Improvement, prohibition and penalty notices
We can (under some circumstances) issue improvement notices or prohibition notices, when there is a contravention of the work health and safety (WHS) laws or of the workers compensation legislation.
We may also issue a penalty notice for some offences, rather than prosecuting through the courts.
Improvement notices
We can issue an improvement notice when there is a safety issue that needs to be fixed or if workers compensation requirements are not being met.
The workplace can generally continue operating while the improvement notice is being actioned, however the notice will require the issue to be fixed within a specified time. In appropriate circumstances, improvement notices will correct unsafe work practices very quickly.
For example, an improvement notice may require a business to fix a slip hazard or to train workers in the safe use of plant and equipment, while continuing day-to-day business.
Improvement notices may also be issued to require a person to comply with procedures under the workers compensation legislation.
Prohibition notices
If we believe that an activity at work involves a more serious risk to health or safety, then we can issue a prohibition notice to stop work immediately.
A prohibition notice may include directions to stop the activity or to change the way the activity is done, to prevent illness or injury.
For example, if scaffolding is not safe to be used, we will issue a prohibition notice to stop work immediately on or around the scaffolding until the issue is fixed.
Penalty notices
A penalty notice may be issued for certain serious offences, for example removing asbestos without a licence.
Because they do not involve court proceedings, they are a quicker option for dealing with offences under WHS laws or the workers compensation legislation.
If you're issued with a penalty notice, you can choose to pay it (which will finalise the matter) or you may choose to have the matter dealt with by the court.
We do not set the penalty notice amount. The amount is specified in legislation and is much lower than the maximum penalty that may be issued by the court.
To request a review of a penalty, in the first instance is to be submitted to Revenue NSW.
We can (under some circumstances) issue improvement notices or prohibition notices, when there is a contravention of the work health and safety (WHS) laws or of the workers compensation legislation.
Internal review of inspector and regulator decisions
If you don't agree with a decision made by one of our inspectors you can request an internal review. To do so you need to submit the Inspector decisions and work health and safety authorisations – application for internal review form.
Inspector decisions and work health and safety authorisations - internal review
Guide for applicants
An internal review of an inspector decision or work health and safety authorisation is a free service that allows an eligible person to seek review of a range of decisions made by inspectors when dealing with health and safety issues in workplaces and by other officers in relation to licences, registrations and authorisations.
Decisions made under the Work Health and Safety Act 2011 (WHS Act) that are subject to internal review are listed in Appendix A. Decisions made under the Work Health and Safety Regulation 2017 (WHS Regulation) that are subject to internal review are listed in Appendix B.
There is no legislative right for review in regards to notices, orders, directions or requests under the Workers Compensation Act 1987 (1987 Act), Workers Compensation Regulation 2010 (2010 Regulation), Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) or the Explosives Act 2003 (Explosives Act) and Explosives Regulation 2013 (Explosives Regulation) however, SafeWork NSW will consider your application and conduct a merits based review.
Decisions made under these legislations that are subject to internal review are listed in Appendix D.
To have a penalty notice reviewed in NSW, the recipient must, in the first instance make representations to Revenue NSW, more information is outlined below under then penalty notice review heading.
This guide explains the principles of internal review and how internal reviewers will conduct reviews and make their decisions. Internal review seeks to be an authoritative and transparent process, which is consistent and independent of the original decision maker and their operations area.
Download a PDF of the application for an internal review by SafeWork NSW.
Who can apply for an internal review
Eligibility for review under the WHS Act and WHS Regulation
Only an ‘eligible person’ can apply for internal review of a decision. The categories of eligible persons are listed in the WHS Act and WHS Regulation, specific to the relevant provision of the WHS Act or the WHS Regulation under which the reviewable decision was made.
Eligible persons include the person to whom the notice or licence was issued, the person with management or control of the workplace and persons whose interests are affected by the decision, such as a person conducting a business or undertaking, or a worker or a health and safety representative or a person affected by a decision involving registrations, assessors or training. Eligible persons for each specific category of decision are listed in Appendix A and Appendix B.
When applying for a review, you will need to identify which category of eligible person you fall within.
Eligibility for review under workers compensation and explosives legislation
Applications for internal review under the 1987 Act, 2010 Regulation, 1998 Act, the Explosives Act or the Explosives Regulation must be made by the person to whom the notice, order, direction or request was issued or their representative.
Application for review
Each application for internal review must be in writing on the Inspector decisions and work health and safety authorisations – application for internal review by SafeWork NSW form. If the form is incomplete, you may be contacted to provide more information or the application may be returned to be completed. The essential details needed for a review to begin are on the application form. The timeframe for the review will not start until the completed, valid application is received. You can withdraw your application at any time before a decision is made by the internal reviewer.
Lodgement timeframes
Timeframes under the WHS Act and WHS Regulation
An application relating to an improvement notice must be lodged before the compliance date on the improvement notice or within 14 days of the date on which you became aware of the notice, whichever is the earlier. Applications for review of other notices and decisions made under the WHS Act must be lodged within 14 days of the date on which you became aware of the notice or decision.
An application relating to a decision made under the regulations must be lodged within 28 days of the day on which the decision first came to your notice.
Timeframes for review under workers compensation and explosives legislation
An application relating to a decision made under the 1987 Act, 2010 Regulation, 1998 Act, the Explosives Act or the Explosives Regulation must be lodged within 14 days of the date of issue that is noted on the issued notice, order, direction or request.
Late applications
SafeWork NSW may permit lodgement outside these timeframes in some circumstances. The reviewer will consider your explanation for the late lodgement, whether it would adversely affect anyone else if the application were to be accepted, and the views of the original decision maker. Your explanation for the late lodgement should be included or attached to the application form.
Internal reviewers
The person who made the original decision cannot review that decision. Reviews are conducted by SafeWork NSW’s Governance and Appeals Unit in the Work Health and Safety Division.
Reviewers aim to be consistent in their approach. They will follow best practice in decision making to ensure that their decision is correct in law and the facts are established based on evidence. All decisions must provide for natural justice (or procedural fairness) to all the parties, and deal with any real or perceived conflict of interest or bias. Reviewers must act independently and exercise their own judgment while having regard to the legislation, the regulator’s policies and procedures and where relevant, accepted technical standards or guidance material. They must provide written reasons for their decisions within a strict timeframe.
Review process
The review considers all the material that was available to the original decision maker at the time the decision was made and any new, relevant information that has become available since that decision, including information provided by you.
The reviewer may contact you to seek clarification or additional information. In these circumstances the reviewer will indicate the timeframe for you to provide the information and the review process stops until you provide the information or the timeframe expires (which ever occurs first). A reviewer can also speak to the original decision-maker, as well as other relevant people, including experts if it is a technical issue. They may also refer to written documents such as codes of practice or industry standards. Sometimes a reviewer might arrange a meeting with you or a visit to the workplace if they think it is necessary to help them make their decision and if it can be done within the timeframe.
The reviewer then decides, in light of all the material, what decision is the most appropriate – by confirming the original decision, varying the original decision or setting aside the original decision and substituting another decision. You will be advised in writing of the reviewer’s decision and the reasons for the decision.
Multiple applications
Multiple applications under the WHS Act and WHS Regulation
Sometimes, more than one ‘eligible person’ may apply for internal review of the same decision. Where possible, those applications will be considered by the same reviewer.
If an internal review has already been completed, the reviewer will decide whether another application on that same original decision is accepted. This will depend on the nature of the application and the review decision already made.
Multiple applications under workers compensation and explosives legislation
SafeWork NSW will only accept an application from the person to whom the notice was issued to or their representative.
Invalid applications
If an application is invalid, it cannot be determined by the internal review process. Insufficient information does not itself make the application invalid. An application can be invalid for a number of reasons which include:
- you are not an eligible person
- the application seeks review of a decision which is not reviewable
- your application has been determined previously – for example you can only lodge one application in relation to one decision so your next step may be external review
- it is a complaint about the behaviour of the decision maker, or
- there is disagreement with what the compliance requirements of the reviewable decision looks like. You will be advised if the application is invalid and if appropriate given options to follow up your concerns through other avenues.
Stays of reviewable decisions
Stayed decisions under the WHS Act and WHS Regulation
Improvement notices are automatically ‘stayed’ (or suspended) once an application for a review is lodged. This means they do not operate and can’t be enforced during the internal review period and until a decision is made.
Decisions under the regulations however cannot be stayed by an application for a review, nor can one be requested.
You need to request a stay of the operation of a prohibition or non-disturbance notice or the reviewer can decide to stay the operation of the notice on their own initiative.
On application for the stay, a reviewer must either grant or refuse it within one working day of the request being made. If a decision is not made within that time, the stay is automatically granted.
The reviewer will provide an applicant who wants a notice stayed (or suspended) with a decision in writing of the outcome of that application.
If granted, a stay continues until either:
- the end of the prescribed period for applying for an external review of the internal review decision, or
- an application for external review is made, whichever is earlier.
External review
External reviews under the WHS Act and WHS Regulation
If you are not satisfied with the decision made at internal review or your application has been refused, you can apply to:
- the NSW Industrial Relations Commission for a review of a decision made pursuant to the WHS Act, or
- the Administrative Decisions Tribunal for a review of a decision made pursuant to the WHS Regulation.
As well, certain decisions made by the regulator, while not available for internal review, can be the subject of external review. The decisions for which external review is directly available are listed in Appendix C.
The NSW Industrial Relations Commission and the Administrative Decisions Tribunal have information and advice on the criteria and process for applying for an external review.
Further information is available from the NSW Industrial Relations Commission or by telephoning 13 16 28.
Further information is available at NSW Civil and Administrative Decisions Tribunal or by telephoning 1300 006 228.
External reviews under workers compensation and explosives legislation
There is no external review of an issued notice, order, direction or request under the workers compensation and explosives legislation.
Penalty notice review
To have a penalty notice reviewed in NSW, the recipient must, in the first instance make representations to Revenue NSW. Revenue NSW will process all representations and contact SafeWork NSW where necessary.
Further information is available from Revenue NSW or by telephoning 02 9689 6200.
SafeWork NSW have adopted the Uniform guidelines for internal review and the Guidelines for cautions issued by the Attorney General for use under the Fines Act 1996. These guidelines are used by SafeWork NSW as part of the penalty notice review process. These guidelines are available at NSW Civil and Administrative Decisions Tribunal.
Contact us
For further information please contact 1310 50 or email: reviews@safework.nsw.gov.au
Appendices
Please select reference to Appendix A, B, C or D to read contents.
Appendix A
List of decisions which can be internally reviewed under the WHS Act
| Item | Provision of the WHS Act under which reviewable decision is made | Eligible person in relation to reviewable decision |
|---|---|---|
| 1 | Section 54(2) decision following failure to commence negotiations |
|
| 2 | Section 72(6) decision in relation to training of health and safety representative |
|
| 3 | Section 76(6) decision relating to health and safety committee |
|
| 4 | Section 102 decision on review of provisional improvement notice |
|
| 5 | Section 179 forfeiture of seized things |
|
| 6 | Section 180 return of seized things |
|
| 7 | Section 191 issue of improvement notice |
|
| 8 | Section 194 extension of time for compliance with improvement notice |
|
| 9 | Section 195 issue of prohibition notice |
|
| 10 | Section 198 issue of non-disturbance notice |
|
| 11 | Section 201 issue of subsequent notice |
|
| 12 | Section 207 decision of regulator to vary or cancel notice |
|
Appendix B
List of decisions which can be internally reviewed under the WHS Regulation
| Item | Clause under reviewable decision is made | Eligible person in relation to reviewable decision |
|---|---|---|
| High risk work licences | ||
| 1 | 89 – Refusal to grant licence | Applicant |
| 2 | 91 – Refusal to grant licence | Applicant |
| 2 | 98 – Refusal to issue replacement licence document | Applicant |
| 4 | 104 – Refusal to renew licence | Licence holder |
| 5 | 106 – Suspension of licence | Licence holder |
| 6 | 106 – Cancellation of licence | Licence holder |
| 7 | 106 – Disqualification of licence holder from applying for another licence | Licence holder |
| Accreditation of assessors | ||
| 8 | 118 – Refusal to grant accreditation | Applicant A registered training organisation (RTO) that engages the applicant |
| 9 | 120 – Refusal to grant accreditation | Applicant An RTO that engages the applicant |
| 10 | 121 – Imposition of a condition when granting accreditation | Applicant An RTO that engages the applicant |
| 11 | 121 – Imposition of a condition when renewing accreditation | Applicant An RTO that engages the applicant |
| 12 | 127 – Refusal to issue replacement accreditation document | Accredited assessor An RTO that engages the accredited assessor |
| 13 | 132 – Refusal to renew accreditation | Accredited assessor An RTO that engages the accredited assessor |
| 14 | 133 – Suspension of accreditation | Accredited assessor An RTO that engages the accredited assessor |
| 15 | 133 – Cancellation of accreditation | Accredited assessor An RTO that engages the accredited assessor |
| 16 | 133 – Disqualification of assessor from applying for a further accreditation | Accredited assessor An RTO that engages the accredited assessor |
| Registration of plant designs | ||
| 17 | 256 – Refusal to grant accreditation | Applicant |
| 18 | 257 – Refusal to grant accreditation | Applicant |
| 19 | 258 – Imposition of a condition when granting accreditation | Applicant |
| Registration of plant | ||
| 20 | 269 – Refusal to register item of plant | Applicant The person with management or control of the item of plant |
| 21 | 270 – Refusal to register item of plant | Applicant The person with management or control of the item of plant |
| 22 | 271 – Imposition of a condition when granting registration of item of plant | Applicant The person with management or control of the item of plant |
| 271 – Imposition of a condition when renewing registration of item of plant | Registration holder The person with management or control of the item of plant | |
| 23 | 279 – Refusal to renew registration of item of plant | Registration holder The person with management or control of the item of plant |
| 24 | 283 – Amendment of registration, on regulator’s initiative | Registration holder The person with management or control of the item of plant |
| 25 | 284 – Refusal to amend registration on application (or a decision to make a different amendment) | Registration holder The person with management or control of the item of plant |
| 26 | 288 – Refusal to issue replacement registration document | Registration holder The person with management or control of the item of plant |
| General induction training (construction) | ||
| 27 | 322 – Refusal to issue general construction induction training card | Applicant |
| 27 | 322 – Refusal to issue replacement general construction induction training card | Card holder |
| 28 | 323 – Cancellation of general construction induction training card | Card holder |
| Hazardous chemicals and lead | ||
| 29 | 384 – Refusal to grant authorisation to use, handle or store a prohibited or restricted carcinogen | Applicant |
| 30 | 386 – Cancellation of authorisation to use, handle or store a prohibited or restricted carcinogen | Authorisation holder |
| 31 | 393 – Deciding a process to be a lead process | A person conducting a business or undertaking that carries out the lead process A worker whose interests are affected by the decision |
| 32 | 407 – Determining a different frequency for biological monitoring of workers at a workplace, or a class of workers, carrying out lead risk work | A person conducting a business or undertaking that carries out lead risk work A worker whose interests are affected by the decision |
| Asbestos removal licences and asbestos assessor licences | ||
| 33 | 497 – Refusal to grant licence | Applicant |
| 34 | 501 – Refusal to grant licence | Applicant |
| 35 | 502 – Imposition of a condition when granting licence | Applicant |
| 36 | 502 – Imposition of a condition when renewing licence | Applicant |
| 37 | 508 – Amendment of licence, on regulator’s initiative | Licence holder |
| 38 | 509 – Refusal to amend licence on application (or a decision to make a different amendment) | Licence holder |
| 39 | 513 – Refusal to issue replacement licence document | Applicant |
| 40 | 517 – Refusal to renew licence | Applicant |
| 41 | 520 – Suspension of licence | Licence holder |
| 42 | 520 – Cancellation of licence | Licence holder |
| 43 | 520 – Disqualification of licence holder from applying for another licence | Licence holder |
| Determination of facility to be major hazard facility | ||
| 44 | 541 – Determination of facility to be a major hazard facility, on making inquiry | Operator of facility |
| 45 | 541 – Decision not to determine proposed facility to be a major hazard facility | Operator of facility |
| 46 | 542 – Determination of major hazard facility | Operator of facility |
| 47 | 543 – Determination of suitability of operator | Operator of facility |
| 48 | 544 – Imposition of a condition on a determination of a major hazard facility | Operator of facility |
| Licensing of major hazard facility | ||
| 49 | 580 – Refusal to grant licence | Operator of facility |
| 50 | 584 – Imposition of a condition when granting licence | Operator of facility |
| 51 | 584 – Imposition of a condition when renewing licence | Operator of facility |
| 52 | 589 – Amendment of licence, on regulator’s initiative | Operator of facility |
| 53 | 590 – Refusal to amend licence, on application (or a decision to make a different amendment) | Operator of facility |
| 54 | 594 – Refusal to issue replacement licence document | Operator of facility |
| 55 | 598 – Refusal to renew licence | Operator of facility |
| 56 | 600 – Refusal to transfer licence, on application | Operator of facility Proposed operator of facility |
| 57 | 601 – Refusal to cancel licence, on application | Operator of facility |
| 58 | 602 – Suspension of licence | Operator of facility |
| 59 | 602 – Cancellation of licence | Operator of facility |
| 60 | 602 – Disqualification of licence holder from applying for another licence | Operator of facility |
| Exemptions | ||
| 61 | 684 – Refusal to exempt person (or a class of persons) from compliance with any of this Regulation | Applicant |
| 62 | 686 – Refusal to exempt person from requirement to hold a high risk work licence | Applicant |
| 63 | 688 – Refusal to exempt operator of MHF from compliance with any of this Regulation on application | Operator of facility |
| 64 | 691 – Imposing condition on an exemption granted on application under Part 11.2 | Applicant |
| 65 | 696 – Refusal to grant exemption | Applicant |
| 66 | 697 – Amendment of an exemption granted on application under Part 11.2 | Applicant |
| 67 | 697 – Cancellation of an exemption granted on application under Part 11.2 | Applicant |
| Non prescribed reviewable decisions | ||
| 68 | 21 – Refusal to approve a course of health and safety representatives training Revoking or variation of an approval or imposing of a condition on a course | Applicant |
| 69 | 25 – Refusal to approve a course of training provider for entry permit holders Revoking or variation of an approval or imposing of a condition | Applicant |
| 70 | 141 – Refusal to enter into an agreement or cancellation of an agreement or imposing of a condition with an RTO to deliver high risk work licence training | Operator of facility |
| 71 | 325 – Refusal to enter into an agreement or cancellation of an agreement or imposing of a condition with an RTO to deliver general induction training | Applicant |
Appendix C
Decisions that are subject to external review under the WHS Act (in addition to any internal review decision).
| Item | Provision under which reviewable decision is made | Eligible person in relation to reviewable decision |
|---|---|---|
| 5 | Section 179 forfeiture of seized things | The person entitled to the item, property or evidence that was forfeited |
| 6 | Section 180 return of seized things | The person entitled to the item, property or evidence that was seized |
| 12 | Section 207 decision of regulator to vary or cancel notice |
1. The person to whom the notice was issued 2. The person with management or control of the workplace 3. A person conducting a business or undertaking whose interests are affected by the decision 4. A worker whose interests are affected by the decision 5. A health and safety representative who represents a worker whose interests are affected by the decision 6. In the case of a prohibition notice, a health and safety representative whose direction under section 85 to cease work gave rise to the notice. |
Appendix D
Decisions that are subject to external review under the WHS Act (in addition to any internal review decision).
| Item | Provision under which reviewable decision is made | Eligible person in relation to reviewable decision |
|---|---|---|
| Workers Compensation Act 1987 | ||
| 1 | Section 161 workers compensation notice | A person that the notice was issued to or their representative |
| 2 | Section 163A request for certificate of currency | A person that the notice was issued to or their representative |
| 3 | Section 163B stop work order | A person that the notice was issued to or their representative |
| 4 | Section 175(4) order to supply records and information relating to wages and employment records | A person that the notice was issued to or their representative |
| Workplace Injury Management and Workers Compensation Act 1998 | ||
| 5 | Section 59B employer improvement notice |
1. A person that the notice was issued to or their representative 2. A person conducting a business or undertaking whose interests are affected by the decision 3. A worker whose interests are affected by the decision |
| 6 | Section 238AA power to obtain information, documents and evidence | A person that the notice was issued to or their representative |
| Explosive Regulation 2013 | ||
| 7 | Clause 107 explosives directions | A person that the direction was issued to or their representative |
| Dangerous Goods (Road and Rail Transport) Regulation 2008 | ||
| 8 | Section 28 improvement notice | A person that the notice was issued to or their representative |
| 9 | Section 30 prohibition notice | A person that the exemption decision was issued to or their representative |
| 10 | S48 Penalty notice | A person that the exemption decision was issued to or their representative |
| Dangerous Goods (Road and Rail Transport) Regulation 2014 | ||
| 11 | Clause 49 packaging designs | A person that applied for the approval |
| 12 | Clause 24 determination of Dangerous Goods | Any persons whose interests are affected by the determination |