Australia: Mining work health and safety: incidents, investigations and the right to remain silent

Last Updated: 5 November 2014
Article by Melissa Demarco

In brief - Mine operators need to develop an emergency response plan for WHS incidents

Mine operators must comply with their obligations under the law by developing and implementing a work health and safety management system, reporting any incidents which occur and conducting a thorough investigation.

Duty to ensure health and safety of workers and other persons at a mine

While a few differences remain between the different jurisdictions for the mining industry, despite the nationalisation of WHS laws in Australia, the duty to ensure the health and safety of workers and other persons at a mine remains the same, as do the consequences of non-compliance.

Duty to identify and reduce hazards and risks

Employers have a duty to identify hazards and risks and introduce measures to ensure those hazards and risks are reduced so far as reasonably practicable. This high standard imposed on employers to ensure health and safety "so far as reasonably practicable" for the mining industry and how employers determine what is "reasonably practicable" to meet a health and safety duty is certainly a legislative minefield which requires specialised and careful consideration.

Multiple WHS acts, regulations, codes and standards to be considered

Unfortunately, employers cannot avoid all hazards and risks, incidents do happen and some are more serious than others. With overlapping obligations between the myriad WHS acts, regulations, codes and standards, the burden of the duty to ensure the health and safety of workers and persons at a mine "so far as reasonably practicable" can be overwhelming to mine operators, particularly when an incident does occur.

For example, if an incident occurs in Queensland on a petroleum lease with an overlapping mining lease near a Queensland motorway, the Petroleum and Gas (Production and Safety) Act 2004 (Qld), Coal Mining Safety and Health Act 1999 (Qld) or the Work Health and Safety Act 2011 (Qld) and their respective regulations will need to be considered. This is not a simple task.

Being proactive with your approach if or when an incident occurs is as important as ensuring health and safety, particularly in the mining industry.

What happens when a WHS incident occurs at a mine site?

Many employers have been fortunate, not having experienced any incidents at their workplace and erroneously believing that this means they "must be doing things right". If an incident occurs, they are left scrambling for answers which could lead to fatal consequences.

Questions commonly raised by employers when an incident occurs are:

  • What should I do?
  • Have I done the wrong thing?
  • Do I need to provide a statement to the investigator?
  • Do I need to provide documents to the investigator?
  • Should I call my insurer?
  • What happens next?
  • How much is this going to cost me?

The answers are not always clear. However, having a consistent approach to handling incidents detailed in an emergency response plan or strategy will not only reduce delays when responding to incidents, but will also minimise the exposure to penalties for non-compliance.

Emergency response plan a vital part of WHS management system

In the various WHS legislation, in addition to the general duty of care to ensure, so far as is reasonably practicable, that workers and other persons at a mine are not put at risk, it is a requirement for a mine operator to develop and implement a work health and safety management system (WHSMS) for the operation of the mine which should include, among other things, an emergency response plan.

For example, under the Coal Mining Safety and Health Regulation 2001 (Qld), a mine's WHSMS must include provision for dealing with emergencies at the mine, including but not limited to the following:

  • Identifying, by risk assessment, potential emergency situations
  • Minimising risks associated with potential emergency situations
  • Carrying out aided rescue and self-escape of persons from the mine in an emergency
  • Carrying out emergency exercises, including testing the effectiveness of emergency management procedures and the readiness and fitness of equipment for use in an emergency
  • Auditing and reviewing the emergency exercises

Reporting incidents, notifying your insurer and preserving the incident site

The most important obligations and those steps which must be undertaken as a first response relate to incident notification and the preservation of the incident site.

It is a requirement under the WHS legislation that, as soon as practicable after becoming aware of a serious accident, high potential incident or a death at a mine, the site senior executive for the mine notifies an inspector and an industry safety and health representative about the accident, incident or death, either verbally or by written notice. Failure to report an incident could attract significant penalties.

Many prosecutions as well as other actions taken have been in response to incidents. Under the mining WHS laws, deaths, serious injuries and illnesses and high potential incidents are all notifiable incidents.

It is equally important to notify an insurer immediately of any incident. Failing to notify an insurer within a certain timeframe may void indemnity.

Conducting an investigation following an incident

Following an incident, it is imperative that a thorough investigation is conducted, whether by an independent party or by the company.

When an inspector is conducting an investigation, it is important that speculation or theories of what occurred are not offered.

Protection from self-incrimination when providing information

Generally, there is no requirement to provide a statement. However, under the various mining WHS laws, an inspector is able to compel an individual to answer questions unless an individual has a "reasonable excuse" not to do so.

The mining safety legislation expressly provides that a reasonable excuse includes the protection from self-incrimination, unless the requirement to answer questions relates to a serious accident or high potential incident (as defined). In any event, an individual should still claim the right against self-incrimination when compelled to provide information or answer questions.

The mining WHS legislation offers no protection from self-incrimination with respect to the production of documents, irrespective of the type of incident, unless they are protected by legal professional privilege.

Appointing an external lawyer to gain the protection of legal professional privilege

Involving a trusted and experienced WHS legal representative when preparing a WHSMS, conducting investigations, responding to incidents or when consulting with employees is also an important consideration.

Significantly, appointing an external lawyer will mean that information (including photographs and reports) gathered for the dominant purpose of the provision of legal advice and/or for use in anticipated legal proceedings can be protected by legal professional privilege.

Above all, obtaining legal advice and considering your legal options at an early stage is paramount to protect the company, its officers and executives.

This article first appeared in the Spring 2014 edition of the Australasian Mine Safety Journal.

Melissa Demarco
mmd@cbp.com.au
Work health and safety
CBP Lawyers

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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