The danger of WorkSafe notices when repair and maintenance is required

May 20, 2011

Property / leasing

I am asked occasionally whether by both landlords and tenants whether they should call a WorkSafe inspector to serve a notice on the other party who is refusing to complete certain works on the property.  In summary, I think it is a very bad idea.

Section 26 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), which states that:

A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.

Penalty:      1800 penalty units for a natural person; 9000 penalty units for a body corporate.

WorkSafe inspectors have the power to serve notices requiring compliance with that section.

While I have heard of instances where this has been used to force a party to conduct repairs to a property, I would not recommend trying this for the following reasons:

  1. there are degrees of management and control and more than one person can have management and control of a workplace;
  2. the use of the words ‘whether as an owner or otherwise’ reinforce the conclusion that both a landlord and a tenant can be liable under that section;
  3. calling in a WorkSafe Inspector introduces uncertainty.  In one case I worked on, a WorkSafe Inspector served an improvement notice on a tenant requiring it to upgrade a lift.  After the tenant sold its business and informed the inspector that it had left the premises, the Inspector withdrew the notice and issued a new one, this time to the landlord;
  4. if review of a notice is not sought within 21 days, the recipient of the notice commits an offence if it is not complied with;
  5. fighting a notice in VCAT is a long and costly exercise that takes place in a jurisdiction where costs are rarely ordered;  and
  6. if the Inspector concludes that a breach has occurred, charges can be brought even without an accident or injury.  The penalties are severe and there are restrictions on the costs that can be recovered, even if the charges are successfully defended.

Consequently, it would be a brave landlord or tenant that calls in a WorkSafe Inspector to resolve a leasing dispute!

About Sam Hopper

Sam is a property and insolvency barrister.

View all posts by Sam Hopper

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