Reviewable decisions

The OHS Act 2004 now has expanded processes for review of decisions made by WorkSafe Victoria and its inspectors.  The new Part 10 sets out which decisions are reviewable, and who has the right to review each decision.  Employers, OHS reps, workers and others affected by a decision can seek to have it reviewed.

Section 127-  Which decisions are reviewable?

This is a list of the reviewable decisions and who has the right to seek a review.

Note: the decision NOT to do one of the following (eg an inspector's decision not to affirm a PIN issued by a rep) is also reviewable.

  Item   Decision (by inspector) 'Eligible Person' (whose interests are affected by the decision)
 1  Determining unresolved particulars of a DWG [S45]

1 - a worker
2 - an employer

 2  Appointment of someone to conduct an election of an OHS Rep [S54  (4)(b)]

1 - a worker
2 - an employer 

 3  To affirm or cancel a provisional improvement notice (PIN) [S63(3)(b)]

1 - the person to whom PIN was issued
2 - the OHS rep who issued PIN
3 - another OHS rep
4 - a worker
5 - an employer

 4  That there was reasonable cause for workers to be concerned for their health or safety (in the case of a cease work) [S75(4)(b)] 1 - a worker
2 - an employer
3 - an OHS rep who directed the cease work
 5  Terms and conditions on the return of seized things [S108(2)]

1 - the owner of the thing
2 - a person who has an interest in the thing
3 - any other person whose interests are affected

 6  Forfeiture of seized things [S109(1)] 1 - the person to whom the notice of forfeiture is issued
2 - a person who has an interest in the thing
3 - any other person whose interests are affected
 7  Issue of a non-disturbance notice [S110(1)]

1 - the person to whom non-disturbance notice is issued
2 - an OHS rep who represents anyone whose interests are affected
3 - a worker 
4 - an employer

 8  Issue of an improvement notice [S111(1)]

1 - the person to whom the Improvement Notice was issued
2 - an OHS rep who represents anyone whose interests are affected
3 - a worker 
4 - an employer 

 9 That the matters in an Improvement notice have been remedied [S111(3)(a)] 1 - the person to whom the improvement notice was issued
2 - an OHS rep who represents anyone whose interests are affected
3 - a worker 
4 - an employer 
 10  Issue of a prohibition notice [S112(1)] 1 - the person to whom the Prohibition Notice was issued
2 - an OHS rep who represents anyone whose interests are affected
3 - a worker 
4 - an employer 
5 - a OHS rep whose direction to cease work gave rise to the decision
 11  That the matters in a prohibition notice have been remedied [S112(1)] 1 - the person to whom the prohibition  Notice was issued
2 - an OHS rep who represents anyone whose interests are affected
3 - a worker 
4 - an employer 
5 - an OHS rep whose direction to cease work gave rise to the decision
 12  Variation or cancellation or a non-disturbance notice, improvement notice or prohibition notice [S114] 1 - the person to whom the notice concerned was issued
2 - an OHS rep who represents anyone whose interests are affected
3 - a worker 
4 - an employer 
5 - in the case of a prohibition notice, an OHS rep whose direction to cease work gave rise to the notice

How are decisions reviewed?

1 - Internal review:The first review is an internal one, undertaken by the Authority, through a new unit, the Internal Review Unit. An application must be made in writing within 14 days of the decision having been made, using the form approved by the Authority.  The Authority will then review the decision, and either affirm or vary the original decision, or set it aside and substitute it with another one.  It will notify the applicant in writing, within 14 days (in some cases within 7 days). 

Someone can also apply for a stay of a decision.  In this case, the Authority must make a decision on this within 24 hours.

Go to the WorkSafe website for more information on the Internal and VCAT Review process, including an information sheet on applying for review of an inspector's decision, and the application form which must be filled in when seeking an internal review.  

2 - Review by the Tribunal:
If a person is not satisfied with a decision made by the Internal Review Officer, or the Internal Review Officer fails to make a decision, they have the right to apply to the Victorian Civil & Administrative Tribunal (VCAT) for external review of the Internal Review Officer's decision. Usually, an application to VCAT must be made within 14 days from the date the person becomes aware of the Internal Review decision.

Part 6.3 of the OHS Regulations - Review of Decisions - has more detail on the processes, etc.

The 2004 Act can be downloaded (in both pdf and Word format) on the Victorian government legislation repository website - Victorian Law Today - and searching for the Act.

Last amended June 2015