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Contents (2011 - 10)
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Work Health and Safety Act 2011 No 10
Current version for 6 January 2017 to date (accessed 24 April 2017 at 21:21)
Part 5 Division 7
Division 7 Provisional improvement notices
90   Provisional improvement notices
(1)  This section applies if a health and safety representative reasonably believes that a person:
(a)  is contravening a provision of this Act, or
(b)  has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.
(2)  The health and safety representative may issue a provisional improvement notice requiring the person to:
(a)  remedy the contravention, or
(b)  prevent a likely contravention from occurring, or
(c)  remedy the things or operations causing the contravention or likely contravention.
(3)  However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.
(4)  A health and safety representative cannot issue a provisional improvement notice unless the representative has:
(a)  completed initial training prescribed by the regulations referred to in section 72 (1) (b), or
(b)  previously completed that training when acting as a health and safety representative for another work group, or
(c)  completed training equivalent to that training under a corresponding WHS law.
(5)  A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.
91   Provisional improvement notice to be in writing
A provisional improvement notice must be in writing.
92   Contents of provisional improvement notice
A provisional improvement notice must state:
(a)  that the health and safety representative believes the person:
(i)  is contravening a provision of this Act, or
(ii)  has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated, and
(b)  the provision the representative believes is being, or has been, contravened, and
(c)  briefly, how the provision is being, or has been contravened, and
(d)  the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.
93   Provisional improvement notice may give directions to remedy contravention
(1)  A provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates.
(2)  A direction included in a provisional improvement notice may:
(a)  refer to a code of practice, and
(b)  offer the person to whom it is issued a choice of ways in which to remedy the contravention.
94   Minor changes to provisional improvement notice
A health and safety representative may make minor changes to a provisional improvement notice:
(a)  for clarification, or
(b)  to correct errors or references, or
(c)  to reflect changes of address or other circumstances.
95   Issue of provisional improvement notice
A provisional improvement notice may be issued to a person in accordance with section 209.
96   Health and safety representative may cancel notice
The health and safety representative may at any time cancel a provisional improvement notice issued to a person by written notice given to that person.
97   Display of provisional improvement notice
(1)  A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.
Maximum penalty:
(a)  in the case of an individual—$5,000, or
(b)  in the case of a body corporate—$25,000.
(2)  A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force.
Maximum penalty:
(a)  in the case of an individual—$5,000, or
(b)  in the case of a body corporate—$25,000.
98   Formal irregularities or defects in notice
A provisional improvement notice is not invalid only because of:
(a)  a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice, or
(b)  a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.
99   Offence to contravene a provisional improvement notice
(1)  This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace.
(2)  The person must comply with the provisional improvement notice within the time specified in the notice.
Maximum penalty:
(a)  in the case of an individual—$50,000, or
(b)  in the case of a body corporate—$250,000.
100   Request for review of provisional improvement notice
(1)  Within 7 days after a provisional improvement notice is issued to a person:
(a)  the person to whom it was issued, or
(b)  if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work,
may ask the regulator to appoint an inspector to review the notice.
(2)  If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review.
101   Regulator to appoint inspector to review notice
(1)  The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100.
(2)  The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice.
(3)  An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.
102   Decision of inspector on review of provisional improvement notice
(1)  After reviewing the provisional improvement notice, the inspector must:
(a)  confirm the provisional improvement notice, or
(b)  confirm the provisional improvement notice with changes, or
(c)  cancel the provisional improvement notice.
(2)  The inspector must give a copy of his or her decision to:
(a)  the applicant for the review of the provisional improvement notice, and
(b)  the health and safety representative who issued the notice.
(3)  A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act.