Have you recently received a notice from the safety inspector? Or have you been made aware that the safety inspector intends to visit your workplace?
If you are a workplace manager, it is essential to understand the role of the safety inspector, why and how they issue safety notices, the types of safety notices and how people in your workplace need to support and manage the visit.
What is a safety inspector?
A safety inspector is a representative of a state’s health and safety regulator, whose job is to monitor and enforce compliance with health and safety legislation in the workplace, with the goal of reducing incidents and keeping workers safe.
In addition to the power to enter a workplace, regulators also have the power to enforce compliance through the issuance of notices. They include infringement notices, prohibition notices, improvement notices, and non-disturbance notices. The intention of these notices is to provide regulators with a more efficient way to encourage compliance than going through the court system.
Most notices are issued without penalty. So this means if you are issued a notice, an offence is not recorded. Financial penalties apply when you receive an infringement notice or what is sometimes referred to as an ‘on-the-spot-fine”.
Safety inspectors have the right to enter any workplace, with or without notice, to observe and comment on workplace operations and practices. Workplaces should be prepared for a visit from a safety inspector and should ensure they understand why the inspector is visiting, how to respond, and how to manage the visit. It’s important to ensure that the inspector is treated respectfully, is given an induction, accompanied by a responsible member of staff, and provided with a space to work if necessary.
If you are dealing with the inspector, it helps to be concise, listen to, directly answer any questions, and not attempt to hinder the inspection. For further information please see the previous article When the Safety Inspector Comes Knocking…
What sort of notice has been issued?
Non-disturbance Notice
These are issued and require immediate actions to ensure a site, work zone, plant or substance are not disturbed. These notices are usually put in place to give the regulator time to investigate an incident site or serious contravention of the Act.
Infringement Notice
An on-the-spot fine may be issued by an inspector if they believe, on reasonable grounds, that a person is committing or has committed an infringement notice offence under the legislation. These on-the-spot fines may be issued to an organisation, individual or both.
Prohibition Notice
A written notice requiring a person and essentially the organisation to stop performing a task that presents an immediate or imminent risk until the hazards or associated causes are rectified. It can include the operation of certain plant and or working in an unsafe area.
Improvement Notice
A written notice requesting a person and the organisation to take action to manage a breach of the Act in a particular timeframe.
What should a business or organisation do if the inspector is talking about or issuing a safety notice?
Negotiate before any notices are issued
If an inspector is discussing or issuing a Notice, the organisation can respectfully negotiate before a notice is issued. You may be able to comply with the contravention voluntarily.
To effectively do this you will need to ensure you have people on site who can negotiate with the regulator; this means someone who can offer with confidence to voluntarily comply with and remedy the inspector’s concerns. They will need to have the authority and knowledge to provide and implement appropriate resources.
If you are negotiating do not over promise, the time taken to find, review, obtain and implement new controls can be longer than you first plan.
Don’t worry if you didn’t get a chance to negotiate on the day or the inspector was not convinced the contravention would be managed voluntarily, once the notice is issued you will have the ability to comply or apply for an internal review of the inspector’s decision.
When a notice is issued
There are key steps to take once an inspector has issued a notice.
Check the Notice
The organisation should take the time to read the notice and the accompanying entry report to make sure they agree with the contravention of the identified Act, any further information included and the timeframes to comply. If you are unsure of any of the information contained or there are errors in the notice you can request clarification from the inspector and or seek expert safety and legal advice.
A few points to consider when reviewing the notice:
- It is important to ensure an appropriate representative of the organisation has been issued with the notice. You can request to have this changed by the inspector if required.
- Check the type of notice; prohibition notices require something to cease immediately until the hazard is controlled, whereas, an improvement notice allows the day to day operation to continue while controls are implemented within a specific timeframe.
- Check the compliance date or any other relevant dates.
- Check the information in the notice including the details of the contravention.
- Don’t start implementing the recommended controls until you have thoroughly reviewed them. Read below about regulator recommendations.
- Review the recommendations but understand it is not an offence to implement different controls, if you implement different controls you will need to show you have taken reasonable steps to comply with the requirements of legislation.
- Consult with the workers and any other relevant people, this may be suppliers and industry experts.
Requesting Changes
The inspector can make minor changes to the notice. There is no hard and fast rule as to what a minor change is, so it is always best discuss requests with the inspector first.
If significant changes are required, you will have to apply to the authority for an Internal Review. Each jurisdiction has their own timeframes and process for internal review of inspector’s decisions.
Internal Review Process
Often you will have to request the review within two weeks of receiving the notice, however most regulators will accept reviews later if there is an acceptable reason to do so.
You may also have to apply for a ‘Stay’ this means the notice is put on hold until the review decision is made, some regulators will automatically apply a stay if the compliance date is expected before a decision date.
The Internal Review Officer will seek the views of the inspector before making a decision, so it is best if they are informed of your application and have enough information to affirm the contravention will be managed appropriately with the changes being requested. If you are seeking an extension of time they will want to know interim controls are in place to mitigate the current hazard.
In practical terms this means speaking directly to the inspector, so they know what you are looking to request in the review, it is much easier to have agreement from the inspector before officially requesting an internal review.
Benefits of an internal review
- improved outcome
- more reasonable time to comply with the notice.
- notices issued to the correct person to represent the organisation.
Display the Notice
You must bring the notice to the attention of those people who’s work is affected by the notice and their Health and Safety Representatives. In practical terms this means displaying the notice in the area where the work is undertaken, in addition it should be displayed on the safety notice board or even a copy provided to each person either in hard copy or electronically.
Implement Controls
Ultimately the organisation needs to act to remedy the contravention as the regulator will be back to confirm reasonable actions have been taken to satisfy their concern.
Whether you have had a notice issued or have made a voluntary agreement to rectify a breach, the inspector will need to ensure you have complied.
Depending on the controls required, you may be able to email the inspector evidence of controls being implemented, they may choose to close out the improvement notice remotely for some instances. Don’t wait to the last minute, keep the inspector informed of your progress or any delays.
When they attend site to review compliance, the regulator will be looking for evidence that you have controlled the hazard as far as reasonably practicable based on the initial observation. They will inspect controls implemented, relevant documents, including any evidence of consultation with workers and may request to speak to affected employees or management representatives.
The inspector will make a decision on the compliance of the notice or voluntary agreement. If the inspector determines the notice or breach has been complied with, it will be documented in the entry report provided on the day.
Failing to comply with a notice
If an inspector determines that an organisation has not resolved a compliance issue, the organisation may face additional improvement notices or even prosecution. Both the organisation and individuals associated with it may be held liable for failing to comply with a notice, and may be subject to penalties. It’s important to note that even if an organisation fully complies with a notice, they may still be investigated and prosecuted by the regulator for the underlying violation. Organisations should not ignore a notice and must either challenge it or comply with its requirements. Compliance with a notice does not guarantee compliance with the relevant legislation.
In conclusion, it’s essential for organisations to be aware of the different types of notices that can be issued by regulators, how to respond when an inspector visits and to take the appropriate steps to comply with them. By negotiating before a notice is issued, displaying the notice, reviewing the notice carefully, and implementing controls, organisations can ensure that they are in compliance with the regulations and avoid any potential penalties.
If you have any questions regarding what to do if the safety inspector issues a notice, or require assistance in meeting your health and safety duties and obligations, please do not hesitate to Contact Us.
