There has been a significant increase in regulators issuing improvement, prohibition and penalty notices to enforce health and safety laws, as reported in Safe Work Australia’s Work health and safety compliance and enforcement activities report released late last year.

The report noted a significant increase in notices, particularly prohibition notices, across a number of jurisdictions, including the ACT and Queensland.

If you have not received a notice before, you can expect that a safety inspector is likely to issue one of these types of notices on their next visit. As such, it is important to understand what they are and how they work, as well as what your rights and obligations are.

What is an improvement notice?

An improvement notice is issued when an inspector forms a reasonable view that there is a safety issue that needs to be fixed. You can generally continue operating while the improvement notice is being actioned; however, the notice will require that the safety issue be fixed within a specified time.

What is a prohibition notice?

A prohibition notice is issued if the inspector reasonably considers that there is a significant and immediate risk to health or safety. In those cases, the notice will require you to stop the prohibited activity immediately. There might also be directions given to you to change the way the activity is done going forward to prevent illness or injury.

What is a penalty notice?

A penalty notice is usually issued by an inspector if they are satisfied that there has been a breach of the legislation but they do not intend on taking the matter further. A penalty notice has a fixed penalty amount, and is due and owing unless you elect to have the matter determined in court. The risk of electing to have the matter heard in court is that the court is not limited by the penalty notice amount when imposing a fine. In other words, you can be exposed to the maximum fine for a breach of a failure to comply with your duty under the legislation.

What should you do when issued with a notice?

Whenever you receive a notice issued by an inspector, you should treat it with a level of caution and, if necessary, obtain legal advice. Notices can be appealed in certain circumstances but you must act promptly.

Steps to follow are:

• check that the notice has been issued to the correct legal entity or person;
• make sure that it is clear from the notice what the suspected breach is and whether the risk of injury in fact exists;
• check whether there is sufficient time for you to comply with any improvement notice and if not, seek an extension of time from the inspector;
• check that the inspector had the authority to issue the notice; and
• if you disagree with what the notice says, consider your rights and seek legal advice.