Safety training - then, now and the future
18 August 2011
The mining industry has come a long way on the safety journey. Talk to anyone who has been in the industry for any significant amount of time and they will tell you how safety has become part of the culture and that zero harm is seen as an achievable reality, not a distant dream.
There are many factors that have contributed to this outcome, but perhaps the most obvious contribution has come through safety training, which serves to raise awareness of issues and to provide workers with the knowledge and instruction necessary to protect themselves and others.
Safety laws across Australia place obligations on industry participants to ensure that they train their workers. However, to meet statutory obligations, training the workforce means more than performing a ‘tick a box’ exercise, putting up a few posters and letting workers learn ‘on the job’. Rather, it requires a training package that ensures mine workers are competent to perform their duties.
So what are the requirements for training under the current laws and where are we heading under the proposals for ‘harmonised’ workplace health and safety laws in the mining industry? Let’s take a look at the position for the key mining States, being Queensland, New South Wales and Western Australia.
Within a legal context, ensuring that adequate training and induction systems are in place will be an important factor when courts determine responsibility as part of a duty of care owed in either workplace health and safety prosecutions or civil cases.
Current mining safety and health legislation imposes duty of care obligations on all industry participants to manage hazards or risk exposure to acceptable levels to ensure the wellbeing of all workers and contractors. The Queensland, New South Wales and Western Australian laws have broad similarities, but also contain some significant differences.
In Queensland, the Coal Mining Safety and Health Act 1999 (Qld) allows for recognised standards to be made about safety matters. Recognised standard 11, titled ‘Training in Coal Mining’ (Queensland Standard), sets out requirements for training in coal mines and seeks to assist sites to establish and maintain a training system that includes identifying training needs and the delivery of competent and safe training modules. The Queensland Standard also covers induction, technical certification, how to recognise prior learning and workplace assessment.
As part of induction training, the Queensland Standard outlines minimum requirements for the Generic Workplace Health and Safety Induction in the coal mining sector. The Queensland Standard also provides guidance about reviewing training competencies, refresher training and the process required to perform a training needs analysis within a workplace.
Each of these components must be maintained as a business priority beyond the time when an employee is initially inducted in order to minimise the risk of safety incidents occurring or, in a worst case scenario, to assist in providing a defence in the event that it becomes necessary for a Court to assess responsibility for a safety breach.
While not mandatory, the Queensland Standard provides guidance for meeting safety and health obligations and any departure from it would need to be justified on the basis that the requirements within the Queensland Standard are being met or exceeded.
Outside of the coal mining sector, the Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSH Act) under section 39(1) requires the site senior executive of the mine to develop, implement and maintain a safety and health management structure. This structure needs to encompass workplace training so that workers are competent to perform their duties.
To compliment this, the Mining and Quarrying Safety and Health Regulation 2001 (Qld) outlines that a site senior executive must ensure there is appropriate training and periodic assessment and must also allocate time to workers for leadership, guidance and training to ensure workers can carry out tasks without creating an unacceptable level of risk.
In addition, while not having the status of a guideline made under the MQHS Act, Guidance Note QGN14 titled ‘Effective Safety and Health Supervision’ (Qld Guidance Note), provides suggestions for safety and health management under which leadership, training, safety awareness and competency-based training is considered a part of ‘doing business’. The Queensland Guidance Note also describes the statutory requirements for managers and supervisors which underscore the need to provide appropriate training to workers for task specific, emergency, continuous improvement, and other safety and health training programs.
New South Wales provisions
In New South Wales, the Coal Mine Health and Safety Act 2002 (NSW) includes a statutory obligation for mine operators to include training as an element within the health and safety management system. Further provisions covering the emergency management system also include training as an essential component.
For operators that fall under the Mine Health and Safety Act 2004 (NSW) and Mine Health and Safety Regulation 2007 (NSW) there are also obligations to provide adequate training.
The Department of Primary Industries have developed a guidance note titled ‘Preparing a Mine Safety Management Plan’ (NSW Guidance Note) to support the understanding of obligations within the New South Wales legislation. Among other things, the NSW Guidance Note refers to the obligations placed on the mine operator to provide adequate training. The NSW Guidance Note also outlines that both the emergency management plan and Mine Safety Management Plan must include provisions for training employees.
Western Australian provisions
In Western Australia, the Mines Safety and Inspection Act 1994 (WA) requires that employers must provide training and supervision to the level required to ensure they are not exposed to hazards.
The Mines Safety and Inspection Regulations 1995 (WA) further requires that, as part of a safe system of work, employers and mine managers must provide instruction and training for their employees about safety procedures and systems of work.
The Department of Mines and Petroleum have provided more details as part of their guideline titled ‘General Duty of Care in Western Australian Mines’ (WA Guideline). The WA Guideline describes the duty of care requirements required under Western Australian laws. For example, the WA Guideline summarises the regulatory requirement that, before commencing work at a mining operation, employees must be given adequate instruction and training and be assessed as competent.
From a training perspective, the WA Guideline provides detailed information about what components should be included in a training system and also highlights the value of complimenting external training with in-house training.
While State mining safety laws contain provisions about safe systems of work, a duty of care also exists under general law. In essence, in order to discharge their duty of care obligations, mine operators must take reasonable steps to ensure safety. As a part of discharging this duty of care towards workers, a mine operator should provide appropriate induction training, specific task training and suitable supervision.
These obligations are not limited to employees, but also extend to contractors and anyone else who may be affected by the mining operations. A recent example arose in New South Wales where that State’s Court of Appeal determined that a mining operator owed a duty to an employee of a labour hire company to provide a safe system of work and safe plant to carry out the work being performed.
Therefore, as part of meeting the statutory and common law requirements, before a mine worker can carry out their duties or be left unsupervised, the worker must be provided with adequate and effective induction training, site specific training, vehicle and driving training, and task specific training for matters such as manual handling and the use of operating plant. There must also be ongoing refreshers to ensure that standards don’t slip and that any new developments are catered for.
Apart from the above statutory framework, as a further preventative measure, some mining companies have implemented behavioural-based safety programs. The behavioural-based approach to safety is used to reinforce safe behaviours, observe standards/task performance and to correct unsafe behaviours. These programs develop a base for behavioural measures and encourage consultation between groups or workers to implement improvements and minimise risk.
The future under harmonisation
While harmonisation of safety laws is intended to bring the State and Territory laws into line, the reality is that there will be differences in the legislative scheme in each jurisdiction. For the mining sector it appears that these differences will be greater due to the way in which the process for harmonisation is being handled.
The Safe Work Australia Issues Paper for ‘Draft model Work Health and Safety (WHS) Regulations and draft model Codes of Practice for Mines’ - which as at the date of writing this paper remains open for public comment until 9 September 2011 - reveals that there is still some way to go when developing the harmonised laws in the various Australian States and Territories.
While there remains an intention for the development and implementation of harmonised safety laws for the mining industry, the Queensland, New South Wales and Western Australian governments are developing their own ‘non-core’ provisions to address particular issues.
The current expectation, as articulated in the Issues Paper, is that:
- both Queensland and Western Australia will maintain mining industry-specific mining health and safety laws with additional non-core provisions (although Queensland’s coal mining sector may not base its laws on the model legislation), and
- New South Wales will maintain its model Work Health and Safety Act 2011 (NSW) (NSW Act) as the principal legislation, but will also enact ‘complementary and consistent’ mining industry-specific workplace health and safety laws with additional non-core provisions.
As such, when it comes to training requirements under harmonisation, the best that can be done for now is to consider the legislative package released by the Commonwealth. However, it is important to note that at the time of writing this paper, the draft Model Work Health and Safety Regulations (Cth) (Model Regulations) and draft Model Codes of Practice remain open for public comment and therefore may change.
The Model Act
The Model Work Health and Safety Act (Cth) (Model Act) seeks to promote the provision of advice, information, education and training about work health and safety as part of its overall goal of providing for a ‘balanced and nationally consistent framework to secure the health and safety of workers and workplaces’.
Part 2 (Health and safety duties) of the Model Act provides for a primary duty of care to include the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking. In order to understand the steps required in satisfying this duty of care, guidance can be obtained from the Model Regulations and Model Codes of Practice.
The Model Regulations
Part 9 (Managing Risks) of the Model Regulations relevantly provide that a mine operator must provide suitable and adequate training and instructions about the following matters:
- all hazards associated to the mine
- implementation of risk controls measures for mining operations
- development and implementation of strategies to protect persons from risks from fatigue
- development and implementation of strategies to protect persons from risks from consumption of alcohol or drug use
- work health and safety management system and content
- emergency management plan for the mine, and
- the safety role of the workers for the identification of hazards.
The Model Regulations also specifically require mine operators to review all the above components to ensure they remain relevant and effective and to retain training records for all persons while they remain engaged at the mine.
Model Code of Practice
The Model Code of Practice – Work Health and Safety Management Systems in Mining (Mining Model Code) prioritises safety training as ‘an essential activity for the operation to manage safety’. While not strictly binding, departing from the Mining Model Code requirements could be evidence of non-compliance with the statutory duty of care, unless it can be shown that the departure results in an equivalent or higher standard of work health and safety.Under the Mining Model Code, safety training is defined to include the initial induction of visitors, orientation for workers, specific work requirements or procedures, general safety (such as the workplace health and safety management system), specific risk control measures and refresher training.
However, the mine operator’s obligations for safety training are not limited to this. The Mining Model Code further provides that:
- mine operators must provide workers with information, instruction and training on hazards at the mine, the implementation and use of risk control measures and the content and implementation of the workplace health and safety management system, and
- workers are to be provided with task specific training, including the identification of risks and implementation of controls.
There are more provisions in the Mining Model Code that deal with the recording of training and documentation. The objectives of safety training are required to ensure consistency, minimise possible gaps and verify that competency was achieved. Training records are also to be reviewed to assess the needs of retraining, updating or additional training, particularly if there are changes to plant or operations.
An additional obligation is imposed on the mine operator to take into consideration the personal characteristics and composition of the workforce. This obligation requires the mine operator to ensure that all workers requiring training (including contractors and regular visitors) complete the training appropriate to their needs. To satisfy this, the mine operator will be required to provide due consideration to each worker’s:
- level of education
- principal language spoken
- work responsibilities, and
- complexity of hazard exposure and severity of risks.
What does it all mean?
As matters currently stand, it remains to be seen exactly what each State and Territory will adopt under the harmonisation process by way of statutory training requirements for the mining industry. A question also remains as to when those requirements will be brought into force. While the NSW Act will apply to the mining industry in that State from 1 January 2012, the Queensland, New South Wales and Western Australian governments have yet to commence releasing any new mining industry-specific proposed mining safety legislation, and may not do so for some time yet.
No matter what form the statutory frameworks take, implementing adequate and effective training requirements will obviously continue to play an important role in striving to reach the nirvana of zero harm in the mining industry.
There is an opportunity for the mining industry to become engaged in the consultation process for remaining elements of the harmonised legislation and associated materials that will apply at the Commonwealth, State and Territory levels.
Based on the Federal government’s material released to date, it appears that a more prescriptive approach is being advocated under the harmonised laws, acknowledging that there remains the potential for some push-back from State and Territory legislators as to the level of prescription that will be imposed.
Regardless of views within the industry about whether a more prescriptive approach is seen as being necessary or desirable, there is at the very least an opportunity to perform a gap analysis against the proposed requirements and to consider improvements that might be implemented into current training systems, provided of course that any changes do not fall below the standards required by the current laws. Such improvements can only lead to better safety outcomes and may even have the added bonus of making the transition to harmonised laws easier down the track.
For more information contact: Kristie Fankhauser on +61 7 3233 8876.