WHS improvement notices: Should you contest them?
4 mins reading time
Receiving an improvement notice can be a concerning affair, particularly if the notice provides little detail as to what part of the Work Health and Safety Act 2011 (WHS Act) has been contravened. While concern is warranted – there is no need to panic.
Liaising with a solicitor and understanding when it is appropriate to contest the notice can be crucial to running a successful site or business. Seek advice and understand the notice first before jumping into action.
What are improvement notices?
Workplace Health and Safety Queensland (WHSQ) inspectors can issue an improvement notice if they reasonably believe that a person is contravening the WHS Act, or if they have in the past and it is likely that they will contravene again. The purpose of the improvement notice is to remedy or prevent a contravention of the WHS Act.
The style of improvement notices issued by inspectors varies enormously. Some are excellent, but many are extremely frustrating. For example, whereas the notice must state how the inspector believes the WHS Act is being contravened, often the notice will be lacking in sufficient detail to understand what the contravention is. Similarly, the notice can include directions and recommendations, but frequently the notice will say little more than the recipient of the notice should stop breaking the law.
What happens when you receive an improvement notice?
Upon receipt of an improvement notice, the recipient must comply with the notice or risk a $50,000 fine if prosecuted in court, or a $3,600 penalty infringement notice (i.e. ticket). WHSQ may also apply to a Magistrates Court for an injunction compelling the person to comply with the notice.
The recipient of the improvement notice is not compelled by the WHS Act to tell the inspector that the notice has been complied with or how it has been complied with. Notwithstanding that there is no obligation to this effect, the notice and the inspector will actively mislead people into thinking that they have these obligations.
Should I contest my improvement notice?
There is no limit in the WHS Act on what the inspector might direct, other than that it must be for the purpose of remedying a contravention. In practice, compliance with an improvement notice is often not as expensive as contesting the notice. This is not always true but is frequently the case. In many situations, the question of whether you should contest an improvement notice is analogous to whether you should contest a parking ticket. The temptation is to simply comply with the notice, even if it is unjust and unreasonable.
Contesting a notice: The process
If a person wants to seek internal review of an improvement notice, then the person has only 14 days to seek internal review. Internal review is not the only way to contest an improvement notice, but it is the most obvious.
The situations where a business might want to contest an improvement notice include:
- The recipient holds a licence (e.g. a QBCC licence) and the receipt of the notice might result in disciplinary proceedings and possible loss of licence.
- The recipient of the notice performs work for the government and is worried that the notice will impact on the businesses ability to perform the work.
- The recipient of the notice performs work on tender, in circumstances where the existence of the notice may impact on the ability of the recipient to win the work.
- The recipient is making an application for some other right (e.g. insurance) and failing to contest the notice might jeopardise that application.
- There has recently been an incident that could be the subject of a prosecution and the issue of the notice appears to be designed to discredit the business in advance of the prosecution.
- There has recently been an incident that could be the subject of a common law action for compensation by an injured worker and the existence of the notice will be unhelpful in defending against that action.
- The inspector issues multiple improvement notices, increasing the cost of compliance to an intolerable level.
Contesting a notice: In Practice
By way of example, under the Queensland Building and Construction Commission Act 1991 (QBCC Act), the Queensland Building and Construction Commission (QBCC) may investigate whether there are grounds for taking disciplinary action against a builder holding a QBCC licence. There are numerous grounds upon which the QBCC can investigate and one of those grounds is that builder has contravened the WHS Act. The exact words of the QBCC Act are that the “licensee… is taken to have contravened” the WHS Act.
An improvement notice is issued when an inspector reasonably believes that a person is contravening the WHS Act. If the person does not contest the notice, then the QBCC will take it that, the contravention is conceded by the person and will rely upon this failure to contest the notice as a basis for concluding that the WHS Act was in fact contravened.
Amongst other things, the QBCC can:
- reprimand the builder; or
- suspend the builder’s licence; or
- impose conditions on the builder’s licence; or
- cancel the builder’s licence.
Weighing the pros and cons
In the case of builders holding a QBCC licence and dealing with a WHSQ inspector, it is very easy to think that the best solution is to simply comply with the notice and move on. However, once the 14-day internal review period has expired, WHSQ will give the QBCC a copy of the improvement notice and the QBCC may act upon it. If the improvement notice relates to an incident where a worker was injured, then it is likely that the QBCC will act.
Contesting an improvement notice is not cheap. There will be legal fees and business disruption in arguing the case. The standard strategy in contesting a notice is to first comply with the notice and then run the contest – so the argument is not undermined by concerns about people’s safety. Consequently, there has to be a reason beyond the inconvenience of the notice to justify the cost and inconvenience of contesting it. However, these cases do happen and in the case of builders holding a QBCC licence, every improvement notice is concerning. It must also be kept top of mind that the recipient of the notice should move quickly, or they may lose their ability to seek internal review of the notice. A quick phone call to your lawyer is often the best solution.
If you are weighing up the pros and cons of contesting an improvement notice, contact our Employment, Safety and Migration team.
more
insights
Anti-Money Laundering and Counter-Terrorism Financing (AML / CTF) Regime set to apply to the real estate sector
ACL Unfair Contract Terms Impact Construction Contractors and Suppliers
Defining an employee in Australia—how many definitions can there be?
stay up to date with our news & insights
WHS improvement notices: Should you contest them?
Receiving an improvement notice can be a concerning affair, particularly if the notice provides little detail as to what part of the Work Health and Safety Act 2011 (WHS Act) has been contravened. While concern is warranted – there is no need to panic.
Liaising with a solicitor and understanding when it is appropriate to contest the notice can be crucial to running a successful site or business. Seek advice and understand the notice first before jumping into action.
What are improvement notices?
Workplace Health and Safety Queensland (WHSQ) inspectors can issue an improvement notice if they reasonably believe that a person is contravening the WHS Act, or if they have in the past and it is likely that they will contravene again. The purpose of the improvement notice is to remedy or prevent a contravention of the WHS Act.
The style of improvement notices issued by inspectors varies enormously. Some are excellent, but many are extremely frustrating. For example, whereas the notice must state how the inspector believes the WHS Act is being contravened, often the notice will be lacking in sufficient detail to understand what the contravention is. Similarly, the notice can include directions and recommendations, but frequently the notice will say little more than the recipient of the notice should stop breaking the law.
What happens when you receive an improvement notice?
Upon receipt of an improvement notice, the recipient must comply with the notice or risk a $50,000 fine if prosecuted in court, or a $3,600 penalty infringement notice (i.e. ticket). WHSQ may also apply to a Magistrates Court for an injunction compelling the person to comply with the notice.
The recipient of the improvement notice is not compelled by the WHS Act to tell the inspector that the notice has been complied with or how it has been complied with. Notwithstanding that there is no obligation to this effect, the notice and the inspector will actively mislead people into thinking that they have these obligations.
Should I contest my improvement notice?
There is no limit in the WHS Act on what the inspector might direct, other than that it must be for the purpose of remedying a contravention. In practice, compliance with an improvement notice is often not as expensive as contesting the notice. This is not always true but is frequently the case. In many situations, the question of whether you should contest an improvement notice is analogous to whether you should contest a parking ticket. The temptation is to simply comply with the notice, even if it is unjust and unreasonable.
Contesting a notice: The process
If a person wants to seek internal review of an improvement notice, then the person has only 14 days to seek internal review. Internal review is not the only way to contest an improvement notice, but it is the most obvious.
The situations where a business might want to contest an improvement notice include:
- The recipient holds a licence (e.g. a QBCC licence) and the receipt of the notice might result in disciplinary proceedings and possible loss of licence.
- The recipient of the notice performs work for the government and is worried that the notice will impact on the businesses ability to perform the work.
- The recipient of the notice performs work on tender, in circumstances where the existence of the notice may impact on the ability of the recipient to win the work.
- The recipient is making an application for some other right (e.g. insurance) and failing to contest the notice might jeopardise that application.
- There has recently been an incident that could be the subject of a prosecution and the issue of the notice appears to be designed to discredit the business in advance of the prosecution.
- There has recently been an incident that could be the subject of a common law action for compensation by an injured worker and the existence of the notice will be unhelpful in defending against that action.
- The inspector issues multiple improvement notices, increasing the cost of compliance to an intolerable level.
Contesting a notice: In Practice
By way of example, under the Queensland Building and Construction Commission Act 1991 (QBCC Act), the Queensland Building and Construction Commission (QBCC) may investigate whether there are grounds for taking disciplinary action against a builder holding a QBCC licence. There are numerous grounds upon which the QBCC can investigate and one of those grounds is that builder has contravened the WHS Act. The exact words of the QBCC Act are that the “licensee… is taken to have contravened” the WHS Act.
An improvement notice is issued when an inspector reasonably believes that a person is contravening the WHS Act. If the person does not contest the notice, then the QBCC will take it that, the contravention is conceded by the person and will rely upon this failure to contest the notice as a basis for concluding that the WHS Act was in fact contravened.
Amongst other things, the QBCC can:
- reprimand the builder; or
- suspend the builder’s licence; or
- impose conditions on the builder’s licence; or
- cancel the builder’s licence.
Weighing the pros and cons
In the case of builders holding a QBCC licence and dealing with a WHSQ inspector, it is very easy to think that the best solution is to simply comply with the notice and move on. However, once the 14-day internal review period has expired, WHSQ will give the QBCC a copy of the improvement notice and the QBCC may act upon it. If the improvement notice relates to an incident where a worker was injured, then it is likely that the QBCC will act.
Contesting an improvement notice is not cheap. There will be legal fees and business disruption in arguing the case. The standard strategy in contesting a notice is to first comply with the notice and then run the contest – so the argument is not undermined by concerns about people’s safety. Consequently, there has to be a reason beyond the inconvenience of the notice to justify the cost and inconvenience of contesting it. However, these cases do happen and in the case of builders holding a QBCC licence, every improvement notice is concerning. It must also be kept top of mind that the recipient of the notice should move quickly, or they may lose their ability to seek internal review of the notice. A quick phone call to your lawyer is often the best solution.
If you are weighing up the pros and cons of contesting an improvement notice, contact our Employment, Safety and Migration team.