Prohibition notice changes - Workplace Safety Legislation and Other Matters Amendment Act 2022

Overview

The amendments allow WorkSafe inspectors to issue a prohibition notice if they reasonably believe that an activity involves or will involve a serious risk to the health and safety of a person from an immediate or imminent exposure to a hazard.

WorkSafe inspectors will also be allowed to give directions, either verbal or written, under the same threshold of serious risk to the health and safety of a person from an immediate or imminent exposure to a hazard. The directions have an instantaneous effect and are often used to immediately cease dangerous activity pending processing of a prohibition notice.

The need to change the threshold for issuing prohibition notices and directions

The immediacy requirements in the OHS Act limited WorkSafe's ability to address risks that do not have immediate health and safety risks or consequences.

Amending the grounds for issuing prohibition notices and directions addressed the apparent gap in enforcement powers for the outright prohibition of an activity that causes non-immediate yet serious and imminent risks to health and safety. These changes also enable WorkSafe to better enforce its prevention mandate through ensuring activities that pose serious risks to health and safety are prohibited until before a person is placed at immediate risk of harm, until WorkSafe is satisfied the risks have been remedied and the workplace made safe.

Do these changes affect every duty holder?

Yes, all duty holders may be impacted. The changes allow for prohibition notices and directions to be issued in circumstances where the risk to health or safety is not immediate yet is imminent and still serious. Activities that pose a serious risk to health and safety of a person, arising from an immediate or imminent exposure to a hazard, can be prohibited until the activity no longer poses that risk.

It is likely that, under the new threshold, some activities for which an inspector may have issued an improvement notice will become subject to a prohibition notice until the activity is rendered safe.

Duty holders will be required to be aware of these changes and to comply with any notices issued.

Will this mean businesses will shut down?

Prohibition notices are only issued in relation to a particular activity. They do not act to shut down an entire workplace where the risk is confined to a particular activity.

In limited circumstances where a single activity comprises the entire business, a prohibition notice might require all activity at the workplace to cease, such as a manufacturer with only one machine.

In determining the appropriate enforcement response, inspectors will take into account the nature and circumstances of the situation, in line with WorkSafe's Compliance and Enforcement Policy.

The amendments do not cause significant disruption to most businesses and serve only to prevent dangerous activities from continuing in workplaces.

Will prohibition notices be issued differently for different industries?

No industries or activities are exempt from being subject to a prohibition notice. If the activity is considered to meet the requisite level of seriousness under the changes then a notice prohibiting the activity can be issued. The decision to issue a prohibition notice will be made in consideration of all the relevant factors in any given situation.

'Serious risk' meaning

'Serious risk' is not a defined term in the OHS Act and, as a result, the plain or ordinary meaning of the word applies.

WorkSafe considers that the ordinary meaning of 'serious risk' is a 'significant risk, which has a real chance of materialising'. To consider something (e.g. a hazardous activity, task, plant situation, etc.) a 'serious risk', it must have a real change of happening. WorkSafe considers that the term 'serious risk to the health or safety of a person' means:

1. that exposure to the incident created a risk which, if it had eventuated, could have resulted in death or a serious injury or illness of a person (seriousness of potential harm), and
2. the level of risk was not minor, in that there was a real likelihood of the risk eventuating (likelihood of incident occurring)

Both the potential seriousness of harm and the likelihood of harm occurring must be identified for a hazardous activity/task to be considered a serious risk to the health or safety of a person.

Inspectors already consider the seriousness of potential harm and likelihood of an incident occurring when they consider whether to issue a prohibition notice or direction.

It is important to note that even though the previous test did not include the term 'serious risk', in practice, inspectors are already considering the seriousness of a risk and likelihood of it eventuating when deciding to issue a prohibition notice.

Common activities posing a serious risk to a person's health and safety

A wide variety of activities can pose a serious risk to a person's health and safety. The level of risk is generally greatest in industries involving large-scale plant and machinery, such as extracting resources from underground and agriculture.

'Immediate or imminent exposure' meaning

WorkSafe considers that 'imminent' means 'likely to occur at any moment'. WorkSafe considers that 'immediate' means 'happening or done without delay'.

WorkSafe considers 'immediate exposure' to mean the person was exposed to a serious risk to their health or safety when they were exposed to the hazard, including where an illness may arise later.

WorkSafe considers 'imminent exposure' to mean a person was or would have been exposed to a serious risk to their health or safety when the incident occurred. For example, a person would have been exposed to the risk even though they may not have been in the vicinity when the incident occurred because they were there prior to the incident, or ordinarily would have been in the vicinity or were nearby when the incident occurred.