Part 6.3 of the Occupational Health and Safety Regulations 2017

Part 6.3 - Review of decisions

524 What is a reviewable decision?

For the purposes of this Part, a reviewable decision is a decision of the Authority -

1. to determine a process to be a lead process under regulation 180; or
2. to cancel a construction induction card under regulation 350; or
3. to refuse to grant a licence under Division 1 of Part 6.1 (Licences); or
4. to refuse to license the holder of a high risk work licence to perform one or more additional classes of high risk work under Division 1 of Part 6.1 (Licences); or
5. to impose any particular term or condition on a licence under regulation 473; or
6. to amend a licence, or to refuse to amend a licence, under Division 3 of Part 6.1 (Licences); or
7. to refuse to renew a licence under Division 4 of Part 6.1 (Licences); or
8. to suspend, cancel or amend a licence, or part of a licence, under Division 5 of Part 6.1 (Licences); or
9. to recommend to a corresponding Authority that a licence or certificate, or a part of a licence or certificate, be suspended or cancelled under regulation 504; or
10. to refuse to issue a replacement evidence of licence document under regulation 477; or
11. to refuse to transfer a major hazard facility licence under regulation 479; or
12. to withdraw a registration under regulation 520.

525 What is a process review?

In these Regulations, a process review of a decision is a review to determine whether the decision was made in accordance with all of the processes that apply under the Act and these Regulations in relation to the making of such a decision, but it does not involve any consideration of the merits of the decision.

526 Who may apply for a process review

1. An employer whose process is determined by the Authority to be a lead process may apply to the Authority for a process review of a reviewable decision of a type referred to in regulation 524(a).
2. A person who has had a construction induction card cancelled by the Authority may apply to the Authority for a process review of a reviewable decision of a type referred to in regulation 524(b).
3. A person who applied for a licence may apply to the Authority for a process review of a reviewable decision of a type referred to in regulation 524(c), (d) or (e).
4. A licence holder may apply to the Authority for a process review of a reviewable decision of a type referred to in regulation 524(e), (f), (g), (h), (i) or (j).
5. A person to whom a major hazard facility licence was requested to be transferred under regulation 479 may apply for a process review of a type referred to in regulation 524(k).
6. A person who has had a registration withdrawn by the Authority under regulation 520 may apply for a process review of a reviewable decision of a type referred to in regulation 524(l).

527 Time limits when applying for a process review

An application for a review must be made within -

1. 14 days after the day on which the decision first came to the applicant's notice; or
2. such longer period as the Authority allows.

528 Review by the Authority

1. If an application is made to the Authority in accordance with this Part, the Authority must make a decision -
   1. to confirm the reviewable decision either on the basis -
      1. that it was made in accordance with the Act and these Regulations; or
      2. that even though it was not made in accordance with the Act or these Regulations, the process failure was not reasonably likely to have affected the outcome of the decision; or
   2. to set aside the reviewable decision.
2. The Authority must give a written notice to the applicant setting out -
   1. the Authority's decision under subregulation (1) and the reasons for the decision; and
   2. the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based.
3. The Authority must comply with subregulation (2) -
   1. within 14 days after the application is made; or
   2. with the consent of the applicant, within a further period of up to 14 days.
4. If the Authority does not notify an applicant of a decision in accordance with subregulations (2) and (3), the Authority is taken to have made a decision to confirm that the reviewable decision was made in accordance with the Act and these Regulations.
5. Subject to regulations 485(4) and 500, an application under this regulation does not affect the operation of the reviewable decision or prevent the taking of any action to implement it.

529 Process for new decisions to be started within 7 days

If the Authority sets a decision aside under regulation 528(1)(b), it must start the process to remake the decision within 7 days after it sets the decision aside.

530 Right of Tribunal review

For the purposes of this Part, section 129 of the Act applies as if -

1. a reference in section 129(1)(a) to a reviewable decision were a reference to -
   1. a reviewable decision that a person was entitled to have reviewed under this Part and that has been confirmed by the Authority after it has conducted a process review of the decision under this Part; or
   2. a reviewable decision that was a new decision made after an earlier decision was set aside following a process review by the Authority; and
2. section 129(1)(b) were omitted; and
3. a reference in section 129(1) to an eligible person were a reference to a person who was entitled to seek a review of the decision under this Part; and
4. for section 129(2) there were substituted the following provision -
   "2 The application must be made -
   1. within 14 days after the person received notice of the process review decision or the new decision (as the case requires); or
   2. if the Authority is required by the Victorian Civil and Administrative Tribunal Act 1998 to give the person a statement of reasons, within 14 days after the day on which the person is given the statement -
   whichever period ends last.".