Provisional improvement notices

A provisional improvement notice is a notice that is issued to a person requiring them to address a health and safety concern in the workplace.

A provisional improvement notice may be issued if a health and safety representative reasonably believes that a person is contravening or has contravened a provision of the Work Health and Safety Act 2011 (the Act) in circumstances that make it likely that the contravention will continue or be repeated.

The health and safety representative may issue a provisional improvement notice requiring the person to:

remedy the contravention;
prevent a likely contravention from occurring; and
remedy the things or operations causing the contravention or likely contravention.

A health and safety representative can issue a provisional improvement notice only if the health and safety representative has completed an approved health and safety representative training course, or previously completed that training when acting as a health and safety representative of another work group.

Power to Issue a Provisional Improvement Notice

A provisional improvement notice can be issued when the health and safety representative believes a person is contravening or has contravened a provision and it is likely that the contravention will continue or be repeated.

A contravention that could continue or be repeated may include:

excessive noise levels in the workplace;
an ongoing requirement to manually lift heavy objects;
regular exposure to hazardous chemicals that are used in the workplace;
unguarded machines; and
lack of consultation on work health and safety matters.

Before issuing a provisional improvement notice the health and safety representative must consult the person whom the health and safety representative believes is contravening the provision in the Work Health and Safety Act 2011 or Work Health and Safety Regulation 2011. This means that the health and safety representative should:

provide information, either verbally or in writing, to the person about fixing the alleged contravention or activities causing the contravention (at this point the health and safety representative does not need to specify which part of the Act or Work Health and Safety Regulation 2011 (the Regulation) the issue relates to, though the health and safety representative can do so if they wish);
allow the person an opportunity to express their views and give them adequate time to fix the contravention; and
take into account the views of the person before issuing the provisional improvement notice.

Consultation can still be said to have occurred even if:

the person does not respond to the health and safety representative in a reasonable time or at all; or
there is no agreement between the health and safety representative and the person.

The person does not have to agree that there is, or is likely to be, a contravention or agree on how to fix the matter.

A provisional improvement notice cannot be issued for a matter that an inspector has already addressed.

Who Can Be Issued a Provisional Improvement Notice?

A provisional improvement notice may be issued to any person. This can include a person conducting a business or undertaking (either an organisation or an individual person) or other duty holders such as workers, officers and other persons at the workplace.

It is important that the provisional improvement notice is issued to the duty holder who has responsibility for the contravention specified in the notice.

The duty holder should be clearly identified on the provisional improvement notice so that there can be no confusion as to whom it is addressed to and is expected to comply with its requirements.

A person conducting a business or undertaking could be a body corporate, unincorporated association, partnership or an individual and therefore does not necessarily have to be in the workplace. The person conducting a business or undertaking could also be a designer, manufacturer or supplier of plant, substances or structures.

Because health and safety representatives mainly deal with persons conducting a business or undertaking as the primary duty holder, provisional improvement notices are often issued to the corporation and physically given to the management representative the health and safety representative has consulted with at the workplace.

Example one:

A worker finds that a valve from a steam line becomes displaced, allowing a jet of steam to escape. The worker refers the issue to the health and safety representative who takes it up with the supervisor. The supervisor, after consulting with the health and safety representative on how it can be fixed, may settle the matter on the spot by calling in maintenance staff immediately.

Example two:

If the leak is not fixed and the health and safety representative believes that the leaking pipe poses a risk to people in the workplace (thereby contravening the Act or Regulation, the health and safety representative may issue a provisional improvement notice to the person conducting a business or undertaking and serve it to the supervisor. The supervisor must bring the provisional improvement notice to the attention of the person conducting a business or undertaking, who has an obligation to remedy the contravention.

Example three:

Cleaning staff are working in an office building after hours, using the stairwell to move between floors. Due to an electrical problem, the lights have recently gone out in the stairwell causing poor visibility. Despite repeated requests from the health and safety representative to the building manager, the problem has not been fixed. The issue is unresolved so the health and safety representative issues a provisional improvement notice to the building manager.

Provisional Improvement Notice to be in Writing

It is not compulsory to use a specific form to issue a provisional improvement notice, but the Provisional Improvement Notice (DOC 74KB) or (PDF 127KB) may assist a health and safety representative follow the steps to issue notice.

If there is more than one contravention, a separate provisional improvement notice must be written for each one.

Contents of a Provisional Improvement Notice

A provisional improvement notice must contain information about the contravention, but it also may contain directions about how the contravention can be remedied.

A provisional improvement notice must:

identify the person (can be an organisation or individual) who the health and safety representative believes is contravening a provision in the Act or has contravened a provision of the Act and it is likely that the contravention will continue or be repeated;
state the provision the health and safety representative believe is being, or has been, contravened;
contain a brief outline of how the provision is being, or has been, contravened; and
state the date the contravention or likely contravention is required to be remedied (this date must be at least eight days after the provisional improvement notice is issued).

A provisional improvement notice may include directions:

about how the contravention can be remedied, how to prevent a likely contravention or the matters or activities that are causing the contravention or likely contravention; or
that refer to a Code of Practice and offer a choice of ways the contravention can be remedied.

Changes of Notice by HSR

A health and safety representative can make minor changes to a provisional improvement notice:

for clarification (such as simplifying language or removing jargon);
to correct errors or references; and
to reflect changes of address or other circumstances.

Issue and Giving of Notice

A provisional improvement notice can be given to a person by:

delivering it personally to the recipient or sending it by post, facsimile or electronic transmission to the person's usual or last known home or business;
leaving it for the person at the person's usual or last known home or business with a person who appears over 16 years of age and who appears to work or reside there; or
leaving it for the person at the workplace to which the notice relates with a person who is, or appears to be, a person with management or control of the workplace.

Cancellation of a Provisional Improvement Notice

A health and safety representative may cancel a provisional improvement notice at any time by providing a written notice to the person the provisional improvement notice was issued to. A valid provisional improvement notice does not need to be cancelled once it has been complied with.

Display of Notice

As soon as it is practicable, the person issued with a provisional improvement notice must display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work that is affected by the notice is being carried out.

The notice must be displayed in a place that is prominent is easily accessible, noticeable and where workers or other persons affected by the notice will come across it in the normal course of events and be able to examine it.

The person who has been issued with a provisional improvement notice must not intentionally remove, destroy, damage or deface a notice that is being displayed during the period that the notice is in force.

Compliance with a Provisional Improvement Notice

Unless an inspector is requested to review the provisional improvement notice, the person who has been issued with the notice must comply with the notice within the specified time.

Review of a Provisional Improvement Notice

The person issued with a provisional improvement notice, or if they are a worker their person conducting a business or undertaking, can ask the regulator to appoint an inspector to review the notice. This request must be made within seven days after the provisional improvement notice was issued. The regulator must ensure that an inspector attends the workplace as soon as practicable after a request has been made.

If a request for an inspector is made, the provisional improvement notice is temporarily suspended until the inspector determines the matter.

The inspector must review the provisional improvement notice and inquire into the circumstances surrounding the issue. An inspector can review a notice even if the compliance period has expired.

How does an Inspector Review a Provisional Improvement Notice?

The inspector would seek information from both the health and safety representative who issued the provisional improvement notice and the person who it was issued to. The review would include finding out why a notice was issued, whether the notice was correctly issued and why it is being disputed.

After an inspector has reviewed the provisional improvement notice, they must either:

confirm the provisional improvement notice;
confirm the provisional improvement notice with changes; or
cancel the provisional improvement notice.

Confirming the provisional improvement notice, with or without changes, is taken to be an improvement notice that has been issued by the inspector under the Act. An improvement notice still requires a person to remedy a contravention, but it is issued directly from the inspector.

Once an inspector has reached a decision, they must give a copy of their decision to the person who requested the provisional improvement notice to be reviewed, and also to the health and safety representative who issued the notice. If the person issued with the provisional improvement notice, the health and safety representative who issued notice, an affected worker, another affected health and safety representative or a person conducting a business or undertaking does not agree with the decision, they can request the regulator to review the inspector's decision.