What to do if issued an enforcement notice

VECCI provide OHS advice on what to do when issued an enforcement notice.

WORKSAFE Victoria inspectors can issue three types of enforcement notices when occupational health and safety risks arise: improvement, prohibition and non-disturbance notices. Read on for more information about each notice and what to do if your business is on the receiving end.

IMPROVEMENT NOTICES

In Victoria, WorkSafe inspectors can issue an improvement notice when they believe an employer is breaching the Occupational Health and Safety Act 2004 or one of the Occupational Health and Safety Regulations 2007.

PROHIBITION NOTICES

Where an inspector considers there is risk of serious personal injury or death, they can issue a prohibition notice requiring the activity to be stopped until the contravention is remedied.

NON-DISTURBANCE NOTICES

This notice stops the use, movement or interference with a specified plant, substance or other thing at the workplace and also prevents the disturbance of the area where it is located.

While each of these notices could potentially harm your business, failure to abide by them could result in prosecution. Therefore, any enforcement notice must be taken very seriously.

What to do when you receive a notice?

The obvious answer is to abide by it but if you believe the inspector has made a poor decision or not properly considered the facts, or you believe you are doing enough to demonstrate you are abiding by the law, and then you should seek to have the decision reviewed.

The inspector must provide you with information regarding a potential review of his/her decision. However, it is important to seek a review as soon as possible after the notice is issued because even when a notice is reviewed, the date listed for compliance remains the same.

If an improvement notice is issued, the inspector will determine the compliance date. The maximum time an inspector can place on a non-disturbance notice is seven days but they can issue further notices.

In the case of a prohibition notice, it stays in place until the inspector has certified in writing that the matters that give rise to the risk have been remedied. Again, if you disagree with the inspector’s decision you must seek a review straight away.

How do you seek a review of an inspector’s decision?

There is a process that must be followed. First, an eligible person must apply in writing using the internal review application form. You can download this and an accompanying information sheet from www.worksafe.vic.gov.au or you can contact WorkSafe Victoria. The review is free but it must be requested as soon as possible following receipt of the notice and no later than 14 days after it was issued.

How do you ask for a stay or suspension of the decision?

You may seek a stay of the decision pending the outcome of the internal review. You can do this when lodging the review application or out of hours by phoning 13 23 60.

Remember, an application for a stay may only be requested if it is made in relation to an application for internal review of the same decision. The Internal Review Officer must decide on a stay application within 24 hours otherwise WorkSafe Victoria is deemed to have granted the stay of the decision. The stay of the reviewable decision only operates pending the outcome of the internal review.

Please note that unless a stay has been granted, an application for internal review does not affect the operation of the original decision and this means that action is required to implement the decision.

When asking for an internal review, you would do well to protect your position by collating all available evidence on the matter as the Internal Review Officer may seek additional information. If you are dissatisfied with the decision of the WorkSafe Internal Review Officer, you may apply to the Victorian Civil and Administrative Tribunal (VCAT) within 14 days.

VECCI members seeking further assistance in this area should contact the VECCI Helpline on 8662 5222. Alternatively, VECCI provides a range of OHS training and consulting services that can be accessed by contacting 8662 5333 or visiting www.vecci.org.au

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