External reviews under the Work and Health and Safety Act

An eligible person, who is affected by certain decisions (reviewable decision) made by SafeWork NSW or a regulator under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (the regulator) may apply to the Industrial Relations Commission of New South Wales (Commission) under section 229 of the Work, Health and Safety Act 2011 (NSW) (WHS Act) for an external review of that decision.

What is a reviewable decision?

The reviewable decisions are listed in s 223 of the WHS Act and are: 

• s 54 (2) (decision following failure to commence negotiations);
• s 72 (6) (decision in relation to training of health and safety representative);
• s 76 (6) (decision relating to health and safety committee);
• s 102 (decision on review of provisional improvement notice);
• s 179 (forfeiture of seized things);
• s 180 (return of seized things);
• s 191 (issue of improvement notice);
• s 194 (extension of time for compliance with improvement notice);
• s 195 (issue of prohibition notice);
• s 197B (issue of prohibited asbestos notice);
• s 197E (extension of time for compliance with prohibited asbestos notice);
• s 198 (issue of non-disturbance notice);
• s 201 (issue of subsequent notice); or
• s 207 (decision of regulator to vary or cancel notice); or
• Any other decisions that may be listed in the Work Health and Safety Regulation 2025 (NSW).

Who is an Eligible Person?

Section 223 of the WHS Act sets out who is an ‘eligible person’ to apply for a review in relation to each of the reviewable decisions listed in the section. Persons wishing to apply for an external review under s 229 should check s 223 to confirm that they are eligible to apply for a review.

How to apply for an external review?

A person who wants to apply for an external review must submit the general application form to the Commission’s Registry by email, post or in-person, setting out details of the decision to be reviewed, annexing a copy of the decision and why the applicant is an eligible person to make the application. There is no filing fee, but the application must be submitted within:

• 28 days of the applicant first becoming aware of the regulator’s decision to seize something (including a document); or
• 14 days after any other reviewable decision first came to the applicant’s attention; or
• 14 days after the regulator has provided a statement of reasons to the applicant for a reviewable decision at the Commission’s request.¹

What can the Commission do?

The Commission may stay or pause the operation of the regulator’s decision while it conducts the external review and makes a decision.² The Commission can confirm, vary or revoke the decision subject to an external review.³

Can the Commission’s decision be appealed?

The Commission’s decision can be appealed to the Full Bench of the Commission.

^{1 WHS Act s 229(2).; 2 Ibid s 229(3).;3 Ibid s 229(4).}