Understanding work health and safety improvement notices

State workplace health and safety regulators have the power to issue improvement notices to businesses they believe have contravened, or are contravening, the State’s workplace health and safety legislation. It is important that businesses understand what these notices are and how to comply with them to avoid penalties or further proceedings.

What is an improvement notice?

Broadly, an improvement notice is a document which may be issued to an employer by a State work health and safety regulator (Regulator) to seek that the employer stop or prevent contraventions of workplace health and safety legislation (Legislation). Primarily, these are issued where an inspector of a Regulator has attended a workplace and identified potential or actual breaches of the employer’s duty to ensure the health and safety of workers

Requirements of an improvement notice

While the legislation varies from State to State, the model workplace health and safety act provides the general requirements of an improvement notice. In order for an improvement notice to be valid it must set out:

• That the inspector issuing the notice believes the business is contravening the Legislation, or alternatively, that the business has contravened the Legislation in such a way that there will likely be repeat contraventions;
• The actual section of the Legislation the inspector believes has or is being contravened;
• How the inspector says the Legislation has or is being contravened; and
• A date that the alleged contravention(s) must be remedied by.

The Victorian Legislation further requires a notice to contain:

• The penalty for contravening the notice;
• How the notice can be reviewed; and
• A statement that the issuing of a notice doesn’t affect any proceedings for an offence against the Legislation.

If an improvement notice fails to set out any of the above matters, it will not be valid.

Compliance with an improvement notice

If a valid notice has been issued, it must be complied with. As a notice is required to set out how the alleged contravention is occurring, the conduct outlined may be used to inform remedial action. Complying with a notice may include taking action such as:

• Ceasing the conduct outlined;
• Implementing new procedure or directives as to how work is undertaken;
• Making physical changes to the workplace (i.e. such as installing safety equipment);
• Utilising protective equipment.

Ultimately, the action required will be dependent on the contravention alleged. The timeframe set out within the notice must be complied with.

Failure to implement action which addresses an alleged contravention by the date stipulated within the notice may result in the Regulator seeking penalties against the employer. Penalties for failing to comply with an improvement notice vary from $71,875.00 in Queensland to $462,300.00 in Victoria.

Appealing or extending an improvement notice

If a business views the decision to issue an improvement notice was not reasonable, or that they are not able to comply with the notice within the timeframe provided, they can seek a review of the decision or an extension of time.

While each Legislation provides for its own mechanism, as the decision to issue a notice is a decision made under an enactment, it is reviewable. The Legislation generally proscribes that a request for review must be made in writing to the Regulator within either the timeframe set by the notice or 14 days (whichever is lesser).

Similarly, an employer may request that the time to comply with an improvement notice be extended. This may only be requested before the timeframe for compliance ends.

Takeaways

Ultimately, improvement notices should be complied with to mitigate the risk of having penalties imposed. Whether a notice is valid or appealable will vary from State to State, and it is recommended that you seek advice if you have received a notice.

One way to ensure that your business stays ahead of the curve as regulatory oversight and compliance requirements continue to evolve is by attending the ‘Practical Guidance for Dealing with Regulators’ webinar hosted by NRA Legal’s work health and safety experts on Thursday 15 June at 12:00 PM. This webinar will provide valuable insights and real-world examples of successful approaches to regulatory compliance. Register here to secure your spot.

If your business has received an improvement notice, NRA Legal are here to assist. Call 1800 572 679 for a confidential discussion.