Regulatory guide - Improvement notices

If an inspector encounters a situation that amounts to, or may amount to, a contravention of the Work Health and Safety Act 2011 (WHS Act) or the Work Health and Safety Regulations 2011 (WHS Regulations), the inspector may decide to issue an improvement notice. An improvement notice can direct a person to remedy an existing contravention or prevent a likely contravention.

An improvement notice is a mechanism to require a person to do something. By contrast, a prohibition notice is primarily a mechanism to stop a person from doing something.

A person to whom an improvement notice is issued may choose to challenge the inspector’s decision by seeking internal review, and further challenge is available in the form of external review. Subject to review rights, however, the person is required to comply with the notice.

1. Scope of improvement notices

An improvement notice can be issued to a person about whom an inspector forms a reasonable belief that the person is contravening or has contravened a provision of the WHS Act or WHS Regulations.^[1]

There is no other limitation on the persons to whom an improvement notice can be issued. The person could be any person on whom a duty or obligation is imposed by the WHS Act or WHS Regulations. This could include an individual, a body corporate (including a public authority) or the Commonwealth.^[2]

An improvement notice can require the person to whom it is issued to:

• remedy the contravention
• prevent a likely contravention from occurring
• remedy the things or operations causing the contravention or likely contravention.^[3]

The notice will specify a period during which the remedial or preventative action must be taken.^[4]

An improvement notice can direct the person as to specific measures on how to remedy or prevent the contravention.^[5] It may also contain recommendations, but they are advisory only and are not binding.^[6]

An inspector may attend a workplace in order to review a provisional improvement notice issued by a health and safety representative.^[7] In conducting a review, the inspector will consider the same sort of factors and questions as the inspector would consider in deciding whether to issue an improvement notice himself or herself. If the inspector’s decision upon review is to confirm or vary the provisional improvement notice, the provisional improvement notice is taken to be an improvement notice issued by the inspector.^[8] This will mean that various provisions discussed below will apply to the provisional improvement notice.

2. Preconditions

An inspector has the power to issue an improvement notice if the inspector reasonably believes that a person:

• is contravening a provision of the WHS Act or WHS Regulations
• has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.^[9]

The ‘contravention’ may be of any provision of the WHS Act or WHS Regulations.^[10] Thus it could relate to a health and safety duty such as:

• the primary duty of care of a 'person conducting a business or undertaking' (PCBU) ^[11]
• an officer’s duty of due diligence^[12]
• a worker’s duty to take reasonable care for his or her own health and safety while at work.^[13]

However, it could equally relate to very specific health and safety requirements in the WHS Regulations or to procedural requirements. The only qualification for the purposes of issuing an improvement notice is that there must be some currently ongoing aspect to the contravention. It cannot be a past contravention which is not likely to continue or be repeated.

The ‘reasonably believes’ threshold indicates that there must exist facts which are sufficient to induce a belief in a reasonable person.^[14]

In relation to an inspector’s belief regarding a contravention by a person, its reasonableness will depend on factors such as what information was available to the inspector, the reliability and weight of that information and how the information relates to the elements of the provision that the inspector believes has been contravened.

It is not a precondition to an inspector issuing an improvement notice that the inspector has attended the relevant workplace. However, it may be less likely that an inspector can form a reasonable belief as to a contravention without doing so.

3. Decision to issue a notice

An inspector’s decision as to whether to issue an improvement notice in a particular case will focus on achieving the objective of remedying an existing contravention or preventing a likely contravention. The inspector might ask himself or herself:

• How serious is the contravention or likely contravention? How pressing is the need for improvement?
• Is there a serious risk to health or safety that should be addressed with a prohibition notice? Is there a risk that is related to the subject matter of an improvement notice and can be addressed effectively through a direction in the improvement notice?
• Is it necessary to invoke the compulsive force of an improvement notice? Could the desired outcome be achieved by giving information and advice?
• Has the person contravened the same provision before? What was the person’s response to the contravention? Has the person contravened other provisions?
• Is there a specific and known way to remedy the contravention?
• What resources (time, direct expense and opportunity cost) might be required for the person to take remedial action? How will the resource commitment affect the person?
• Is there another person who may be a more appropriate person to take remedial or preventative action? Who has the ability to actually implement an improvement in relation to a contravention?
• Is it very likely that the contravention will continue or be repeated, or is there a lesser degree of likelihood?

An improvement notice is an administrative measure, taken on the basis of an inspector’s reasonable belief based on information available at a particular point in time. Its objectives are remedial and preventative. It is not punitive and is not directly related to any decision to prosecute any person for an offence.

4. The notice

An improvement notice must be in writing.^[15] It must state:

• that the inspector believes the person:
  • is contravening a provision of the WHS Act or WHS Regulations
  • has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated
• the provision the inspector believes is being, or has been, contravened
• briefly, how the provision is being, or has been, contravened
• the day by which the person is required to remedy the contravention or likely contravention.^[16]

In addition, the notice may include directions concerning the measures to be taken to comply with the notice.^[17] The directions may refer to a Code of Practice. They may also offer the person a choice of ways in which to comply with the notice.^[18] An improvement notice may also include non-binding recommendations as to how to comply with the notice.^[19]

It is possible for an inspector to make minor changes to an improvement notice. Minor changes might clarify the content, correct errors or reflect changed circumstances (such as a change of address).^[20] Any more significant changes must be made by Comcare, rather than the individual inspector (see below).

5. Issuing the notice

The inspector will issue the improvement notice to the person whom he or she believes is contravening or has contravened a provision of the WHS Act or WHS Regulations.

As mentioned, the person may be an individual, a body corporate or the Commonwealth. The inspector may issue the improvement notice by:

• delivering it personally to the person or sending it by mail, facsimile or electronic transmission to the person’s usual or last known place of residence or business
• leaving it for the person at the person’s usual or last known place of residence or business with a person who appears to be over 16 years and who appears to reside or work there, or
• leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control of the workplace.^[21]

Some of these methods could be effective for issuing an improvement notice to the Commonwealth. Another option for issuing a notice to the Commonwealth is to issue the notice to the ‘responsible agency’, which is the Commonwealth agency whose acts or omissions are alleged to contravene the WHS Act or WHS Regulations.^[22]

Alternative methods of issuing or giving an improvement notice may be available in some circumstances.^[23]

Even though service can potentially be effected through somewhat indirect means. For example, leaving a notice at the workplace to which the notice relates, the notice must still be addressed to a specific person.

6. Duration

An improvement notice must specify the day by which the person is required to remedy the contravention or likely contravention referred to in the notice. The period for compliance must be reasonable in all the circumstances.^[24]

An inspector may extend the period for compliance, provided that the day stated in the notice (or an extended date) has not passed.^[25]

7. Compliance

The person to whom an improvement notice is issued must display a copy of the notice at or near the workplace (or the relevant part of the workplace) at which work is being carried out that is affected by the notice. The person must do so as soon as possible, and the notice must be displayed in a prominent place. Failure to comply with the display requirements is an offence.^[26] It is also an offence for any person to intentionally remove, destroy, damage or deface an improvement notice that has been displayed, so long as the notice is in force.^[27]

The person to whom an improvement notice is issued must comply with the notice (including any directions) before the day stated in the notice for compliance. Failure to do so is an offence.^[28] If the notice includes recommendations, it is not necessary to comply with them.^[29]

Once an improvement notice has been issued, Comcare has the ability to apply to a court for an injunction:

• to compel the person to whom the improvement notice was issued to comply with the notice
• to restrain the person to whom the improvement notice was issued from contravening the notice.^[30]

Comcare may apply for an injunction regardless of whether a prosecution has been commenced for a contravention of the improvement notice or for any other offence. Comcare does not have to wait for the compliance period for the improvement notice to expire before applying for an injunction.^[31]

8. Review

An inspector’s decision to issue an improvement notice is a reviewable decision, as is a decision in relation to an extension of the period for compliance.^[32]

This means that an eligible person may apply to Comcare for review of the decision (internal review).^[33] Once a decision has been made, or is taken to have been made, on an internal review, an eligible person may apply to the Fair Work Commission for further review (external review).^[34]

The eligible persons for the two types of reviewable decision relating to improvement notices are:

• the person to whom the notice was issued
• a 'person conducting a business or undertaking' (PCBU) whose interests are affected by the decision
• a worker whose interests are affected by the decision
• a health and safety representative who represents a worker whose interests are affected by the decision.^[35]

The applicant for external review need not be the eligible person who sought internal review. Different eligible persons could have different interests and be seeking different outcomes.

An application for internal review stays the operation of the improvement notice until a decision is made, and the stay continues until an application for external review is made or the time for making an application for external review has expired.^[36] There is no express provision to stay the operation of an improvement notice while an external review is underway, but a party to the external review proceeding could apply to the Fair Work Commission for a stay.

It is possible for Comcare to vary or cancel an improvement notice.^[37] This could be done after receiving representations from an affected party or on Comcare’s own initiative. There are no fixed criteria for varying or cancelling an improvement notice, but Comcare might do so, for instance, where Comcare forms the view that an improvement notice would not be issued if the currently-prevailing circumstances were considered afresh. Comcare’s view might be informed by factual inquiries or advice obtained after the inspector made his or her decision. Comcare will take into account whether a variation or cancellation of an improvement notice could prejudice the review rights of the different eligible persons listed above.