Supply of Second hand machinery – duties of suppliers
SIM No. 05/2011/04
- Open Government Status
- Open
- Date issued:
- 01/09/2011
- Review Date:
- 31/08/2011
- Author Unit/Section
- Safety Unit 2, Transportation and Services Unit (STSU), OPSTD
- Target Audience:
- FOD Staff
- Brief summary
- Purpose
- Action
- Background
- Application of HSWA Section 6
- Grey imports
- Selling at Auctions
- Selling through machinery agents
- Selling through machinery dealers and traders
- Private sales
- Contact for further advice
- Further information/links
- Feedback
- Appendix 1 – Example of an HSWA Section 6(8) waiver and schedule of specified steps
- Appendix 2 – Selling second hand machinery – information for sellers and auctioneers
Brief Summary:
This guidance explains the duties of suppliers of second-hand machinery, in particular equipment sold at auctions. It describes the options sellers can take to discharge their duties under Section 6 of the Health and Safety at Work etc. Act 1974 (HSWA). It also explains that "sold as seen" does not allow sellers to discharge their Section 6 duties and gives an example of a Section 6(8) waiver. It explains the situation where due to the equipment not having been previously supplied into the European Economic Area (EEA), it is now subject to EU Supply regulations (ie Grey Imports).
Purpose:
The purpose of this document is to ensure second hand equipment being offered for sale for use at work meets reasonably practicable levels of safety.
Sellers should ensure safety and, on older equipment, that may involve upgrades to the equipment.
Action:
Inspectors should raise awareness of the obligations of sellers involved in supply of second hand machinery during visits to suppliers, dealers and auctioneers.
Any equipment found that is in scope of the Supply of Machinery (Safety) Regulations 2008, ie where it is being offered for sale for the first time in the EEA – that is the EU States plus Norway, Iceland and Liechtenstein , should be CE marked, have a Declaration of Conformity and be safe.
If this is not the case action should be taken to require this non-compliance to be rectified using the procedures explained on the product safety homepage and making a new product safety request.
Inspectors may also wish to draw this information to the attention of any person or business who they know to be offering equipment for sale.
Appendix 2 gives further advice for duty holders involved in sales of machinery at auction, including Auctioneers The document can be printed off and given out at visits.
Background
Application of HSWA Section 6
Machinery is traded in a number of ways from dealerships through to auctions, the internet and classified ads in local papers. Many involved in these transactions fail to recognise that Section 6 applies when second hand equipment is sold on for use at work.
"Sold as seen"
There is a common misconception amongst machinery traders and dealers that the addition of "sold as seen" or "sold as is" on the invoice absolves them of their liabilities. Any second-hand article sold for use at work will fall within scope of HSWA Section 6 and the seller has a qualified duty to ensure that the article, as supplied, is safe for use.
Section 6 (1) (c) places a duty on sellers to take such steps as are necessary to ensure that the person supplied with the equipment is given adequate information about the intended use. With complex machines, such as sprayers and potato harvesters, this will involve providing the operator's handbook.
Sold for spares
If dealers (or others) wish to sell work equipment for spares or break-up by the purchaser they should obtain a section 6(8) waiver from the purchaser describing this intention. If it is not obvious that the item is to be used as a spare the seller will want a section 6(8) undertaking.
Section 6(8) waivers
Section 6(8) allows sellers to be relieved of their duty under section (6)(1)(a) to the purchaser to, so far as is reasonably practicable, make the work equipment safe for use "at all times when it is being set, used, cleaned or maintained by a person at work" (s.6(1)(a)). This waiver cannot be used for equipment in scope of the Supply of Machinery (Safety) Regulations 2008, see section on Grey Imports below.
Appendix 1 gives an example of a waiver and "Schedule of specified steps".
Note that as section 6 applies only to items for use at work it will not apply to items purchased as antiques for display or for domestic use
Grey Imports
There are also significant amounts of equipment traded at auctions which may be "grey imports". A grey import is equipment that is placed on the market in a country in which it was not originally intended to be supplied. Examples may be new equipment or second hand equipment that has not previously been used in the EEA. In many cases these grey imports are not manufactured to accepted European safety requirements.
If machinery, whether new or second-hand, is being sold or brought into use for the first time in the EEA, the EU Directive on supplying machinery and the UK legislation implementing the Directive (namely the Supply of Machinery (Safety) Regulations 2008, (SMSR08)) will treat that equipment as being placed on the market or put into service for the first time in the EEA As such it will need to meet all the requirements of the SMSR 08 which implement that Directive.
If machinery has been previously used or sold in the EEA then it is out of scope of the Machinery Directive / SMSR08, even if the equipment was supplied previously to one of the "new member states" before it joined the EU, as it is regarded as having been placed on the market in the EU. The duties under the Machinery Directive/ SMSR 08 will fall on the first person to place such machines on the market. If purchased from outside the EEA, the duties may fall on the importer, even if the equipment is not for their own use. The duties would fall on the importer if they sourced the equipment from outside the EEA and the original manufacturer did not CE mark the equipment and failed to produce a Declaration of Conformity. Unlike sales under HSWA section 6, the duties under the EU Machinery Directive cannot be passed on to the purchaser; they always remain as described above.
Whilst any machinery that has been previously used in the EEA (inc. the UK) is not subject to the Machinery Directive / SMSR 08 it will still be subject to HSWA section 6. It is the general requirements of section 6 which should be considered.
Selling at Auctions
Auctioneers are deemed to be "supplying" machines within the meaning of Section 53 of HSWA and so have duties under section 6. They have varying control over the goods that they auction and the extent of their control will be a factor in determining whether they have discharged their duties under section 6. Sellers (for whom the auctioneers are acting) will also have duties under section 6. The total overall duty to supply a machine safe for use at work must therefore be accepted by these two parties as a shared responsibility.
The extent of each party's responsibility will vary with the contract or type of auction and two common arrangements are described below:
Collective auctions:
are where the auctioneer only offers their services to get bids and has no input to the product description, eg the auctioneer goes to a farm to run a clearance sale and has no previous sight or knowledge of the goods. In this case, if the seller is familiar with the goods and is the manufacturer, importer or previous owner etc., they are considered to have greater responsibility for meeting the duties than the auctioneer.
This could also apply when the auctioneer is called on at short notice or when the auctioneer is supplied with information by the seller they can reasonably believe to be correct.
Where the seller is without practical experience of the goods to be sold, the seller and the auctioneer must agree what needs to be done to satisfy section 6 of HSWA, and who will arrange this. This might mean calling a competent person to establish that the machine is safe, or contacting the manufacturer for a manual.
Catalogue Auctions:
at these auctions the auctioneer is considered to bear responsibility due to their knowledge of the products, having examined, valued and catalogued them. In this case the auctioneer would be responsible as well as the owner seller. Also, if the auctioneer is taking on the role of executor (of a will) then they may take on the responsibilities of the seller.
It is most likely that an auctioneer's duty will vary for each item that comes up for sale. However, what must be clearly understood by the seller is the fact that selling goods by auction does not free them from their responsibilities.
Selling through Machinery agents
If a person is acting as an agent and does not take possession of the equipment being sold ie he only takes a commission for introducing the sellers to a purchaser then they would be unlikely to have any duties to discharge under section 6. This is by virtue of s.6(7) of HSWA and their lack of control in relation to the item sold. However, one needs to consider each case individually to see what control the agent supplier may have. The responsibility to ensure that the equipment was safe for use would lie entirely with the seller wherever they are.
Selling through Machinery dealers and traders
Machinery dealers and traders will take in machinery as part exchange for supplying new equipment or buy machinery for resale. The taking in of the used equipment would not fall within scope of Section 6 as the purchaser is not buying the equipment to use at work. The equipment is being obtained as part payment or for stock.
If the dealer or trader is planning to sell the equipment on for use at work then the duties under Section 6 apply to the trader. If there are safety deficiencies then the dealer or trader will need to rectify those defects prior to sale to another user For example they should take steps to ensure items such as operator's handbooks are supplied.
Private sales
If a person (or business) sells equipment to another person (eg farmer to farmer) then section 6 will apply to that transaction and the seller will have to ensure that the equipment he sells is safe for use at work.
Common defects
The following list is not exhaustive but does reflect areas where deficiencies have been found in the past:
- machine guards – guards for belts and pulleys, chains and sprockets, stand off guards etc. are likely to have been provided when new and need to be in place when resold. Sellers will need to check the condition of guard fastenings and their suitability, particularly those that cover power transmission parts such as PTO shafts on agricultural machinery;
- agricultural machinery issues such as:
- tractors with missing/damaged cabs and roll frames;
- sprayers not fitted with chemical induction systems, emergency clean water containers and protective clothing lockers;
- potato harvesters with inadequately guarded haulm and cleaning rollers;
- power harrows with missing/damaged stand-off guards.
- construction equipment such as: quick hitches on mobile plant being sold without pins in and construction site crushers being sole with emergency stops missing;
- manufacturing machinery such as : woodworking machinery without suitable guarding
- operator instructions are often not provided
- warning decals missing or in a foreign language
- asbestos cement products, such as roof sheets or complete buildings for dismantling and re-erection elsewhere may be sold at auction
Contact for further advice
For Supply issues, including Section 6 and SMSR 08 please contact Safety Unit 2, STSU, OPSTD
For industry specific and/or Technical Support please contact the relevant Sector lead in OPSTD.
Further Information/Links
- HSE guide to the inspection of the manufacture and supply of products and substances
Feedback
STSU welcomes any feedback and comments on the inspection of supply of second hand machinery supply. Please email them to: [email protected]