Focus One more piece of the WHS harmonisation puzzle for NSW mines New Work Health and Safety (Mines) Bill 2013 (NSW) before Parliament Work Health and Safety 27 May 2013 Despite indications from the NSW Department of Trade and Investment officers last week at the NSW Minerals Industry Health and Safety Conference that there would be a consultation period with the industry before the new Work Health and Safety (Mines) Bill 2013 (NSW) was introduced to Parliament, the Bill was placed before the lower house last week. The new legislation has significant implications for the mining industry and will require mines to review their current workplace health and safety practices to ensure they are ready to comply with the new legislation which is proposed to be passed by 1 July 2013. Workplace health and safety specialists, Jeremy Kennedy, Partner and Suzie Leask, Senior Associate at McCullough Robertson Lawyers, summarise the proposed legislation. Background A key change is the power of the Minister to appoint a Board of Inquiry to investigate any notifiable incident, with witnesses now having no right to silence even though they may incriminate themselves The new Work Health and Safety (Mines) Bill 2013 (NSW) (Bill) will replace the Coal Mine Health and Safety Act (2002) (NSW) (CMHS Act) and the Mine Health and Safety Act 2004 (NSW) (MHS Act) with one mine-specific piece of legislation that will be incorporated into the overarching Work Health and Safety Act 2011 (NSW) (WHS Act). The Bill finalises the implementation of the proposed national harmonisation of work health and safety (WHS) laws in New South Wales (NSW) by allowing NSW to effectively implement the mining provisions in the national model Work Health and Safety Regulation 2011 that had not previously been adopted despite being developed collectively by NSW, Queensland and Western Australia regulators, unions and employer groups. The additional mining-specific WHS provisions that are established by the Bill are intended to provide appropriate regulation of mining workplaces within the existing WHS Act framework, while taking into account the significant risks involved in mining operations. We note that much of the detail necessary to implement many of the provisions under the Bill will be contained in related regulations that have yet to be released.
The new WHS (Mines) Bill What workplaces will it apply to The Bill applies to all workplaces that are mines. Mines is defined as a workplace at which mining operations are carried out or a place that is a tourist mine (being a workplace used only for tourism purposes but at which mining operations were formerly carried out and at which there was a hazard prescribed by the regulations). Under the Bill, mining operations means activities carried out for the purpose of exploring for minerals, extracting minerals from or injecting minerals into, the ground. Mining operations also includes activities carried out in connection with and adjoining to or in the vicinity of mining activities at a site. Interestingly, the Bill will also apply to some broader mining activities set out in clause 7(2) of the Bill, which may be of assistance when considering whether the new legislation will apply to particular areas of your workplace. These include handling, storing, preparing or processing extracted materials, decommissioning or making safe a mine site, and constructing a site where a mining activity (or activities carried out in connection with or in the vicinity of mining activities) is, or is to be carried out. The Minister for Resources and Energy (Minister) may also make a determination under clause 12 of the Bill as to whether or not the Bill applies to a particular workplace. Key provisions The new Bill sets out a number of provisions aimed to secure and promote the health and safety of persons who work at mines and related places. Some of the key provisions are set out below. Incident Notification The Bill establishes a notification scheme for serious incidents at mines, as well as imposing a duty on any person who is required to ensure that the regulator is notified of the incident and each person with management or control of the workplace to ensure non-disturbance of the site of a serious incident until an inspector arrives. Oversight of mines by government officials Part 4 of the Bill permits the Department of Trade and Investment, Regional Infrastructure and Services (Regulator) to appoint government officials including inspectors, mine safety officers or investigators, provided that the person has the appropriate skills, knowledge and experience and any qualifications prescribed by the regulations. The Bill also sets out the functions of those government officials and their powers of investigation under the proposed legislation. Industry safety and health representatives Part 5, Division 2 of the Bill provides for the appointment of industry safety and health representatives (Industry Reps) at coal mines. A person will be eligible for such an appointment if they are a WHS entry permit holder and have the qualifications (if any) prescribed by the regulations. Industry Reps will supplement existing health and safety representative under the WHS Act and have the same functions. They will also be immune from personal liability in accordance with clause 270 of the WHS Act. Industry Reps will have various additional functions including rights to: review the content and implementation of a safety management system required at a coal mine participate in the investigation of events, occurrences or notifiable incidents at a coal mine assist in the training of site safety and health representatives (Site Reps) and electrical safety and health representatives (Electrical Reps), and enter and inspect a workplace at a coal mine.
The Bill also extends the circumstances in which improvement notices and prohibition notices may be given under the WHS Act in relation to mines. For example, an Industry Rep may give a direction to the mining operator to suspend operations at the coal mine if the Industry Rep is of the opinion there has been a failure to comply with the proposed Bill, the WHS Act, the related regulations or with the safety management system, resulting in a danger to the health or safety of workers at the coal mine. However, the Industry Rep must take reasonable steps to give prior notice to a government official of their intention to issue a notice to suspend operations. Mine safety and health representatives Part 5, Division 3 of the Bill provides for the election of mine safety and health representatives (Mine Reps) for coal mines for a three year term. The definition of Mine Reps includes Site Reps or Electrical Reps, although Electrical Reps will only be able to exercise their functions in relation to electrical installations and electrical equipment and any issues and risks arising from their use. Mine operators are required to ensure that any newly elected Mine Reps receive training as soon as practicable and are permitted to take time off for the training without loss or remuneration or entitlements. Failure to do so is an offence with a maximum penalty of $10,000 for an individual or $50,000 for a corporation. Mine Reps will supplement existing health and safety representative under the WHS Act and have the same functions, as well as additional functions and rights to: observe any formal investigation carried out by the mine operator of notifiable incidents at the coal mine be consulted prior to a health and safety representative issuing a provisional improvement notice under the WHS Act in relation to a coal mine, and consult with and accompany a government official on an inspection of a coal mine. The Bill also requires a Mine Rep to give a mine operator a report of any inspection that the Mine Rep makes of the mine. Failure to do so is an offence with a maximum penalty of $500. Clause 47 of the Bill also requires a Mine Rep to record any dangers found during an inspection of a coal mine and subsequently give a copy of the record to the regulator. Failure to do so is an offence with a maximum penalty of $10,000 for an individual or $50,000 for a corporation. Stop Work Orders The enforcement provisions under the Bill maintain the effect of existing measures under the CMHS Act and MHS Act. As noted in the second reading speech: There is no reduction in enforcement powers for mines inspectors and investigators. These powers reflect the need for early intervention to prevent the effects of catastrophic risk associated with mining. The Bill streamlines an inspector s enforcement powers to enable proactive intervention to address mining risks. Clause 51 of the Bill permits the Regulator to make a stop work order requiring a person conducting a business or undertaking at a mine to stop any activity at a place specified in the order, if the Regulator believes it to be necessary to prevent a serious risk to the health or safety of any person. It will be an offence to fail to comply with a stop work order with a maximum penalty of $100,000 for an individual or $500,000 for a corporation (and a further $50,000 for each day the offence continues).
Board of Inquiry Perhaps the key change in the new Bill is the power of the Minister under clause 56 to constitute a person as a Board of Inquiry to conduct investigations into any notifiable incident at a mine, any other event, occurrence, practice or matter that may affect the health and safety of workers or other persons at a mine or anything prescribed by the regulations. In conducting such an inquiry, the Board of Inquiry has extremely broad powers and will not be required to act in a formal manner, or to follow the rules of evidence and may determine its own procedures and inform itself on any matter in any way that it considers appropriate. The Board of Inquiry must sit with one or more assessors appointed by the Minister and may be assisted by a legal practitioner. The Board of Inquiry is also required under clause 59 of the Bill to provide a report to the Minister on its findings which must then be tabled in each House of Parliament unless the Board of Inquiry has recommended that the report should not be made public. Most concerning aspects of such Boards of Inquiry are that witnesses have no right to silence and may be compelled to answer questions, notwithstanding that the answers may incriminate the witness. Mine Safety Advisory Council Part 8, Division 1 of the Bill requires the Minister to establish a Mine Safety Advisory Council (MSA Council) that includes representation from peak mine operator and mine worker organisations. The functions of the MSA Council are set out in clauses 61 and 62 of the Bill, and include providing advice to the Minister on any policy matter relating to WHS in mines and other advisory functions prescribed by the regulations. The Bill also provides for the regulations to prescribe the constitution, members and procedures of the MSA Council. Mine Competence Board The Bill also constitutes the Mining Competence Board (Board) which is subject to the control and direction of the Minister. It sets out the membership, procedures and functions of the Board, including to oversee the development and determination of competence standards for persons exercising safety-critical roles and functions at a mine that may impact on the health and safety of any person, and to undertake initial and ongoing assessments of the competence of persons exercising any such functions, as identified in the subsequent regulations Sharing information between regulators To enable effective regulation of a nationally harmonised model, clause 71 of the Bill provides for the sharing of information with regulators of corresponding mining-specific WHS laws in other Australian jurisdictions. Codes of Practice The existing WHS Act recognises the important role of codes of practice. In the new Bill, the requirement in clause 274 of the WHS Act that each Australian jurisdiction be consulted before a code of practice is made is modified to ensure that the process for developing mining codes of practice requires consultation only with stakeholders in the relevant jurisdictions that intend to adopt the codes. Additionally, as noted in the second reading speech, codes of practice have evidentiary status and are an agreed way that a duty holder can reasonably and practicably comply with their legislative obligations.
Recommendation The Bill is proposed to be passed by 1 July 2013 and, according to the second reading speech, if passed it will help ensure NSW secures reward funding of $79 million under the Council of Australian Governments National Partnership Agreement. We recommend that interested members of the mining industry act quickly to raise any concerns or suggestions in relation to the proposed legislation. We would also suggest that persons conducting a business or undertaking in the mining industry seek advice on their WHS obligations to ensure that they are ready to comply with the new legislation and any regulations enacted once the Bill is passed. Watch this space We are currently working on a comparison table of the existing legislation and the changes under the new Bill to assist our clients with complying with the new Bill. We anticipate that this will be published in the next week. Useful Links The Work Health and Safety (Mines) Bill 2013 (NSW) and Explanatory Memorandum can be accessed at the NSW Parliament website: http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/fe9af839df348f23ca257 B7200203728 For up to the hour updates on developments in relation to work health and safety laws, connect with Jeremy Kennedy and Suzie Leask and subscribe to the WHS NSW Mine Safety Law discussion group on LinkedIn or follow Jeremy @WHSLawyer on Twitter. For further information on any of the issues raised in this alert please contact: Jeremy Kennedy on +61 2 4924 8900 Suzie Leask on +61 2 4924 8925 Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication. info@mccullough.com.au www.mccullough.com.au Brisbane Level 11, 66 Eagle Street Brisbane QLD 4000 GPO Box 1855, Brisbane QLD 4001 T +61 7 3233 8888 F +61 7 3229 9949 Sydney Level 16, 55 Hunter Street Sydney NSW 2000 GPO Box 462, Sydney NSW 2001 T +61 2 9270 8600 F +61 2 9270 8699 Newcastle Level 4, 251 Wharf Road Newcastle NSW 2300 PO Box 394, Newcastle NSW 2300 T +61 2 4924 8900 F +61 2 4924 8999