29Provisional improvement notices

#### 29 Provisional improvement notices (1) Where a health and safety representative for a designated work group believes, on reasonable grounds, that a person: (a) is breaching a provision of this Act or the regulations; or (b) has breached a provision of this Act or the regulations and is likely to breach that provision again; being a breach that affects or that may affect one or more employees included in the group, the representative must enter into consultations with the person supervising the work performed by the employee or employees in an attempt to reach agreement on rectifying the breach or preventing the likely breach. (2) If, in the health and safety representative’s opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional improvement notice to the person (in this section called the responsible person) responsible for the breach. (3) Where the responsible person is an employer but it is not practicable to issue the notice to the employer by giving it to the employer, the notice may be issued to the employer by giving it to the person who is, or who may reasonably be presumed to be, for the time being, in charge of the activity, undertaken by the employer, in connection with which, in the health and safety representative’s opinion, the employer is breaching, or is likely to breach, this Act or the regulations and, where the notice is so issued, a copy of the notice must be given to the employer as soon as practicable thereafter. (3A) The notice has effect as soon as it is given to a person in accordance with subsection (2) or (3). (4) The notice must: (a) specify the breach of the provision of this Act or the regulations that, in the health and safety representative’s opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and (b) specify a period of not less than 7 days commencing on the day after the notice is issued, being a period that is, in the representative’s opinion, reasonable, within which the responsible person is to take action necessary to prevent any further breach of the provision or to prevent the likely breach of the provision, as the case may be. (5) The notice may specify action that the responsible person is to take during the period specified in the notice. (6) Where, in the health and safety representative’s opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice. (7) Upon issuing the notice, the health and safety representative must give a copy of the notice to: (a) where the notice is issued to an employee in connection with work performed by the employee for an employer—that employer; and (b) where the notice relates to any workplace, plant, substance or thing that is owned by a person, not being the responsible person or a person who is an employer referred to in paragraph (a)—that owner; and (c) where the notice is issued to a person (not being an employer) who owns any workplace, plant, substance or thing by reason of which a breach of this Act or the regulations has occurred or is likely to occur—the employer of the employees who work in that workplace or who use that plant, substance or thing. (8) Within 7 days after the notice is issued, the responsible person, or any other person, to whom a copy of the notice has been given under subsection (7), may make a request to Comcare or to an investigator that an investigation of the matter the subject of the notice be conducted. (9) When a request is made under subsection (8), the operation of the notice is suspended pending the determination of the matter by an investigator. (9A) The health and safety representative may request Comcare or an investigator to investigate a matter that is the subject of a notice if: (a) the responsible person has not complied with the notice within the period specified in the notice (including any extensions); and (b) an investigation has not been requested under subsection (8). (10) As soon as possible after a request (under subsection (8) or (9A)) is made, an investigation must be conducted of the work that is the subject of the disagreement, and the investigator conducting the investigation must: (a) confirm, vary or cancel the notice and notify the responsible person and any person to whom a copy of the notice has been given under subsection (2) accordingly; and (b) make such decisions, and exercise such powers, under Part 4, as the investigator considers necessary in relation to the work. (11) Where the investigator varies the notice, the notice as so varied has effect, and, except in so far as it imposes additional obligations on the responsible person, is to be taken to have always had effect, accordingly. (12) Where the notice is issued to an employer, the employer must: (a) notify each employee who is performing work for the employer and who is affected by the notice of the fact of the issue of the notice; and (b) until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed. (13) The notice ceases to have effect if: (a) it is cancelled by an investigator or by the health and safety representative; or (b) the responsible person: (i) takes such action, if any, as is specified in the notice; or (ii) if no action is so specified—takes the action necessary to prevent the further breach, or likely breach, with which the notice is concerned. (14) The responsible person: (a) must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and (b) must take such steps as are reasonably practicable to inform the health and safety representative who issued the notice of the action taken to comply with the notice. (15) For the purposes of section 48, where the investigator confirms or varies the notice, the investigator is to be taken to have decided, under section 47, to issue an improvement notice in those terms.