• Joanne Brown
    I am seeing various examples where if a sub trade does not do anything to meet a safety compliant they are then issued with a Non compliance notice and can be penalised by with-holding funds from the next payment. Is this deemed to be penalising a worker/PCBU within the act? (s27)
  • MattD2
    Remember that S27 only applies to levying an individual worker, not to a company - so unless the subbie is brought on as a contract worker/sole trader S27 would not apply.

    If they are a contract worker this would be at least suspicious, do you have a specific example?
  • SafetylawyerNZ
    I agree with MattD2. Section 27 of HSWA relates to imposing levies or charges on workers, not PCBUs. I am not aware of the Court yet being asked to interpret the section, so the limits of what constitutes a levy or charge, and whether it can apply to a worker who is also a PCBU (eg a sole trader) are yet to be determined.
  • Albert

    s19.1b defines a worker as a contractor or subcontractor.
  • MattD2
    s19.1b defines a worker as a contractor or subcontractor.Albert
    You are forgetting the beginning of S19 "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—" with the general legal interpretation of an "individual" as a natural person (i.e. a human being)
    That is why I mentioned:
    unless the subbie is brought on as a contract worker/sole traderMattD2
    To clarify S27 would not apply to "MattD2 Chippy Ltd" (as that is not an individual worker), but could apply to MattD2 working as a sole trader chippy - the first is a PCBU that's legal entity is a company (and in this case a contracting company), the second would be a PCBU with the legal entity of an individual (and therefore also a worker). As @SafetylawyerNZ said though, this hasn't really been tested yet...
  • Albert
    Ok, point taken, but if you refer to s19.2c a PCBU can also be a worker depending on the structure of said PCBU.
  • MattD2
    Yeah, that is why a lot of people are waiting for the case law to start clarifying this!

    Back to @Joanne Brown's original question though (and @SafetylawyerNZ other point on "what is considered a levy") it would also be interesting to know how these situations are set up, for example is there a difference between:
    1) I pay my workers $30/hr, but dock them $5/hr if there are any safety violations, or
    2) I pay my workers $25/hr, but give them a bonus of $5/hr if there are no safety violations
  • Tania Curtin
    Well here's my two cents... @MattD2 has it spot on about PCBU's and workers.... so I won't add to that. But I think people are actually misinterpreting the intent of S27.

    To impose a penalty because a contractor is not fulfilling their H&S obligations under the law, or meeting your specific H&S expectations or contract requirement is not to 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."

    The intent of S27 is that workers cannot be levied for doing something they are required to do to meet the law or protect the health and safety of themselves or others. For example, a business cannot make the worker pay for training they need to undertake to do their work safely, they cannot charge them for the PPE they need for work, they cannot make workers take unpaid leave to attend H&S meetings or carry out their duties as an HSR etc. etc. It's about sh*tty companies not being able to penalise people for doing the right thing, not the other way around.
  • Andrew
    Your option "1" is inconsistent with the Wages Protection Act. You cannot make unreasonable deductions from an employees wages (even if they agree to it).

    A wage deduction would not be a reasonable consequence for failing to deal with a safety complaint / violation.

    There is one thing that reasonable employers can't do - and that's meddle with an employee's wage.

    Also if you paid your workers $22.60 an hour and deducted $5.00 an hour for a safety breach your actions would be inconsistent with the Minimum Wage Act.

    Option "2" is also fraught with difficulty
  • MattD2
    @Andrew I really wasn't considering if the company would fall foul of any other legislation... I was trying to point out the absurdity if, in the two situations which end in the same result for the same actions (or inactions), one would be considered fair (paying a bonus) where the other not (docking a penalty)... so there must be something missing from the original assumption.
    I think Tania did a better job of summerising it more concisely though:
    It's about sh*tty companies not being able to penalise people for doing the right thing, not the other way around.Tania Curtin
  • Michael Wilson
    The next question needs to be are you just using poor contractors and penalizing them rather than replacing them?
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