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The Queensland Parliament has proposed draft amendments to the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) and its Regulation and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (PGPS Act) and its Regulation through the Water Reform and Other Legislation Amendment Bill 2014 (Qld) (Bill).
Relevantly, for the Queensland petroleum and gas industry, the proposed amendments to the PGPS Act are designed to fit into the new framework for overlapping mining lease safety requirements. Chief among these changes is a proposed requirement for a joint interaction management plan where an operator of operating plant has activities that may adversely affect the safe mining of coal at a coal or oil shale mining tenement. Our Focus article about these proposed changes can be viewed here.
Regulations may be made about responsibilities and obligations of operators of operating plant and site safety managers in an overlapping area, including for joint interaction management plans. Drafts for these regulations have not yet been sighted.
Additional changes to the PGPS Act are proposed which may significantly affect current arrangements for managing work health and safety requirements as part of petroleum and gas operations, particularly about safety management systems, site safety managers, consultation requirements and legal requirements about evidentiary aids and the jurisdiction for the hearing of prosecutions.
Safety management system requirements
The proposed change that will have the largest practical effect for operators of operating plant is the change in the requirement to have a safety management ‘plan’ to being a safety management ‘system’.
If the Bill is passed in its current form, references throughout the PGPS Act to a safety management plan will be amended to be references to a safety management system. The stated intention behind this change is to harmonise some key terms between the CMSH Act and the Mining and Quarrying Safety and Health Act 1999. The Explanatory Memorandum for the Bill states that the change from a ‘plan’ to a ‘system’ better reflects the existing requirement which, by definition in the PGPS Act dictionary provision and by its content nature in sections 675 and 678 of the PGPS Act, is a dynamic system rather than a single document as might be inferred from the word ‘plan’.
The change is also stated to be required to ensure that there is no confusion between the overlapping tenure parties when discussing and utilising the coal mine safety and health system and a petroleum operating plant safety management system.
If this change is made, existing safety management ‘plans’ may need to be revised to become ‘systems’ and decisions made about how the systems should be structured and implemented so as to achieve compliance.
Site safety manager details
In addition to the proposed semantic change, a new safety management system will require details of who the site safety manager is for each site mentioned in the system. This would be in addition to existing requirements to appoint a site safety manager, where one is required.
The explanation for this proposed change is that, because a ‘system’ is dynamic, the change would ensure there is always a ‘point of truth’ about who the site safety manager is at an operating plant.
Recent experience in defending prosecutions tells us that the appointment of a site safety manager for a site at operating plant is a critical element of the safety management plan, and this proposed change appears to be designed to circumvent potential error when operators do not appropriately appoint site safety managers for each site requiring a safety management plan.
Consultation with ‘workers’
If the Bill is passed in its current form, new obligations will be placed on the executive safety manager by way of expanded obligations to consult with ‘workers’ at the plant. The current definition in the PGPS Act has the effect of requiring consultation with ‘employees’.
The stated intention behind the change is that consultation before the safety management system for an operating plant is made should not only be with employees of the holder of the authority or tenure, but also with persons who will actually carry out the work. As a consequence, the definition of a ‘worker’ in Schedule 2 of the PGPS Act is proposed to be more broadly defined to include people who are actually employed or contracted to carry out work.
This may create delays in finalising safety management systems, noting that while consultation does not require agreement from workers to the proposed system, a failure to genuinely consult and take workers’ views into account would breach this new requirement, as well as create potential evidence of an inadequate system in the event of an incident at the operating plant.
Evidentiary aids and jurisdiction for prosecutions
Other proposed amendments relate to evidentiary aids and how prosecutions under the PGPS Act will be brought.
Section 834 of the PGPS Act is proposed to be amended so that an evidentiary aid may be signed by the Commissioner, the Chief Executive, the Chief Inspector, an inspector or an authorised officer. This expanded category of signatories would assist the Inspectorate when bringing their complaints to trial.
Another proposed change, which has the obvious intention of streamlining prosecutions, is about how proceedings for an offence against the PGPS Act are brought.
Currently, offences against Chapter 9, Parts 2, 4 or 6 of the PGPS Act must be brought before an Industrial Magistrate, whereas all other offences are tried summarily in the Magistrates Court. This means that proceedings arising from the same event can be heard in the Industrial Magistrates Court, with others relating to the same incident heard in the Magistrates Court. This has caused significant problems with prosecutions needing to be split across jurisdictions, which has not always been done correctly (to the benefit of some defendants). The proposed amendment will require all prosecutions to be heard in the Magistrates Court, ensuring that there could no longer be issues about jurisdiction when the complaints are brought.
Timing of changes
The proposed changes are not due for report back from the Agriculture, Resources and Environment Committee to the Queensland Parliament until 17 November 2014, such that any definite changes are not likely for some months.
We will keep you informed of further developments, but in the meantime please contact our team of WHS experts if you wish to discuss any of the reforms.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.