Regulatory guide - Inspector decisions: review of provisional improvement notices
We publish this regulatory guide to assist the organisations and entities we regulate.
One of the powers of a health and safety representative (HSR) is the power to issue a provisional improvement notice, under division 7 of part 5 of the Work Health and Safety Act 2011 (WHS Act).
Where a HSR has issued a provisional improvement notice, section 100 of the WHS Act allows certain persons to request Comcare to appoint an inspector to review the notice.
Provisions like section 100 have the effect of creating opportunities for inspectors to engage with persons at workplaces. There is no bright line between inspectors’ activities under these provisions and their other functions such as providing information and advice about compliance with the WHS Act or monitoring compliance with the WHS Act.
In the course of engagement with people at workplaces, inspectors will consider and evaluate whether it may be appropriate to undertake other activities within the range of their functions and powers.
1. Issue of provisional improvement notices
The prerequisites before a HSR can issue a provisional improvement notice to a person are:
- the HSR reasonably believes that the person is contravening a provision of the WHS Act or the Work Health and Safety Regulations 2011 (WHS Regulations), or has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated
- the HSR has consulted the person
- the HSR has completed the regulator-approved HSR training
- an inspector has not already considered the matter and made a decision whether or not to issue an improvement notice or prohibition notice.[1]
There is no specification of the persons to whom a HSR may issue a provisional improvement notice. The person might be a 'person conducting a business or undertaking' (PCBU), but might equally be a worker.
The provisional improvement notice may require the person to:
- remedy the contravention
- prevent a likely contravention from occurring
- remedy the things or operations causing the contravention or likely contravention.[2]
The notice must specify the day by which the person is required to remedy the contravention or likely contravention.[3] The notice may include directions on how to meet the requirements in the notice.[4]
The person to whom the provisional improvement notice is issued must comply with the notice within the specified time. Failure to comply is an offence.[5] However, the operation of the notice is stayed if a request is made to appoint an inspector to review it.[6]
A request to Comcare to appoint an inspector to review the notice may be made by:
- the person to whom the notice was issued
- if the person is a worker, the PCBU at the workplace at which the worker carries out work.[7]
The request may be made within seven days of the notice being issued.[8]
2. Inspector is appointed and conducts a review
Upon receiving the request, Comcare must ensure that an inspector attends the workplace as soon as practicable.[9] The inspector will have the option of using the powers that are available upon entry.[10]
In conducting the review, the inspector must inquire into the circumstances that are the subject of the provisional improvement notice.[11] The inspector will consider all the circumstances afresh and make his or her own assessment as to the criteria for issuing a provisional improvement notice, noting that the criteria are essentially identical to the criteria for an inspector to issue an improvement notice under section 191. This will involve consideration of:
- whether the circumstances warrant a reasonable belief that there is or was a contravention
- whether it is likely that a past contravention is likely to continue or be repeated
- the remedial or preventative measures that are appropriate in response
- whether any directions should be made about the remedial or preventative measures
- the date by which compliance should be required.
At the conclusion of the review of the provisional improvement notice, the inspector must decide whether it should be confirmed, confirmed with changes or cancelled.[12] The inspector must give a copy of his or her decision to the person who requested the review and the HSR who issued the notice.[13]
If the inspector’s decision is to confirm the provisional improvement notice (with or without any changes), the provisional improvement notice is taken to be an improvement notice issued by an inspector under section 191.[14] This means, amongst other things, that the notice can be disputed by means of internal review and external review.
While the inspector is conducting the review, he or she may encounter circumstances that justify other action, such as the issue of a prohibition notice or a non-disturbance notice.
References
[1] WHS Act, section 90(1), (3), (4) and (5).
[2] WHS Act, section 90(2).
[3] WHS Act, section 92(d). The specified day must be at least 8 days after the notice is issued.
[4] WHS Act, section 93.
[5] WHS Act, section 99.
[6] WHS Act, section 100(2).
[7] WHS Act, section 100(1).
[8] WHS Act, section 100(1).
[9] WHS Act, sections 101(1).
[10] For example, section 165 of the WHS Act gives an inspector general powers such as power to inspect, examine and make inquiries at the workplace; section 171 gives an inspector the power to require a person who has custody of, or access to, a document to produce that document to the inspector; and section 176 gives an inspector the power to seize the workplace or part of the workplace if the inspector reasonably believes there is a hazard that is likely to cause serious injury or illness or a dangerous incident to occur.
[11] WHS Act, sections 101(2).
[12] WHS Act, sections 102(1).
[13] WHS Act, sections 102(2).
[14] WHS Act, section 102(3).
