The status of residents in the chain of responsibility for safety in the TAMA-38 project - difficulties and solutions
Aug 5, 2018
By: Asher Asban
Introduction by: Itzik Simon
From every angle and perspective, a TAMA 38 (1-3) project is unique, and probably unparalleled in the construction industry in terms of its scope and the surprises it entails. In this article, we are not talking about construction work in the middle of a dense, bustling urban environment, nor about the “abnormalities” arising from residents living inside an active construction site. This time, we will focus on the involvement and responsibility of the residents in a TAMA 38 project. As expected, even here, raising awareness and having a responsible/professional guiding hand—someone who knows how to relieve the residents of liability, as detailed in the article below—is essential.
In a TAMA 38 (1-3) project, a resident holds a “unique status” that may expose them to insurance, safety, and even criminal issues.
On one hand, the resident (through the residents’ committee) acts as the employer (the party commissioning the work); on the other hand, they are actually present on the construction site (like any worker).Safety regulations define everyone on a construction site as subject to all relevant safety laws and regulations.In other words, the resident must comply with, and be protected according to, all applicable Israeli legislation.
By: Asher Asban
Introduction by Itzick Simon
From every angle and perspective, a TAMA 38 (1-3) project is a unique project and probably unparalleled in the construction industry in its characteristics and the surprises it holds. This time, this article is not about construction work in the heart of a dense and bustling urban environment, nor is it about the 'abnormality' that comes from tenants living inside an active construction site. This time, we will deal with the involvement and responsibility of tenants in the TAMA 38 project. As expected, here too, sharpening awareness and a responsible/professional hand that knows how to relieve the tenants of responsibility, as detailed in the article below, are important.
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In the TAMA 38 (1-3) project, the tenant has a "unique status" that may cause him insurance/safety and even criminal problems.
On the one hand, the tenant (through the tenants' committee) serves as the one who orders the work, and on the other hand, he is actually present at a construction site (like any worker).
Safety regulations define everyone on a construction site as someone to whom all relevant safety regulations and laws apply.
In other words, the tenant must be protected as required by all relevant Israeli legislation.
The tenant's role as "the work commissioner"
Under the "work commissioner" hat, the tenant is actually burdened with a very heavy responsibility.
Let me clarify: A "construction operator" can be the person ordering the work (the tenants) or a "main contractor" who has been appointed as the "work operator" in a written agreement by the person ordering the work.
If the client (tenants) did not appoint a construction operator/main contractor, then in any event they will be deemed to be the responsible construction operators.
If the client (tenants) appointed a construction contractor, but the contractor was negligent in his work - did not instruct, did not supervise, did not appoint a foreman - then the insurer and the plaintiff may claim against the tenants that they chose a negligent construction contractor and, in addition, they also did not supervise his work.
Under the role of the “employer” (party commissioning the work), the resident actually bears a very heavy responsibility.To clarify: the “construction contractor” can be either the employer (the residents) or the “main contractor” who was appointed as the “construction contractor” in a written agreement by the employer.
If the employer (the residents) did not appoint a construction contractor/main contractor, they will, in any event, be considered the responsible construction operators.
If the employer (the residents) did appoint a construction contractor, but the contractor was negligent in their work—failed to provide guidance, did not supervise, and did not appoint a site manager—the insurer and the claimant may argue against the residents that they chose a negligent contractor and, in addition, failed to supervise the contractor’s work.
In light of the above, tenants (even if they are only the ones ordering the work) are subject to the following obligations:
· All residents will receive special safety training for residents of TAMA 38 sites.
· Appropriate safety procedures will be posted on the entrance walls.
· A separation of premises (ex-territory) will be implemented between the building under construction and the existing building.
· A WhatsApp group will be established with members from the tenants and the contractor. This communication channel is intended to convey important messages to the tenants, such as: regarding the installation of scaffolding, digging a hole, a path protected from objects at height, weather alerts, and the like.
· If there is a "supervisor" on behalf of the tenants, a special agreement must be signed with him that will assign to the supervisor the responsibility of supervising the contractor and the construction manager on his behalf.
· The contractor's insurance will cover the tenants as the person ordering the work, both in the normal insurance aspect (claims from victims, etc.) and in the non-normal insurance aspect – National Insurance substitution, criminal liability, etc.
· The inspector, on behalf of the tenants, will monitor and document his inspection inspections on site (general ledger inspection, crane inspection, scaffolding inspection, etc.), not professional inspections but inspections to verify that all of these issues were carried out by appropriate professionals under the supervision of the foreman.
· In a project where a safety supervisor needs to be appointed, it must be ensured that such a supervisor is on site and that his activities on site are supervised as required by the Ministry of Labor.
· Protection for tenants (in criminal matters) will only be available if the tenants prove that they did everything that a reasonable contractor should have done. It will not be possible to claim that the tenants' liability expired once they appointed a general contractor.
· For example, tenants will check (on the Ministry of Labor website) that the appointment of the project manager is valid throughout the construction work.
All residents will receive special safety training specifically for residents on TAMA 38 construction sites.
Appropriate safety procedures will be posted on the entrance walls.
A clear separation (ex-territorial zone) will be maintained between the building under construction and the existing building.
A WhatsApp group will be established, including the residents and the contractor. This communication channel is intended to provide residents with important updates, such as scaffold installation, excavation works, safe routes around falling objects, weather alerts, and similar notifications.
If there is a “resident-appointed supervisor,” a special agreement must be signed with them, assigning responsibility for supervising the contractor and the site manager on behalf of the residents.
The contractor’s insurance will cover the residents as the employer (party commissioning the work), both in standard insurance terms (claims by injured parties, etc.) and in non-standard terms—such as National Insurance deductions, criminal liability, and the like.
The resident-appointed supervisor will oversee and document their inspections on site (checking the general logbook, cranes, scaffolding, etc.). These are not professional technical inspections but are intended to verify that all matters are being handled by qualified personnel under the site manager’s supervision.
In projects requiring the appointment of a workplace safety officer, it must be ensured that such an officer is active on site and that their activities are supervised in accordance with the requirements of the Ministry of Labor.
Legal protection for residents (criminal liability) will only apply if the residents can prove they did everything a reasonable employer would be expected to do. It cannot be argued that the residents’ responsibility ends merely because they appointed a main contractor.
For example, residents must verify (via the Ministry of Labor website) that the appointment of the site manager is valid throughout the entire construction process.
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