12 Apr 2018
Mine your business: Improved safety laws provide extra safeguard for mineworkers
By Shaun Chng, Shae McCartney
The mining industry will need to review its policies and processes to ensure compliance, and officers in the mining industry will be subject to new due diligence obligations.
Reforms "that increase compliance powers for the mine safety and health inspectorate, demand greater transparency and accountability and require better safety and health systems from operators" are on the way for mine operators in Queensland, with the introduction into State Parliament of the Mines Legislation (Resources Safety) Amendment Bill 2018 on 20 March 2018.
If the Bill is passed, the mining industry will need to review its policies and processes to ensure compliance, and officers in the mining industry will be subject to new due diligence obligations.
Penalties and civil penalties
The maximum financial penalties resulting from a contravention will be increased to be more closely aligned with the Work Health and Safety Act 2011 (Qld):
Resulting in multiple deaths
- A corporation is subject to a maximum penalty of 30,000 units
- An officer of a corporation is subject to a maximum penalty of 6,000 units or 3 years' imprisonment
- Any others are subject to a maximum penalty of 3,000 units or 3 years' imprisonment
Resulting in death or grevious bodily harm
- A corporation is subject to a maximum penalty of 15,000 units
- An officer of a corporation is subject to a maximum penalty of 3,000 units or 3 years' imprisonment
- Any others are subject to a maximum penalty of 1,500 units or 2 years' imprisonment
Resulting in grevious bodily harm OR involved exposure to a substance that is likely to cause death or grevious bodily harm
- A corporation is subject to a maximum penalty of 7,500 units
- An officer of a corporation is subject to a maximum penalty of 1,500 units or 1 year's imprisonment
- Any others are subject to a maximum penalty of 750 units or 1 year's imprisonment
- A corporation is subject to a maximum penalty of 5,000 units
- An officer of a corporation is subject to a maximum penalty of 1,000 units or 6 months' imprisonment
- Any others are subject to a maximum penalty of 500 units or 6 months' imprisonment
Powers of the Board of Examiners
Site senior executives (SSE) will be subject to new competency requirements which must be assessed by the Board. Besides deciding on competencies, the Board's function has also been extended to deciding matters relating to the continuing processional development of certificate of competency holders.
Previously, the legislation only expressly allowed suspension or cancellation by a court or by the Board in the cases of fraud. The amendment increases the Board's powers in suspending and cancelling statutory certificates of competency and notices on various grounds. For example, the Board may suspend or cancel a notice or certificate if the holder is found to have contravened a safety and health obligation.
A Single Safety and Health Management System (SHMS)
Contractor management remains a critical focus of safety initiative in the mining industry. While the existing legislation requires the SSE to develop and implement a single SHMS, the amendment confirms that the SHMS must be a single one which is an auditable documented system forming part of an overall management system. With this, the amendment aims to improve the integration of contractor/service provider safety and health management in one SHMS at a mine.
Officers of corporations
The proposed amendment creates a specific statutory obligation for officers of corporations independent from the general statutory obligations of a company. Similar to the obligations on officers under the WHS Model laws, an officer of a corporation must exercise due diligence consistent with the standards expected of them in their position and influence within the corporation.
Officers may be found guilty and be convicted of an offence whether or not the corporation is convicted. The positive obligation created under the amendment results in an expectation that officers be proactive and ensure that they comply with their statutory obligations at all times. The reasonable steps required to discharge this obligation are outlined non-exhaustively in the amendment.
Site Senior Executives (SSE), contractors and service providers
As outlined, a significant change brought about the proposed amendment relates to SSE appointment. An operator cannot appoint an SSE unless the person holds a SSE notice issued by the Board. New applicants must successfully demonstrate to the Board that they have health and safety competency to be issued an SSE notice.
Any SSE notices issued before the Bill commences will either continue to be in effect or will have a 1-2 year transitional period depending on the circumstances.
Designers, manufacturers, importer and suppliers
After the Black Lung White Lies parliamentary inquest into of mineworkers' pneumoconiosis, the Queensland Coroner recommended that an amendment be made to safety legislation to make it compulsory for manufacturers and suppliers to inform the regulator and their customers when they are made aware of any hazards or defects in any supplied equipment. The amendment proposed now expands this requirement to include:
- designers, manufacturers, importers and suppliers;
- plant and substances supplied to a mining operation;
- hazardous incidents associated with the equipment and substances supplied.
As such, any of the above individuals must inform the mine inspectorate and the mine operators of any hazards or defects with the supplied equipment and substance when they become aware of it. These changes are intended to increase protections for mineworkers, particularly in relation to coal dust and other inherent hazards.
Health assessment and surveillance
Further changes are proposed in relation to health assessments and surveillance to reflect the importance of identifying OHS issues early. More specifically, the health surveillance of former and current mining workers is now included in how the objects of the legislation are to be achieved. These changes also arose out of the Black Lung White Lies inquiry.
If you believe that the upcoming Bill may impact your business, please contact the Workplace Relations, Employment and Safety team for advice.