The Mines Safety and Inspection Amendment Act 2008, assented to on 16 April 2008, has introduced some structural changes to the Mines Safety Inspection Act 1994 (WA) (Act). This includes expanding the scope of the Occupational Health and Safety Tribunal (Tribunal), removing any doubt about the civil liability of elected safety and health representatives (SHR) when performing their duties, and responding to the increased exploration push in Western Australia by clarifying the role and appointment of an "exploration manager" under the Act.
The powers of the Tribunal have been expanded so that "reviewable decisions" under the Act now include those made by the State Mining Engineer, or their delegate under the Mines Safety Inspection Regulations 1996 (WA) .
On receipt of a notice of a decision made by the State Mining Engineer, the "principal employer" has 14 days to request a review of the decision by the Tribunal. The "principal employer" is bound to follow the original decision made by the State Mining Engineer until the Tribunal has delivered its decision (s102AA(6)).
SHRs are now immune from civil prosecution in the performance of any of their duties under the Act, particularly in relation to the issuing of Provisional Improvement Notices (PINs) under Part 3, Division 4 of the Act. It appears that the low numbers of PINS issued since they were introduced into the Act has been partly attributed to uncertainty about the SHRs' liability when issuing or choosing not to issue a PIN.
"Exploration manager" is now a defined term under the Act. Any appointment of an "exploration manager" must now be notified in writing by the "principal employer" to the senior inspector for the region prior to any exploration operations being performed on a tenement. Notwithstanding this change, the "registered manager" may fulfil the exploration manager's duties for exploration operations where the operations are on tenements adjacent to existing mining operations. Under the Act, it is no longer the owner of the adjacent tenement, but the "principal employer" of the adjacent tenement, that permits this appointment.
Where only exploration operations are being carried out on the tenements and no "registered manager" is required i.e. under the exclusion provided by s33(7) of the Act, the "principal employer" must notify the senior inspector of the region in writing of the appointed "exploration manager" (s47(2)(a)) and the person responsible for the management of exploration activity on the tenements who need not be the '"exploration manager" (s47(2)(b)) e.g. a consulting field geologist, and the location, scope and nature of the exploration operations (s47(3)).
The definition of "principal employer" has been expanded to now include the person who has 'overall control and supervision of the exploration operations at the mine and the 'exploration manager'. The "exploration manager" and others who may have the requisite control over exploration activities on the tenements become accountable for the principal employer's duties under the Act e.g. s13 Duty of Care requirements. This is despite the "exploration manager"' not being appointed as the registered manager.
Finally, aesthetic drafting changes have been made to the general penalty provisions for minor offences which have now been included in the general penalty provisions of the Act.
These changes have been brought in as interim measures, as the Act is currently undergoing a further review by Commissioner Kenner who is taking into consideration the objectives of the National Mines Safety Framework. As it happens, this review is running parallel to the Federal Government's push to "harmonise" safety across Australia. The harmonisation process is in full swing with the three person panel appointed (including Commissioner Mayman from Western Australia) already undertaking consultations throughout Australia on how best to harmonise the plethora of State based safety laws.
A discussion paper on harmonisation is expected to be made public by the end of May 2008 after which a consultation phase will be entered into. For those in mining operations, it is likely that a safety case regime (not dissimilar to that applying in the oil and gas industry) will be part of the foreshadowed changes.
We will keep you abreast of changes as they happen.
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