Category: Construction

Introduction

As construction companies increasingly understand the importance of multiculturalism in the workplace, diversity has become an important concept of management. According to Gröschl and Bendl (2015), a diverse workforce is comprised of people with distinct or dissimilar characteristics. Usually, the concept of diversity involves the creation of a working environment characterised by the presence of people from different backgrounds.

Their varying characteristics may be in form of gender, race, religion, sexual orientation and education (among other socioeconomic variables) (Andrevski et al. 2014; Cumming, Leung & Rui 2015). Based on the view that diversity is a source of strength, United Kingdom (UK) construction firms are beginning to recognise the need to have people from different backgrounds work in their teams (Joyce 2016). Consequently, they benefit from good diversity management practices through improved reputation and operational performance (Bohnet 2016).

This study investigates the above issue through a review of gender representation in the UK construction industry. This sector is chosen for this analysis because of its significant contribution to the UK’s gross domestic product (GDP). A report by Joyce (2016) suggests that the industry contributes about £64 billion to the economy. The UK construction sector also provides employment to about 2.2 million citizens, meaning that it plays a pivotal role in maintaining the country’s social makeup (Joyce 2016).

Despite the important role of this sector in supporting livelihoods in the UK, it is surprising that it has the worst record in gender diversity not only in the UK but also in Europe (Leung, Chan & Cooper 2015). This paper explains the underrepresentation of women in the sector and why the problem should be tackled urgently. At the end of this paper, a set of recommendations will be provided to address the issue.

Explanation of Underrepresentation

According to the Planning, BIM and Construction (2019), one in five construction companies in the UK have no female representation at the management level. Consequently, it is reported that only 1% of the 800,000 employees who work in the UK construction industry are women (Planning, BIM and Construction 2019). The percentage of female representation increases to 18% if the analysis is widened to include industries associated with construction, such as surveying, architecture and planning, (Loosemore & Higgon 2015). These statistics are further broken down in figure 1 below, which shows that women barely occupy 40% of any subsector of the UK construction industry.

Figure 1 above shows that management and proprietorship services in the UK construction industry have the highest percentage of female representation (38.8%), while the least representation is observed in the construction and building trades sectors (0.9%) (Leung, Chan & Cooper 2015). These statistics underscore the imbalanced representation of male and female participation in the industry.

The gender gap between male and female workers in the UK construction industry has been partly equated to the presence of prejudices against women that exist in the sector (Leung, Chan & Cooper 2015). It is also reported that about half of all professionals in the industry claim they have never worked with a female manager in their profession (Leung, Chan & Cooper 2015). Statistics describing the composition of male and female involvement on-site construction work are even more surprising because reports show that up to 99% of women in this subsector are male (Du Plessis, O’Sullivan & Rentschler 2014).

This statistic is ironic to the acknowledged positive role played by women in the industry because it is estimated that up to 93% of employees in this sector do not feel threatened by female leadership (Du Plessis, O’Sullivan & Rentschler 2014). In fact, it is reported that some of them believe that having a woman as a leader is a positive thing (Dezsö, Ross & Uribe 2016; Opstrup & Villadsen 2015; Post & Byron 2015).

A different independent report prepared by the Planning, BIM and Construction (2019) after analyzing the gender composition of 399 boards of construction companies in the UK, showed that only 22% of the members were comprised of women. A deeper assessment of the statistics shows that 16% of the boards had no female representation (Du Plessis, O’Sullivan & Rentschler 2014). The low representation of women on the boards of UK construction firms has made some observers fearful that the industry could be eroding the gains made in gender representation across multiple economic sectors in the UK (Triana, Miller & Trzebiatowski 2014). Consequently, it is unsurprising that about half of all construction workers in the UK report never having worked with a female manager (Du Plessis, O’Sullivan & Rentschler 2014).

The lack of gender diversity in the UK construction sector has been partly explained by reports which suggest that about 48% of women in the industry have experienced some type of sexual discrimination at work (Joyce 2016). The most common behaviour is the use of inappropriate comments to describe women’s work. This observation signifies the presence of wrong attitudes towards equality and diversity in the UK construction industry (Murray & Dainty 2014). Part of the problem has been traced to the failure of existing companies to modernise their human resource practices (Ranstard 2019). In other words, they are deemed resistant to change.

The construction industry poses unique challenges to women because of wrong attitudes about female leadership. The lack of adequate resources for adopting progressive recruitment practices and negative social perceptions about the role of women in the workplace have further worsened the problem (Murray & Dainty 2014). Nonetheless, one of the main challenges that impede female participation in the industry is the risk of injury (Joyce 2016).

This issue makes women more vulnerable to injury compared to their male counterparts because of the perception that they are the “weaker sex.” Furthermore, many construction safety equipments are designed with the assumption that men are the main users. Therefore, in addition to the perceived physical weakness of women in the workplace, they suffer a higher risk of injury compared to their male colleagues.

The low level of gender diversity in the UK construction industry has created a wide pay gap between men and women. According to Owen (2019), women earn about 95% of what their male counterparts do. The statistics are deemed to be worse for women who come from minority groups because they only make 81% of what their male counterparts do for the same work (Planning, BIM and Construction 2019). This problem is worsened by the lack of proper female mentorship programs in the industry because few women have had a lasting impact on the sector. Therefore, upcoming female professionals lack the guidance that their male counterparts have enjoyed for decades from those who came before them.

Why Underrepresentation is an Issue of Concern

Although many organisations understand the importance of diversity, few of them make it a priority in their business case development projects (Byrd & Scott 2014). The problem is partly caused by the desire to address “other” business considerations that have a direct impact on return on investments. This management approach is detrimental to the vision of having a dynamic workforce because shareholder maximisation interests often supersede those of diversity management. Most human resource departments overlook this fact and formulate policies that promote diversity, hoping that management would support such initiatives (Rabl et al. 2014).

However, such initiatives fail because they are focused on supporting predictable corporate practices that have a high potential for profits (Cooper, Patel & Thatcher 2014). This strategy makes underrepresentation a big problem for most organisations.

As highlighted in this paper, the underrepresentation of women in the UK construction industry is deemed to be the worst of any sector in the country. Furthermore, according to Balfour Beatty PLC (2019), the UK’s performance, in terms of gender balance, is the worst in the European Union (EU). These statistics are a major cause of concern because they overlook female talent. The exclusion of women in social conversations and the board composition of construction companies also create a toxic culture that undermines team work because of the difficulty in creating synergies in such environments (Roberson, Holmes & Perry 2017).

The unconscious bias and ignorance about female leadership in the construction industry also portends serious negative ramifications on the industry by breeding contempt among male workers regarding female competence in leadership.

The lack of balanced representation between men and women may also be problematic for organisations that want to build cohesive teams because it builds mistrust between male and female colleagues. Furthermore, some female workers may hesitate to give their views regarding certain industry actions because of the fear of being misjudged, abused or undermined. Therefore, they may choose to withhold their views even though they may be beneficial to the overall development of a project (Mir & Pinnington 2014). Such an outcome erodes the quality of decisions made in the workplace (Zhang & Qu 2016). Therefore, the failure to include more women in the workforce may create an incompetent team that fails to analyse issues through logic and instead support a patriarchal model of decision-making that may be subject to bias.

The lack of diversity in the UK construction industry could be problematic to the future sustainability of the sector by limiting its potential to adapt to changing dynamics in the labour market. For example, companies that do not promote diversity may lose their competitive edges to those that can demonstrate the applicability of this concept in their corporate practices (Mir & Pinnington 2014). The failure to apply progressive diversity management practices may also limit the uniqueness of thought that women bring to corporate boards, thereby undermining the quality of decisions made. Companies that are resistant to this type of change are also linked to poor financial performance and low levels of innovation (Yeazdanshenas 2014).

The UK construction industry could suffer from the same problem because a male-dominated sector means there is little room for alternative inputs or thoughts. In this regard, these companies are not able to leverage diversity for optimal corporate performance. By failing to accommodate perspectives on female leadership in their decision-making processes, most construction firms may suffer from the inability of managers to evaluate information accurately and comprehensively.

Conclusion

Although this study has highlighted the depth of female underrepresentation in the UK construction industry, it is important to contextualise this problem as one that affects most fields or industries that demand intense technical skills. For example, other sectors that have a poor gender diversity profile include the sciences and tech-industries (Sonja 2014). Although progress towards gender balance remains problematic and slow, there is hope that the future would see more female representation in some of these male-dominated fields. However, to accomplish this goal, there is a need to adopt more progressive recruitment policies and initiative attitude changes in the industry as explained below.

Recommendations

There is a need to introduce new regulations in the construction industry that would see equality taken more seriously in the workplace. This recommendation emanates from the view that it is more difficult to implement an attitude change than formulate a policy to guide human behaviour in this industry. The potential to realise a gender balanced composition of workers in the construction industry is not far-fetched because six construction firms in the UK have managed to achieve this objective. These companies are either led by women or have an equal number of gender representations in their boards.

For example, Renishaw PLC has more women (70%) sitting on its board compared to men (Planning, BIM and Construction 2019). Therefore, as part of the solution to addressing the gender divide in the industry, the public should be sensitised about the problem, as done by the management of Renishaw Company (Planning, BIM and Construction 2019). They move across schools and universities in the UK trying to increase the interest of young women about the construction industry and how to address the gender divide that exists in it.

There also needs to be a more collaborative effort among all stakeholders in the construction industry to address the gender gap because everybody needs to be involved in the process of overcoming stereotypes that have consistently barred women from ascending to high levels of management (Galea, Powell & Loosemore 2015). For example, human resource agencies need to be involved in the process to provide professional guidelines on how to achieve gender diversity. Already, some human resource departments have made attempts to advise some companies on how to realise this outcome, as observed in the report authored by the Planning, BIM and Construction (2019). Similarly, the multinational human resource agency, Ranstard (2019) has made significant progress in this regard.

Lastly, there is a need to change people’s perception of female leadership and involvement in the construction industry because the negative attitude held by the general populace that the industry is a male-oriented one is fuelling the problem. For example, the report by Planning, BIM and Construction (2019) showed that only 13% of women in the UK would consider pursuing a career in the construction industry.

This problem stems from the misconception that the jobs available in the industry are physically demanding and that women cannot compete with their male counterparts. However, this is not always the case because there are many other roles available for women in the industry, such as procurement, surveying, health and safety that can be done by women. However, few people are aware of these opportunities. Therefore, they need to be sensitised about them. Collectively, these efforts would improve gender diversity in the industry.

Reference List

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Introduction

Holography is a procedure used in forming holograms. Holograms are recordings of images formed when two light beams meet. The recording occurs in a photosensitive emulsion of photographic material (Collier 100). In this technique, a laser produces one beam while the other is produced from the same laser but first strikes an object, which alters it before hitting the photographic film. Today holography has been widely used in artwork and advertisement.

Differences between photography and holography

Holography differs from normal photography in that it gives details of an object in a three-dimension perspective while photography provides details of an object only in a two-dimensional perspective. The recorded image in holography gives details of both depth and parallax. The recordings made in holography include details such as the phase of the wavefront and amplitude (Pedrotti F. and Pedrotti L. 400). However, in photography, only the radiant energy is recorded and therefore details of phase distance and amplitude are lost. Photography makes use of a lens to focus the object into a film. By contrast, a hologram is not an image of the object but a recording of the complete signal wave.

Construction of holograms

Holograms can be made either from a point source or from an extended object. In a point source, plane wavefronts of coherent, monochromatic strike a photographic plate. Moreover, spherical wavefronts are viewed at the plate after being dispersed from the object. At the end of the process, the formed plate reveals a series of concentric interference rings about the center (Pedrotti F. and Pedrotti L. 401). The formed plate is known as a Gabor zone plate. The transmittance in the Gabor Zone plate is expressed as , where A, B, and a are constants and r is the radius.

When forming a hologram from an extended object a lens and pinhole are both utilized to enlarge the beam from the laser. A reflecting plate separates the enlarged beam to form two coherent beams (Collier 120). Two plane mirrors direct the reference beam onto a photographic plate while the other beam reflects from the object at the plane of the plate. Some of the beams also hits the plate where it interferes with the reference beam to form a hologram. The reference beam is represented by the electric field as

One of the distinct properties of a hologram is that the hologram gets light from each part of the object in the setting. This implies that any part of the hologram has similar details as those from the object (Pedrotti F. and Pedrotti L. 402). The hologram has several exposures, each formed at different angles relative to the reference beam and with specific light wavelengths.

Applications of holography

Nondestructive testing is a method used to establish maximum stress points on an object when pressure is enforced (Pedrotti F. and Pedrotti L. 406). The sensitivity of this method has been illustrated in various holographic recordings such as compressional waves associated with a speeding bullet.

Holographic interferometry is applied to examine vibrating surfaces, where the object under investigation is in a continuous motion during exposure of the hologram. The pattern of interference fringes gives details on the relative vibrational amplitude. The measurements of vibrational amplitude help know the modes of vibration of complex systems. Holography is also useful in data storage (Collier 125). Holograms can be used to store huge amounts of information.

Works Cited

Collier, Robert. Optical Holography. New York: Academic Press, Inc., 2013.

Pedrotti, Frank, and Leno Pedrotti. Introduction to optics. England: Pearson Education Limited, 2014. Print.

A plain or plane, two-dimensional enclosed object that is bounded by straight lengths and does not have sloping sides is referred to as a polygon: this definition comes from the field of mathematics. The corners or vertices of a polygon are the positions where two of the lines of the polygon intersect. A polygon’s sides are sometimes referred to as the polygon’s edges. Polygons can be either regular or irregular: a regular polygon is one in which all sides are the same length and at the same angle. In contrast, an irregular polygon is one in which the dimensions and proportions of the angles and sides vary.

Discussion

In constructing the 8-sided polygon, it is recommended that an individual begins with drawing its sketch. Sketches are a valuable tool for communicating ideas, illustrating functionality, visualizing user flow, and demonstrating anything else that involves human interaction. With the sketch, it would be easier to construct the polygon. The following points should be noted before constructing the Octagon.

The following formula would be put into practice to calculate the angle between the edges (interior angle).

To obtain a single interior angle, then

As illustrated, the following steps can be used to construct an 8-sided polygon. For this illustration, a length of 6 centimeters was chosen.

Step 1

The first phase is to draw the baseline AB that would act as the foundation for constructing the Octagon.

Step 2

At point A, angle 135° is constructed, and a measurement of 6cm is taken to obtain line AH. In constructing angle at point A, it will be prudent to construct angle 120° then bisect the remaining 60° to obtain angle 135°

This step would be necessary for the remaining interior angles since the Octagon is regular.

Step 3

Extend line AH past the 6cm point and construct angle 135°. The same illustration for constructing angle 135° as done in step 2 will be repeated here to generate line GH, as shown in the image below.

Step 4

At point G, angle 135° is constructed, and a measurement of 6cm is taken to obtain point F and, consequently, line GF.

Step 5

At point F, construct angle 135° as illustrated in step 2 and measure 6cm to obtain point E and consequently have line FE.

Step 6

At point E, the same procedure carried out in constructing the interior angle 135° would be repeated in this section to obtain point E and line ED as demonstrated in the preceding image.

Step 7

At point D, another angle 135° is constructed, and a measurement of 6cm is taken on its length to obtain point C and line DC, as shown in the image below. It is crucial to note that all through angle 135° is constructed because Octagon, a regular polygon, has its interior angles equal.

Step 8

At point C, the interior angle 135° is constructed, and likewise, a measurement of 6cm is taken to have line CB as demonstrated in the image below. It is worth noting that the distance between points C and B after constructing the angle 135° automatically becomes 6cm. Joining points C to B would give the complete Octagon, which was the paper’s aim.

The last image is the complete construction of the 8-sided polygon (Octagon). If the properties mentioned above are incorrect or not followed during construction, then the image constructed would not be a regular polygon. As insinuated in the opening paragraph, a regular polygon’s sides and interior angles must be of the same length and degrees, respectively.

Executive Summary

The proposed change to the 457 Visa Program is historically progressive. It will benefit the government, the industry players, and workers (both Australian Nationals and temporary immigrants). They will enjoy better treatment and wages. However, the discussion is spiraling into a tug of war full of uninformed rhetoric with dangerous political overtones. Hence, Management Foundations Construction should take decisive steps aimed at calming and assuring its employees. These include team building, workshops, and communication of organizational stands. The risks associated with the program should also inform the CEO of Management Foundations Construction in promoting a stand. The short-term may have disruptions such as industrial actions, but the benefits in the long-term, such as healthy competition in the construction industry, outweigh the disruptions.

Introduction

Since its inception in 1996, the 457 Visa Program was intended to cure employment scarcity. For a period of five years, the program was also used as a labor-testing tool. In 2001, this was abolished (Junankar, Satya & Wahinda, 2004). Subsequent governments have maintained the 457 Visa Program as it was in 2001 until recently (Hubbard & Tham, 2013). The government seeks to reintroduce the labor-testing clause to the program. The reintroduction is meant to instill fairness in hiring and to remedy a burgeoning unemployment situation. However, the government’s initiative, though pristine in its endeavor, has been dogged with rhetoric. The manner in which the initiative has been politicized is threatening to spiral into a debate about xenophobia and racism. The temporary workers covered in the 457 Visa Program are few compared to other immigrants such as New Zealand nationals and international students (Hubbard & Tham, 2013). Hence, the critics’ standpoint that the government is racist and xenophobic is overblown.

It is also true that the government is culpable in politicizing the affair. Understandably, the employment of Australian nationals should be the main concern of the government. It is also true that the government should be concerned with the possibility of misuse of a program whose agenda was to enhance internationally accepted labor standards and practices in Australia (Hubbard & Tham, 2013). However, the manner in which the government is driving this message home is wont to disenfranchise a particular section of the population. The construction industry is particularly culpable. Most of the immigrants under the 457 Visa Program work in the construction sector (Hubbard & Tham, 2013). Figures indicate a growth of over 70% between the years 2010 and 2011 among immigrants in the construction industry (National Visas 2013). Owing to the debate surrounding the program, the CEO of Management Foundations Construction is not sure about the modus operandi. This paper will provide a perspective to the CEO weighing both options with particular regard to the construction industry. Among other things, the paper will explore risks in the short-term and long-term, recommendations, and detail an informed analysis. It will use the illustrations of two Australian companies in this endeavor.

457 Visa Program – Construction Industry

As noted earlier, the construction industry is the main beneficiary of the 457 Visa Program. The number of temporary immigrants working in the sector has been growing at an average of 50% since 2001. It is instructive to note that in 2001 the labor testing of the 457 Visa Program was repealed. The growth is occasioned by growth in the industry and the economy at large. Additionally, the growth can be occasioned by the government’s assertion that the temporary immigrants and the employers are in cahoots in exploiting the generous 457 Visa Program (National Visas 2013). The Government is pushing for the reintroduction of the labor-testing clause, particularly for this reason. The clause will restrict employers from hiring a temporary immigrant if an Australian national who is readily available can fill the position.

The construction industry is already feeling the pinch owing to the growing calls for industrial action to stop the government from enacting this clause. Although official numbers may not be readily available, industrial observers are reporting an already reduced number of immigrants seeking work. Reeling from this pinch, the industry is already starting to accumulate jitters as to the full impact of the end to this seemingly endless tug of war. However, industry players of good faith should welcome the discussion because it will heal existing malpractices whose evidence cannot be readily available. It is a possibility that the players in the industry are using the 457 Visa Program to gain undue advantage in tendering. This brings unfair competition. The CEO of Management Foundations Construction should actively participate in the discussion highlighting the positives. However, the CEO should have a clear understanding of the long-term catastrophic dents it will leave in the human resources department. The administrative costs will skyrocket as organizations grapple with a possible employee go slow. The supply for labor will also be hurt. Projects already underway may experience serious delays and contracts may have to be reviewed to reflect drastic changes in the costs structures.

457 Visa Program – Opportunities

The discussion regarding the 457 Visa Program has been intense in the past seven months. The government’s stand is that labor malpractices must be curtailed. This remains to be the gist of the program. The construction industry is the main beneficiary of the program. The education system in Australia does not train sufficient workers in this field. Additionally, trained and highly skilled Australians demand high and unsustainable wages. This forces organizations to hire externally. To do this, they use the 457 Visa Program as the gateway. Owing to the benefits of hiring a temporary worker from outside, the organizations occasionally misuse the program to gain undue advantage. This breeds unfair competition because it leads to lower bids for tenders among other injustices to hurt competition. Additionally, it gives undue advantage to temporary immigrant workers over the Australian nationals. Therefore, the discussion is good as it is likely to lead to permanent cures to these malpractices. It will introduce a straightforward way to vet immigrant workers to reduce cases of unskilled workers doing work that is not fit for them. It will also tame the wayward behavior of Australian nationals in their demand for high and unsustainable pay. Hence, if the antagonists can find common ground, the 457 Visa Program is beneficial to all and the discussion is good (Junankar & Mahuteau, 2005).

457 Visa Program – Involvement

The CEO of Management Foundations Construction should be actively involved in the discussion. His stand should be that the program makers had a clear intention of instilling fairness in labor. In addition, the CEO should impress upon workers the loopholes in the current version that allows unfairness in labor. These loopholes are also unfair to workers if the government’s allegations are true. The 457 Visa Program may allow competitors to hire unskilled temporary workers cheaply at the expense of skilled workers who are either resident in Australia or not (Australia Immigration 2013). The program has always intended to supplement skills not replace them. After this clarion call, the CEO should forge ahead with a strategy aimed at ensuring everyone tones down on the rhetoric, which is likely to distort the intended cause. The CEO, for example, can write newspaper commentaries that are rubber-stamped by the construction workers’ union to let everyone understand the government’s intention and workers’ take. This will diffuse any accusations of a passive look to a sensitive situation and will enhance employee trust and motivation (Junankar, Satya & Wahinda, 2004).

457 Visa Program – Adjustments in Organizational Behavior

Employees will choose sides regarding the proposed changes to the 457 Visa Program. It is a damning situation as whichever side an employee chooses in light of the emotive nature of the discussion will not look good to the other side (Design-Build Source 2013). An employee who chooses to side with the government will be painted xenophobic and racist. An employee who chooses to oppose the changes will be labeled conservative. Organizational relations are likely to frosty in the short term and uncomfortable in the long term. Management Foundations Construction will have to adjust organizational behavior. The CEO will most likely have to organize seminars that try to bring harmony to the team. Additionally, team-building activities will ensure that there is a united front of the organization. This will drive administrative costs up. In case the proposed changes sail through, the company will have to hire more expensively. Management Foundations Construction will have to be careful in handling cases of xenophobia and racism, as Australian nationals are likely to overbear their immigrant counterparts. The CEO will also have to devise a way to motivate immigrant workers whose morale will drastically reduce because of a feeling of nostalgia associated with been labeled ‘second tier employees’ (Design-Build Source 2013).

457 Visa Program – Short-term Risks and Benefits

Already, there are numerous signs of possible risks. Experts in the issue are already saying that immigrant workers are canceling visas to watch the developments. In the short term, there is likely to be a shortage of workers (Design-Build Source 2013). The motivation levels at also likely to be quite low. Go slows and industrial actions are already in the offing as civil society groups and workers’ unions start to take sides. Individual organizations such as Management Foundations Construction are experiencing a possible delay in projects. As employees take either side in the discussion, tension will be felt among them. It is possible that operating budgets will burgeon to unprecedented levels, which will lead to short-term financial strains in some companies. There are likely to be short-term benefits owing to already existing political overtones, accusations, and counter-accusations that restrict a healthy discussion. The government is keen to ensure the change. Hence, in the short term, one side will definitely feel disenfranchised (Nasu, 2008). It will also push the already existing immigrants out at the slightest availability of an employment opportunity elsewhere. This will paint the government and Australia in a bad picture.

457 Visa Program – Long-term Risks and Benefits

The risks in the long term do not stand out much. The adjusted 457 Visa Program that brings back labor testing is beneficial in its intent but disruptive in the short term. The possible misuse of the program to gain undue advantage over competitors will be eliminated (Australia Immigration 2013). This happens because temporary immigrant employees’ skills do not need verification. Additionally, since an employer will have to hire both Australian nationals and immigrants (optional, depends on whether a nation is unavailable), wage harmonization will be realized to the benefit of all employees.

This will eliminate a situation where companies can hire 100% temporary immigrants and pay them cheaply despite been as skilled as the Australian nationals will they overlook. The benefit will also extend to the government and the economy. The government will have cured (albeit partly), the problem of unemployment. The economy will enjoy a boost of a large section of the population with a new impetus to purchase. The main disadvantage is that industries affected will have to increase their costs of doing business to factor in higher wages. In addition, the human resources administration costs will increase as organizations grapple with possible rifts associated with inferiority and superiority complexes emanating from immigrants and Australian nationals respectively. Lastly, although far-fetched, racism and xenophobia may define work relations in the future. This may drive away immigrants to other countries that will deny Australia much-needed skills (Migration Alliance 2012).

457 Visa Program – Recommendations

It is my recommendation to the CEO of Management Foundations Construction to view this discussion positively. The main spoiler of the discussion is the rhetoric from politicians, media, and the government at large. The aim of the Proposed Bill that seeks to prioritize the employment of Aussies is pristine. This has been the intention of the 457 Visa Program since its inception anyway (Kneebone & Hay 2009). The program was supposed to inject skilled workers in a situation where such skills were temporarily inadequate within Australian nationals. Discussions emanating from Management Foundations Construction should be meaningful and communicated to employees. The CEO should reiterate the importance of every employee in driving the company agenda. Additionally, it is crucial for the company to let the employees understand that no employee is superior to the other and promote equality. The company will weather the 457 Visa Program potential dangers with such assurances and direct stands.

Conclusion

The 457 Visa Program was intended to benefit the Australian labor set-up during its inception. It would inject skilled temporary workers to fill gaps in employment. However, the repeal of a clause that sanctioned labor testing in 2001 has created loopholes that companies use for labor malpractices, in view of the Government. Hence, the government wants to reintroduce the clause amid growing discord from critics and unending rhetoric from media, politicians, et al. Management Foundations Construction, a company in the midst of the storm, should take a decisive stand and promote the change. The government’s strong stand and the faultless nature of the change should be crucial in rendering support. The company should do this by understanding fully the short-term and long-term risks. The short-term risks may be disruptive but the long-term benefits outweigh these disruptions (Rynes, Gerhart & Minette, 2004).

Reference List

Australia Immigration 2013, Changes to the Subclass 457 program, Web.

Design-Build Source 2013, Construction Industry Needs 457 Visas, Web.

Hubbard, L & Tham J 2013, 457 visa scheme: time for a proper debate, Web.

Junankar, R & Mahuteau, S 2005, ‘Do Migrants Get Good Jobs? New Migrant Settlement in Australia’, Economic Record, Vol. 81, No. S1, pp. S34-S46.

Junankar, R, Satya, P, & Wahinda, Y 2004, ‘Are Asian Migrants Discriminated Against in the Labor Market? A Case Study of Australia’, Harvard Journal of Law and Public Policy, Vol. 33, pp. 607-638.

Kneebone, S & Hay E 2009, ‘Refugee Status in Australia and the Cessation Provisions: QAAH of 2004 v Mimia’, Alternative Law Journal, Vol. 31, No. 3, pp. 147-152.

Migration Alliance 2012, Flexible visas ‘key’ to meeting construction demand, Web.

Nasu, H 2008, ‘Reform of Subclass 457 Visa Scheme: Proposal of Three Models’, Alternative Law Journal, Vol. 33, No. 3, pp. 147-150.

National Visas 2013, 457 Visa Scheme Filling the Gaps on the Construction Sector, Web.

Rynes, S, Gerhart, B, & Minette, K 2004, ‘The importance of pay in employee motivation: discrepancies between what people say and what they do’, Human Resource Management, vol. 43 no. 4, pp 381-394.

Introduction

Different instruments such as insurance policies and surety bonds have been developed in an effort to assist individuals and institutions in managing risks (Grovenstein et al. 356). Surety Information Office argues that how “one evaluates and manages risk on construction projects and makes fiscally responsible decision to ensure timely project completion is critical for success” (1).

Project owners ensure that the selected construction contractors do not fail. Surety bond is one of the instruments used in managing risk within the construction sector (CNA Surety 2). The surety bonds are a source of assurance regarding the completion of construction projects (Bouteiller and Coogan 66).

The demand for surety bonds and trade credit insurance within the emerging economies such as China has increased exponentially over the past few years. The demand has arisen from China’s rapid investment in diverse construction projects in an effort to improve its infrastructure (Middlehurst par. 3).

Subsequently, the demand is expected to be sustained into the future (Swiss Re par. 2). The International Credit Insurance & Surety Association corroborates that the “demand for trade credit insurance and surety bonds is on the rise as a result of increasing trade flows, mostly from high growth markets in an overall ongoing deteriorating risk environment” (p.1).

Therefore, the need for skilled underwriting in the construction industry is high. This study entails a comparison of the construction surety bond and construction insurance.

Literature review; a comparison of construction surety bond and insurance

Surety Information Office defines a construction surety bond as “a risk transfer mechanism where the surety company assures the project owner [obligee] that the contractor [principal] will perform a contract in accordance with the contract documents” (2).

Construction projects should adhere to the set budgetary allocation and period. Failure to adhere to these parameters may expose the project to various risks such as increment in the cost of the project due to the different external variables such as economic fluctuations (Akitonye and Zawdie 233).

Therefore, construction surety bonds are designed to prevent project owners from financial and resource related risks that might occur during the construction (Cummins 25). Consequently, surety bonds play a fundamental role in strengthening the liability relationship between the contractor and the project owners, which increases the likelihood of successful project completion (Dunn and Sedgwick 15).

Types of construction surety bonds

Three main types of surety bonds have been developed, viz. the performance bonds, bid bonds, and the payment bonds.

Performance bonds

These bonds are designed with the objective of “protecting project owners from financial losses that might occur in the event that the contractor fails to execute the project in accordance with the predetermined terms and conditions of the construction contract” (Kelleher and Abernathy 466).

Bid bond

The selection of construction contractors is undertaken through a bidding process. The bid bond is a “guarantee that the contractor has submitted the bid in good faith” (Russell 264). Therefore, the contract between the contractor and the project owner will be based on price bid in addition to providing the payment and performance bonds as required. The bid bond should accompany the bid proposal (Jenkins and Wallace 5).

Payment bond

This bond is an assurance of the surety’s commitment to pay the specified project participants such as labourers, subcontractors, and suppliers in case the principal [contractor] does not make the necessary payment (Schwartzkopf and Tasker 54). The payment bond provides the project participants an opportunity to file a legal claim against the surety without involving the project owners (Schwartzkopf and Tasker 83).

Labor salary guarantee bond

This bond guarantees the project owners that the principal [contractor] will be committed in paying the required salaries in executing the project (Atkin, Borgbrant and Josephson 81). The surety takes the obligation to make labor payment in the event of the contractor failing to make the necessary payments.

Construction insurance

Kelleher and Currie (439) emphasize that insurance is an essential component in construction project planning as it provides an avenue through which project owners can cover potential losses in addition to minimizing disputes amongst diverse project participants. Construction insurance is considered to be relatively complex and highly specialized (Cushman 45).

Furthermore, changes occurring in the insurance industry are stimulating insurance companies to revise their policy language in order to streamline construction insurance.

Bunni defines construction insurance to include “all contracts of indemnity within the activities of the construction industry where insurance is chosen as the medium through which liabilities are shifted” (181). Construction insurance encompasses numerous branches of insurance, professions, and disciplines (Seifert 63).

In order to succeed in offering construction insurance, it is crucial for insurers to develop a comprehensive understanding of the complexities and intricate challenges associated with different aspects such as building, mathematics, and engineering (Hess 56).

Such understanding will increase the effectiveness of insurers undertaking statistical, economic, and probability calculations (Sido and Cushman 154). Cameron (82) is of the view that construction insurance is concerned with providing cover against diverse construction perils.

Construction insurance is based on a number of characteristics, which distinguish it from other forms of insurance (Moelmann and Harris 46). First, the contractor must complete the construction project despite the difficulties that might arise.

This requirement is specified in the terms and conditions of the construction contract. Secondly, construction projects involve vast amounts of money, which means that the cost of failure is very high.

Types of construction of insurance

Different types of construction insurance have been developed as evaluated below.

Builder’s accident and injury insurance

This insurance covers the project owner against potential expense, loss, or claims that might arise from accidents or personal injury that the project participant might experience in the course of executing diverse project tasks.

Glaser, Piskorski, and Tchistyi assert that builder’s accident and injury insurance specifies the contractor’s liability to cover the project owner against personal injury or loss of life that might occur during the construction process (187). However, the contractor is not obligated to assume the liability if the injury is due to neglect by the project owner (Levine and Haar 435).

Construction quality guarantee

Contractors have an obligation to ensure that the construction project outcome is of high quality. One of the ways through which this goal can be achieved is by adhering to best construction practices. The construction-quality guarantee insurance protects the project owner against losses that might arise from the contractor’s failure to adhere to quality standards.

Liability insurance

This is a specialised form of property insurance that is designed to protect project owners from risks such as physical loss and damage to property that might occur during the construction process.

Professional liability insurance

This type of insurance is designed to protect the project owner against liabilities or losses that might originate from the contractors ineffectiveness, for example, due to errors and omissions. The error and omissions policy vary from one industry to another.

In the construction industry, engineers and architects acting as consultants develop the errors and omission policy. Subsequently, the policy safeguards engineers and architects from possible errors and omissions that might be committed by the contractor.

Construction surety bonds and construction insurance

Different countries have appreciated the importance of protecting various stakeholders involved in the construction industry due to the risky nature of the enterprise. This aspect has led to the development of different types of surety bonds and construction insurance policies. The main types of surety bonds in the US construction industry include the bid bonds, performance bonds, and the payment bond.

However, the UK has an extensive number of surety bonds, as evidenced by the inclusion of other types of surety bonds such as the retention bonds, sewer bonds, highway bonds, and advance payment bonds. Consequently, the development of the construction surety bonds market varies from country to country (Lerner and Baum 45).

Unlike the conventional insurance products, construction surety bond is a relatively new concept in China’s real estate sector (Middlehurst par.3). The promotion of construction surety within the real estate sector in China began in 2004 with the publication of File No.137 by the Ministry of Construction. The file outlines the guidelines and regulations on surety bonds within the public construction sector (Yan par. 2).

The construction insurance industry is highly developed in most countries as opposed to construction surety bonds market (McIntyre and Strischek 36). Considering the inherent risks associated with construction projects, most construction companies seek the assistance of insurance companies in order to safeguard themselves from potential risk.

This aspect has led to a significant development of construction insurance in different countries (Ramsey 75). However, Vetsch asserts that construction insurance “is not a ‘one size fits all’ affair” (par.1). Consequently, construction countries must analyze the construction insurance policies offered by the respective companies in order to understand possible exceptions in the contract.

In Canada, numerous exceptions in the various construction insurance policies are offered. For example, the property insurance policy in Canada explicitly excludes the contractor from covering losses arising from various natural occurrences and human causes such as pollution, vandalism, earth movements, and temperature changes amongst other issues.

However, the Miller Act of the United States is not explicit about such issues. Moreover, the Canadian construction insurance describes the components of professional liability insurance and it excludes the contractor from liabilities that might arise from the insured’s non-professional activities.

Conclusion

The construction projects are characterized by numerous risks that might lead to substantial losses. Subsequently, the significance of effective risk management in the construction industry cannot be underestimated. Different risk management plans and policies have been formulated in an effort to assist parties in the construction industry to manage risk.

Examples of such instruments include the construction surety bonds, which are usually issued by financial institutions. Unlike conventional insurance programs, construction surety bonds do not involve transfer of risk.

Some of the main types of surety bonds in the construction industry include the performance, bid, and payment bonds. Additionally, the conventional insurance industry gives participant in the construction industry an opportunity to manage risk through various policies such as the builder’s accident and injury insurance policy, construction quality guarantee, professional liability insurance, and liability insurance.

However, the development of construction surety bonds and construction insurance market vary from one country to another.

Works Cited

Akitonye, Akintola, and Girma Zawdie. Construction innovation and process improvement, Chichester: Wiley-Blackwell, 2012. Print.

Atkin, Brian, Jan Borgbrant, and Per-Erik Josephson. Construction Process Improvement, Hoboken: Wiley, 2003. Print.

Bouteiller, Sylvain, and Diane Coogan. The handbook of credit risk management; originating, assessing and managing credit exposures, Hoboken: Wiley, 2013. Print.

Bunni, Nael. Risk and insurance in construction, New York: Routledge, 2003. Print.

Cameron, John. A practitioner’s guide to construction law, Philadelphia: American Bar Association, 2000. Print.

CNA Surety 2005, Surety ship: A practical guide to Surety Bonding. Web.

Cummins, David. “Cat bonds and other risk-linked securities: state of the market and recent developments.” Risk Management and Insurance Review 11.1(2008): 23-47. Print.

Cushman, Robert. Construction disputes; representing the contractor, Gaithersburg, Aspen Law & Business, 2001. Print.

Dunn, Jonathan, and Irvine Sedgwick. “Letters of Credit, Bonding, Guarantees and Default Insurance: Hedging Bets in a Roller-Coaster Market.” American Bar Association 15.2 (2013): 1-17. Print.

Glaser, Barney, Tomasz Piskorski, and Alexei Tchistyi. “Optimal securitization with moral hazard.” Journal of Financial Economics 104.2 (2012):186–202. Print.

Grovenstein, Robert, Francis Sirmans, John Harding, Sansanee Thebpanya, and Geoffrey Turnbull. “Commercial mortgage underwriting: How well do lenders manage the risks?” Journal of Housing Economics 14.2 (2005): 355–383. Print.

Jenkins, Robert, and Andrew Wallace 2005, Construction Bonds: What Every Contractor and Owner Should Know. Web.

Hess, Stephen. Design professional and construction manager law, Chicago: American Bar Association, 2007. Print.

International Credit Insurance & Surety Association: ICISA outlook 2013. Web.

Kelleher, Thomas, and Thomas Abernathy. Smith, Currie and Hancock’s federal government construction contract; a practical guide for the industry professional, Hoboken: John Wiley and Sons, 2010. Print.

Kelleher, Thomas and Smith Currie. Smith, Currie and Hancock’s common sense construction law; a practical guide for the construction professional, Hoboken: Wiley, 2005. Print.

Lerner, Lawrence, and Theodore Baum. Performance bond manual of the 50 states, District of Columbia, Puerto Rico and federal jurisdictions, New York: American Bar Association, 2006. Print.

Levine, Marshall, and Roger Haar. Construction insurance and UK construction contracts, London: CRC Press, 2013. Print.

McIntyre, Marla, and Dev Strischek. “Surety bonding in today’s construction market: changing times for contractors, bankers, and sureties.” The RMA Journal 87.8 (2005): 30-36. Print.

Middlehurst, Charlotte. China, the world’s fastest growing insurance market opens doors to foreign groups 2013. Web.

Moelmann, Lawrence, and John Harris. The law of performance bonds, Chicago: American Bar Association, 2009. Print.

Ramsey, Marc. “Surety Bond Producers and Underwriters.” The RMA Journal 91.8 (2009): 42-45. Print.

Russell, Jeffrey. Surety bonds for construction contracts, Reston: ASCE Press, 2000. Print.

Schwartzkopf, William, and Richard Tasker. Practical guide to contract surety claims, New York: Aspen Publishers, 2006. Print.

Seifert, Bryan. “Sustainable Buildings and the Surety.” Real Estate Issues 33.3 (2008): 47-52. Print.

Sido, Kevin, and Robert Cushman. Architect and engineer liability; claims against design professionals, New York: Aspen Publishers, 2006. Print.

Surety Information Office: the importance of surety bonds in construction 2009. Web.

Swiss Re: Development status of engineering insurance in China 2014. Web.

Vetsch, Peter. Canada; A construction insurance primer; which policies for which risks? 2009. Web.

Yan, Hai. China National Investment Company: the fourth meeting of the legal committee of CGA 2005. Web.

The situation of Emma and Silverline Construction Ltd presents a compelling case of an individual suffering physical injuries due to the work of a party with which she did not have any previous connection or contractual relationship. The issue lies in the absence of any regulations that would otherwise have been outlined in a contract or a similar document. Emma’s particular trauma was not covered under the agreement between Silverline Construction Ltd and its employer. However, this does not mean that Emma does not have the right to argue that the company was negligent in its actions.

This case falls under the area of tort law dealing with negligence during construction, manufacturing, or quality assessment. The company could have predicted possible accidents which would follow the installation of faulty fixings. It also failed to evaluate the quality of materials adequately and exposed Emma, as well as other potential victims, to harm. Emma can find a cause of action in negligence against the company. Moreover, as a plaintiff, she has a right to claim a number of losses, including medical treatment costs, salary reimbursement, and emotional damages for pain and suffering.

It is necessary to show that Silverline Construction Ltd had a duty to other persons, including Emma, to exercise reasonable care. As the company was employed to construct a building near the city center, it became liable for the safety of all passersby in relation to the finished structure. While one could argue that Silverline Construction Ltd’s responsibility for the construction site should have ended with the project being finished and presented to the employer, multiple cases show that this is not correct, as the builder or manufacturer remains responsible for its finished product even after completion.

One such case reveals the responsibilities that a manufacturer can have for supplying its clients with faulty equipment (Uren v. Corporate Leisure (UK) Ltd (2011) EWCA Civ 66). In this case, a firm that produced equipment for pools became a defendant alongside the company that used their goods in the pool. Since Silverline Construction Ltd may be considered the party that used faulty materials in its construction, it becomes liable for the result. It is possible to assume that the original contract signed by the employer and the builder included such regulations as to the safety and suitability of the finished project as well as its adequate quality. Therefore, Silverline Construction Ltd did not fulfill its duty to others and failed to deliver a satisfactory result.

In this situation, Silverline Construction Ltd could appeal to hold the company manufacturing these goods liable for the accident. Nevertheless, the construction company is still at fault due to their failure to detect the problem in a timely manner. Another cause may be considered, one where both the construction company and the manufacturer failed to assess the quality of the products which led to various injuries for the employer (James Elliott Construction Ltd v. Irish Asphalt Ltd (2014) IESC 74). It is clear that the manufacturer of the fixings used in this building did not follow the standard of production of these goods. In addition, the company chose to sell these products without a full quality check, an action that contributed to the accident at hand. In Uren v. Corporate Leisure (UK) Ltd, the plaintiff sues both the employing company and the manufacturer for the inflicted traumas, as both defendants breached the duty to the plaintiff, due to their lack of ensuring the participants’ safety.

Silverline Construction Ltd failed to perform necessary evaluations prior to using the materials in its project. As testing that was conducted after the plaintiff’s claims showed that the fixings were faulty, it may be assumed that the construction company could have prevented the accident by performing more rigorous tests. The responsibility for the quality of the goods cannot be shifted from the firm on the basis of production in addition to other external sources. The inability of Silverline Construction Ltd to predict or investigate that the materials could become hazardous to people shows a lack of reasonable care that should have been considered by the company prior to finishing and approving the project (Johnstone v. Amec Construction Ltd (2010) ScotCS CSIH_57).

While it is vital to prove that the company had to be able to foresee the possible accidents caused by their actions in order to become liable, some cases show that the precise outcomes of some situations are not always clear. Despite this, their causes and the general chain of events can become signs of future issues (Hughes v. Lord Advocate (1963) UKHL 8). Therefore, if one can prove that Silverline Construction Ltd acted out of negligence by simply purchasing or choosing to use faulty materials without proper testing, then it should have predicted that many accidents might arise because of its actions. Claiming that the firm did not know about the quality of its materials would not help the company as it would be expected to answer for the final product because such considerations are usually a part of any contract.

As a result of Silverline Construction Ltd not performing a necessary evaluation, Emma suffered a number of losses. She was physically injured, which led to her being unable to participate in any of her work responsibilities. Due to this, she also suffered financially and emotionally, including pain from the injury and mental discomfort from being unable to perform her daily activities. The case of Bowen Construction Ltd states that third parties have the right to claim for the loss even though they do not participate in the contract (Bowen Construction Ltd v. Kelcar Developments Ltd (2009) IEHC 467; Alfred McAlpine Construction Limited v. Panatown Limited (2000) UKHL 43). This is to avoid injustice for those who are able to prove sufficient loss. Emma can show that she was traumatized as a result of this accident. She likely has medical bills that would explain her injuries and witnesses that would describe the situation from an outsider’s point of view. In addition, her leave from work was most likely documented as well. Thus, she has the necessary information to find the company negligent and claim losses.

The case of Emma and Silverline Construction Ltd can become an example of an accident where an individual that was not included in any contractual obligations suffers from the negligent actions of one of the parties. Emma’s arguments should be based on the duty of the company to be responsible for others and deliver a reasonable amount of care. The company was contractually obligated to build a product of high quality, and it is safe to assume that this would include all materials and their functioning. Furthermore, Emma has enough evidence to present sufficient losses from the accident and claim remedies for physical injury, financial losses, and emotional distress.

Reference List

Alfred McAlpine Construction Limited v. Panatown Limited (2000) UKHL 43.

Bowen Construction Ltd v. Kelcar Developments Ltd (2009) IEHC 467.

Hughes v. Lord Advocate (1963) UKHL 8.

James Elliott Construction Ltd v. Irish Asphalt Ltd (2014) IESC 74.

Johnstone v. Amec Construction Ltd (2010) ScotCS CSIH_57.

Uren v. Corporate Leisure (UK) Ltd (2011) EWCA Civ 66.

On July 25, the members of the building union at Lend Lease projects in various parts of Australia went on strike. This industrial action was geared towards pushing for a new-fashioned nationwide Enterprise Bargaining Agreement.

The Construction Forestry Mining Energy Union (CFMEU) argued out that the principal reason as to why the employee had gone on strike was a disagreement that had arisen with respect to a dispute in wages, job security and site allowances (Balvane et al 2007, p.2). However, it was reported that negotiations are still under way for a better agreement with Lend Lease.

Nevertheless, CFMEU was to take that the industrial action would be carrying on even for a longer period of time, and the fight with Lend Lease would be hard (Balvane et al 2007, p.4).

Members of the CFMEU opted for this industrial action because they were optimistic as they through that they would be able to secure a decent national Enterprise Bargaining Agreement (EBA). It is thus undeniable that the conflict between the employer and the employees was quite heated (Balvane et al 2007, p.5).

Employment relationship existing between the employer and employees is founded on harmony of interests as well as cooperation between these two parties. Both the employer and the employees work towards realizing shared objectives and goals. However, the achievement of these common goals can be difficult if a conflict exists, as in the case with the CFMEU.

According to the unitarist approach, the CFMEU was collectively opposing the management, which was a sign of irrationality (Dundon & Rollison 2007, p.23). The unitarist approach deems the management to be the sole source of authority, with managerial entitlement to be rational, acceptable and legitimate.

On the basis of this approach, it is arguable that the abovementioned industrial conflict, maturing to an industrial action, was a function of the management dwindling to avail considerable stout leadership. In addition, this conflict might have been caused by the inability of management to communicate its goals in an effective manner (Balvane et al 2007, p.10).

The members of the CFMEU, in the perspective of the unitarist approach, are not loyal to the organisation and have not accepted the management’s authority in appreciation of the shared interests and goals. These members are seemingly competing with the management, distressing the symphonic operations of the organisation at the same time (Balvane et al 2007, p.11).

On the other hand, the pluralist approach explains the CFMEU industrial action in a different perspective. According to this approach, every organisation is made up of individuals whose interests, aims and leadership are divergent (Strauss 2006, p.780). Moreover, the different groups in the organisation ordinary have different and competing goals, and as a result, conflicts within the organisation are not only rational but also inevitable.

The members of the CFMEU are pushing for decent national EBA, and this gives birth to a conflict with the management. Even in the event of a conflict, the pluralist approach puts it clear that the raised issue ought not to damage the interests of the stakeholders (Balvane et al 2007, p.12).

This is ensured through the institution of apposite rules and procedures that power and authority are evenly distributed among the stakeholders. According to the pluralist approach to the conflict, the management is obliged to acknowledge and make efforts to reconcile the stakeholders’ competing interests and goals (Strauss 2006, p.783).

In my view, therefore, the pluralist approach avails a detailed explanation on the CFMEU industrial action. First, this approach appreciates diversity and competing goals of organisations. It also documents the role that the management has to play to ensure that reconciliation is arrived at in regards to the competing interests and objectives (Dundon & Gollan 2007, p.1185).

Furthermore, it recognizes trade unions as valid representatives of employees, facilitating them to bargain over employment terms and conditions as well as to influence the decisions of the management. Through this approach, the role which both the state and the federal industrial tribunals play in determining employment conditions, wages and settlement of industrial disputes is firmly determined (Dundon & Gollan 2007, p.1190).

References

Balnave, N, Brown, J, Maconachie, G, & Stone, RJ 2007, Employment Relations in Australia, John Wiley & Sons, Australia.

Dundon, T, & Gollan, PJ 2007, ‘Reconceptualising Voice in the Non-Union Workplace’, The International Journal of Human Resource Management, vol.18, no.7, pp.1182-1198.

Dundon, T, & Rollison, D 2007, Understanding Employment Relations, McGraw Hill Higher Education, Maidenhead.

Strauss, G 2006, ‘Work Participation- Some Under-Considered Issues’, Industrial Relations, A Journal of Economy and Society, vol.45, no.4, pp.778-803

Regulations of the Occupational Safety Health Act

In this case, the violation of the Occupational Safety Health Act (OSHA) laws and regulations was the center of the legal procedure. The legal issue was to determine whether Williams Construction Company had violated OSHA laws and regulations (Walsh, 2010). In the case, OSHA accused R. Williams Construction Company (Williams), a Californian company specializing in construction, of violating the standards of regulation at a sewer construction site. One employee was killed and another seriously injured. Before the case, Williams Company was carrying out a sewer construction project at Chumash Casino Project at Santa Ynez, California. On September 9, 2002, two of Williams’ employees, Jose Arguiniga and Adam Palomar, worked in the trench when it collapsed, killing Arguiniga and seriously injuring Palomar.

Upon investigations, OSHA alleged that Williams had violated 29 U.S.C. Section 651-678 of Occupational Safety and Health Act 1970. The study concluded that four areas of the law were violated:

1. It argued that the company (as the employer) had failed to provide its employees with prior information and instructions on recognizing and avoiding threats caused by hazardous conditions at the workplace (Walsh, 2010).
2. Williams did not implement the required methods to provide an easily accessible safe zone in the construction site.
3. OSHA alleged that Williams had violated the standards because it had failed to hire competent personnel with the required skills and training in trench safety.
4. OSHA cited a failure to adhere to building standards because the trench walls were neither sloped nor supported.

Therefore, OSHA argued that if all these conditions were met, the accident could have been avoided. The two individuals could not have been victims of the incident.

The investigations by OSHA

As described in OSHA’s investigations, the company could have avoided the incident or injuries and death if it had observed the laid down standards and regulations in the construction. First, the company failed to provide instructions to its employees regarding the means of recognizing and avoiding working under hazardous conditions as described under 1926.21(b)(2) 29 C.F.R. §. Secondly, the company did not provide its employees with the required training and skills for risk mitigation and avoidance of hazardous working conditions. The company failed to prevent its employees from entering the trench on the day it collapsed. Section 29 C.F.R. § 1926.652 (the) (1) was violated because the company failed to provide adequate measures to ensure that its employees were protected from cave-ins (Walsh, 2010). Williams should have been aware that the two employees would enter the trench as a part of their routine at the workplace. It was argued that the company had prior knowledge that the employees would join the track because it was their role and duty. Moreover, the company failed to ensure that an expert in healthy working conditions in trench building was present at the construction site. No special training was provided to the employees.

Employees were acting in good faith

There were reasons to believe that the employees were acting in good faith. In addition, this practice was part of their duty. This means that the company required them to enter the trench to execute their responsibilities. According to the rules under OSHA, employers have an obligation to provide healthy working conditions for their employees. In addition, under tort law, employers and companies have a duty of care, which implies that it is their legal responsibility to ensure that individuals within their premises are not posed to potential threats and hazards.

In fact, William’s conduct, in this case, amounts to negligence. It is also the employers’ responsibility to provide the required and adequate training on safety and health at the workplace (Walsh, 2010). Every organization has the duty to implement the necessary standards and procedures that should be followed in case of disasters like the trench collapse. Moreover, the argument by Williams is not legally justified because the regulations on standards of building trenches because they were walls were neither sloped nor supported. In fact, violation of building standards led to the collapse of the walls, which implies that the company is guilty of causing death and injury of its employees (Walsh, 2010). Therefore, Williams should not argue that the two employees contributed to their fate. If all the safety and health standards had been implemented, the two employees would not have moved to the location.

Under the OSHA Act

Under the OSHA Act, employees are also required to contribute to the overall process of ensuring safe and healthy working conditions. In fact, Section 5(b) of the Ac requires each employee to comply with safety and health standards and all the regulations, rules as well as orders issued at the workplace in regards to the act (Connolly & Crowell, 2011). These rules, regulations, and standards should be issued pursuant to the OSHA. They are applicable to the conduct of every employee.

References

Connolly, W. B., & Crowell, D. R. (2011). A Practical Guide to the Occupational Safety and Health Act. New York: A.L.M. Press.

Walsh, D. J. (2010). Employment law for human resource practice: 2010 custom edition. Mason, OH: South-Western Cengage Learning.

Apply some appropriate principles of construction management, law, and ethics to analyze the following fact pattern.

In the provided case, Mounger Construction ordered ten new refrigerators from Southwest Supplier; each refrigerator was to cost $1,000, so the total sum would be $10,000. However, due to a mistake in the invoice sent by Southwest Supplier, an offer to purchase the refrigerators at a much lower total cost was signed. It is not clear what this offer was. All that is stated is that “Southwell mistakenly sends an invoice of $100 instead of $10,000”, so $100 is supposed to be the total sum. It is also stressed that “Mounger…says it has a contract for 10 refrigerators at a cost of $100 each,” so the total sum should be $1,000 (White 30).

It is clear that the fault lies with Southwest Supplier, as the invoice they sent contained a mistake. First, according to the original offer made by Southwest Supplier, Mounger Construction was to purchase the refrigerators at a price that is ten (or one hundred) times higher than the sum which was presented on the signed invoice. Second, it is clear that $10 (or even $100) is too low a price for a new refrigerator. Therefore, the mistake in the invoice made by Southwest Supplier should be classified as an obvious mistake (White 30-31).

According to the law, mistakes should be fixed where possible, and nobody should take advantage of them (White 29). Furthermore, if a mistake is obvious, it is “voidable by either party”, so Southwest Supplier and Mounger Construction can both refuse to execute the contract without any legal consequences (White 30).

Therefore, by signing a contract that contains an “obvious” mistake and demanding its execution, Mounger Construction carries out a breach in ethics, attempting to take advantage of another party and achieve profit by directly causing loss to that party.

For the following fact pattern please evaluate, analyze and argue any and all sides while utilizing principles and techniques we learned in class and in the text specifically related to construction contracts, documents, and codes.

According to the law, in a case where the contractor or the specialty subcontractor turns out to be incapable of building a system that would meet the requirements for that system formulated by the owner who ordered its construction, the contractor and/or the specialty subcontractor are considered to be responsible for the resulting damages and are obliged to compensate the loss to the owner (White 129).

Therefore, it is important to stress that the language utilized in the contract offered in the provided case serves to release the contractor from the described obligations, instead of making Hydro Engineering responsible for any changes, modifications, or adjustments which may be needed should any issues with the filtration systems emerge (White 130). In case of any problems, the government will be supposed to directly contact Hydro Engineering rather than turning to the contractors.

It should also be highlighted that, according to the given wording, Hydro Engineering is to alter, add to, or modify the water filtration systems should their performance become unsatisfactory. Potentially, this wording might be used to make Hydro Engineering responsible for any malfunctions in the equipment, even if these malfunctions are a result of the misuse conducted by the government body utilizing the filters. However, the contract contains the phrase “for the performance of the waste-water filtration system as specified,” so it is clear that the conditions under which Hydro Engineering is to carry out any fixes on the equipment must be specified in detail in some other part of the contract.

For the following fact pattern, please evaluate, analyze and argue any and all sides with a specific emphasis on how engineering technology solutions have an impact on our society and our global interactions.

The provided case is related to the issue of commercial senselessness/practical impossibility. The notion of commercial senselessness is utilized to safeguard a contractor from unexpected extreme expenses. However, if the contractor willingly accepts the risk, the responsibility to carry out the agreement is still theirs (White 137). In the given case, Natus Corporation willingly accepted the risk related to the production of portable steel airplane landing mats (ALMs), a new technology at that time. In addition, it is stated that “the mats could be produced using a slower speed process that was not as profitable to Natus” (White 139), and from this wording, it follows that Natus would still make profits. So, it is clear that the contract should not be canceled or amended according to the laws about “commercial senselessness”.

It is also important to stress that engineering solutions often have a significant impact on society (DeJong-Okamoto, Rhee, and Mourtos 78). For instance, in the case of ALMs, this technology permits the creation of temporary airfields in places where there is no need for a permanent airfield, or in situations when the establishment of a permanent airfield would be too time-consuming. It is clear that ALMs may allow for the significant economy of numerous types of resources, including airplane fuel, the time it would take to create a permanent airfield, the spending involved in the construction of such an airfield, or the costs necessary for the transportation of the supplies brought in on an airplane from the nearest permanent airfield to the desired location. In addition, the use of the ALM technology may positively influence a country’s global interactions, e.g. by allowing for quicker delivery of products to the desired location. Therefore, the fulfillment of the contract with Natus was important for the government.

However, it is also important to stress that some technological phenomena may also have an adverse influence; for instance, nuclear power plants may pose a danger if used inappropriately, whereas weapons can be used to bring destruction, even if it is profitable to some parties (DeJong-Okamoto, Rhee, and Mourtos 77).

Works Cited

DeJong-Okamoto, Nicole, Jinny Rhee, and Nikos J. Mourtos. “Incorporating the Impact of Engineering Solutions on Society into Technical Engineering Courses.” Global Journal of Engineering Education 9.1 (2005): 77-87. Web.

White, Nancy J. Construction Law for Managers, Architects and Engineers. Clifton Park, NY: Thomson Delmar Learning, 2007. Print.

Case Background

The case of Carvalho v. Toll Brothers arose out of a grave accident at a construction site, where an employee enlisted by a subcontractor engaged in excavation of trenches was fatally injured when the unsteady walls of a deep trench in which he was assigned to work caved in and crushed him to death. An inspector hired by the project engineer to observe the work being performed at the site was aware of the poor working conditions at the site by virtue of the fact that several walls had collapsed prior to the accident (“Carvalho v. Toll Brothers” par. 12). The case of Herczeg v. Hampton Township Municipal Authority and Bankson Engineers is similar to the Carvalho case as it also arose out of a fatal accident that was precipitated by the collapse of an unshored trench (Davis par. 1; “Jobsite Safety” 2). The accident at the construction site killed one worker who had been assigned to work in the unshored trench.

Defense

The defense in the Carvalho v. Toll Brothers case argued that although the contractual agreement stated that the engineer was required to have an inspector at the construction site on a daily basis to assist in monitoring the progress of the work, the engineer was not under any contractual obligation to supervise or oversee the safety procedures of the construction (“Jobsite Safety” 2). The defense team in this case purposed to demonstrate that the contractual agreement between the engineer and the contractor expressively excluded the former from any responsibility for the safety of workers at the construction site as ensuring safety is not generally considered part of a consulting professional’s contractual duties (Schneier 299-301). The team aimed to show that the engineer was not liable for the death as the sole responsibility for all persons and property at a construction site rests with the contractor (Schneier 302). In requesting the subcontractor to cover for the costs of the accident, the defense also wanted to demonstrate that the engineer could not be held responsible for the acts or omissions of the subcontractor that had enlisted the services of the deceased construction worker.

The defense in Herczeg’s case argued that the engineering firm (Bankson) had no prior knowledge of unsafe conditions in the construction site and that the engineer was not bound by any duty regarding the allegations of having actual knowledge that the construction worker was working in an unstable and unsafe trench (Holland 1; Sweet and Schneier 248-250). The defense also asserted that the engineering firm was not liable for the worker’s death as none of its services were involved in the cause of the accident, not mentioning that the engineer had no authority to control the contractor’s work and had never assumed by contractual agreement or conduct any responsibility for safety at the construction site (“Knowledge of Unsafe” par. 3). Here, the defense team purposed to demonstrate that the contract between the engineer and the contractor specifically stated that the engineer “was not responsible for construction means and methods, or for job safety” (“Jobsite Safety” 2).

Key Differences

The first difference is that the engineering firm at Carvalho’s case was obligated under its agreement with the contractor to provide daily observation of the work of construction and to report the progress of the work, implying that there was an interrelationship between progress and safety arising from the observation that the utilization of certain safety measures could have negatively impacted the rate of work progress. This interrelationship was used by the jury to determine “whether or not it was fair to impose a duty upon the engineer to address worksite safety conditions” (Davies par. 16). In Herczeg’s case, however, the court found no association between the engineer’s responsibilities and the safety measures implemented at the construction site as the engineering firm was not in any way required by the contractor to oversee the daily operations at the construction site. The engineer at Carvalho’s case was found liable for the worker’s death due to substantial worksite presence and the noted interrelationship between work progress and safety; however, the engineer at Herczeg’s case was not found liable due to minimal worksite presence and subsequent lack of the interrelationship between work progress and safety.

The second difference arises from the fact that “the engineer in Carvalho apparently had the authority to stop the contractor at any time, whereas Bankson did not” (Davies par. 17). As such, the engineering firm in Carvalho’s case was found liable for the worker’s death as it had more opportunity and ability to exercise a duty of care but failed to do so. However, the engineering firm in Herczeg’s case was not found liable due to its limited opportunity and capability to exercise a duty of care. Finally, although the engineering firm in Carvalho’s case had knowledge of previous trench collapses on that worksite as a result of unstable trench conditions, the engineering firm in Herczeg’s case did not have any such knowledge as its representative had not witnessed any trench collapses at the construction site.

Conclusion

The different outcomes of the two construction cases discussed in this paper demonstrate that, although it is not the sole responsibility of engineers or architects to ensure or facilitate jobsite safety, they may be found liable for the death or injury of a worker if a competent court of law make a determination that they had the opportunity and capacity to alleviate the risk of harm but failed to properly excise reasonable care for the safety of workers at a construction site.

Works Cited

Carvalho v. Toll Brothers and Developers. 2015. Web.

Davis, Richard J. You have observed a Dangerous Situation on Site: What do you do? The Pennsylvania Superior Court has provided some New Clues, 2016. Web.

Holland, Kent. Engineer had no Duty to Warn General Contractor’s Employee of Danger, n.d. Web.

Jobsite Safety, Part 1: Liabilities Get Muddy 2008. Web.

Knowledge of Unsafe Jobsite Conditions does not Render A/Es Liable. 2001. Web.

Schneier, Marc M. Construction Accident Law: A Comprehensive Guide to Legal Liability and Insurance Claims. Chicago, IL: ABA Publishing, 1999. Print.

Sweet, Justin and Marc M. Schneier. Legal Aspects of Architecture, Engineering and the Construction Process. 9th ed. Stamford, CT: Cengage Learning, 2013. Print.