Last month, the Forestry Contractors Association (FCA) made a formal request to the Forest Industry Safety Accord (FISA) that its 806 Welfare Safety Guide be withdrawn. The new guidance sets out the welfare requirements for forestry workers – including toilets, washing facilities and drinking water – which have been law since 1992. However, the FCA has called the guidance flawed and widely misinterpreted, with contractors being asked to pay the bill for welfare units they don’t need or want. Here, FCA chairman Donald MacLean sets out the case for it to be withdrawn and amended.

CONTRARY to an email originating from FISA, the FCA is not encouraging its members to break the law. That email was just a little bit of mischief-making from an organisation that is now struggling to maintain credibility.

The truth of the matter is simple, if a little less headline grabbing. FCA wrote to the FISA chairman Alistair Sandels raising our members’ concerns about the way the FISA 806 Welfare Safety Guide has been written.

We have misgivings about the accuracy of the interpretation of the law it purports to give us guidance on, namely the Workplace (Health, Safety and Welfare) Regulations 1992, and we are also concerned about its lack of clear practical guidance on how compliance can be achieved.

To be absolutely clear, the FCA welcomes any improvements affecting the health, safety and welfare of forestry workers. However, this has to be tempered with recognition of the significant practical challenges that need to be overcome when making them.

We can’t expect the legislature to do this for us. They know nothing about how our industry works. The Workplace (Health, Safety and Welfare) Regulations 1992 were written in the broadest of terms to cover the widest possible range of circumstances. It’s also true to say the legislation does not concern itself with the costs involved.

However, whether things are affordable, practical, or even possible is something that the industry most certainly has to deal with. This is the whole point of developing our own guidance. To be of value, such guidance should be unambiguous and fair to everyone in the supply chain. The FCA believes the FISA guidance note on welfare falls a long way short on both counts. That is why we have asked FISA to withdraw it until it is has been refined into something we can all support.

The lack of clarity could easily be addressed by acting on the significant amount of feedback provided by the FCA and also by incorporating the recommendations already agreed by the majority of the FISA steering group dating as far back as June 2019.

Unfortunately, the FISA hierarchy has done neither.

Consequently and predictably, we are seeing a wide variation of approaches to the welfare issue. At one end of the scale, we know of contractors providing facilities and invoicing their forestry works managers (FWMs) for them as a completely separate charge (a contract extra, if you will). The FWM then passes these extra costs on to the forest owner to reflect the additional costs of providing their service. This most closely reflects the model that was promoted and agreed by the FISA steering group. It certainly reflects the spirit of the proposal.

At the other end of the scale, we see the more traditional route being taken. The contractor is told “If you want this work, you’ll provide the welfare”, and not a penny in remuneration is offered.

Most concerning is that some of these variations don’t even comply with the legislation at all (depending on your interpretation, of course).

These wide variations prove the guide needs re-working, because both these situations (and everything in between) can be justified by someone’s own interpretation. This means that the weakest link in the supply chain, the contractor, can expect little protection when referring to it.

At this point it is worth reflecting on what was actually discussed and agreed by the FISA steering group in June 2019, before the welfare guidance was ever written.

A list of proposals was submitted to FISA by its chainsaw working group. They were radical, to say the least, and as they focussed on the safety of chainsaw operations, welfare was only a very small part of it. However, all of the proposals were agreed by vote of the steering group members. Of the 20 voting members present, there was only one vote against one of the resolutions (not the welfare one).

For your information, the resolutions are listed as follows:

1. That the two-tree-length rule needs to be applied more flexibly with a list of limited exceptions to be introduced.

2. Welfare cost is itemised and costed separately in contracts. Specifically, these would NOT be included within the usual contract rate per tonne, metre, hectare, etc.

3. Cutter costs be separately itemised, with contingency amounts agreed to allow flexibility to deal with unforeseen changes, allowing safer delivery of chainsaw operations.

4. All contracts to have a contingency sum of 10 per cent of the value, again to accommodate variations not agreed or priced at the planning stage.

5. The ‘worker’ should not be directly charged for forestry site welfare.

6. That professional bodies ensure that any service and sale contract should adopt these recommendations.

7. That chainsaw operators undergo six months on-site consolidation training PRIOR to undergoing assessment for the current chainsaw qualifications.

All seven resolutions were passed in June 2019. By September, we had the welfare guidance issued despite it not reflecting what was agreed. Of course, the other proposals have gone absolutely nowhere, which leaves you wondering who at FISA decides on priorities.

Contractors, and indeed many FWMs, are working to very tight, sometimes non-existent profit margins, so any extra operating costs will need to be passed on. This will require new money to be introduced to the system and such money can only come from the forest owner.

FCA does not accept that the forest owner can evade responsibility for these extra costs. Let’s forget about the legislation for a moment. The whole reason the proposals were accepted in June 2019 was in recognition of two things: that current systems weren’t working properly and that positive changes would have to be resourced. Improvements in health and safety (and welfare) all cost money, and without that money it can’t happen.

In the absence of additional resources, existing money will have to be diverted, leaving another gap somewhere else. What will we miss out? Preventative maintenance, planning, sufficient time to do the work safely, upgrading equipment, PPE, training, traffic management, environmental controls, income tax, national insurance? Sure, there are loads of things we can divert the money from, if we want to see standards drop even further overnight.

Returning to the legislation, regulation 4(2) of the Workplace (Health, Safety and Welfare) Regulations 1992 states that those who, to any extent, have control of a workplace must provide welfare facilities. I repeat: it is the FCA’s view that the larger forest owners, who have significant control over the workplace, cannot escape their share of this responsibility.

Unfortunately, the guidance as it’s currently written gives them a free pass, something they will use to their full advantage.

They will force this responsibility directly on to the contractor or the FWM, even though it is supposed to be a shared one. Sadly for the contractor, many FWMs will just adopt a similar approach and pass it further down the line.

This is why FCA has asked for the guidance to be withdrawn – not because we don’t believe in the welfare of our members.

The obvious solution was already agreed by the vast majority at FISA. We now need to stiffen up the resolution that was passed, to ensure that FWMs also get protection so that they can pass the costs up the supply chain instead of down.

All of this needs to be enshrined in the guidance. Then it will be fit for purpose.