Difficulty identified with PIN notice review by Fair Work Commission

Posted by Andrew McGiffert |11 Jul 13 | 0 comments

While businesses around the country become more familiar with Work Health Safety laws the Fair Work Commission has identified a ‘difficulty’ with the model WHS Act’s rules on provisional improvement notices. The commission has found there is no jurisdiction for it to review an employers decision to take down a PIN issued by a health and safety representative.

The matter arose following an employee HSR issuing Australia Post’s Sydney Gateway facility with a PIN notice relating to alleged poor indoor air quality.

Twelve days later Australia Post removed the PIN because it believed it had complied with the documents requirements.

The HSR believed Australia Post was breaching the WHS Act by failing to display the PIN and complained to Comcare. The HSR was informed by a Comcare inspector that the notice ‘may’ be invalid because it was written on the incorrect template.

During the 12 months after the inspectors decision the HSR made two applications for an internal review of the decision which made the PIN invalid. Both attempts were rejected on the basis that the inspector hadn’t made a ‘reviewable decision’, and that Australia Post was complying with the WHS Act as far as was reasonably practicable in relation to the air issue.

During the proceedings it was identified that an inspector was only required to review a PIN if requested to do so by the person to whom it was issued – being Australia Post. In this case Australia Post did not request a review of the PIN and was under the belief the notice had been complied with, as a result they took the notice down.

Vice President Lawler found “Because there was no request for a review of the PIN… the obligation on Comcare to appoint an inspector to review the PIN… did not arise and it did not do so.”

“The difficulty is that the WHS Act contains no mechanism for an external review where the addressee of a provisional improvement notice does not seek a review of that notice, even if the issuer of the notice is justifiably dissatisfied with the addressee’s response to the notice,” he said.

Vice President Lawler noted that Australia Post had run the risk of breaching the Act in taking down the PIN, but said it was clear that Comcare didn’t believe it had committed an offence that it should be prosecuted for.

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