construction values its workforce. Those registered with the Scheme [see Best Practice Hub for examples] have made significant progress in terms of establishing a supporting and caring working environment, by:

 

  1. Providing a workplace where everyone is respected, treated fairly, encouraged and supported.
  2. Identifying personal development needs and promoting training.
  3. Caring for the health and wellbeing of the workforce.
  4. Providing and maintaining high standards of welfare

Now is the time to tackle illegal working on sites. There has never been a better moment for the industry to rise to the challenge and ensure that checks for workers’ legitimacy become firmly entrenched within all construction activity across the UK; once again underlining that UK construction is at the very forefront of best practice.

Contributor: Robert Biggs is a Scheme Ambassador and Former Chairman for the Considerate Constructors Scheme.

Tags: illegal working, CCS, modern slavery,
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Association for Project Safety needs you to help shape, share & celebrate good practice.

Richard Wilks

President 

Association for Project Safety

 

Earlier this year, at the Association for Project Safety (APS), we proudly announced the launch of our ninth National CDM and Student Designer Awards.  With the deadline (31 May 2016 ) for final entries looming, I thought I'd take this opportunity to tell you a little bit more about the awards and why, if you work in the Design and Construction Health and Safety sector, you should consider entering too.

Before I get on to talking about the prestigious event, let me first tell you a little more about APS and what we do.

We're a professional membership body that offers guidance and support to 5,000 Members across the UK, in all areas of Construction Health and Safety Risk Management.  In fact, APS members are amongst some of the country's leading architectural, engineering, health and safety, project management and surveying professionals.  Our members are all required to maintain their skills, knowledge and experience by undertaking Continuing Professional Development programmes each year, which means APS members are some of the UK's most trusted, leading experts.  We're members of the Construction Industry Council (CIC) too.

We strive to continuously improve and promote professional practice, and our ninth annual National CDM and Student Awards will showcase the exceptional work happening in our industry.  They celebrate both current and future members of the Design and Construction Health and Safety sector, by rewarding examples of good practice, and providing people in the industry with a benchmark of success to work towards. 

Of course, although we are responsible for organising and hosting the awards, the National CDM and Student Awards are open to both APS Members and non-members, and so I'd strongly encourage you to enter. 

With nine different categories to enter, our awards are one-of-a-kind.  There are so many different award ceremonies and events within our sector for people to enter, however, these awards often only recognise the importance of Design and Construction Health and Safety through perhaps one or two dedicated categories.  Yet the purpose of our awards is to only recognise the important role of Design and Construction Health and Safety plays through each and every category - our National CDM and Student Designer Awards really are unique.

Entries are now open and will close on Tuesday 31 May 2016, with the short list of successful entries being announced in early September – so don't delay as there isn't long to go before the deadline. 

Judging will take place over the summer months by an expert panel of industry figure-heads, including the Health and Safety Executive. With such a vigorous judging process, you can be sure that if you win, your work is of the very highest standards and is quite rightly something for you to shout about!

The award ceremony itself will take place on Thursday 27 October at the Radisson Blu Portman Hotel in London.  The awards event promises to be bigger and better than ever before, with a high profile speaker, dinner, dancing and entertainment too; we look forward to welcoming our Members, as well as meeting some new faces at the event in October. It's going to be a great night.

And as if attending the awards evening wasn't celebration enough, all shortlisted entries will be invited to an exclusive reception at the House of Commons on the afternoon of the awards evening. Attending the event will be MPs representing the constituencies of the shortlisted candidates and Parliamentarians with an interest in the work and reach of APS across the UK.

If you'd like to submit an application, you can do so online via our website free of charge.  If you'd like more information about the awards, visit  www.aps.org.uk/how-apply  or call the team on 0131 442 6600.

We really do hope you'll take this opportunity to celebrate success with us and we look forward to seeing you in London soon.

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Renovating Mindsets; Deconstructing Myths - Do disabled people have a place in the UK construction industry?

Kevin Millin

Senior Quanity Surveyor

Beard Construction

After working in the industry coming up to 20 years, 10 of which I’ve suffered with health problems I needed help. The pain my condition (Fibromyalgia), with its complications (rheumatoid arthritis stage three - four in my legs and spine) causes, has steadily been getting worse; sleep is getting less and my ability to deal with it and still progress to my career goals, has started to seem further away than it feels it has ever been.

I’ve been lucky, my employers have been amazing; and while looking into what they can do to help me get back to the level I was and for the progression that was just in front to be achievable again; they have encouraged me to seek help and support externally too. But looking for this in the construction industry, has left me feeling more alone and less understood. One of the suggestions was to use this feeling to helping others in the same position. Both helping myself and to hopefully making the industry I love better.

I believe 100% that the construction industry is missing a massive opportunity for disabled people to work within it due to old thinking and myths and I want to do something about it.  As I have progressed through the years I have seen some of the old attitudes to certain parts of the demographics (thankfully many of which have now gone) whether it concerned more women entering the industry, your age  limiting how far you could progress,  to what country you came from, to name but a few. Now one of the final hurdles, we have yet to get over is how we deal with people’s health.

Unlike the other ‘perceptions’ this mentality still hasn’t disappeared with time, and it won’t unless, like other previously perceived conceptions within construction, it is challenged and something done to change it; and I know it can be done, because we have all seen it change for the better in other areas; so let’s tackle this one too. 

With the latest proposed cuts to assistance, the absolute desire for people to get in to work and the huge shortfall in professionals coming into the construction industry, surely this is a fit for everyone?

Contributor: Kevin Millin is a Senior Quantity Surveyor who has worked in the construction industry in various businesses since 1997.  He has been happily ensconced in his current role with Beard Construction for 2 years working on a variety of projects.  Kevin set up the LinkedIn Group ‘Disabled People in Construction’ and would welcome you to join the conversation.

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Housing a quality of life

Liz Drummond

Events, Communications & Marketing Manager

Construction Industry Council

For some time now we have known about the need for new dwellings and the lack of available homes. I certainly found this true when taking my first step on the property ladder a couple of years ago. With a deficit of starter homes we were among 40 other couples at a two hour open house. I am still surprised now that we actually managed to secure the property.  Since moving to our new home I have noticed at least four new housing developments and several new blocks of high rise housing in the area.  At the same time I have also noticed my once guaranteed seat on an already busy commuter train is a thing of the past.

I do not deny the fact that we need new homes for our expanding population, or in my case being priced out of London, but I just question if we are thinking about the bigger picture? Surely the infrastructure needs to be in place first for all these new homes?  Is there enough capacity on the existing public transport network, enough appointments at a doctor’s surgery, flood defences, places at a school? It feels that we are so wrapped up in the hows, whys and whens of building these shiny new homes (which apparently generation rent cannot afford to purchase anyway) we aren’t ensuring they are serviceable?

Some developments are fully encompassing mixed use developments with certain necessary amenities included but where we are putting a pocket of homes here or a new estate there, there isn’t always room to add anything else.

Government targets are to build 200,000 new homes a year until 2020 although it has been suggested this should be more like 250,000 to accommodate us all. Recent figures suggest that although we are at an 8 year house building high, the Government has fallen short of its target with only 143,560 dwellings being built. 

Yes we do need to focus on providing housing for a growing population and ensuring the quality of these new homes but when you have to travel miles for a school run or doctor’s appointment and then cram yourself onto a (delayed) train like a sardine for a 45 minute journey because it is your only option – what is the true cost to your quality of life once you are moved in?

Contributors: Liz Drummond is Events, Communications and Marketing Manager at the Construction Industry Council. 

Tags: Housing, Infrastructure,
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Priorities for Planners – CPD at the RTPI

Cat Goumal - Senior Education and Lifelong Learning Officer
Sarah Lewis - Planning Practice Officer 
 

Royal Town Planning Institute 

Over the last 18 months the Royal Town Planning Institute (RTPI) has been running a long term project focusing on the learning and practice needs of our members. This has resulted in the RTPI identifying continuing professional development (CPD) priorities for our members for the first time in our history.

Town and country planners have a unifying role and work at the crossroads of many social, economic and environmental issues and work with a wide range of people and organisations to create better places. The RTPI is here to give planners the best support we can; and the aim of this project is to ensure that the CPD resources we deliver cover the areas of knowledge, and help develop the skills, that planners need to do their jobs effectively. By making sure that we take a coordinated approach across all the many different RTPI activities it adds value to our learning opportunities and demonstrates to RTPI members and non-members the breadth of CPD we offer, as well as reaching new members.

The project started with a comprehensive review of the learning and practice needs of the planning profession. We have spoken to our members, collated feedback from attendees at our events, surveyed employers, and examined the results alongside recommendations from our policy and research work.

With the help of a member led working group we have analysed this information to identify eight key CPD areas for planners in 2015 - 16. These are:

 

Without doubt the 'housing crisis' is the most critical and talked about issue for planners working in the UK. However, the RTPI believes that resolving the housing crisis is about much more than numbers. It is about creating well designed, successful places and communities in which people want to live, that are also locally affordable.

Planners should also recognise the economic consequences of their decisions, using their understanding of how markets operate to ensure that development adds value by being economically sustainable, whilst balancing this against wider sustainability objectives.

The vital role that planning can play in delivering improvements to health and well-being is also now more prominent than ever. Planning can also contribute to a more equal, inclusive and cohesive society if places, facilities and neighbourhoods are designed to be accessible and inclusive for all. Further, the use of land has an impact on energy usage, either by the impact that the location of development and infrastructure has on demand for energy, or by using land as an energy source.

These key areas of knowledge need to be underpinned by key skills. Planners have a key role in communicating important but sometimes complex information in a way that a wide range of stakeholders can understand and engage with. Carrying out this process successfully involves understanding the political process that planners work within, and should be underpinned at all times by a strong code of professional ethics. This allows planners to act appropriately given the sometimes conflicting requirements of their employer, the needs of the individuals affected, the collective needs of the community and their own personal views.

The RTPI’s CPD policy requires all our members to complete 50 hours of CPD in each 2 year period. However, as the RTPI is a professional institute representing over 23,000 planners across all the UK nations and around the world, we can not be too rigid about what our members should cover in their CPD. However, we firmly believe the eight priorities we have set are the right ones that will address the key issues planners will face and need to tackle in the foreseeable future. The priorities we have identified are for the profession as a whole and should act as a starting point for our members when considering what they need to cover when writing their Professional Development Plan (PDP).

In our advice we stress that it is not just formal courses or qualifications that qualify as CPD, but can also include activities, such as research, volunteering for the RTPI, work based learning and online learning. Keeping up to date with our substantial programme of policy and research work covering the big issues in planning can also contribute to CPD. Our latest research published last week, on Planning as a market maker uses case studies from Germany, France and Holland and found when planning is provided with a proactive remit to utilise functions such as upfront investment in infrastructure and land assembly, planning can add value by creating certainty for market actors and boosting demand for development through the creation of place-quality. More information on RTPI policy and research work is available.

This is an ongoing project. It is helping the RTPI to become more joined up as an Institute it makes us better informed about our members, and our members better informed about their Institute. Based on these eight priorities the RTPI will continue to design and deliver a range of CPD and learning opportunities for our members for 2016. Visit the RTPI website at www.rtpi.org.uk/cpdpriorities for the latest information.

 

Contributors: Cat Goumal is the RTPI Senior Education and Lifelong Learning Officer and Sarah Lewis is the Planning Practice Officer at the RTPI. The RTPI is part of E4BE.

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Why does the RTPI champion diversity?

Trudi Elliott, CBE     

Chief Executive

Royal Town Planning Institute
 

There’s been a lot of talk about diversity lately. Whether it is equal pay for women, transgender equality or race at work, diversity is being discussed and championed across society, from the highest levels of government, to the UK Parliament and in offices across the nation.

Why now? It is clear the ‘times they are a changin’. Research shows that our cities are increasingly diverse and it’s not just the centre of cities’ which have historically been diverse areas. Increasingly, ethnic minorities are moving out of inner city areas to smaller cities, towns and suburbs. Ethnic minorities accounted for 80% of population growth over the past decade, taking their share of the population from 9% in 2001 to 14% in 2011. This demographic change will continue through 2040, when there is projected to be a 40% minority population, to 2070 when Britain will be majority non-white. 

Meanwhile lesbian, gay, bisexual, transgender and intersex people have never been more accepted or visible in the community. Marriage equality was legalised in England, Scotland and Wales in 2014 while the UK’s closest neighbour Ireland legalised it through popular vote in May this year. Transgender issues are being discussed in the mainstream like never before.

It’s great there has been so much progress but there is always more that can be done.

But what does this have to do with the RTPI? Like many organisations, the RTPI has had a long and ongoing commitment to equal opportunity and anti discrimination for its employees and those engaging with the organisation.

However, the RTPI is in a unique situation given the nature of the work its members undertake as planners. The RTPI considers diversity from a number of different perspectives:

 

  1. As an employer, like any other, not only supporting equal opportunity and ensuring anti discrimination but championing the diversity of its employees
  2. As the membership organisation of the planning profession and given the diversity of our cities, the profession should be representative of the communities they are shaping through planning and be aware of diversity throughout their work
  3. As a learned society with responsibility for maintaining professional standards and accrediting planning courses, ensuring that our spaces and places are inclusive for people of all backgrounds and cater to the needs of a diverse population

So what is the RTPI doing about diversity? The Institute has long been committed to equal opportunity and anti discrimination. Management and staff have fostered a workplace environment that is inclusive, caring and welcoming. The RTPI requires, through its Code of Conduct, that members in their role as professional planners do not discriminate on the grounds of race, sex, sexual orientation, creed, religion, disability or age and shall seek to eliminate such discrimination by others and to promote equality of opportunity

In The Planner I responded to one of our members who asked what we were doing as an Institute to support women in planning. 

The Planner is but one avenue the RTPI is using to champion successful women in the built environment (think Alison Nimmo on the cover of the August edition) and through a number of senior women across the organisation, including myself, the President, Directors and staff, the Institute has advocated for and delivered gender equality and worked with the female presidents of the Royal Institute of British Architects and the Royal institute of Chartered Surveyors to promote the message . We have also promoted the work of Women in Planning, a professional network of women working in planning.   

Meanwhile, the RTPI’s new pathways into the profession will mean those that would not have otherwise chosen planning as a career, perhaps because they were unable to attend university or have had a break in their career, will be able to transition into planning.

The RTPI plays a role in forming policy and shaping debate so its significant that many of the Institute's policy and research publications already deal with the issues around diversity. A recent blog on inclusive planning discussed why planning for everyone, regardless of age, ability, gender or background is important. Similarily, the RTPI's Planning Horizon's series look at the impact of demographic change in the twenty-first century and how promoting healthy cities is required to make cities more inclusive.

On top of its long term thinking and policy work, the institute has also produced a toolkit for helping integrate gender issues into plan making, guidance to deliver satisfactory services to gypsy and traveller communities and planning for an ageing population whcih are practical resources for planners.

The institure celebrates planning excellence annually through its Awards for Planning Excellence and, again, diversity is already found across the finalists, like Shree Swaminarayan Mandir and Whitechapel Vision Masterplan.

It is not just the RTPI that is acting on diversity. The wider built environment sector is building networks, providing support and contribting to diversity initiatives such as the Freehold network for LGBT people in the real estate sector, Women in Planning, or the Construction Industry Council's Diversity Panel in which the RTPI has had a longstanding involvement. There are many more terific initiatives across the industry.

Championing diversity isn't just about 'doing the right thing'. We've known for a while that its also good for society and business. And, more importantly, its about the RTPI's role in influencing policy, disseminating practice and shaping our communities so that everyone feel included.

Contributor: Trudi Elliott has been Chief Executive, Royal Town Planning Institute for 4½ years.Trudi has a wide-ranging and in-depth knowledge of planning, where she has worked in one capacity or another for the past twenty years. As Director, Government Office for the West Midlands, Trudi had responsibility for advising on large and controversial planning applications, managed the national planning case work on behalf of all government offices and advised on all aspects of planning, housing, transport and regeneration as they affected communities across the West Midlands.

Trudi has experience of working across all sectors – public, private and voluntary. Her previous roles have included Chief Executive of Bridgnorth District Council and Chief Executive of West Midlands Regional Assembly and West Midlands Local Government Association. She has also worked as a lawyer in both the public and private sectors.

@RTPIPlanners

 

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