Introduction
The option of mainstreaming coal mines under the OHS Act and repealing the CMR Act and CMR Regulations has significant implications for the mining industry. The proposed changes have considerable benefits and could provide the industry with an opportunity to achieve major improvements in safety and productivity. The changes are extensive, however, and have significant impacts for all people with health and safety responsibilities. These changes would affect employers, management, employees and government regulators.
An immediate to short term impact would be changes in legal responsibilities for individuals and companies. The proposed reforms would make significant changes to the nature of legal responsibilities for employers and management. The way government regulators interact with industry would also change along with relevant administrative systems.
The mining industry needs to ensure that any changed legal responsibilities are appropriate. It is also important to ensure that any new regulatory systems do not create unnecessary or unreasonable administrative burdens on industry. In the longer term mainstreaming the coal industry would remove a number of restrictions on management structures and work systems.
It would also free up arrangements for determining employment competencies in the industry. These changes could enable the industry to implement major improvements in safety and productivity. The industry needs to take a strategic perspective on the reform process and ensure that any new legislation facilitates the longer term benefits to safety and productivity. This may require the industry to have some flexibility in the way it negotiates the details of any changes to legal responsibilities and administrative systems.
This report highlights the major changes that would result from mainstreaming the coal mining industry and identifies issues that the industry should consider. It discusses the potential changes under the following headings :
• current legislation applying to mines
• responsibilities of mine owners and managers
• certification of competencies
• enforcement and the mining inspectorate
• consultation and employee representation
• risk management and new mining regulations
The discussion summarises key points from a more detailed analysis that is presented in a series of tables in the appendices.
These tables analyse the existing CMR Act and each of the CMR Regulations on a clause by clause basis. These detailed analyses include minor issues not addressed in the report and should be consulted when developing any response to the government proposals.
Please note that all reference to the OHS Act in this report are references to the OHS Act passed by Parliament in June 2000. This Act remade the existing OHS Act 1983 with new provisions for employee consultation and sentencing along with other minor changes. Section numbers used in this report refer to the new OHS Act.
The OHS Regulation discussed in this report is a draft Regulation that was released for public comment in October 1999. This draft is currently being revised to take account of public comment and the new OHS Act. Comments in this report about the OHS Regulation are based on the publicly available draft. These comments will need to be reassessed if there any major changes in the final version of the Regulation.
The government has indicated that the new OHS Act and the final OHS Regulation will be commenced simultaneously in first half of 2001. Current legislation applying to coal mines To appreciate the full impact of the government option to mainstream coal mines under the OHS Act, it is necessary to understand the complex mix of legislation that currently applies to NSW coal mines. This chapter provides a brief overview of the existing situation.
OHS Act and OHS Regulation
The OHS Act places a general duty of care on employers. Section 8 of the Act requires an employer to ensure the health safety and welfare of all their employees at a mine. An employer must also ensure that other people at the mine (such as contractors or visitors) are not exposed to any risks arising from the mine or its operation.
Under the OHS Act the responsibility of an employer extends to ensuring that the premises, the work environment and any work systems are safe and without risk. Plant and substances must be safe when properly used. The employer must also ensure that all information, instruction, training and supervision necessary for health and safety are provided.
Sections 13 to 19 of the Act require an employer to consult with their employees about health and safety. These sections set out various processes for consultation including the establishment of OHS committees and the election of OHS representatives. The OHS Act enables Regulations that set out how an employer complies with this general duty and the arrangements for consultation. As currently drafted, the OHS Regulation does not apply to mines apart from provision dealing with employee consultation.
Most enforcement provisions in the OHS Act apply to mines. This includes the provisions dealing with prosecutions, defences against prosecution and penalties. It also includes provisions giving authorised employee representatives the right to enter and inspect a workplace. Some enforcement provisions do not apply to mines. These are the provisions dealing with the powers of inspectors, the issuing of investigation, improvement and prohibition notices and the requirements for reporting accidents and other matters.
Directors and managers of corporations also have responsibilities and in some circumstances can be deemed personally to have committed an offence where a corporation breaches the law. The OHS Act also places a duty of care on self-employed people, people who design, manufacture or supply plant and substances and anybody who has control of a workplace, plant or substances – however these responsibilities are only marginally relevant to this discussion.
An employee has a responsibility to take reasonable care for the health and safety of other people. An employee must also cooperate with their employer and any other people who have legal duties for health and safety.
Associated legislation
The OHS Act deems the CMR Act and the CMR Regulations as ‘associated legislation’. The role of associated legislation is set out in section 132 of the OHS Act. Under this section a person must comply with the OHS Act and in addition must comply with the CMR Act and CMR Regulations. There are two important qualifications to this situation :
• if any provision of the CMR Act or CMR Regulations is inconsistent with the OHS Act, then the OHS Act prevails.
• a person is not guilty of an offence against their general duties under the OHS Act in respect of any act or omission that is expressly required or permitted to be done or omitted by or under the CMR Act and CMR Regulations.
These qualifications have two important implications that need to be considered in the discussion that follows. First, a person who has obligations under the CMR Act or the CMR Regulations must determine whether any of their obligations are inconsistent with the OHS Act. This can be a complex process because the CMR Act and the OHS Act take very different approaches to regulating health and safety. The two Acts also apply obligations on different categories of people. As a consequence, there can be considerable confusion about the real nature and extent of a person’s obligations and about who is responsible for a particular matter.
Second, and conversely, the repeal of the CMR Act and CMR Regulations would remove the defence against breach of the OHS Act general duty arising from compliance with specific provisions under the CMR Act. As discussed later, this may result in increased legal liabilities for some people in the industry, particularly mine owners.
The CMR Act and CMR Regulations
The CMR Act applies to all coal mines and coal processing plants. Regulations made under the Act also apply -with some difference for open cut and underground mines. As associated legislation, the CMR Act and CMR Regulations must be complied with in addition to the OHS Act and OHS Regulation.
The CMR Act places obligations the owner of a mine and a range of mining officials – most importantly the manager of a mine. An owner is defined as the immediate proprietor, the lessee or the occupier of the mine and includes a contractor where the contractor is working all or part of a mine. Mining officials are appointed and employed by the mine owner.
In almost all conceivable circumstances the owner of a mine will also be an employer under the OHS Act. This is because of the nature of the industry and because there are requirements in the CMR Act that a mine owner directly employ mining officials and shot firers.
Mining officials such as the manager of a mine are employees of the mine owner. In some circumstances a manager could also be a director of the corporation that owns the mine. As a manager they may also be liable, in some circumstances, for offences committed by a corporation that owns a mine.
The CMR Act and CMR Regulations place various obligations on people in general and on employees. The way that duties are allocated under the CMR Act and CMR regulations is very different to the way responsibilities are set in the OHS Act. The proposed mainstreaming of coal mines under the OHS Act has significant implications for mine owners and mine managers that are discussed in the next chapter.
Responsibilities of mine owners and managers The owner of a mine, as an employer, has a general duty of care under section 8 of the OHS Act to ensure the health and safety of employees and any other people at the mine. This duty is broad. It covers all risks arising from any hazard found at the mine. This includes hazards not addressed by the CMR Act - such as manual handling, hazardous substances, stress and noise. The owner also must consult with employees about the management of health and safety risks.
The owner of a mine must also comply with the CMR Act and the CMR Regulations. These requirements create restrictions on an owner that limit the way the owner can comply with their general duty under the OHS Act. The CMR Act and CMR Regulations required a fixed management structure that is built around detailed prescriptive regulations which address only some of the risks that the owner must manage.
Under the CMR Act, the owner of a mine must appoint an individual to be manager of the mine and make provision for and take the steps necessary to ensure that :
• the mine is managed and worked in accordance with the CMR Act, the CMR Regulations and subsidiary instruments such as rules, schemes:
• the mine is planned, laid out and equipped to enable this compliance.
The manager is responsible for implementing the CMR Act and CMR Regulations in the mine. This includes ensuring that all people in the mine comply with any requirements in the Act or Regulations. An owner can maintain a degree of control over the mine by issuing instructions to the manager, but the CMR Act is structured to encourage full control being delegated to the manager.
The mine manager must appoint a range of other managers in a strictly defined hierarchy. The hierarchy is designed to ensure that every area of a mine has a manager on every shift who is responsible for implementing and enforcing the CMR Act and CMR Regulations in their particular area. The Act also sets out specific obligations for different levels of management – mostly to implement prescribed ways of dealing with particular safety matters. The mine manager must also appoint people to specified engineering positions. These engineers are given specific safety responsibilities.
Advantages of mainstreaming coal mines
The CMR Act and CMR Regulations do not comprehensively deal with all health and safety issues in a mine. They focus on hazards arising from the mine itself – such as structural safety, inrush prevention, gasses and dust. They also deal with plant issues and the use of explosives.
The management structure established by the CMR Act is focussed on these hazards and on implementing prescribed safety solutions. This approach can lead to a limited view of safety management and can result in managers giving little attention to hazards such as manual handling, noise etc. There is also a potential that unnecessary layers of management are being maintained through the protection of a legislatively prescribed management structure.
Mainstreaming coal mines under the OHS Act would give a mine owner greater freedom to implement alternative management systems. This could assist the owner to comprehensively address their obligations as an employer under the OHS Act and also improve productivity.
Repeal of the CMR Act and CMR Regulations, however, may result in increased levels of legal liability for the owners of coal mines. The industry needs to make strategic judgements about the benefits of the proposed reforms and balance these against possible changes to the liability of mine owners.
Legal liability of mine owners
If the owner of a mine is prosecuted for contravention of their general duty under the OHS Act they have three defences available :
• it was not reasonably practical to comply
• the offence was caused by something they had no control over and could not practically have made provision for controlling
• the action or omission that constituted the offence was expressly required or permitted to be done or omitted under the CMR Act and CMR Regulations.
The first two defences are available to any employer under the OHS Act, including mine owners. The third defence only applies to employers operating under associated legislation such as the CMR Act and CMR Regulations.
The third defence, depending upon the individual circumstances, may limit the liability of a mine owner in relation to hazards addressed by the CMR Act and CMR Regulations. Defences available under the CMR Act are of particular importance here.
Under section 161 of the CMR Act, an owner is guilty of an offence if somebody at the mine contravenes the CMR Act or CMR Regulations. However, the owner has a defence under section 164(2) if they can prove that :
• the owner was not in the habit of taking part in the management of the mine and was not involved in the matter concerned
• the owner had made financial and other provision necessary for the manager to carry out the owner’s duty
• the offence was committed without the owner’s knowledge, consent or connivance.
The extent to which these provisions limit the liability of owners under the OHS Act is not clear and would require interpretation in the courts. There is the clear potential, however, that repeal of the associated legislation will increase the liability of mine owners.
A further aspect which impacts on this area is section 29 of the OHS Act. This section states that compliance with OHS Regulations is not a defence for any proceedings against an employer for contravening their duty of care. In fact this section goes further and indicates that contravention of an OHS regulatory provision is admissible in evidence in a prosecution.
Note that defences provided under associated legislation such as the CMR Act and CMR Regulations will be lost if all mining industry requirements are mainstreamed under the OHS Act. Liability in a civil action for breach of statutory duty is a further area that warrants the mining industry’s attention.
Section 32 of the OHS Act sets out provisions relating to civil liability. Due to the drafting approach, the precise meaning of these provisions is not clear and would depend upon interpretation in the courts. However, the provisions do clearly anticipate the potential for civil liability to be created through a breach of the OHS Regulation.
Applying the OHS Regulation to mines has the potential to considerably increase the range of matters where a mine owner may be liable in a civil action for breach of statutory duty. The current draft of the OHS Regulation comprehensively addresses all hazards and requires the assessment and control of all risks. The
scope of the draft Regulation is considerably broader than the CMR Act and CMR Regulations – consequently there is the potential for an increase in the scope of issues that may give rise to civil action for
breach of statutory duty. As currently drafted, the OHS Regulation does not prevent actions for breach of statutory duty.
Depending upon the interpretation of section 32 of the OHS Act this matter may also impact on all other employers in NSW. One possible interpretation is that civil action is not possible for breach of an employer’s general duty under section 8 of the OHS Act, but action is possible for breach of the risk management provision in the draft OHS Regulation.
Note that if all mining industry requirements are mainstreamed under the OHS Act there may be an increase in the scope of possible actions for breach of statutory duty. The mining industry should also note that this matter might be an area of common concern with other employer groups in relation to finalising the draft OHS Regulation.
How will the proposed changes impact on mine managers ?
The CMR Act requires a mine owner to directly employee a mine manger and the lower level managers appointed by the manager. Consequently a mine manager has responsibilities under the OHS Act as an employee.
As an employee, a mine manager must take reasonable care for the health and safety of anybody at the mine who may be affected by the manager’s acts or omissions. The manager must also cooperate with their employer or any other person who has health and safety obligations under the OHS Act.
If the mine is owned by a corporation, then the mine manager will have the additional responsibility of using all their due diligence to prevent the corporation from committing an offence against the OHS Act and OHS Regulations. If an offence is committed and the manager could have influenced the behaviour of the corporation, then the manager will be deemed to be guilty as well. Consequently managers are also affected by the complex issues about the extent of an owner’s liability discussed above.
A mine manager has strong obligations under the OHS Act to ensure that, as a manager, they do not put employees, visitors or contractors at the mine at risk. This includes an obligation to ensure that management structures and systems are effective in eliminating or minimising risks. A manager must also actively seek improvements from a corporate employer where there is a compliance problem.
Similar to mine owners, the manager of a mine must comply with the CMR Act and CMR regulations in addition to their obligations under the OHS Act. As discussed above complying with the CMR Act and CMR Regulations involves implementing a rigidly defined management structure in which responsibilities and risk controls are highly prescribed. Compliance with these provisions may limit the capacity of a manager to implement more effective management structures and may limit best practice health and safety solutions being put in place.
Mainstreaming coal mines under the OHS Act would give mine managers increased flexibility and should assist them to more easily meet their obligations under the OHS Act. Repeal of the CMR Act and CMR Regulations would also relieve managers of personal liability for compliance and reduce their possible exposure to civil action for breach of statutory duty.
Despite these legal advantages, the proposed changes would also remove legislative protection for defined numbers and levels of management at lower levels of the management hierarchy. This has the potential to create uncertainty for individual managers. The proposed changes would also enable management changes that are based on a very different culture and approach to safety management. This could create industrial issues and may expose the industry to skill shortages if the transition to a new system is not managed carefully.
Certification of competency
The option of mainstreaming coal mines under the OHS Act would have significant impacts on certification requirements. These changes would impact on all managers, specialist engineers, shot firers and some operators who currently do not require certificates.
Certification of the competency of managers and specialist engineers. Under the CMR Act mine managers, deputy managers, under managers, and examiners, surveyors, electrical engineers and mechanical engineers must all have prescribed experience and qualifications.
The Act establishes the Coal Mining Qualifications Board to administer this system in terms of setting competencies and conducting examinations. The proposed mainstreaming of coal mines under the OHS Act would repeal all of these provisions. Responsibility for determining the appropriate competencies for each position in a particular coal mine would lie with the employer for that coal mine.
Under the general duties in section 8 of the OHS Act an employer has an obligation to ensure that systems of work are safe and without risk and must also provide such information, instruction, training and supervision as is necessary to ensure health and safety. The OHS Act does not prescribe how this duty is to be achieved.
The OHS Regulation requires an employer to ensure that supervision is undertaken by a competent person and that the supervision provided takes account of the competence, experience and age of each employee.
The OHS Act and OHS Regulation include provisions that place an appropriate and sufficient obligation on employers to ensure that management and supervision is competent. There is no need to maintain legislative requirements for management and engineering certificates of competency currently found in the CMR Act.
Removing the legislative requirements for certificates of competency will be a major change for the industry and will require a careful transition strategy. The industry should note that this is likely to be an emotive issue and could become linked to claims about reduced levels of safety.
The industry should also note that the option of mainstreaming coal mining would result in the repeal of the existing arrangements for certification of competency. The coal mining industry may need to review the competency framework and ensure that health and safety competencies are given priority in this process.
These competencies should be published as guidance material to assist employers to determine how to meet their obligations. Depending upon reaction within the industry, there may need to be a transitional arrangement in which existing provisions are preserved for a fixed period. The OHS Act includes provisions that enable sunset clauses for a period of 3 years after repeal of the original legislation. A 3 year period should provide sufficient time for the review of the competency framework.
Qualifications of shot firers.
The CMR Act and CMR Regulations include provisions requiring shot firers to have specific qualifications. Under the mainstreaming option these provisions would be repealed and this may not be appropriate. If the current provisions are repealed, the Dangerous Goods (General) Regulations 1999 provisions for shot firers that apply in other industries would also apply to coal mines. The industry should assess whether these provisions are appropriate in the mining industry.
New certification requirements
The proposal to apply the OHS Regulation to the coal mining industry would introduce certification requirements for the operators of some equipment. The OHS Regulation continues existing regulatory requirements for certification based on the National Standard For the Certification of Operators. This standard has been adopted in all jurisdictions in Australia. It prohibits people from operating certain types of
industrial equipment and doing certain types of work unless they have specified certificates of competency. Independent assessors assess a person against published competency criteria and a certificate is issued by WorkCover or by an equivalent regulatory authority in another jurisdiction.
Some work processes and equipment used in mines would require the operator to have a certificate under the OHS Regulation. Examples are :
• use of personnel and material hoists
• operation and use of load shifting machines such as excavators, front-end loaders and fork lifts
• erection of scaffolding and rigging
• use of cranes.
Some industry personnel, particularly in open-cut mines may already have relevant certificates or equivalent qualifications because of work in other industries. However, it is likely that introducing these requirements would impact on both employees and employers in the industry.
The mining industry should ask DMR whether it is intended to apply the National Standard For the Certification of Operators to the mining industry. If the standard is to be applied, DMR should be asked to explain what processes will be put in place to recognise existing skills of operators, what transitional arrange ments will apply and what arrangements will be in place for coordination of administrative processes with WorkCover Authority.
Enforcement and the mining inspectorate
The OHS Act currently excludes mines from any provisions dealing with the powers of inspectors, the issuing of investigation, improvement and prohibition notices and the requirements for reporting accidents and other matters. For coal mines, these matters are dealt with under the CMR Act and CMR Regulations.
The option of mainstreaming coal mines would involve amendment of the OHS Act to remove the current exclusions. The mining industry would then be subject to the same enforcement provisions as all other industries in NSW. The impacts this would have on the mining industry are discussed below.
Who can be an inspector ?
The CMR Act sets out a hierarchy of inspector positions starting with the chief inspector. This hierarchy includes district inspectors and various specialist engineering inspectors. Inspectors are appointed by the governor and must be public servants. On appointment each inspector is personally given certain powers and functions set out in the Act.
The CMR Act prescribes qualifications and experience that are a prerequisite for being appointed as an inspector. Most inspectors must be an experienced mine manager and must have a mine manager certificate of competency. Specialist engineering inspectors must have the relevant engineering qualifications. A public servant who does not have these qualifications may be appointed as a mine safety officer.
The mainstreaming option would result in the repeal of the legislative provisions for appointing DMR mines inspectors. All inspectors would be appointed under the OHS Act. A different approach to appointing inspectors is used for the OHS legislation. WorkCover or the agency responsible for administering the OHS Act in coal mines, such as DMR, appoints all inspectors and may appoint a public servant, an employee of a local government or any other category of person specified in Regulations.
There are no qualifications for being an inspector set out in legislation. The qualifications, training and responsibilities of inspectors are determined by administrative policy. Under the OHS Act, all inspectors operate under written authorities that specify the types of premises where an inspector has powers.
There is a potential for some overlap between inspectors appointed by WorkCover and DMR. It may be appropriate to clarify this situation by legislative amendment to specify the areas of operation 0f the two inspectorates.
Under the proposed reforms inspectors appointed by WorkCover could have legal authority in a coal mine. WorkCover would have the power to appoint a wide range of people as inspectors and this would not necessarily be limited to people employed by DMR. If this is a concern for the mining industry, it would be advisable to seek legislative amendments that clarify the areas of authority of the WorkCover and DMR inspectorates
Under the proposed reforms inspectors appointed by WorkCover could have legal authority in a coal mine. WorkCover would have the power to appoint a wide range of people as inspectors and this would not necessarily be limited to people employed by DMR. If this is a concern for the mining industry, it would be advisable to seek legislative amendments that clarify the areas of authority of the WorkCover and DMR inspectorates
What powers does an inspector have ?
An inspector appointed under the CMR Act has the power to enter a mine and conduct an investigation. An inspector may enter a mine at any time and question people, take samples, inspect documents, remove equipment etc.
They can also enter land and other places that are not a mine when conducting an investigation. These powers are set out in section 59 to 61 of the Act. An inspector appointed under the OHS Act has similar powers to a DMR inspector. However the powers of OHS inspectors are set out in more detail and give certain procedural rights to an employer not stated in the CMR Act.
For example an inspector must give notice before dismantling or removing equipment and must issue receipts etc. There are some minor differences in powers. For example an OHS inspector has the power to conduct a biological test.
One difference worth noting relates to employee representatives. An OHS inspector is required as far as practical to consult with an employee representative or with a trade union that has members at the workplace before conducting an investigation. The employee representative is able to accompany the inspector during the investigation.
The manner in which DMR administers the inspectorate is likely to have a greater impact than any minor differences in the powers in the two Acts. It would be advisable if the industry asked DMR to provide written polices for investigation and an explanation of any changes that would result from operating under the OHS Act.
Self-incrimination
The CMR Act provides protection from some self-incrimination. Under section 60(2), answers given to questions by an inspector are not admissible in evidence against that person – except for a prosecution for making false statements. This protection applies to criminal and civil actions.
Section 65 of the OHS Act also provides protection from self-incrimination, however, there are some differences. Each individual being questioned must be warned that they can object to making a statement or to providing information on the grounds that it might incriminate them. If the person does object, any answers or information are inadmissible in criminal prosecutions against that person. This protection only applies to a natural person, that is an individual and only applies to criminal proceedings.
Section 65 also provides protection in relation to documents. Inspectors have the power to issue a notice requiring production of documents. Any documents produced in response to such a notice can not be admitted in evidence in criminal proceedings against the person. This protection applies to a legal person which includes individuals and corporations.
These provisions all need to be read in accordance with the Evidence Act 1995 which sets out the general rules for evidence in any proceedings before a court. The mining industry should note that mainstreaming coal mines under the OHS Act would remove legislative provisions relating to the admissibility in civil proceedings for an answer given to an inspector during an investigation. The industry should also note that mainstreaming would provide a clear legislative statement that documents produced in response to a notice by an inspector are not admissible in evidence in criminal proceedings.
Prohibition notices
Under the CMR Act, an inspector can issue a notice imposing prohibitions or restrictions if the inspector believes there are, or shortly will be, a dangerous situation. The inspector can also require remedial action. A person can appeal to the chief inspector if they do not agree with the notice. The chief inspector has 3 weeks to confirm or revoke the notice. In the mean time, the notice stands. A mine manager can appeal to a court about a chief inspector’s decision.
An OHS inspector can also issue notices. These notices are similar but are broken into three types. An investigation notice can require the occupier to immediately stop something being used or moved to enable an investigation.
An inspector can also issue an improvement notice requiring somebody (not just an employer) to take some action to comply with the OHS Act and OHS Regulation. Usually a person has a minimum of 7 days to comply with an improvement notice. If an inspector believes there is an immediate risk, a prohibition notice can be issued to prevent dangerous work occurring until remedial action has been taken.
The main differences between the provisions for notices under the two Acts are :
• under the OHS Act a person can apply to a Local Court for an immediate stay of any investigation or prohibition notice – under the CMR Act a person must first appeal to the chief inspector who has 3 weeks to consider the appeal.
• under the OHS Act an improvement notice is stayed while WorkCover considers any appeal – under the CMR Act a restriction or prohibition notice stays in place pending an appeal to the chief inspector
• under the OHS Act an improvement notice can be issued for administrative matters such as record keeping or holding a health and safety committee meeting – notices can not be issued for these type of matters under the CMR Act.
Applying the provisions for notices under the OHS Act to mines is not likely to have any major impacts for industry. Indeed there may be some advantages in terms of more accessible appeal processes. However, as indicated above, it may be advisable for the industry to seek a written explanation from DMR about how they would administer the notice provisions under the OHS Act. DMR Investigation Unit Sections 93A to 93E of the CMR Act establish requirements for investigation of accidents and dangerous occurrences and provide for the appointment of special investigators to investigate and report on these events. These special investigators do not need to be inspectors appointed by the governor, but have they the powers of an inspector.
The DMR has established an investigation unit to conduct these investigations. The provisions for investigations by the DMR investigation unit would be repealed under the mainstreaming option. However, the
process for appointing inspectors under the OHS Act would enable the unit to be continued by administrative action. Regulatory provisions would be necessary to enable the appointment of any consultants as investigators.
Approval of mining equipment and processes
The CMR Act and the CMR Underground Regulation require use of approved underground mining methods and also require approval for a wide range of mining equipment such as methane detectors, braking systems on underground transport, diesel engines, canopies on continuous miners and electric shot firing apparatus.
The CMR General Regulation also gives the chief inspector a very broad power to require approval for any equipment, apparatus, material or system in any mine or coal processing plant. The chief inspector can require an approval simply by placing a notice in the government gazette. The extent of existing approvals required by the chief inspector has not been assessed for this report, but potentially could be extensive.
These requirements to used approved processes and for approval of equipment will be repealed if the CMR Act and CMR Regulations are repealed as part of a mainstreaming process. Requirements that a government regulator approve equipment or processes are an inefficient way of protecting safety. They create an administrative burden and are dependent on government maintaining the highest level of knowledge and skills about contemporary industry practices. In some circumstances, approval requirements can actually prevent industry from implementing new technologies that improve safety outcomes.
Regulations that give the chief inspector wide powers to require approvals actually delegate law-making power to an individual. This may be expedient in some circumstances but goes against the fundamental democratic principle that laws should be made transparently and be subject to Parliamentary scrutiny. It also exposes the individual official to questioning about their integrity.
The only potential benefits for industry from an approval process are that government approval gives some certainty about the minimum legal requirements and may provide some degree of shielding from legal and financial liabilities if something goes wrong.
Regulations should not require something to be approved unless there is clear evidence that the approved equipment or process is the only way to effectively ensure safety. If it is clear that equipment or processes must meet specific criteria for safety, it is far more effective and better law if the criteria are actually stated in
the Regulation.
The mining industry may wish to consider any consequences before agreeing to the continuation of the existing approval processes under the CMR Act and CMR Regulations. The industry should also request detailed justification from DMR for any approval process that may be proposed.
The OHS Act does not have any specific requirements for approval. However, the Act includes a power to make regulations that require approvals in relation to the plant, substances and the carrying out of any process or activity.
Regulations are also possible requiring permits, licenses or registration. The OHS Regulation does not have any permits or licenses relevant to coal mining. There are, however, plant registration requirements that are similar to approvals and would impact on the coal mining industry if the OHS Regulation is applied to the industry.
The OHS Regulation implements the National Standard For Plant which has already been adopted in all other jurisdictions in Australia. The Regulation requires that the design of some types plant is registered with WorkCover or an equivalent government authority in another state or territory. The plant requiring design registration includes plant that can be found in mines - such as gas cylinders, pressure equipment, cranes and hoists designed to lift people.
Any relevant plant designed after OHS Regulation commences in mid 2001 must have its design registered with a regulatory authority somewhere in Australia before it can be used. A design can not be registered unless it conforms to design criteria set out in the Regulation including specified Australian Standards relevant for that plant. The person seeking registration must also provide a statement from an independent designer verifying that it does conform. Although it is not a formal approval process, the regulatory authority can refuse registration and can set conditions. Registration can also be cancelled on the basis that the design is not safe.
Some items of plant must also be registered. This is not restricted to new plant and would include some existing plant in coal mines. The plant affected is limited to specified higher risk items such as lifts, pressure vessels with certain hazard levels and mobile cranes with a working capacity of more than 10 tonnes. An employer can not use these items of plant unless the individual item of plant is registered with a regulatory authority in Australia.
Registration must renewed periodically. Registration requires written assurances that the plant has been inspected and is safe. As with design registration, the regulatory authority can refuse registration, can request further information and can cancel registration.
The plant registration requirements in the OHS Regulation affect some types of plant used in coal mines. The industry should note that applying the OHS Regulation will require registration of some plant designs and some items of plant. It may appropriate to seek clarification from DMR about the administrative arrangements that are proposed for coordination with WorkCover and other regulatory authorities in Australia. Particular attention should be given to any potential impact on existing items of plant that need to be registered.
Accident and incident reporting
Requirements for reporting accidents and dangerous incidents are found in sections 85 to 92 of the CMR Act. Further provisions are found in clause 83 and 85 of the CMR (General) Regulation and clause 34 of the CMR (Underground) Regulation. In broad terms an accident that results in a fatality or serious injury must be reported immediately to the district inspector and the district check inspector. A range of specific dangerous
incidents must also be reported. The site of the accident or dangerous incident must not be disturbed for 24 hours unless the district inspector and the district check inspector give approval. The location of the accident or incident must also be recorded on the mine plan.
The OHS Act also requires an employer to immediately report a fatality, serious injury or a dangerous incident. The details of what is a serious injury and what is a dangerous incident are in the draft OHS Regulation and are still to be clarified. The draft provisions will change after the recent public comment period and it is likely that the final provisions will be more extensive than existing provisions under the CMR Act and Regulations.
The general industry provisions for reporting accidents and dangerous incidents under the OHS Regulation are likely to be more extensive than current obligations for the mining industry. If this is a concern to the industry, it may be advisable seek specific regulatory provisions for the mining industry that continue current arrangements.
On the spot fines
The CMR Act does not have any provision for ‘on the spot fines’. By contrast, under the OHS Act an inspector or other authorised person can issue an ‘on the spot fine’. The penalties range from $50 up to $1,000 depending upon the offence. Fines can be issued for all the main offences under the OHS Act, including failure to ensure the health, safety or welfare of an employee. ‘On the spot fines’ can also be issued to employees.
The OHS Act is drafted so that ‘on the spot fines’ can only be imposed through the OHS Regulation. Because of this drafting arrangement ‘on the spot fines’ can not currently be imposed in mines. Applying the OHS Regulation to mines would introduce ‘on the spot fines’ to the mining industry.
The mining industry should note that the OHS Regulation will enable ‘on the spot fines’ in the industry. It should also note that application of ‘on the spot’ fines to NSW mines is unde active consideration at the direction of the Minister For Mineral resources irrespective of this legislative reform process The CMR Act establishes the Court of Coal Mine Regulation. This court would be abolished if the CMR Act was repealed. The court consists of one or more judges from the District Court. It has the power to hear and determine matters relating to :
• certificates of competency
• objections to appointment of a coal preparation plant manager
• offences relating to failure to comply with an inspector’s prohibition or restriction notice
• appeals against specified decisions and directives made by the chief inspector or the Minister
• inquiries requested by the Minister.
The matters dealt with by the Court of Coal Mines Regulation are addressed differently under the OHS Act. Administrative decisions such as cancellation of a certificate of competency can be appealed to the Administrative Appeals Tribunal. Appeals against an inspector’s notices can be appealed to a Local Court. All offences under the OHS Act are heard in either a Local Court or the Industrial Relation Commission. Finally, the Minister can require WorkCover or any other department under his control to conduct an inquiry
and publish the report. Judicial inquiries are possible but would probably need to be established as a Royal Commission. These changes are unlikely to have any significant implications for the industry.
Who can initiate a prosecution ?
Under the OHS Act prosecutions can be instituted by an inspector or by the secretary of a trade union that has members concerned in the specific matter. The list of people who can initiate prosecutions can be expanded by Regulation, but currently this has not occurred. The Minister can also authorise other people to initiate a prosecution. These provisions currently apply to mines for offences against the OHS Act.
There are some differences with prosecutions for offences against the CMR Act or CMR Regulations. As with the OHS Act, inspectors can initiate prosecutions. In addition, mine owners and managers can also initiate prosecutions. Indeed the Act includes specific provisions that anticipate people in these positions prosecuting employees. In practice this does not seem to occur. However, it should be noted that regulatory provisions will need to be drafted to enable this practice under the mainstreaming option.
How is the inspectorate funded ?
The CMR Act states specifically that the costs for government administration of the Act – cost such as the inspectorate – are to be met from funds provided by Parliament. If the CMR Act is repealed these provisions will be lost and there is the potential for these costs to be shifted to industry through a levy system.
The OHS Act does not deal with funding arrangements for WorkCover. The arrangements are set out in the Workplace Injury Management and Workers Compensation Act 1998. Under this Act expenses for WorkCover and for other aspects of administering the OHS Act are drawn from a fund that is financed by a levy on workers compensation insurers and self- insured employers. Insurers pass this levy on to employers. All employers, apart from in the mining industry, pay the same rate. Currently mining employers pay a reduced levy by administrative arrangement with WorkCover.
Repeal of the CMR Act would remove existing legislative provisions ensuring that expenses for the DMR inspectorate are funded by Parliament. Changes could be introduced administratively that would result in these expenses being financed by a levy on mining employers. Legislation will be necessary to ensure that the existing safeguards continue.
Offences related to the enforcement process
Under the CMR Act it is an offence for a person to do any of the following :
• failure to comply with a lawful requirement by an inspector or mine safety officer conducting an investigation, including failure to answer questions.
• prevent someone else from answering questions or appearing before an inspector or mine safety officer.
• remove, conceal or tamper with things taken by an inspector or mine safety officer.
• make a false statements.
• obstruct an inspector or mine safety officer.
The OHS Act has similar offences to the CMR Act. There are, however, some differences in penalties. Maximum penalties for these types of offences under the CMR Act are from $4,400 to $11,000 depending upon the offence. For equivalent offences under the OHS Act the maximum penalties range from $16,500 to $82,500. Applying the OHS Act to the mining industry is not likely to have any major implications in relation to prosecutions for these types of offences. This is due to the limited number of these types of prosecutions and the discretion that courts have to impose less than the maximum penalty. However, the industry needs to note the potential for higher penalties.
Consultation and employee representation
Consultation with employee representatives is required under the OHS Act and the CMR Act. These provisions co-exist and consequently there are duplicate arrangements. The proposed reform of coal mine safety legislation is an opportunity to rationalise the two sets of requirements.
Arrangements under the CMR Act
The CMR Act gives employees the right to elect two check inspectors and one electrical check inspector at each mine. One check inspector must be employed at the mine and at least one must have three years experience. In underground mines, at least one check inspector must have a deputy mine manager’s certificate. An electrical check inspector must have specific qualifications and experience.
Check inspectors can inspect a mine including machinery, documents, plans etc. A check inspector must provide the mine manager with an inspection report following any inspection and must make a record of any dangerous condition on the day of inspection before leaving the mine. Unless there is an agreement to the contrary, check inspectors must meet their own costs for an inspection.
Mine managers are also required to consult with suitably qualified employees in the preparation of a number safety systems such as those for inrush prevention, ventilation control, fire control and emergency response. Employees who are members of the CFMEU (Energy Division) are able to also vote for a district check inspector. District check inspectors cover more than one mine and have more extensive powers than a check inspector.
Powers of district check inspectors
The Minister may grant district check inspectors certain powers if they have a deputy mine manager’s certificate. Essentially a district check inspector has the power to issue a notice requiring remedial action if
there is contravention of the CMR Act or the CMR Regulations. A considerable number of reports and information must also be provided to district check inspectors – such as reports of serious injuries and copies of documented safety systems etc.
Arrangements under existing OHS Act
The existing OHS Act 1983 gives all employees in any workplace with more than 20 employees, including coal mines, the right to elect representatives to an OHS committee. These elected representatives are given powers by the Occupational Health and Safety (Committees in Workplaces) Regulation 1999. Under this Regulation the employee representatives have the right to :
• inspect the workplace at times agreed with the employer or when there is a health and safety problem that has not been resolved
• be given information about proposed changes which could affect health and safety
• access to all information kept by the employer about accidents and diseases occurring at the workplace
• access any research, tests or examinations kept by the employer that are relevant to risks related to any plant or substance at the workplace
• recommend training necessary for health and safety.
Employee representatives on an OHS committee have similar powers to a district check inspector, apart from the power to issue a notice requiring remedial action.
Arrangements under the new OHS Act
The new OHS Act requires an employer to consult with their employees when assessing risks, making decisions about control measures, introducing or altering procedures for monitoring risks and making changes that may affect health and safety. Consultation may be with an OHS committee, an elected OHS representative or through other agreed means.
Section 17 of the OHS Act gives all employees the right to request an election for a health and safety representative. More than one representative may be elected if the employer agrees. Section 18 enables powers to be set out in the OHS Regulation. The relevant regulatory provisions are currently being drafted and are not available. It is likely that these powers will be similar to existing powers for committee members which mean they will not be as extensive as the powers of district check inspectors.
What impact will mainstreaming coal mines have on employee representation ?
Mainstreaming would repeal existing provisions for employee consultation under the CMR Act and CMR Regulations. It would also repeal provisions for check inspectors and district check inspectors. Despite the repeal of these provisions there would still be legal requirements for consultation and employee representation under the OHS Act for any mine. The details of new legal requirements are still to be confirmed but it is likely that they will be no significant changes for mines with more than 20 employees.
The main impacts of streamlining would be :
• removing the existing dual arrangements for consultation and employee representation under the CMR Act and OHS Act
• reducing the capacity for employee representatives to use powers as district check inspectors to issue improvement notices for contraventions of matters addressed by the CMR Act and CMR Regulations.
It is worth noting that section 17 of the new OHS Act includes provisions that enable alternative arrangements for employee consultation and representation to be agreed between an employer and their employees. This provision provides the capacity for industry specific arrangements to be developed to replace the OHS Act requirements.
Risk management and new mining specific regulations
The CMR Act and the CMR Regulations contain extensive requirements for a mine manager to prepare and document safety management plans, safety systems, schemes and rules. The chief inspector can also set requirements for a wide variety of issues.
These provisions deal with specific issues and have been drafted with little coherence or attention as to how they could be integrated into an over all risk management system. The existing requirements are detailed and generally are very prescriptive. The capacity for the chief inspector to impose further detailed prescriptive requirements adds the potential for even greater fragmentation. As a set of safety legislation, the current provisions are inadequate, create unjustifiable burdens of documentation and could actually be an impediment to implementing an effective approach to managing risks.
The proposal to mainstream coal mines under the OHS Act provides an opportunity for the mining industry to achieve regulations that enable good management and provide better protection for the safety and health of employees.
The following comments are made on the basis that it is possible to resolve the issues identified earlier in relation to OHS Regulations potentially increasing the liability of mine owners. Some modifications to the regulatory drafting strategy may be necessary if this is not achieved.
Hazard identification and risk assessment
Applying the OHS Regulation to the mining industry will introduce an integrated set of requirements for a risk management system. Under the OHS Regulation an employer must :
• identify all foreseeable hazards that may arise from the employer’s undertaking
• have procedures to identify hazards at specified phases during the entire production process
• assess the risk that any hazard identified will result in harm
• have processes to evaluate the likelihood and severity of injury or illness, review available information relevant to the hazard, and identify actions necessary to control these risks including any necessary records
• review a risk assessment when it is no longer valid or there is a significant change in the workplace.
The OHS Regulation encourages an employer to take an integrated approach to risk assessment by assessing a whole work process or a whole workplace. However, the Regulation does not prescribe particular techniques for risk assessment or particular management systems.
Applying these provisions to coal mines would eliminate the need for the various and extensive requirements for documented safety systems, schemes etc. This is not to say that there would not be any need for documented procedures etc. Each employer at each mine would need to identify the most appropriate requirements for that particular mine.
Risk control
The OHS Regulation takes a very different approach to the CMR Act and CMR Regulations when establishing risk control requirements. The existing provisions for coal mines in general set out detailed requirements such as methods for doing things, dimensions of roadways etc. The assumption is that following these requirements will prevent an injury or illness.
By contrast the OHS Regulation simply requires an employer to ensure that risks are eliminated. If this is not practical risks must be minimised to greatest extent practical. For some hazards where there is a known risk, the Regulation sets safety performance levels that must be achieved. An example is the Regulation sets exposure standards for atmospheric contaminants. There are three chapters in the OHS Regulation that set performance standards for risk control.
These chapters deal with the working environment, hazardous substances and plant. A minimal degree of prescription has remained in some areas because of community and industry expectations. Two chapters deal with hazardous processes and include some prescriptive elements. These processes are mostly associated with the construction industry.
A considerable number of the hazards dealt with in the CMR Act and CMR Regulations are already addressed in provisions in risk control the OHS Regulation. Some mining hazards such inrush are not addressed. These hazards may require the development of mining specific provisions and this is discussed below.
Mine safety plans
Under the OHS Regulation, the principal contractor at a construction site must prepare a site-specific OHS plan. These requirements could be modified for mines and would provide an alternative to the current system for preparing mine safety plans, schemes rules etc. A possible table of content for these provisions is set out below.
Mine Safety Plans
A. Application - applies to all coal mines
B. Responsibilities - owner must appoint employer to operate mine (can appoint themselves)
- operator must prepare and maintain safety plan
C. Content of safety plan - plan of mine and site information
- mining processes being used
- major hazards that may be encountered at mine
- risk assessment of major hazards
- control systems for risks from each major hazard
- emergency response plans
- responsibilities of all people with specific OHS responsibilities
- system for reviewing and maintaining plan
D. Contractors - contractors must be given relevant parts of plan and work within required control systems
E. Notification - safety plan must be provided to DMR when prepared and updated
F. Review - safety plan must be reviewed at set periods.
Mining hazards requiring special attention
The CMR Act and CMR Regulations include requirements for a range of hazards that are not covered by specific risk control provisions in the OHS Regulation. There are two approaches that could be used to deal with these matters.
The first approach would be similar to the risk control provisions for construction in the OHS Regulation. Regulatory provisions could be developed for hazards that are of special concern to the industry. These provisions would be written as performance standards unless there was industry preference to maintain existing prescriptive details.
The second approach would be to prepare approved codes of practice that addressed the hazards and set out recommended ways of controlling the associated risks. This approach has the advantage that employers would have more flexibility and would be able to implement equivalent or better methods of risk control. Using codes could potentially also lessen the extent of an employer’s exposure to civil liability for breach of statutory duty.
It would be premature at this stage of the legislative reform process to take a fixed position on which approach to implement. Also note that different approaches could be used for different issues. The matters that are likely to need addressing are set out in the table below. These provisions should be reviewed by industry to determine whether they continue to be appropriate. It would also be useful to review legislation and guidance material in other jurisdictions dealing with these matters.
Mining hazards not addressed by specific provisions under the OHS Regulation.
A. Method of working underground mine (CMR Act 138-141)
B. No riding on haulage ropes and conveyors (CMR General Reg 16)
C. Lightening protection (CMR General Reg 19)
D. Fire control (CMR General Reg 20 – 24, CMR Underground Reg 108 – 125)
E. Electrical safety (CMR General Reg 26 – 37, CMR Open-Cut Regs 19- 20, CMR Underground Regs 133 – 147)
F. Laser (CMR General Reg 38
G. First aid (CMR General reg 74 – 77
H. Transport (CMR Open-cut Regs 17, CMR Underground Regs 59 - 69
I. Shot firing and explosives (CMR Open-cut regs 21 – 28, CMR Underground Regs 148 – 160)
J. Control of people underground (CMR Underground Regs 7 & 8, 27
K. Overhead protection – continuous miners (CMR Underground Regs 12)
L. Dimensions of pillars and roadways (CMR Underground Regs 38 & 39)
M. Inrush prevention (CMR Underground 40 – 47)
N. Underground support (CMR Underground Regs 48 – 51)
O. Explosion protection (CMR Underground regs 96 – 99)
P. Sinking shafts (CMR Underground Regs 188 – 197
Q. Underground belt conveyors (CMR Underground Reg 198 – 204)
Other legislation
The proposal to mainstream coal mines would require minor changes to other legislation. In particular there are some matters included in the CMR Act or CMR Regulations that are not possible or appropriate under the OHS Act given its workplace safety focus. Most relate to industrial issues such as hours of work, or environment protection and public safety.
Matters that may require legislation changes in addition to the OHS Act if the CMR Act is repealed.
A. Control of placement areas (sections 125 –133 CMR Act)
B. Notice of operations (sections 134 – 137 CMR Act)
C. Notice of prospecting (sections 142 – 145 CMR Act)
D. Hours of work (section 168 CMR Act)
E. Finance for DMR inspectorate (section 173 CMR Act)
Conclusion
The government option of mainstreaming coal mines under the OHS Act and OHS Regulation has significant implications for the mining industry. The mainstreaming option has potential benefits for the industry. Repeal of the CMR Act and CMR Regulations would remove restrictions on management structures and would enable employers to implement safety management systems designed for the particular circumstances at a mine.
The repeal would also simplify legal responsibilities for health and safety and clarify the extent of responsibilities for all concerned. The OHS Act would become the single point of reference for the industry
and would remove perceptions that different provisions and safety standards apply for coal mining.
The application of the OHS Regulation to the coal mining industry would provide a legal framework that is more accessible. The Regulation sets out coherent requirements for a risk management system that are comprehensive but flexible. Applying the OHS Regulation to coal mining would enable repeal of the current
prescriptive CMR Regulations regulation and replace them with hazard based requirements that use performance standards.
To be fully effective the mainstreaming option would need to make certain amendments to the OHS Regulation, including :
• regulatory provisions for development of a mine safety plan
• specific provisions to address mining hazards such as mining methods, inrush, electrical safety and use of explosives.
The full benefits from the reforms would also require the development of a wide range of guidance material on particular hazards, possibly in the form of approved codes of practice. The benefits coming from the mainstreaming option could potentially be affected negatively by the manner in which legislation is drafted.
If the new legislation was not drafted appropriately, mainstreaming has the potential to increase the level of liability on some employers. The coal mining industry needs to ensure that the form for the legislation does not impose any new obligations unless these are clearly necessary and provide the industry with longer term strategic advantages.
The coal mining industry needs to be aware that the mainstreaming option would affect all people in the industry who have health and safety responsibilities. The new legislation would have a dramatic impact for some participants and the industry needs to put in place strategies to deal with these broader consequences.
The industry would be well advised to implement strategies to :
• review the competency framework for the industry
• manage potential skills shortages in the management of the new approach to safety
• develop solutions to changes to middle management structures in mines
• implement an industry training program that maximises the benefits from the reforms.