Know Your Rights - When can you and when should you appeal a WorkSafe Notice?

We’ve all had times when a WorkSafe inspector issues a notice and we believe it is unreasonable because we disagree with the inspector’s recommended remedy or it is not in line with the industry standards we see enforced by WorkSafe on other sites.

Not enough companies take advantage of WorkSafe’s process for internal review when they are issued an Improvement or Prohibition Notice.

You have 14 days to challenge an Improvement or Prohibition Notice by applying to the Internal Review Unit of WorkSafe. This process is your legal right and is important to use for the reasons below.

Notices are overturned by the Internal Review Unit for the following reasons:

  • The remedy of the contravention is unreasonable

  • A technical issue related to the citing of incorrect sections of the OHS Act and/or Regulation

  • Issuing the notice to an incorrect duty holder

Below are some examples of where notices may be overturned:

  • The control recommended by the inspector exceeds industry standards

  • The notice was issued to the incorrect duty holder i.e. wrong company name

  • The notice was issued to the head contractor when it should have been issued to a subcontractor i.e. Notice is issued to a head contractor for there being no SWMS in place for piling works. This notice should only be issued to the subcontractor in charge of the works as it is the subcontractor’s duty to ensure a SWMS is in place for all high risk construction work.

  • The notice refers to the incorrect section of the OHS Act or Regulations i.e. If a notice is written related to not maintaining public safety the notice should reference a contravention to section 23 of the OHS Act (Duties to others) however, in some instances, the inspector will reference Section 21 of the Act which relates specifically to employees and subcontractors not members of the public.

  • When there is a contravention of a subcontractor's contractor the notice should state a contravention against section 23 of the OHS Act not Section 21.

  • When the notice details more than one contravention on the same notice. Each contravention must be issued in a separate notice

  • The contravention was closed out while the inspector was still on site.

Why is it important to challenge a notice you believe is incorrect?

  • WorkSafe can commence a prosecution based on multiple contraventions for the same issue. If your company has been given several Improvement Notices over time for failing to provide fall protection for example, WorkSafe can use these notices as evidence against your company and the notices will be used to support the case of the prosecution.

  • While there are many well-seasoned and knowledgeable WorkSafe inspectors working in the construction division there are also ones who are not as experienced and are still learning. They don’t always get it right despite their best intentions to keep us all safe.

The internal review process is in place to protect your rights and to ensure that WorkSafe Inspectors always adhere to the stringent WorkSafe guidelines.

Elliott Safety recently assisted one of our clients to have an Improvement Notice withdrawn via the Internal Review Unit. Our team is here to help.