Review of decisions

Decisions that are reviewable (section 127)

Some decisions made under the OHS Act can be reviewed. They are called reviewable decisions. Reviewable decisions are usually decisions made by inspectors, but they can also be decisions made by WorkSafe. Some examples of reviewable decisions include:

• Deciding on unresolved particulars to do with DWGs.
• Appointing a person to conduct an HSR election.
• Deciding to affirm or cancel PINs.
• Determining that there was reasonable cause for employees to be concerned for their health or safety.
• Terms and conditions placed on the return of seized things.
• Forfeiting seized things to WorkSafe.
• Issuing a non-disturbance notice.
• Issuing an improvement notice.
• Certifying that a contravention, likely contravention, or matters and activities related to an improvement notice have been fixed.
• Issuing a prohibition notice.
• Certifying that matters relating to a prohibition notice have been fixed.
• Varying or cancelling non-disturbances notices, improvement notices or prohibition notices.

Certain people can apply to have a decision reviewed. These people are called eligible persons. Eligible persons may be employers, employees, HSRs and other people who are affected by the decision.

Failure to make a reviewable decision is also reviewable.

Internal review (by WorkSafe) (section 128)

An eligible person can ask WorkSafe to review a reviewable decision, unless WorkSafe made the decision. WorkSafe cannot review its own decisions, this is done by the Victorian Civil and Administrative Tribunal (VCAT). The eligible person must apply to WorkSafe within 14 days of finding out about a reviewable decision. WorkSafe can grant an extension of time to apply for a review.

WorkSafe must review the decision and decide to uphold or vary the reviewable decision, or set it aside and replace it with a new decision. WorkSafe must inform the eligible person of its decision and the reasons for the decision within 14 days of the application. For reviewable decisions that need an inspector to certify that matters relating to an improvement notice or prohibition notice have been fixed, WorkSafe must inform the eligible person of its decision within 7 days of the application to review a reviewable decision.

Requests for further information (section 128A)

WorkSafe can ask an eligible person who has asked for a review of a decision to give them more information. They must ask in writing. If WorkSafe asks for more information and does not get a response in 7 days, it can make a decision without the extra information.

Review by VCAT (section 129)

An eligible person can apply to VCAT for review of a decision that WorkSafe made or of a WorkSafe internal review decision.

The eligible person must apply to VCAT for review of a decision within 14 days of finding out about the decision. However, for decisions involving forfeiture of a thing, the eligible person has 28 days to apply to VCAT.