WHS Prohibition Notices — Immediate Danger and Stop Work

A WHS inspector may issue a prohibition notice under section 195 of the WHS Act when the inspector reasonably believes that an activity is occurring or may occur at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. The key distinction from an improvement notice is the element of serious and immediate risk. Improvement notices address contraventions that may not involve immediate danger; prohibition notices address situations where continued activity could result in death, serious injury, or serious illness. Common triggers for prohibition notices include unprotected work at heights where a fall could result in death or serious injury, excavation work without adequate shoring or benching where collapse could trap workers, operation of plant with missing or disabled safety guards where contact could cause amputation or crushing, work in confined spaces without atmospheric monitoring where toxic or oxygen-deficient atmospheres could cause death, and electrical work being performed by unlicensed workers where electrocution risk exists. The notice is issued to the person who has control over the activity — typically the PCBU or the person directly performing the work. It must describe the activity, the risk, and any action required to remedy the risk before the activity can resume.

A prohibition notice takes effect immediately upon issue. There is no compliance period — the specified activity must cease as soon as the notice is served. The notice remains in force until an inspector is satisfied that the matters giving rise to the risk have been remedied. This means the PCBU cannot simply wait for a period and then resume work; the inspector must positively confirm that the risk has been addressed before the activity can recommence. To achieve clearance, the PCBU must identify and implement controls that eliminate or adequately control the serious risk identified in the notice. This typically involves physical remediation such as installing edge protection, shoring, guarding, or ventilation systems, and may also require procedural changes such as implementing permit-to-work systems, providing additional training, or revising SWMS. The PCBU must then notify the inspector and arrange for a re-inspection. Only after the inspector confirms that the risk has been remedied can the prohibition notice be removed and work resume. The financial impact of a prohibition notice extends well beyond any penalty. Project delays, idle labour costs, equipment hire charges, contractual liquidated damages, and reputational damage can collectively exceed the cost of a prosecution penalty by orders of magnitude.

A person who has been issued a prohibition notice may apply for internal review under section 224 of the WHS Act within 14 days of the notice being served. However, unlike improvement notices, applying for internal review of a prohibition notice does not suspend its operation. The activity must remain ceased while the review is pending. The internal reviewer may affirm, vary, or cancel the notice. If the internal review affirms the notice, the person may apply for external review by the relevant tribunal or court within 14 days. In NSW, this is the Industrial Relations Commission. The external reviewer may also order a stay of the notice pending the outcome of the review, but stays of prohibition notices are rarely granted because of the serious risk element. In practice, most PCBUs find it more efficient to remedy the identified risk and seek clearance from the inspector than to pursue an appeal. The appeal process takes days to weeks, during which the prohibited activity remains stopped. Remediation and clearance can often be achieved within hours or days. Appeals are most commonly pursued where the PCBU genuinely believes the inspector's assessment of the risk was incorrect, or where the notice is so broadly drafted that it prohibits activities beyond the scope of the identified risk.

Failure to comply with a prohibition notice is an offence under section 197 of the WHS Act. The maximum penalty is $100,000 for an individual and $500,000 for a body corporate. These are among the highest penalties available for regulatory offences under the Act, reflecting the seriousness of continuing an activity that an inspector has determined involves a serious risk to health or safety. The non-compliance offence is a strict liability offence. If the prohibited activity continues after the notice is served, the offence is established regardless of the person's intention or belief about the risk. Courts have imposed substantial penalties for prohibition notice non-compliance, particularly where the person was aware of the notice and consciously decided to continue the activity. Continuing a prohibited activity can also form the basis for a Category 1 prosecution if the recklessness element can be established — the prohibition notice itself provides strong evidence that the person was aware of the risk. Where a worker is injured or killed during an activity that was subject to a prohibition notice, the PCBU faces the highest possible penalty exposure, including industrial manslaughter charges. Compliance with prohibition notices must be immediate and absolute.