WHS Improvement Notices — What They Are and How to Respond

A WHS inspector may issue an improvement notice under section 191 of the WHS Act when the inspector reasonably believes that a person is contravening a provision of the Act or Regulation, or has contravened a provision and the contravention is likely to continue or be repeated. The notice must state the provision the inspector believes is being or has been contravened, the reasons for that belief, and the date by which the person must remedy the contravention. The compliance period must be at least the period within which the person can apply for a review of the notice, which is 14 days. In practice, inspectors typically allow between 14 and 60 days depending on the complexity of the remedial action required. Improvement notices can be issued during a routine workplace inspection, during an investigation following an incident or complaint, or during a targeted compliance campaign focused on specific hazards or industries. They are issued to the person who has the duty to address the contravention — this is usually the PCBU but can also be an officer, worker, or other person at the workplace. The notice is served on the person and a copy must be displayed at the workplace.

Upon receiving an improvement notice, the PCBU should take immediate steps to understand and address the identified contravention. First, read the notice carefully and identify the specific provision cited, the factual basis for the inspector's belief, and the compliance deadline. Second, assess whether the contravention exists as described and determine what corrective actions are required to achieve compliance. Third, develop and document an action plan that addresses each element of the notice, assigns responsibility for each action, and sets interim milestones where the compliance period extends beyond 30 days. Fourth, implement the corrective actions within the specified timeframe, maintaining records of all steps taken including dates, persons involved, and evidence of completion. Fifth, notify the inspector when compliance has been achieved and provide documentation demonstrating that the contravention has been remedied. Many PCBUs make the mistake of treating an improvement notice as an administrative inconvenience rather than a compliance obligation. The notice creates a documented record that the regulator identified a specific safety failing — failure to remedy it within the specified period converts a potentially minor issue into a prosecutable offence.

A person who has been issued an improvement notice may apply for internal review under section 224 of the WHS Act within 14 days of the notice being served. The application is made to the regulator, and the review is conducted by a person who was not involved in the original decision to issue the notice. The reviewer may affirm, vary, or cancel the notice. Importantly, applying for internal review does not suspend the operation of an improvement notice — the compliance deadline continues to run unless the reviewer specifically orders a stay. If the internal review affirms the notice, the person may apply for external review by the relevant tribunal or court within 14 days of receiving the review decision. In NSW, external review applications are made to the Industrial Relations Commission. The external reviewer has the same powers as the internal reviewer — to affirm, vary, or cancel the notice. PCBUs considering an appeal should obtain legal advice promptly given the 14-day timeframe. In most cases, it is prudent to commence remedial action while the appeal is pending, because if the appeal fails, the original compliance deadline may have already passed, creating immediate exposure to non-compliance penalties.

Failure to comply with an improvement notice within the specified period is an offence under section 193 of the WHS Act. The maximum penalty is $50,000 for an individual and $250,000 for a body corporate. These penalties are in addition to any penalty that may be imposed for the underlying contravention identified in the notice. The non-compliance offence is a strict liability offence — the prosecution does not need to prove that the person intended to fail to comply or was reckless about compliance. The mere fact that the notice was not complied with by the specified date is sufficient. Inspectors may also issue further notices, including prohibition notices if the continuing contravention creates an immediate risk. Repeated failure to comply with improvement notices is treated as an aggravating factor in any subsequent prosecution and can form the basis for evidence of recklessness in a Category 1 prosecution. Courts have also drawn adverse inferences from patterns of non-compliance when sentencing for separate offences. A documented record of improvement notice compliance, by contrast, demonstrates a responsive safety culture and can serve as mitigating evidence in penalty proceedings.