A Person Conducting a Business or Undertaking (PCBU) could have in place measures to control risks in the workplace, including amongst other things, implementation of safe work method statements (SWMS), regularly conducting risk assessments and holding regular training in order to prevent and manage risks to work health and safety .
Despite such measures, accidents can and do happen. This may see the PCBU come under the scrutiny of the work health and safety regulator inspector, where they could be found to be in breach of Work Health and Safety legislation.
Under the Model Work Health and Safety Act (WHS Act), the work health and safety regulator in each State and Territory is responsible for compliance and enforcement of the WHS Act. Some of the ways the regulator seeks to secure compliance includes prosecution, improvement, prohibition and penalty notices and enforceable undertakings.
In this blog, we will focus on improvement and prohibition notices.
Improvement notices are issued when an inspector reasonably believes that a person is contravening or has contravened the WHS Act in circumstances that make it likely that the contravention will continue or be repeated. Improvement notices require a PCBU to fix an identified safety issue. Improvement notices will contain:
- A statement about the contravention or likely contravention;
- The provision of the WHS Act that is breached or likely to be breached;
- How the provision of the WHS Act has been breached or likely to be breached; and
- The date the person is required to remedy the situation.
In most cases, the improvement notice does not prevent a workplace from continuing to operate.
A recent example of the work health and safety regulator issuing improvement notices was in October 2016 when the Dreamworld theme park was closed whilst Workplace Health and Safety Queensland (WHSQ) inspectors completed their safety audits. Following these audits, Dreamworld was issued with seven improvement notices which related to amongst other things, safety procedures and equipment. These included:
- Green Room Waterslide — the “Emergency Stop” button’s colour is faded and the label contains the manufacturer’s ride name not WhiteWater World’s name;
- WhiteWater World is required to submit a Chemical Register to notify WHSQ of storage of hazardous chemicals;
- The Flowrider ride required an updated chemical log book;
- Staff working on the Flowrider are required to use upgraded Personal Protective Equipment (respiratory masks) when adding pool chemicals and should be trained in how to use the new masks;
- Dreamworld required durable tags for all electrical equipment/tools (“tag and test” tags); and
- A maintenance staff member working on the Escape from Madagascar ride did not comply with “work at heights” requirements.
If an inspector reasonably believes that an activity is occurring at a workplace that involves or will involve a serious risk to health or safety of a person than a prohibition notice can be issued.
The prohibition notice:
- Is a direction prohibiting the carrying on of the particular activity or carrying it on in a specified way until the inspector is satisfied that the risk has been remedied;
- Must state that the inspector believes that grounds to issue the notice exist (and the basis for this belief);
- May include directions on the measures to be taken to remedy the risk or activities; and
- May specify the workplace or part of the workplace at which the activity is not to be carried out or anything that is not to be used in connection with the activity.
If a PCBU fails to take reasonable steps to comply with a prohibition notice, the work health and safety regulator may take reasonable action it believes is necessary to make the workplace safe, but only after the workplace has received written notice of its intention to do so.
Using Dreamworld as an example again, it was issued with three prohibition notices relating to the BuzzSaw ride. The prohibition notices related to the “maintenance of safety harness anchor points” on the ride and “staff maintenance procedure errors” on a safety chain on the ride. As a result of these issues, WHSQ ordered Dreamworld to undertake additional certification and ordered a secondary system to be installed with further training for staff. WHSQ also required a gate to be installed to prevent the operator gaining access to the platform while the ride is in motion.
If a person does not comply with an improvement notice or prohibition notice, penalties apply. PCBUs are reminded that if they are issued with any of the above notices and they are not sure what they mean, they should obtain legal advice.
In the next two parts of this three part series, we will explore other ways the WHS Act can be enforced through enforceable undertakings and proceedings in court.