Prohibition Notice – what do I do now?

If you have had a prohibition notice notice slapped on a piece of machinery.  What does it mean, and what should you do next?  Read more for a beginners guide.

Under the current Health and Safety in Employment Act, inspectors from WorkSafe NZ have the authority to issue prohibition notices. The notice is physically an A4 page with an orange border and it is typically fixed to a machine or occasionally given to a site controller.  Under the forthcoming Health and Safety at Work Act the scenario will be much the same.

The notice is issued when the inspector believes there is a hazard that poses an immediate or imminent risk of harm to a person, and that the controls in place to mitigate that risk are inadequate and must be remedied before the activity can be resumed.

The notice lists the hazard or activity that will give rise to the risk, the basis for the inspector’s view that the risk of harm exists, and may include recommendations for remedy.  It is the hazard or activity described in the notice that is specifically prohibited and which cannot be carried out until the notice is lifted.  Any recommendation does not have to be carried out to the letter, as it might be possible to find a better way of controlling the risk. However, any alternative control would still have to be approved by an inspector before the notice is lifted.

While a prohibition notice is in itself not a prosecution or fine, failing to comply with the notice is an offence.  Under the HSW Act, contravening a prohibition notice is an offence liable for a fine up to $500,000.  So if you have been issued a prohibition notice, be very careful how you proceed.  Under no circumstances should you use a machine or process that has been issued with a prohibition notice unless specifically allowed by the issuing inspector, and it would be wise to get that allowance in writing.  Even removing or defacing a notice is an offence with a $25,000 fine attached.

If you feel that an inspector has unreasonably issued a prohibition notice you have 14 days to lodge an appeal.  The current act only allows for an appeal through the district court, but the new act also has provision for an internal review of the notice by WorkSafe to allow for any inconsistencies between inspectors to be reasonably dealt with.  An appeal, however does not automatically act as a stay on the notice.  In other words, unless you are specifically told by WorkSafe that it is still in force and you cannot use the machine without committing an offence.

It’s also worth noting that a notice  the new HSW Act is not something you can try arguing your way out of on a technicality, like a speeding fine.  It’s written in the new Act that “a notice is not invalid merely because of any defer, irregularity , omission, or want of form”, In short, it’s not worth appealing a notice simply because the issuing inspector for the date or the name of the machine wrong.

In almost all cases, the best way to get a prohibition notice lifted will be to deal with the hazard. Inspectors have another item in their toolkit – an improvement notice – and it is clearly beneficial to get a prohibition notice replaced with an improvement notice as soon as possible, as you will then be able to use the machine.

For example, consider a machine with a severe risk of amputation say an unguarded automatic bandsaw.  An inspector may issue a prohibition notice on the machine taking it out of play.  The notice will likely refer to the amputation risk, and recommend guarding.  However, while full implementation of guarding will require a Safe Work Method Statement for operation and maintenance, it is possible that the prohibition notice will be removed once the guarding is in place and replaced with an improvement notice requiring the development of the SWMS withing a certain time frame. This would be a good result, as the machine can now be operated while the SWMS is written up.

The key to this approach is to keep the inspector on your side by demonstrating a commitment to install guarding as soon as possible, and to keep the inspector informed of your intentions and progress,  Inspectors are typically very reasonable if they can see that they are dealing with a company that is taking proactive steps to make their workplace safer.

Secondly, start the process with a hazard-id and risk assessment of the machine to  AS/NZ4024, which is likely to be a recommended action on the prohibition notice anyway.  Also, the severity, likelihood and possibility of avoidance will feed into any control system design that might be necessary.  Remember at this stage to consider your risk assessment against industry best practice, for example the Safe Use of Machinery Best Practice Guidelines.  A prohibition notice is not a requirement to bring your machine safety controls up to space station levels, simply to bring them in line with industry practice.

Finally, there is a considerable spectrum of controls to consider when looking at safeguarding a hazard.  At one end is comprehensive, adaptive, plc-based safety circuits and sensors, at the other is a perimeter fence of 25mm mesh.  While moder PLC-based safety system will typically allow for the best balance of usability and safety, it will also be the most expensive and often the slowest to implement.  A perimeter fence may be unsophisticated and ugly, but it in an option that will provide full compliance to AS/ NZ 4024 within days.  To comply with 4024 as fixed guarding, all that is required is a check on the exclusion distances and tamper-proof fittings.  To comply a PLC-based system as a Safety Related Complacent of a Control System to AS/NAS4024 is a considerably more difficult task.

After the fixed guarding is up, the machine typically becomes more difficult to set and maintain.  However, 10 to 20 minutes of inconvenience is better than 24 down-time.  From this point, it becomes apparent which guards need to be removed on a regular basis, and which guards can be left fixed.  The guards that seriously hamper usability can then be modified to include interlocks or removed and replaced with light curtains, for example.

Of course, prohibition notices can be avoided entirely if a proactive approach is taken to machine safety, and best industry practice controls are fitted to your machines before an accident occurs.