Provisional improvement notices and direction to cease work

Important tools that help HSRs resolve health and safety issues in the workplace

There are two important tools which enable HSRs to resolve health and safety issues in the workplace.

A provisional improvement notice (PIN) can be used if consultation between the HSR and their employer does not resolve a workplace health and safety issue.

If an issue arises at the workplace that involves an immediate threat to anyone's health or safety; a PIN might not be an appropriate means to address the situation and the HSR after consultation may direct that the work is to cease.

What is a PIN

PINs are a written direction for a person, usually an employer, to address a contravention of the Occupational Health and Safety Act 2004 (OHS Act) or OHS Regulations 2017 (OHS Regulations).

Who can issue a PIN

Elected HSRs have the power to issue a PIN. When acting in the role of an HSR, deputy HSRs (DHSR) can also issue a PIN.

Who a PIN can be issued to

An HSR can issue a PIN to any person who has duties under the OHS Act or OHS Regulations.

In general terms, the word 'person' refers to a natural person, however under OHS Act the term 'person' can include an organisation (your employer), an individual, a body corporate, an incorporated body or association, or a partnership.

Typically, a person is the employer at the HSR's workplace. However, a PIN could also be issued to another person where the contravention affects members of the HSR's DWG, for example, a contractor erecting scaffolding in a manner that is unsafe.

When to issue a PIN

If an HSR believes on reasonable grounds that a person is contravening a provision of the OHS Act or the OHS Regulations, or has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated, the HSR may issue a PIN.

However, the HSR may only issue a PIN after consulting with the person who has management responsibility for remedying the contravention or likely contravention.

Examples of contraventions could include:

• excessive noise levels in the workplace
• an ongoing requirement to manually lift heavy objects
• personal exposure to chemicals used in the workplace on an ongoing basis
• unguarded plant
• a lack of consultation with employees (or HSRs where there is an HSR) on OHS matters.

Consultation before issuing a PIN

HSRs must consult with the person before issuing a PIN. Consultation allows everyone involved to discuss their concerns. It might also mean the issue is resolved with no need to issue a PIN or involve WorkSafe.

If an HSR does not consult before issuing a PIN, the PIN will not meet the requirements of the OHS Act.

HSR tip – Keep a written record of the consultation that occurred prior to issuing a PIN.

How to fill out a PIN

It is not compulsory to use a form to issue a PIN, but it may help to ensure required information is included.

A separate PIN is needed for each contravention.

A PIN must:

• state the HSR's belief on which the issue of the notice is based and the grounds for that belief;
• specify the provision of the OHS Act or the OHS Regulations that the HSR believes has been or is likely to be contravened; and
• specify a day (at least 8 days after the day on which the notice is issued) before which the person is required to remedy the contravention or likely contravention or the activities causing it.

The HSR can include directions on how to remedy the contravention in the PIN.

HSR tip - PINs are legal instruments so it is important to fill them out correctly. If you have concerns about how to fill a PIN in correctly, you can seek assistance from the WorkSafe Advisory line on 1800 136 089, WorkSafe HSR Support Officers (HSRSOs), other HSRs or your union.

Information about HSRSOs

How to issue a PIN

A PIN must be delivered in person, sent by post, faxed or emailed in accordance with section 64 of the OHS Act.

The PIN recipient

The recipient of a PIN must either:

• comply with it within the specified time frame; or
• if they wish to dispute the PIN, they can contact WorkSafe and WorkSafe will arrange for an inspector to attend the workplace. However, this request must be done within seven days of the PIN being issued.

Should the person issued with a PIN fail to call in an inspector within seven days and fail to comply with the notice in the time specified, then that person is guilty of an offence under the OHS Act.

What to do with non-compliance of a PIN

If an HSR issues a PIN and it is not complied with in the specified timeframe, the HSR can contact WorkSafe and arrange for an inspector to attend the workplace.

The inspector will attend the workplace as soon as possible and enquire into the circumstances of the PIN to determine whether it meets the requirements of section 60 of the OHS Act. If the PIN meets the requirements of the OHS Act and has not been complied with, WorkSafe will then commence a comprehensive investigation into the non-compliance, which may lead to prosecution.

Direction to cease work

Consultation prior to cease work directions

When there is an immediate threat to health and safety prompt consultation must take place. Either the HSR or the employer must:

• inform the other of the issue and proposed course of action to control the risk
• give the other the opportunity to present views about the appropriateness of the proposed course of action and to suggest alternatives, and
• take those views and suggested alternatives into account when making a final decision.

Consultation between an HSR and an employer may result in immediate resolution of the issue, or may result in a joint direction for work to cease in that area.

Where consultation does not lead to agreement between an HSR and an employer that work is to cease, either the HSR or the employer may direct that the work is to cease.

While employers and HSRs should aim to reach agreement through the process of consultation regarding ceasing work, agreement is not a required outcome of consultation, as per the OHS Act.

If consultation is not timely enough to address the risk, employees may also, at any time exercise their common law right to stop performing any work that places them in danger.

WorkSafe

An HSR or employer can request WorkSafe arrange for an inspector to attend the workplace.

Where there is an immediate threat, WorkSafe must ensure that an inspector attends the workplace as soon as possible after the request has been made.

Direction to cease work

After consultation between the HSR, an employer, or its representative, the HSR can issue a direction to cease work where a health or safety issue arises at the workplace or from the conduct of the undertaking of an employer:

• that concerns work that involves an immediate threat to anyone's health or safety and
• where it is not appropriate to implement issue resolution procedures under section 73 given the nature of the threat and degree of risk