Regulatory guide - Prohibition notices

If an inspector encounters a situation that involves (or will involve or may involve) a serious risk to the health or safety of a person, the inspector may decide to issue a prohibition notice. A prohibition notice can direct a person not to carry on the activity, or not to carry on the activity in a specified way, until an inspector is satisfied that the matters that give rise or will give rise to the risk have been remedied.

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

A person to whom a prohibition notice is issued may challenge the inspector’s decision to issue the notice by seeking internal review, and an external review may follow. Subject to review rights, however, the person is required to comply with the notice.

1. Scope of prohibition notices

A prohibition notice (or an initial oral direction) is issued in relation to an activity that is occurring or may occur at a workplace about which an inspector forms a reasonable belief that there is a relevant degree of risk to health or safety.^[1]

A prohibition notice (or oral direction) can be issued to a person who has control over the activity.^[2] This could be an individual, a body corporate (including a public authority) or the Commonwealth.^[3] The person might be the person with management or control of the workplace as a whole. However, the person might only have control of a particular activity that occurs at the workplace.

A prohibition notice (or oral direction) can prohibit the person to whom it is issued from:

• carrying on the activity
• carrying on the activity in a specified way.^[4]

The prohibition continues until an inspector is satisfied that the matters that give or will give rise to the relevant risk have been remedied.^[5]

A prohibition notice can direct the person as to specific measures on how to remedy or prevent a contravention of the Work Health and Safety Act 2011 (WHS Act) or the Work Health and Safety Regulations 2011 (WHS Regulations).^[6] It may also contain recommendations, but they are advisory only and are not binding.^[7]

An inspector’s decision to issue a prohibition notice could be preceded by a direction by a health and safety representative that unsafe work should cease,^[8] although the two types of notice are not expressly linked. A direction by a health and safety representative could result in a request to Comcare to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.^[9] The inspector’s attendance could be the practical trigger for the inspector issuing the prohibition notice.

2. Preconditions

An inspector has the power to issue a prohibition notice (or an initial oral direction) if the inspector reasonably believes that:

• an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard
• an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

The wording relating to serious risk to health or safety emanating from an immediate or imminent exposure to a hazard echoes the definition of ‘dangerous incident’ for the purposes of notification requirements, although the two are not expressly linked.^[10] Given the close correlation to the ‘dangerous incident’ definition, an inspector may initially consider the types of hazard listed in that definition in considering whether it may be appropriate to issue a prohibition notice. Whether a risk is a ‘serious’ risk will be a matter of degree to be determined in the particular circumstances.

The ‘reasonably believes’ threshold indicates that there must exist facts which are sufficient to induce a belief in a reasonable person.^[11]

The reasonableness of an inspector’s belief in considering whether to issue a prohibition notice will depend on factors such as the nature and reliability of the information available to the inspector, the seriousness of the risk and the immediacy of the hazard.

An inspector would normally need to attend the relevant workplace to reasonably evaluate the need to issue a prohibition notice. However, it is not a precondition to issuing a prohibition notice that the inspector has attended the workplace.

3. Decision to give a direction or issue a notice

It is not a precondition to an inspector issuing an oral direction that the inspector believes that a particular provision of the WHS Act or the WHS Regulations has been or is being contravened through the carrying on of the activity. However, by the time a written notice is issued, there is an expectation that a contravention will have been identified.^[12] This is consistent with an oral direction being an immediate response to address perceived risk, while a written notice should be more considered and should be linked to a contravention of a legislative provision.

An inspector’s decision as to whether to issue a direction or a prohibition notice in a particular case will focus on achieving the objective of stopping an activity that involves a serious risk to health and safety emanating from an immediate or imminent exposure to a hazard until the inspector is satisfied that the matters that give rise to the risk have been remedied. The inspector might consider questions of the following type:

• How immediate or imminent is the possible exposure to a hazard? How serious is the risk to health or safety that results?
• What part does the activity play in the business or undertaking that is being conducted at the workplace? Can the business or undertaking be conducted (in full or in part) without that activity?
• Is there a specific and known way to eliminate or minimise the risk? Is the person already aware of a method for eliminating or minimising the risk?
• How quickly can the risk be addressed? Is it more appropriate to issue an improvement notice, which specifies a time for compliance?
• Is it necessary to invoke the compulsive force of a prohibition notice? Could the desired outcome be achieved by giving information and advice?
• Is there more than one person who has ‘control’ of the activity? If so, is one of those persons a more appropriate person to take action to remedy the risk (for instance because they are also the person with management or control of the workplace or a 'person conducting a business or undertaking' (PCBU)?
• Can a specific contravention be identified? Should an oral direction be given immediately while further thought is given to whether a contravention may have occurred?

A prohibition notice is an administrative measure, taken on the basis of an inspector’s evaluation of risk 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

A prohibition notice must be in writing.^[13] It must state:

• that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief
• briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk
• the provision of the WHS Act or WHS Regulations that the inspector believes is being, or is likely to be, contravened by that activity.^[14]

If the inspector’s direction prohibits the carrying on of an activity in a specified way, the prohibition notice may give particulars such as:

• a workplace, or part of a workplace, at which the activity is not to be carried out
• anything that is not to be used in connection with the activity
• any procedure that is not to be followed in connection with the activity.

A prohibition notice may include directions on measures to be taken to remedy the risk, activities, matters, contravention or likely contravention to which the notice relates.^[15] The directions may refer to a Code of Practice. They may also offer the person a choice of ways in which to remedy the necessary risks, contravention, etc.^[16] A prohibition notice may also include non-binding recommendations as to remedial action.^[17]

As a prohibition notice is primarily a mechanism to stop a person from doing something, any directions or recommendations contained in a prohibition notice would normally be of an ancillary nature. If an inspector considers that it is appropriate for active remedial or preventative steps to be taken, it will normally be appropriate to specify these in an improvement notice with a fixed timeframe for compliance. Another consideration in this regard is that a prohibition notice is issued to a person with control of a specific activity, who may not be in a position to implement remedial or preventative measures.

An inspector can make minor changes to a prohibition notice. Minor changes might clarify the content, correct errors or reflect changed circumstances (such as a change of address).^[18] 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 prohibition notice to the person who has control over the relevant activity.

As mentioned, the person may be an individual, a body corporate or the Commonwealth. The inspector may issue the prohibition 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
• 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.^[19]

Some of these methods could be effective for issuing a prohibition 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 who has control over the relevant activity.^[20]

Alternative methods of issuing or giving a prohibition notice may be available in some circumstances.^[21]

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.

If a prohibition notice cannot be issued because the person with management or control of the workplace cannot be found after taking reasonable steps to do so, Comcare may proceed to take any remedial action necessary to make the workplace safe.^[22]

6. Duration

An inspector’s direction continues in force until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.^[23]

If the person to whom the direction is issued does not want or need to undertake or resume the activity, they need not take any positive action in response to the direction. However, if the prohibited activity constitutes part of a business or undertaking, in practical terms it is likely that the person who undertakes the business or undertaking will want to undertake or resume the activity.

As such, there will normally be a practical imperative for the person to whom a prohibition notice is issued to promptly take steps that will satisfy an inspector that the matters that give rise or will give rise to the relevant risk have been remedied.

7. Compliance

The person to whom a prohibition 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.^[24] It is also an offence for any person to intentionally remove, destroy, damage or deface a prohibition notice that has been displayed, so long as the notice is in force.^[25]

The person to whom an oral direction or prohibition notice is issued must comply with the direction or notice (including any written directions in the prohibition notice). Failure to do so is an offence.^[26] If the prohibition notice includes recommendations, it is not necessary to comply with them.^[27]

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

• to compel the person to whom the prohibition notice was issued to comply with the notice
• to restrain the person to whom the prohibition notice was issued from contravening the notice.^[28]

Comcare may apply for an injunction regardless of whether a prosecution has been commenced for a contravention of the prohibition notice or for any other offence.^[29]

Another option for Comcare is to take remedial action itself, in the form of any action that Comcare believes reasonable to make the workplace or situation safe. This is possible if the person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice. Before taking remedial action, Comcare must give the person written notice of its intention to do so.^[30]

8. Review

An inspector’s decision to issue a prohibition notice is a reviewable decision.^[31]

This means that an eligible person may apply to Comcare for review of the decision (internal review).^[32] 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).^[33]

The eligible persons for a reviewable decision relating to a prohibition notice are:

• the person to whom the notice was issued
• the person with management or control of the workplace, plant or substance
• 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
• a health and safety representative who gave a direction under section 85 to cease work, that is relevant to the prohibition notice.^[34]

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 does not automatically stay the operation of the prohibition notice. Instead, the person conducting the internal review can decide to stay the operation of the prohibition notice, either on their own initiative or on application by the applicant for internal review.^[35] In the case of an application for a stay, the reviewer must make a decision within one working day of receiving the application, failing which the reviewer is taken to have decided to grant a stay.^[36]

A stay operates until a decision is made on the internal review, and continues until an application for external review is made or the time for making an application for external review has expired.^[37] There is no express provision to stay the operation of a prohibition notice while an external review is on foot, 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 a prohibition notice.^[38] 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 a prohibition notice, but Comcare might do so, for instance, where Comcare forms the view that a prohibition 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 a prohibition notice could prejudice the review rights of the different eligible persons listed above.