Clause 11.2(10) defines Others as people or organisations who are not the Employer, the PM, the Supervisor, the Adjudicator, the Contractor or any employee , Subcontractor or Supplier of the Contractor.
Does this imply and unambiguously state that “other” employees of the Employer are defined as Others? And how do we then deal with some employees that as a realistic cause of business do have certain responsibilities and “authorities” regarding the project execution, etc?
Shower me with your expert knowledge please!
For me, unless there is a specific and explicit statement excluding other parts of an Employer organisation from being considered as “the Employer” then all employees of the Employer are “the Employer” and therefore not “an Other”. It’s a simple as that.
As an example, if a council is an Employer wanting the project, but another part has statutory duties wrt to say road closures etc, then it would need an option Z clause to exclude that part from being considered the Employer.
Thanks Jon, but why then does the contract so clearly differentiate that employees of the Contractor are not Others, whilst it is silent regarding employees of the Employer? Let’s keep in mind that the Employer per se is the entity / body referred to in CDP1. Can we reasonably assume that ALL its employees qualify as such?
If the name of the Employer in Contract Data part 1 was limited to, say in my example above, a specific part of the Employer organisation, then it might be a little bit more open to argument … … but still open to an argument which I believe the Employer would ultimately lose as the Employer is a single legal entity. Hence the need for an option Z clause to clarify. So ‘Yes’ we can assume (in my opinion) that it is all its employees unless explicitly excluded.
Far better to have absolute clarity than contractual innuendo … … er sorry I mean implied terms in legal language.
I think contractual innuendo is much more accurate!
Seriously though, I agree with Jon, the real anomaly is why do you identify employees of the Contractor. I think this is to be absolutely clear because the two entities with what I would call active obligations (things they have to do under the contract and which they control) are the Project Manager and the Contractor, the Employer is much more passive under the ECC. The anticipation is that the PM will be a specific person but that the contractor will be a corporate and therefore capable of having employees.
Given that a lot of contracts are entered into with the PM as a corporate which then delegates to an individual you could raise the question, what about other employees of the corporate PM? I think that would be a pretty fair question and shows why you shouldn’t put a corporate in as PM without some thought as to what that means.