Australia: Beware the hidden costs of unchallenged health and safety enforcement notices

Introduction

An organisation issued with a health and safety enforcement notice should carefully consider whether to seek the review of a notice and understand the significant implications of not doing so.

Avoiding regulator intervention, business disruption, industrial and commercial relationship issues and penalties of up to $500,000 provide big incentives to treat notices very seriously.

The laws that empower a health and safety inspector to issue an improvement or prohibition notice and for the review of the decision of an inspector to issue a notice are now consistent across Australia, so it is timely to revisit this important issue. The Work Health and Safety Act provisions are modelled on the current Victorian laws and similar processes apply in Western Australia.

The basis for a notice being issued

An improvement notice may be issued where an inspector reasonably believes the OHS/WHS laws are being breached or the laws have been breached and that breach will continue. The notice may require the person (usually the relevant organisation) to do things within a specified period to remedy the breach or prevent further breach. Typically, this will be to develop or implement procedures, provide training or undertake engineering works.

A prohibition notice may be issued where an inspector reasonably believes an activity at a workplace involves a serious risk to health or safety from immediate or imminent exposure to a hazard. The notice may direct the person carrying on the activity to cease doing so or to carry it on in a specified way until an inspector is satisfied the matters giving rise to the risk have been remedied.

A prohibition notice typically prohibits use of allegedly unsafe plant, access to unsafe areas or working without appropriate risk controls. The notice may prohibit the activity unless specified measures are in place (e.g. limiting the number of people accessing elevated work areas or having fall barriers in place).

A failure to comply with an improvement or prohibition notice is a serious offence.

Internal and external review of inspectors' notices

An inspector must have a reasonable belief of breach or risk before issuing a notice, but need not be certain. This recognises that the interests of health and safety may require prompt action to address risks, rather than wait for that certainty. While proper enquiries should be made by the inspector before issuing a notice, the inspector may not have all available information. The inspector may have a different opinion to the organisation on technical issues or on what is reasonably practicable in the circumstances.

For these reasons, the laws allow a decision of an inspector to issue a notice (or not to issue a notice) to be subject to review on application by people affected by the decision.

A review is first undertaken by an internal review unit (IRU) within the regulator that is independent of the inspectorate. The IRU will obtain and consider relevant information and set aside the decision (notice) or affirm or vary it. This process is undertaken in WA by the WorkSafe Commissioner.

A person affected by the decision of the IRU may then seek a further review before the Tribunal which may set aside, affirm or vary the decision (notice).

Considering whether to apply for a review

There are many reasons why you may wish to apply for a review of notice, including:

• You do not have control over the relevant activity and therefore cannot ensure compliance;
• The notice is unclear and you cannot be certain how to comply;
• The risk does not exist or the breach has not occurred;
• The risk is not serious, or the exposure is not imminent;
• The required steps cannot be taken at all or within the time required;
• There are already appropriate measures in place; or
• The required steps are excessive and there are more appropriate (reasonably practicable) things that can be done.

It is common practice for an organisation to comply with a notice rather than seek a review, even if there is a proper basis for setting the notice aside. This may be:

• not being aware of the review entitlement;
• to avoid the costs or inconvenience of applying for a review, particularly where there has not been an incident that has led to the notice being issued;
• to maintain a positive relationship with the inspector rather than challenging their decision (this should not be an issue as a review is not about the competence or behaviour of the inspector but a review on all information of the circumstances and the words and affect of the notice);
• because of a misunderstanding of what the notice strictly requires;
• because of a failure to consider or understand the implications of the notice remaining valid; or
• simply because no single notice is considered to be significant enough to 'make waves'.

Implications of not seeking review of a notice

There are many implications for an organisation failing to seek a review of a notice. Although a notice is based only a reasonable belief of breach or exposing people to a serious risk, leaving this unchallenged can seriously affect the operations of the organisation, key relationships and influence actions by other people, including:

• Requiring costly steps that may not be legally required or necessary for health and safety (including operational disruption and changes to methods of operation);
• Putting the business at risk of breach of the notice, with serious consequences;
• The number of notices is often taken into account by regulators in identifying 'poor performers' to be the targets of enforcement action – including the involvement of the Board or CEO of a company;
• The perception of poor health and safety performance may compromise relationships with workers, health and safety representatives and unions;
• The number of notices may be taken into account in the evaluation of tenders;
• Broader reputational damage;
• Allowing a notice to remain may encourage investigation and prosecution, while the setting aside of a notice may persuade the regulator that there has not in fact been a breach;
• Notices are often asserted to be evidence of breach in a prosecution or to assert repeated breach justifying a higher penalty.

Recommended process for your business

A decision whether or not to seek the review of a notice should be made only after carefully considering the legal and business implications. While this is generally so, it is particularly important for a prohibition notice or where an improvement notice has been issued during the investigation of an incident.

We recommend that organisations have in place formal processes through which:

• The receipt of a notice is immediately escalated to senior management (there are time limits for seeking a review and this will assist the officers of the organisation to meet their due diligence obligations)
• The circumstances leading to the issuing of the notice are identified, including existing risk control measures, information provided to the inspector and other available information
• The wording of the notice is checked for clarity, particularly as to the required measures
• The ability to comply, associated costs and alternative measures are identified and assessed
• Consideration is given to obtaining legal advice on the implications of the notice and whether a review may be appropriate
• All of the legal, operational and other business issues and information are considered
• A properly informed and considered decision is made.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.