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.
The tenant's role as "the work commissioner"
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 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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