Through a process called ‘internal review’ it is possible to seek a review of a range of decisions made by our work health and safety (WHS) Inspectors or other SafeWork SA officers in relation to licences, registrations and authorisations.
There are also a number of reviewable decisions that can only be reviewed externally through the South Australian Employment Tribunal (SAET), and they are not subject to internal review.
Internal review is what’s known as a ‘merits review’, which means that an internal reviewer will ‘stand in the shoes’ of the original decision-maker and consider:
- material available to them at the time the decision was made
- any new, relevant information that becomes available during the review.
The review process is a free service that is authoritative and transparent, and is both consistent with and independent of SafeWork SA’s operational areas.
You can start a review by completing an Internal Review Application.
You will need to identify under which legislation you are applying for review of a decision and what category of ‘eligible person’ you fall within.
Guidance for Applicants provides detailed lists of:
- eligibility and reviewable decisions that are subject to internal review under the WHS Act and Regulations in Attachment A
- eligibility and reviewable decisions that can only be reviewed externally through the SAET in Attachment B.
Only an ‘eligible person’ can apply for an internal review of a decision and this includes:
- the person issued with the notice or licence
- the person with management or control of the workplace
- anyone whose interests are affected by the decision, such as a person conducting a business or undertaking (PCBU), a worker, a health and safety representative or a person affected by a decision involving registrations, assessors or training.
When applying for a review, you will need to identify which category of eligible person you are.
You can have legal representation, at your own expense. If you want your lawyer to act on your behalf, their contact details need to be included when completing the application form.
Applications relating to an Improvement Notice must be lodged either before the notice’s compliance date or within 14 days after the day on which you became aware of the notice, whichever is earlier.
Applications for review of Prohibition and Non-Disturbance Notices must be lodged within 14 days after the day on which you became aware of the notice.
Applications made under the WHS Regulations should be lodged within 28 days after the day on which the decision first came to your notice, or any longer period we allow. Eligible persons under WHS Regulations 89(5), 118(5), 256(5), 269(5) and 497(5) should apply for a review within 28 days of the 120-day period referred to in that provision, or any longer time period we allow.
However, under WHS Regulations 89(5), 118(5), 256(5), 269(5) and 497(5), we have a 120 day period to make a decision on these regulations. From the end of that period, you have 28 days to apply for an internal review, or any longer time we allow.
In some circumstances the internal reviewer may allow you to lodge an application outside these timeframes by considering:
- your explanation for the late lodgement
- whether, if accepted, it would adversely affect anyone else
- the views of the original decision-maker.
The review timeframe will not start until we receive your completed, valid application. If it is incomplete we may ask you to provide more information within a specified timeframe, or the application may be returned to you for completion. The review is suspended for that time.
The internal reviewer must make a decision within 14 days of receiving your application. You can withdraw your application at any time up to the point at which a decision is made.
In light of all the material, the reviewer will then decide either to:
- confirm the original decision, or
- vary the original decision, or
- set aside the original decision and substitute another decision.
You will receive the internal reviewer’s decision and the reasons for it in writing. If the decision is complex, we may phone you to help clarify the reasons. You will also receive information about how to seek an external review of the decision by the SAET.
The person who made the original decision cannot act as the internal reviewer.
Reviewers we select will be consistent in their approach and follow best practice to ensure their decision is correct in law and that the facts are established based on evidence. All decisions must provide for natural justice, or procedural fairness, to all parties and deal with any real or perceived conflict of interest or bias.
Reviewers must act independently and exercise their own judgement while having regard to the legislation, SafeWork SA policies and procedures and, where relevant, Codes of Practice and accepted technical or industry standards and guidance material.
An internal reviewer can speak to the original decision-maker and other relevant people, including experts if it’s a technical issue.
Sometimes a reviewer will arrange a meeting with you or a workplace visit if they think it’s necessary to help them make their decision and if it can be done within the timeframe.
Sometimes more than one eligible person could apply for internal review of the same decision. If possible those applications will be considered by the same reviewer.
If the original review has already been completed, depending on that new decision and the nature of the new application, the reviewer will decide whether to accept it. Where a valid application is refused, you will be advised of your right to seek external review by the SAET.
If an application is invalid, it cannot be determined by the internal review process. Insufficient information does not invalidate an application. An application can be invalid if:
- you are not an eligible person
- your application seeks review of a decision which is not reviewable
- your application has been determined previously
- you have a complaint about the behaviour of the decision-maker.
You will be advised if your application is invalid and given other options for following up your concerns.
For complaints about the behaviour of the decision-maker or if you disagree with the compliance requirements of the reviewable decision, either contact our Help Centre on 1300 365 255 or lodge a formal complaint.
A ‘stay’ is a holding off of the operation of the initial reviewable decision. This stay is automatic for most reviewable decisions from the date you apply for a review.
Improvement notices are automatically stayed once an application is lodged. That means they do not operate and can’t be enforced during the internal review period and until a decision is made.
However, decisions under the WHS Regulations cannot be stayed by a review application, nor can one be requested.
There is no automatic stay for Prohibition or Non-Disturbance Notices. You need to request this by ticking the appropriate boxes on the application form, or the reviewer can decide to stay the operation of the notice on their own initiative.
A reviewer must either grant or refuse the stay within one working day of the request being made and provide that decision in writing. If a decision isn’t made within that timeframe, the stay is automatically granted.
If granted, a stay continues until the end of the prescribed period for applying for an external review of the internal review decision or an application for external review is made, whichever is earlier.
Only one internal review application can be lodged in relation to any one reviewable decision.
If you are not satisfied with our review determination, you can apply to the SAET for an external review by completing a Form A50.