Safe Work Australia has released draft model Regulations (“Draft Regulations”) and Codes of Practice for the mining industry as a further step towards the harmonisation of work health and safety laws across Australia.
The Draft Regulations and Codes of Practice are now subject to public consultation. Submissions on the Draft Regulations are required by 9 September 2011. Submissions on the draft model Codes of Practice are required by 7 October 2011.
The proposed Draft Regulations and Code of Practice and materials required for submissions to be made are available on the Safe Work Australia website.
The proposed harmonisation of work health and safety laws in Australia is to commence on 1 January 2012. Safe Work Australia previously released draft model regulations (“WHS Regulations”) and draft priority model Codes of Practice for public comment in December 2010. This package did not include draft Regulations and Codes for the mining industry as they were still being developed at that time.
In the case of the mining industry, Safe Work Australia’s work intersects with the National Mine Safety Framework (NMSF). The NMSF is an initiative which aims to establish a nationally consistent work health and safety regime in the mining industry without diminishing work health and safety standards. The NMSF is an initiative of the Ministerial Council formerly referred to as the Ministerial Council on Mineral and Petroleum Resources. A steering group was established in November 2005 to develop and implement the NMSF.
The NMSF proposes to harmonise as far as possible “core” work health and safety laws for the mining industry while allowing for supplementary “non-core” provisions in separate jurisdictions. The supplementary “non-core” provisions are designed to allow the key mining States (NSW, Qld and WA) to develop additional detailed provisions to address high risk mining activities such as underground coal mining.
“Non-core” work health and safety laws for mines
The package released on Friday covered only the “core” provisions and did not contain details of the “non-core” provisions. The Issues Paper released by Safe Work Australia indicates that New South Wales, Queensland and Western Australia are continuing to work together to prepare the “non-core” provisions and it is anticipated that this co-operative process may be formalised by a further inter-governmental agreement to promote consistency in this area. The Issues Paper indicates that at this stage it is anticipated that:
- Queensland and Western Australia - will maintain industry specific work health and safety laws on mining;
- New South Wales - will retain the model Work Health and Safety Act (“WHS Act”) as the principal Act but will also enact complementary and consistent industry specific workplace health and safety laws for mining that incorporate the “non-core” provisions;
- Tasmania - is waiting to see the final form of the Regulations before making a decision as to whether they change their new mine safety laws which were enacted in February 2011.
The Issues Paper further notes that it is anticipated that Queensland will maintain consistent but separate safety laws for the coal mining industry.
The Issues Paper identifies the following issues for inclusion in the “non-core” provisions:
- requirements for the appointment of a site senior executive at a mine;
- requirements for additional full-time or part-time statutory mine safety positions;
- arrangements to ensure consistent competency assessment and approval arrangements across States;
- principal hazard control plans covering ventilation, electrical engineering, mechanical engineering, explosives and emergency response;
- extending requirements for principal mining hazards to cover the risks of spontaneous combustion;
- additional specific controls for certain hazards;
- notification requirements in relation to high-risk mining activities;
- extended incident notification, investigation and protected information release provisions;
- additional regulator enforcement powers similar to those that currently apply under mine health and safety laws;
- provision for prescribed industry inspectors;
- provision for ministerial appointment of Boards of Inquiry.
The Issues Paper identifies that further information regarding the “non-core” provisions can be sourced from the Department of Resources, Energy and Tourism.
Overview of the Draft Regulations
The Draft Regulations place primary responsibility for safety on the mine operator. The Draft Regulations address the following areas:
- Appointment of a mine operator
The default position is that the permit holder for the mine will be the mine operator unless they appoint another person to be the operator in accordance with the procedures under the Draft Regulations. The mine operator is subject to the various obligations imposed by the Draft Regulations.
- General risk management requirements
- Work Health and Safety Management Systems for mines
The mine operator must establish and implement a Work Health and Safety Management System. The Draft Regulations prescribe content which must be addressed in this system.
- Information to be provided to the Regulator
In addition to the incident notification requirements under the model WHS Act, mine operators must:
- ensure that prescribed “occupational diseases” are notified to the Regulator;
- ensure that high potential incidents are notified to the Regulator; and
- report additional prescribed health and safety matters on a quarterly basis to the Regulator.
- Principal Mining Hazard Management Plans for the principal mining hazards
The mine operator must prepare a Principal Mining Hazard Management Plan which addresses each principal mining hazard. The principal mining hazards are identified as:
- ground or strata instability;
- inundation and inrush of any substance;
- mine shafts and winding operations;
- roads and other vehicle operating areas;
- air quality and dust and other airborne contaminants;
- fire or explosion;
- gas outbursts;
- ionising radiation; or
- any other situation identified by a mine operator as creating a risk of multiple fatalities in a single incident.
The Draft Regulations detail a number of specific risk control measures to ensure that principal mining hazards are controlled. The specific risk control measures address aspects such as:
- communication between outgoing and incoming shifts;
- progress and mine workings;
- movement and mobile plant;
- ventilation control and air quality.
- Emergency response plans
The mine operator must prepare and implement an emergency response plan and provide adequate resources to support this. Underground mine operators must ensure there are two means of emergency exit.
- Management of fitness for work issues
The mine operator must develop and implement:
- strategies for the control of any risks to health and safety associated with work fatigue;
- strategies to protect persons at the mine from a risk to health and safety arising from alcohol or drugs.
The mine operator must ensure that a person whom the mine operator believes is adversely affected by alcohol or drugs does not enter or remain at the site. Obligations are also imposed on workers not to enter or remain at a mine where they are adversely affected by alcohol or drugs.
- Health monitoring
Mine operators are required to conduct health monitoring. The monitoring must be conducted at least before workers start work and be carried out immediately before they cease carrying out work that exposes them to risk at the mine.
The monitoring must be conducted under the supervision of a registered medical practitioner and be at a frequency determined in consultation with the mine and the medical practitioner, but at least every five years. The Draft Regulations prescribe record retention requirements for results of this monitoring.
- Consultation requirements
The Draft Regulations contain general consultation requirements but also identify specific matters for consultation as including:
- risk assessments;
- mine emergency plan;
- developing and implementing strategies to deal with fitness for work issues;
- information, instruction and training for workers; and
- mine survey plans and mine records.
Codes of Practice
The Draft Regulations are supplemented by draft model Codes of Practice. According to the Issues Paper, the model Codes of Practice aim to provide practical guidance to duty holders on how to meet the requirements of the work health and safety laws.
The draft Codes of Practice will be approved under the model legislation. The approved Codes of Practice are admissible in court proceedings and courts may regard the Codes of Practice as evidencing reasonably practicable risk management practices.
The Issues Paper1 provides the following summary of the model Codes of Practice:
Click here to see tables
The Issues Paper identifies that additional Codes of Practices will be developed and released for public comment later this month. Codes of Practice are proposed to cover the following areas:
- survey and drafting directions for mine surveyors;
- mine closure;
- ground control in underground mines;
- health surveillance in mining;
- ventilation of underground mines;
- ground control for open pits;
- underground winding systems;
- mine rescue;
- coal mines.
Issues for consideration and consultation
The purpose of the Issues Paper is to provide a “starting point” for consultation on the Draft Regulations. While Safe Work Australia has invited general comment on the Draft Regulations, the Issues Paper also identifies a number of specific issues for consideration and further consultation. These include:
- the general interaction between the Draft Regulations and the general WHS Regulations and whether there is an unnecessary regulatory overlap between these;
- the interaction between the Draft Regulations and the draft Codes of Practice;
- the scope of exploration activities that should be covered by the Draft Regulations;
- whether the general risk control provisions of the Draft Regulations are necessary or whether they can be addressed upfront in the WHS Regulations to avoid unnecessary duplication;
- whether more prescriptive detail is required in relation to the management of risks associated with the principal mining hazards;
- whether the Draft Regulations should contain prescribed atmospheric limits for various airborne contaminants;
- whether a minimum age for underground mine workers should be prescribed by the Draft Regulations;
- whether the impairment based approach to drug and alcohol related fitness for work issues proposed in the Draft Regulations is appropriate. The Issues Paper invites specific comment on whether the Queensland approach, which requires a default standard for drug and alcohol testing in the absence of site agreement, is a more appropriate model;
- the detail of any transitional arrangements for the new laws.
As the above discussion shows, the proposed harmonisation of mining safety laws is presenting some challenges for regulators and industry stakeholders. The Issues Paper refers to the need to strike an appropriate balance between consistency and ensuring that safety regulations in mines remain appropriate and effective. The level of detail which remains to be included as part of the “non-core” provisions makes the goal of having a single set of unified laws seem very unlikely.
We will keep you informed of developments in this important area. In the meantime, if you have any questions or require any assistance in this area, please contact any of our workplace safety experts identified in this alert.