An inspector's visit produces one of a small number of documents, and which one you get tells you exactly how much trouble you are in and how fast you have to move.
Improvement notice: a deadline
An improvement notice is issued where an inspector reasonably believes that a person:
- is contravening a provision of the Act; or
- has contravened it in circumstances that make it likely the contravention will continue or be repeated.
The notice must state what the inspector believes the contravention is, the provision it relates to, and briefly why. It sets a compliance date, which cannot be earlier than seven days after the notice is issued, and it may — but does not have to — recommend a way of remedying the contravention.
You keep working. The activity is not stopped. What you must do is fix the contravention by the date stated, and you can apply for an extension before that date passes.
If the notice recommends a method and you prefer a different one, you are generally free to use it, so long as the contravention is actually remedied. The notice compels the outcome, not usually the method.
Prohibition notice: stop, now
A prohibition notice is a different instrument entirely. It is issued where an inspector reasonably believes that an activity is occurring, or may occur, that involves or will involve a serious risk to a person's health or safety from an immediate or imminent exposure to a hazard.
It directs that the activity not be carried on, or not be carried on in a specified way, and it takes effect immediately. There is no compliance date, because there is nothing to comply by — the notice remains in force until an inspector is satisfied the risk has been removed.
Two features surprise people:
It can be given verbally. An inspector can direct a person to stop on the spot and confirm it in writing as soon as practicable afterwards. The obligation begins when you are told, not when the document arrives.
It may specify remedial action. The notice can set out measures that would remove the risk. Taking them does not automatically lift the notice — an inspector still has to be satisfied — but it is the fastest route back to work.
Non-disturbance notices
Less commonly discussed, a non-disturbance notice requires a workplace or a thing within it to be left undisturbed for a specified period, so an inspector can examine it. It is time-limited and can be renewed. It is most often seen after a serious incident, alongside the general obligation to preserve an incident site.
What happens if you do not comply
Failure to comply with a notice is a separate offence from whatever the notice was about. That is worth stating plainly, because it is the point people miss: an organisation that fixes the underlying problem late has two problems, not one.
The penalties are graded — significantly higher for prohibition notices than improvement notices, reflecting the immediacy of the risk. Where a prohibition notice is not complied with, an inspector can also arrange remedial action and recover the cost from the duty holder.
Notices must be displayed in a prominent place at or near the workplace, or the plant, they relate to. Removing, damaging or defacing a displayed notice while it is in force is itself an offence.
Challenging a notice
Both notice types can be reviewed, and there are two stages.
Internal review by the regulator, applied for within a short window — typically 14 days from the day the notice was issued, though check the deadline stated on your notice and in your jurisdiction's Act, because it is unforgiving.
External review by the relevant tribunal or court, once internal review is complete or the regulator has failed to decide within the statutory period.
The critical practical difference between the two notice types:
- Applying for review of an improvement notice generally stays its operation until the review is decided.
- Applying for review of a prohibition notice generally does not. The activity stays stopped.
That asymmetry is deliberate. Prohibition notices exist because somebody could be seriously hurt today. So the sequence is always: comply, then argue.
Queensland mines: directives, not notices
If your site is a Queensland mine or quarry, an inspector will not hand you an improvement notice or a prohibition notice, because those instruments live in the Work Health and Safety Act and Queensland's mines and quarries are not under it.
They are governed by the Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999, and the enforcement instrument is a directive.
The Acts provide for a range of them. The most serious is the directive to suspend operations for an unacceptable level of risk, which can be given where an inspector, an inspection officer or an industry safety and health representative reasonably believes the risk from coal mining operations is not at an acceptable level. Others include directives about how part of a mine is to be operated and directives requiring a report to the chief inspector.
The distinction is not merely terminological. The obligation holders are different — a directive may be given to the operator or the site senior executive (SSE) by name, rather than to a PCBU. The review pathways are set out in the mining Acts rather than the WHS Act. And an industry safety and health representative — an elected industry role with statutory powers, which has no direct WHS Act equivalent — can also issue certain directives.
If your incident-response procedure was written from a generic WHS template, this is the section that will be wrong, and it will be wrong at the worst possible moment.
What to do in the first hour
Whichever instrument you receive:
- Read what is actually prohibited or required. People routinely stop more work than the notice covers, or less.
- Comply first. Especially with a prohibition notice, where review does not stay operation.
- Display it where the affected workers can see it.
- Diary the deadlines — both the compliance date and the review window, which are different dates and both easy to miss.
- Tell your contracting companies and your principal. Their duties are engaged too, and on a shared site the notice may affect work that is not yours.
- Start assembling the evidence now, not when it is requested. Where a notice touches competency, authorisation or plant condition, what is asked for next is a dated record of who was qualified for what and when you last checked.
That last one is the difference between a fortnight of disruption and an afternoon of it.
