In brief - Mining companies should review due diligence safety systems
New NSW legislation on mining work health and safety (WHS) will take effect next month across both coal and metalliferous mines. Western Australia is also in the process of enacting new mining safety legislation, which will probably take effect later this year, as well as standardising WHS laws for all industries.
NSW and WA to bring in new mining WHS legislation
The new Work Health and Safety (Mines) Act 2013 and Work Health and Safety (Mines) Regulation 2014 will commence in NSW on 1 February 2015.
Western Australia has released its Work Health and Safety Bill 2014 for consultation in another step towards harmonisation with other states. Within the mining industry, the Mines Safety and Inspection Act 1994 (WA) is under review as the government has committed to modernising the safety legislation covering mining, petroleum and major hazard facilities in the state. The consultation period seeking submissions has now closed and we expect to see new legislation later this year.
All NSW mining operations to be affected by new safety laws
The new Work Health and Safety (Mines) Act 2013 ("WHS Mines") and the Work Health and Safety (Mines) Regulation 2014 will replace the Mine Health and Safety Act 2004, the Mine Health and Safety Regulation 2007, the Coal Mine Health and Safety Act 2002 and the Coal Mine Health and Safety Regulation 2006. The new WHS Mines legislation and regulations will operate in conjunction with NSW's current Work Health and Safety Act 2011 and Work Health and Safety Regulation 2011.
The WHS Mines legislation will apply to all mining operations in NSW. Key changes in the legislation are:
- some changes to requirements for notifying the regulator of incidents and injuries
- requirements to notify the regulator of high risk activities, rather than obtaining approval
- changes to other information that must be provided to the regulator, such as the commencement of mining operations
- the change from check inspectors to safety and health representatives
- no approval of mine operators, but mine holders must notify the regulator of the mine operator
- requirement to keep a mine record
New requirements for high risk activities and "competent person"
Notification of high risk activities will be required under the new laws. A complete list of these high risk activities will be available from the regulator and timelines will apply to the notification process.
The WHS Mines legislation has determined a competent person, prescribing particular qualifications and competencies for identified work. However, where the requirements are not prescribed, a person will be competent to carry out the task if they have the knowledge and skills which can be acquired from training, qualification or experience, or from a combination of these.
Ensure mine safety management plans comply
A transition arrangement is in place which will allow a two-year period to move from the current complying mine safety management plans to the new requirements.
We recommend undertaking a thorough gap analysis to ensure compliance with the new laws.
Basic safety functions to be standardised for all WA industries
The steps being taken by the government of Western Australia to harmonise safety laws across mining and major hazard facilities is a significant change to assist industries to reduce inconsistencies in basic safety functions. A thorough risk assessment process is the consistent basis on which all industries operate. Setting a standard best practice approach across general, mining and major hazard facilities will reduce red tape and drive safety performance.
The Work Health and Safety Bill 2014 ("the Green Bill") to replace the existing Occupational Safety and Health Act 1984 and Occupational Safety and Health Regulations 1996 is available for review and consultation. Submissions will be accepted until the end of January 2015. A number of minor changes to the WHS laws presented by WorkSafe Australia have been undertaken in the Green Bill. The primary obligations on a person conducting a business or undertaking and on officers of corporations remain the same, as do the higher penalties.
However, the current Dangerous Goods Safety Act 2004 and bundle of associated regulations will remain as separate legislation, albeit reviewed and consolidated. The associated regulations are:
Hazard management and risk processes must be kept up to date
It is evident that the safety regulators in Australia are continuing to broaden the obligations on companies, executives and managers to take the safety laws outside the workplace and spread their application.
With the changes to the laws, regulations and codes of practice, it is incumbent on companies to update their control mechanisms continually in managing hazards and risks in their business or undertaking.
Mining company directors, executives and managers should review due diligence safety systems
The obligations on officers within the WHS laws are not being reduced or replaced in these jurisdictions. The requirement upon all directors, executives and managers to have an effective due diligence system in place is evident from recent prosecution activity.
Now is the time to review your due diligence safety system to ensure it takes all reasonably practicable steps to manage the safety requirements of your business or undertaking.
Our key safety personnel are available to conduct a seminar at your workplace for your board, executives and managers on due diligence safety requirements.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.