• Lisa Frost
    4
    Morning All,
    Can anyone please tell me if it is legal for a Main Contractor (PCBU 1) to charge Contractors (PCBU 2) to induct them into their construction site? In this instance, it would be $49.50 per person per year. This is on a contract that will probably run 18 months, so would many would have to do twice. Seems really dogey to me, and for a site that may have upwards of 8-900 people on there, a bit of a revenue gathering exercise. After 17 years in this industry I have never come across this before, so interested in peoples opinions.
  • Chris Anderson
    20
    I don't think this is reasonable.

    The head contractor has primary responsibility for the health and safety on site as they would likely have the greatest influence. Putting up a barrier like this is not acceptable. If they insist on it I would on-charge the cost of the induction probably back to the main contractor.
  • rebecca telfer
    5
    Really!! sounds dodgy to me too. we would never charge of inductions, and being in the industry for over 15 years, i too have never come across this.
  • Andrew
    119
    I don't see why not. We already have Site Safe charging an arm and a leg for any Tom, Dick or Harry to enter a construction site.

    Add to that those Pre-Qual companies out to rort us.

    Seems like just another opportunity to clip the ticket in the name of "safety"
  • Annalisa
    17
    If it includes a full sit down cooked breakfast , PPE, and perhaps a semi famous musical act it could be reasonable to charge. ...really doesn't sound like a good practice in my opinion, sounds a little exploitative, I'd charge back on billing with a line item called "Safety".
  • Stuart Oakey
    12
    For me the following makes it quite clear that a PCBU is not legally allowed to charge for inductions;
    HASAW Act 2015
    [PCBU must not levy workers
    A PCBU must not impose a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) for anything done, or provided, in relation to health & safety.
  • Chris Anderson
    20
    I don't think the levy is being placed on the worker here, but on the PCBU so this part of the legislation wouldn't apply.
  • Andrew
    119
    You may have a point there Stuart. But I think you need to flesh out your argument a bit more.

    First go to S27 (1) which says "A PCBU must not impose a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) for anything done, or provided, in relation to health and safety."

    Then go to the "interpretation section 16 and go to "worker" which then leads us to S 19.

    S 19 says a worker is "an individual who carries out work in any capacity for a PCBU, including work as....
    (B) a contractor or subcontractor; or
    (c) an employee of a contractor or subcontractor;....."

    So the sub-contractor is specifically separated into two clear individuals.

    No charge should apply.

    (Test to see if EDITing works. Yes it does!
  • Stuart Oakey
    12
    Thanks Andrew :up: . Unfortunately I hit post comment instead of preview post, but that was my line of thinking. For me it makes it quite clear that they cannot charge for inductions.
  • matt Chapman
    1
    I've spoken to a couple of small sub-contractors complaining that Downers have been requesting an annual payment/fee for managing their H&S documentation, it doesn't sound fair to place an additional financial burden on these businesses. Whats the thinking around this ?
  • Albert
    0
    I think under the Act the word worker refers to person, contractor or PCBU which reports to the main PCBU
  • Chris Anderson
    20
    HSWA gives the definition of a worker in Section 19:

    19 Meaning of worker
    (1) In this Act, unless the context otherwise requires, a worker means an individual who carries out work in any capacity for a PCBU, including work as—
    (a) an employee; or
    (b) a contractor or subcontractor; or
    (c) an employee of a contractor or subcontractor; or
    (d) an employee of a labour hire company who has been assigned to work in the business or undertaking; or
    (e) an outworker (including a homeworker); or
    (f) an apprentice or a trainee; or
    (g) a person gaining work experience or undertaking a work trial; or
    (h) a volunteer worker; or
    (i) a person of a prescribed class.

    As the levy is not being put onto the individual there is no breach here.
  • Sam Houliston
    2
    Hi Albert, only where the contractor is an individual
  • Albert
    0
    Yes, you are correct. Didn't have the Act in front of me. But I still think it could be contested, as it doesn't really fit with the spirit or intention of the Act
  • SafetylawyerNZ
    30
    Hi all

    I largely agree with Chris. In my view, section 27(1) HSWA does not prevent a PCBU charging another PCBU (except when the second PCBU is an individual), and I don't see anything else in HSWA to prevent it either.

    That said, charging for inductions seems like a dodgy idea to me and is something I would urge clients not to implement. The head contractor always needs to ensure inductions are happening, and the cost is just a usual BAU expense. If imposing a charge makes it less likely inductions are completed then the head contractor will expose itself to risk (if people attend site without completing the induction) or limit the pool of available tradies (if only those willing to pay can obtain work). It's not hard to see WorkSafe asserting that a reasonably practicable step would be to provide inductions free of charge, especially as cost is only relevant to a practicable step when it is grossly disproportionate to the risk (see section 22(e) HSWA).

    In any event this must be a false economy for any head contractor, as contract pricing by tradies will inevitably increase to recover the charge, in the same way as the cost of providing scaffolding or PPE etc is factored in, whether on a disclosed or undisclosed basis.
  • Lisa Frost
    4
    In this instance, the charge is for each of our employees - which we have to download all their info into the system. As WE can not (and would not) charge our employees, obviously we would be paying for it.
    It feels like all the PCBU 2's are being charged to manage all the paperwork and inductions for the PCBU 1. And a double whammy will be the cost to download all the info into their system, when our own system runs in much the same way! there is a 15 page step by step document to set it up and then to add each individual, all training documents etc - which is going to take a significant amount of time (my time). Perfect for them tho, they get all their paperwork etc done for them, and charge for the priviledge!
  • Michelle Muir
    3
    We have had to do the same upload of documentation onto their systems for each staff member, after already forwarding them declarations and copies of training. The costs vary within the same system (depending on the company we are working for) for each staff member between $50 to $110 per person. We also have to upload our subcontractor's training records etc if they aren't currently on the system, at the same cost. I wouldn't mind if it wasn't a double up of information and it added some value - but I'm struggling to see what we are getting from this investment in cost and time.
  • Andrew
    119
    Lets remember the Wanganui River is a legal "person" and therefore an individual with rights. If a river can be a person, then a Sub/Contractor is a person (already well established in law) and therefor an individual

    (19 (b) also makes clear distinction that a Sub/Contractor is a separate person - separate from an employee or an employee of a sub/contractor
  • Tony Walton
    38
    Agree with Chris and Safetylawyer. If this is not in the contract of works agreement one could treat it as a variation and charge back. What are the trade/contractor industry associations doing about this and calling out the perpetrators ??? Maybe this is about commercial arrangements and not so much about safety at all.
  • G Gillard
    6
    Similarly, organisations such as Holcim use an online induction program for site inductions and training compliance out of Aus, which costs over $100 per worker (for contractors).
  • Andrew
    119
    That one could be a bit trickier - it could just be a computer programme access licence fee with a fee based on $100 per new computer user.
  • Graham Neate
    19
    The mercenary side of health and safety - one of the reasons that health and safety is a damaged brand.
  • John Crocker
    0
    "Person" and "individual" are distinct legal terms that only equivocate in one direction. An individual is a human being, so always a person. A person is a legal entity so not necessarily an individual, could be a company or even a river.
  • Andrew
    119
    Thanks John.
    Lets flesh this out a bit further.

    An "employee" I hope is a well understood concept. Its basically a person who works under a contract for services and gets a wage or salary. As an employee this person works for an employer. Lets, for arguments sake call the employer "Upper Ltd".

    Employees are well covered by the S19 definitions of the act.

    Then you have 19 c which is an "employee of a contractor or subcontractor". Its established that to be an employee you need to have an employer. So an employee can be an employee of Upper Ltd. Upper Ltd can therefore be a Contractor / subcontractor.

    S19 B covers Contractors / Subcontractor. So Upper Ltd, is covered by the Act.

    Therefore Wider Ltd can't charge Upper Ltd.

    Stand to to reason? (Its Friday - sometimes my logic fails me)
  • John Crocker
    0
    Sorry for the delayed reply, I only check these once a week.

    S 19 (1)(b) needs to be read in conjunction with s 19(1) "a worker means an individual". So 19 (1)(b) refers to an individual who is working as a contractor or subcontractor without an employer, otherwise they'd be captured by 19 (1)(c).

    This creates the odd situation where if Anne Employee works directly as a contractor she can't be levied, but if she incorporates Upper Ltd (and is the sole director and employee), then Upper Ltd could be levied, so she's better off contracting as an individual.
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