Occupational Health and Safety Act 2004

This page provides general information and shouldn't be considered as legal advice. Seek legal advice if you're unsure about your legal rights. Be aware that the law can change.

The Victorian WorkCover Authority is also known as WorkSafe Victoria.

Cases we can hear

If you're eligible for a reviewable decision made by the Victorian WorkCover Authority, including a decision made on internal review, you may be able to apply to VCAT for a review of the decision.

Section 127 of the Act sets out a table of reviewable decisions; and who is an eligible person to apply for a review. You may have to apply for internal review first.

If someone other than the Authority (most commonly an inspector) made a reviewable decision, you must first apply to the Authority for internal review within 14 days of the decision coming to your notice (or longer if the Authority allows you to).

Reviewable decisions and eligibility under the Act

The following is a summary of the reviewable decisions under the Act, and who can apply for the review. Be aware that the law can change and always check:

• that the decision you want to review is a reviewable decision under the current law
• whether you need to seek internal review first.

Decision about a designated work group

When an inspector makes a determination about a designated work group under section 45 of the Act, an employer or employee affected by the decision is eligible to apply for a review.

Election of a health and safety representative

When an inspector appoints someone to conduct the election of a health and safety representative for a work group, an employer or employee whose interests are affected by the appointment is eligible to apply for a review.

Provisional improvement notice

When a health and safety representative issues a provisional improvement notice and an inspector attends the workplace to either cancel or affirm the notice, the following people are eligible to apply for a review:

• the person to whom the provisional improvement notice was issued
• the health and safety representative who issued the notice
• a health and safety representative representing an employee or independent contractor (as set out in sections 45 (1)(e) and 48(1)(e)) whose interests are affected by the decision
• an employee or employer whose interests are affected by the decision.

Reasonable cause for health and safety concerns

When an inspector attends a workplace to resolve a health and safety issue and decides under section 75(4)(b) that there was reasonable cause for employees to be concerned for their health or safety, the following people are eligible to apply for a review:

• an employer or employee affected by the inspector’s decision
• the health and safety representative whose direction to cease work gave rise to the decision.

Item seized by an inspector

If an inspector (exercising powers of entry under Part 9 of the Act) seized an item and then later returns it on any terms or conditions, the following people are eligible to apply for a review:

• the owner of the seized item
• a person who has an interest in the item
• a person whose interests are affected by the decision.

Forfeiture of seized items

If an item seized by an inspector is forfeited to the Victorian WorkCover Authority under section 109(1) of the Act, the following people are eligible to apply for a review:

• the person to whom the Authority issued a notice under section 109(2)
• anyone else who has an interest in the seized item or whose interests are affected by the Authority’s decision.

Issue of a non-disturbance notice

When an inspector issues a non-disturbance notice under section 110 (1) of the Act, the following people are eligible to apply for a review:

• the person to whom the notice is issued
• an employer or employee whose interests are affected by the decision to issue the notice
• a health and safety representative who represents an employee or independent contractor (as set out in sections 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice.

Issue of an improvement notice

When an inspector issues an improvement notice under section 111 of the Act, the following people are eligible to apply for a review:

• the person to whom the notice is issued
• an employer or employee whose interests are affected by the decision to issue the notice
• a health and safety representative who represents an employee or independent contractor ( as set out in sections 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice.

Certification that matters in an improvement notice have been remedied

When an inspector certifies, under section 111(3)(a) of the Act, that the issues in an improvement notice have been remedied, the following people are eligible to apply for a review:

• the person to whom the notice is issued
• an employer or employee whose interests are affected by the decision to issue the notice
• a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice.

Issue of a prohibition notice

When an inspector issues a prohibition notice under section 112(1) of the Act, the following people are eligible to apply for a review:

• the person to whom the notice is issued
• an employer or employee whose interests are affected by the decision to issue the notice
• a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice
• a health and safety representative whose direction under section 74 to cease work gave rise to the inspector’s decision.

Certification that matters in a prohibition notice have been remedied

When an inspector certifies that the issues covered by a prohibition notice have been remedied, the following people are eligible to apply for a review:

• the person to whom the notice is issued
• an employer or employee whose interests are affected by the decision to issue the notice
• a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice
• a health and safety representative whose direction under section 74 to cease work gave rise to the inspector’s decision.

Variation or cancellation of a non-disturbance notice, improvement notice or prohibition notice

When the Victorian WorkCover Authority decides to vary or cancel a non-disturbance notice, an improvement notice or a prohibition notice, the following people are eligible to apply for a review:

• the person to whom the notice is issued
• an employer or employee whose interests are affected by the decision to issue the notice
• a health and safety representative who represents an employee or independent contractor (as set out in section 44(1)(e) or 48(1)(e)) whose interests are affected by the decision to issue the notice
• a health and safety representative whose direction under section 74 to cease work gave rise to the inspector’s decision.

Review of other decisions under related laws

For review of other decisions made by the Victorian WorkCover Authority, see reviews under Occupational Health and Safety Regulations 2007.

Legislation that gives VCAT the power to hear these applications

Section 129 of the Occupational Health and Safety Act 2004

Documents you need to apply

If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.

Time limits

Check the decision letter carefully for time limits to apply to VCAT and any other conditions. Remember you may have to apply for internal review first.

If you apply outside of the time limit, VCAT may extend the time for making an application. You must ask for an extension of time by indicating this on the ‘extension of time’ question of the application form and briefly explaining why your application was late.

VCAT will ask the decision maker if they agree to any extension. If the decision-maker doesn't agree, VCAT may hold a preliminary hearing before deciding whether to grant an extension.

Applications about forfeiture of an item

For an application about forfeiture of an item under section 109, you should make your application to VCAT within 28 days of being notified of the decision.

All other applications

For any other application, you should make your application to VCAT within 14 days of the later of these events :

• the day on which the decision first came to your notice
• the day on which you were given a statement of reasons for the decision if required by the VCAT Act 1998
• the day on which you were informed that a statement of reasons will not be given.

Internal review time limits

If someone other than the Authority (most commonly an inspector) made a reviewable decision, you must first apply to the Authority for internal review, and must do so within 14 days of the decision coming to your notice (or longer if the Authority allows you to).

What can VCAT order?

Unless the relevant Act gives us different powers, VCAT can:

• affirm the original decision, in which case the original decision will stand
• vary the decision
• set aside the decision and substitute our own decision
• set aside the decision and send back the matter for reconsideration by the decision maker giving directions or recommendations
• invite the decision maker to reconsider their decision at any time during the case.

Putting the original decision on hold

In most cases, applying for a review does not put the original decision on hold and that decision stands until VCAT makes its decision. 

If you want the original decision put on hold, you must ask for this by indicating you want a ‘stay’ on the application form and briefly explaining why you're seeking a stay.

VCAT will ask the decision maker if they agree to any stay. If the decision maker doesn't agree, VCAT may hold a preliminary hearing before deciding whether to grant a stay.

Apply

We can explain the application process and what the form is asking you for. Contact us to get support.

We can't give you legal advice. This means we cannot tell you what to write in your application or recommend how to get the outcome you want.

Seek legal help if you're unsure about your options or need advice about your claim.

Do I need a lawyer or professional representative?

You don't need to have legal or other professional representation to appear at VCAT. If you want to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission. Be aware that the regulatory body in most cases uses legal representation.

Find legal services that may be able to assist you.

Access and privacy

VCAT hearings and files are usually public.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.