Switzerland Update: Safety on construction sites: The revised construction work ordinance

On 1 January 2022, the fully revised Construction Work Ordinance (“CWO“) (1) will come into force.  In a major media offensive, Suva (Swiss National Accident Insurance Fund) is drawing attention to the forthcoming changes and trying to raise awareness of the issue throughout the construction industry. With good reason: the revised CWO creates many new obligations and tightens existing regulations. There is no transition period. It is therefore high time to get to grips with the revised CWO. 

What does the CWO cover?

The CWO defines safety rules that must be observed during any type of construction work. The purpose of the CWO is to increase construction site safety and to protect the health of all persons present on the construction site.

To prevent accidents, the previous CWO was extensively revised. The existing regulations were reworded, considerably supplemented and completely renumbered. For example, the CWO now contains the obligation to draw up a health and safety concept.

When does the CWO apply?

The material scope of application of the CWO is wide: as soon as something is erected, repaired, altered, maintained, inspected, dismantled or demolished on a building, the safety obligations specified in the CWO must be observed. This also explicitly applies to all preparatory and finishing work.

There will be no transition period. The new rules will therefore apply immediately from 1 January 2022 – even for existing construction sites. (2) From this date, a written safety and health concept must be available for every construction site and all increased safety regulations apply on the construction site. For example, ladders may only be used to a very limited extent, the term “limited penetration resistance” (beschränkt durchbruchsicher) will be abolished, safety nets or safety scaffolds must be installed above certain fall heights, and any changes to scaffolds must be pre-approved by the scaffold manufacturer. Suva’s brochure “Construction Work Ordinance 2022: What’s New” contains a good summary of important changes in the revised CWO.

Who is the CWO targeted at?

The personal scope of application of the CWO is also wide: the CWO is directed at architects, construction managers and contractors; in other words, all those who can influence compliance with occupational safety on the construction site. However, it is also directed at individual construction workers (e.g. general obligation to wear helmets).

Within the construction site organisation, the individual contractor is primarily responsible for organising the work assigned to him in such a way that his employees can perform their tasks safely. However, the larger the construction project, the higher the number of contractors and employees on the construction site. The overall coordination (the macro-management of the construction site) is the responsibility of the owner or his construction site manager, who must also carry out the work coordination as part of his overall supervision. This also includes the aspect of overall work safety on the construction site, especially in the interface area of the individual jobs. Only the owner or his construction site manager has a complete overview and can ensure overall safety on the construction site.

The obligation to prepare a written health and safety concept must also be seen in this context: Likewise to the overall site logistics (access and departure, unloading procedures, material storage areas, etc.), the construction management must also pay special attention to occupational safety. The health and safety concept should be worked out by the site management in consultation with the other project participants, communicated, repeatedly checked, adapted and communicated again. It is important that this is documented for evidentiary purposes. Finally, the owner or its construction site management must also react if they discover that safety regulations according to the CWO or according to the safety and health protection concept are being violated.

If a developer does not fulfil his duty to ensure health protection or does so only insufficiently, this may result in civil or even criminal liability. In any case, the construction management cannot discharge its own duty of care by merely referring to the faulty contractors in the event of an accident.

Who supervises on the construction site?

Compliance with the CWO is monitored by Suva. If Suva detects violations, it can, for example, increase the premiums for occupational accident insurance or even stop the construction work, which in turn can lead to considerable losses due to delays and corresponding liability consequences for those responsible. 

Civil and criminal liability

The violation of the CWO constitutes a breach of the duty of care in the form of a disregard of the rules of building practice and thus a breach of contract. If the culpable breach of the safety rules causally leads to losses, the culpable person (usually one or more contractors as well as the construction site management) becomes liable. In the case of gross negligence or intent, the professional liability insurance may also refuse coverage. This can happen, for example, if elementary safety precautions are deliberately not implemented for cost reasons. In each individual case, the individual insurance policy is decisive.

Most Federal Supreme Court rulings on violations of occupational safety regulations can be found in criminal law. In most cases, a conviction is pronounced for negligent minor or serious bodily injury or homicide. This happens when there is an injury to life and limb due to the disregard of safety regulations. The most obvious cases are those in which the accused person actively brought about the dangerous situation by active actions (e.g. removing safety precautions or issuing corresponding instructions). However, a failure to take action to eliminate a recognised danger can also be sufficient (e.g. when a safety net is removed from the scaffolds and the construction site management fails to have the discovered defect corrected).

Conclusion

Regardless of whether you are a developer, construction site manager or contractor: From 1 January 2022, you must comply with the new requirements of the revised CWO. It is therefore important to familiarise yourself with the new regulations in advance and to implement the necessary additional measures on existing construction sites. New obligations such as safety nets on scaffolding, the prohibition of stepladders above a certain height, the use of harnesses and many other tightening measures will have a direct impact on the organisation of construction sites. Proactive planning is therefore indispensable.

Footnotes:

(1) Ordinance on the Safety and Health Protection of Employees during Construction Work (Verordnung über die Sicherheit und den Gesundheitsschutz der Arbeitnehmerinnen und Arbeitnehmer bei Bauarbeiten), SR 832.311.141.

(2) Sole exception (Art. 123 revised CWO): Scaffolds or side protections with a top hold of at least 95 cm over the stand already in use may still be used after 1 January 2022.

By Pauline Pfirter & Raphael Butz, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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