Australia: Mining safety in spotlight as WA moves towards adopting WHS harmonisation

As Western Australia journeys towards adopting the harmonised Work Health and Safety laws, the importance of effective safety systems in mining operations has been heightened by two workplace deaths occurring in the resource sector in the same week.

With the new Resources Bill set to be drafted later this year, the incidents are also a timely reminder of the need for businesses to begin to comply with the new legislation.

Three mining-related deaths in 2015 so far

On 11 May 2015, a 46 year old Joondalup man was fatally injured while operating a bogger at Nifty copper mine in the Pilbara. Three days later, a 28 year old contractor was killed at Newcrest's Telfer gold mine in the Pilbara when he was crushed while operating an elevated work platform. Additionally, in January 2015, a contract fitter was crushed by the belly plate of the bulldozer he was working on at Consolidated Minerals' Woodie Woodie mine in the Pilbara region.

The three deaths this year represent the total number of "on the job" mining deaths in WA for 2014 and three of eight fatalities in the resource sector to date for 2015. In 2014, the resource sector experienced 14 fatalities.

Following the fatality on 11 May, Bill Marmion, the Minister for Mines and Petroleum, addressed Parliament on the "disturbing" nature of the incidents. The Minister commented that workplace deaths were preventable and reiterated the importance of remaining vigilant on safety. All three deaths are currently being investigated by the Department for Mines and Petroleum (DMP). This follows media attention last year regarding the safety of mining operations in WA. Last week all three sites also received a follow up visit by Andrew Chaplyn, the State Mining Engineer, and Colin Boothroyd, head of DMP investigations.

WHS harmonisation

The new Resources Bill, set to be drafted later this year, will place greater personal responsibility on those in charge of workplace safety. The Government has stated the new legislation is an important step towards reducing risk and saving lives.

The DMP Resources Safety Division is responsible for the regulation and administration of safety for WA's resources industry. To assist with the legislative overhaul, the Ministerial Advisory Panel on Safety Legislation Reform was established in November 2013 and is made up of government, industry and union stakeholders. The DMP also commissioned Marsden Jacob to undertake an independent consultation process and produced a Decisions Regulatory Impact Assessment Report. The Report was issued in February 2015 and discussed in the March 2015 Ministerial Panel meeting.

The Marsden Report identified that the ever-changing nature of technology means it is difficult for highly prescriptive legislation to keep up. In light of this, the Resources Bill will consolidate the following sector-specific safety laws across the resources industry:

  • Mines Safety and Inspection Act 1994
  • Petroleum and Geothermal Energy Resources Act 1967
  • Petroleum Pipelines Act 1969
  • Petroleum (Submerged Lands) Act 1982, and
  • Dangerous Goods Safety Act 2004.

The Minister has indicated the new laws will implement the best elements of the National Health and Safety Model, with a few adaptations to suit WA's specific needs focusing on risk management, with the onus on industry to demonstrate it understand hazards and has adequate control measures in place.

What will change?

The Resources Act will consolidate mining legislation in WA and contain common provisions that cover all sectors. The regulations will contain specific chapters that deal with mining, petroleum and Major Hazard Facilities (MHF).

One of the major changes is the move away from the use of "employee" and "employer" to define the main working relationship. A new kind of duty holder, the "person conducting a business or undertaking" (PCBU) has been introduced to broaden the scope of responsibility and reflect the changing nature of Australian workplaces. This also means a change from "employee" to "worker" in order to include those in non-traditional employment relationships, such as contractors and labour hire workers. In the scope of the employment relationship, this expansion will require your business to review its existing safety systems to ensure it complies with the health and safety duties it will owe to the broader category of "worker".

PCBUs will have a positive duty to consult and cooperate with other duty holders, including those who have the same duty as they do. Where two or more PCBUs have the same duty, each PCBU will retain a responsibility for the duty and must discharge it to the extent that they have capacity to implement or control the matter. Importantly there are no grounds for transferring these obligations and they cannot be contracted out of.

There will also be a positive obligation for officers to personally and pro-actively exercise due diligence to ensure the business complies with all of its duties. An officer's failure to comply with the due diligence obligations will expose them to potential prosecution as individuals. This will mean that the due diligence arrangements in place will need to be practiced as "part of how business is done" and evidence will need to be available for the regulator.

What isn't likely to change?

The WA Government has indicated that it will not accept uniformity of safety laws for uniformity's sake. It is not willing to consider changes to union right of entry, which it states is already adequately covered under the state's Industrial Relations Act 1979.

Under the harmonised legislation, health and safety representatives have a capacity to direct the cessation of work. The government has indicated it will leave the decision to cease work due to unsafe conditions in the hands of the individual worker.

WA has also stated that it will not adopt a reverse onus of proof in discrimination matters.

While penalties are set to increase, they are expected to fall somewhere between WA's current levels and the national standard.

WA is not the only jurisdiction to adapt the model legislation to suit state conditions. In NSW, a unions' right to bring a prosecution for the two most serious categories of offences has been retained and South Australia has maintained the right to privilege against self-incrimination during health and safety investigations.

How will these changes impact your company?

As well as the tragic personal impact that a worker's death has on family, friends and colleagues, significant consequences for your business can follow. An onsite death will almost invariably result in damage to reputation and operational costs associated with loss of production and the more hidden costs associated with investigation of the incident. If the investigation results in a prosecution, your business, its officers and workers could be convicted of a legislative breach resulting in an exposure to significant financial penalties and, for individuals, a possible term of imprisonment.

With the construction phase of the WA mining boom largely behind us, a more competitive economic mining landscape means businesses cannot afford the risk of punitive fines and work stoppages. As such, it is paramount that operators' practices are sufficiently focused on risk management and injury and incident prevention.

Now is the time for your business to ensure it will comply with the new resources legislative requirements.

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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