Publications / Work Health and Safety

5 Jun 13
WHS Mining Law changes - Further comments from NSW Parliament and a before vs. after comparison

Download PDF

Work Health and Safety (Mines) Bill 2013 (NSW)

Further to our recent client alert explaining the content of the proposed Work Health and Safety (Mines) Bill 2013 (NSW) (WHS Mines Bill) which was placed before NSW Parliament on 23 May 2013, the WHS Mines Bill has been debated further and read a third time in Parliament on 29 May 2013.  The Minister for Resources and Energy, Mr Chris Hartcher, indicated that there will be a ‘sensible’ commencement date for the new legislation, and an extended industry consultation period of 6-8 weeks for the draft regulations that will be made under the WHS Mines Bill to set out the new obligations in further detail.  Stakeholders in the mining industry will need to stay up to date with the effect of the proposed changes on their work health and safety systems as the WHS Mines Bill and related regulations progress.  To assist you, McCullough Robertson’s workplace relations and safety specialists Jeremy Kennedy, Partner and Suzie Leask, Senior Associate, highlight the key differences and compare the changes in a handy before and after comparison table.

New WHS legislative structure – A single regime

Work health and safety (WHS) in NSW is currently governed by the WHS Act and additional mining specific legislation under the Coal Mine Health and Safety Act 2002 (NSW) (CMHS Act) and the Mine Health and Safety Act 2004 (NSW) (MHS Act).  The new WHS Mines Bill marks a significant step towards finalising the proposed national harmonisation of work health and safety laws in New South Wales.  Once passed, the WHS Mines Bill will replace the CMHS Act and the MHS Act (and the regulations made under those Acts) and will be incorporated into the WHS Act, forming a single WHS regime in NSW that will be complete upon enactment of mining specific WHS regulations that have yet to be drafted under the WHS Mines Bill.   

Key changes

We set out below a brief analysis of some of the key differences under the WHS Mines Bill, with further detail available in our recent client alert and in the comparison table below.

Application to workplaces that are mines
It is important to note that the WHS Mines Bill may be broader in scope that the current laws, now applying to all workplaces which are ‘mines’ or at which ‘mining operations’ are carried out, which is a departure from the previous geographical based application to an activities based test.  The WHS Mines Bill will also now apply to activities carried out in connection with and adjoining to or in the vicinity of mining activities at a site, as well as construction activities relating to existing or proposed new mining operations.  This means that the new legislation and the Department of Trade and Investment, Regional Infrastructure and Services (Regulator) will have jurisdiction over some construction sites prior to any mining taking place, which will have a significant impact on greenfield sites and brown field expansion projects in relation to how safety is administered.

Duty holders
The primary duty holder under the WHS Mines Bill is the ‘mine operator’, which will be the ‘mine holder’ unless it appoints another person as the mine operator.  The concept of a ‘person or business conducting a business or undertaking’ (PCBU) is retained in the definition of ‘mine holder’ which also includes a person with control over a right or entitlement to carry out mining activities or preparation or processing of extracted materials in connection with mining activities or at an adjoining site or in the vicinity of the mining activities at the site.

Worker representatives
Current coal mine industry check inspectors and site and electrical check inspectors will be replaced under the new WHS Mines Bill by industry safety and health representatives (SHRs) and site and electrical SHRs.  Some of the current duplication of functions will be rectified under the new legislation, with the new SHRs having the same functions as health and safety representatives (HSRs) under the WHS Act except that the HSRs in coals mines will not be able to exercise certain powers if a SHR is present at the site.  Industry SHRs will have similar powers as industry check inspectors under the CMHS Act, including the power to suspend operations if they are of the opinion that there has been a failure to comply with the WHS laws or the mine safety management system, resulting in a danger to the health or safety of workers at the coal mine.

Enforcement and Boards of Inquiry
There is now a lower threshold for the issuing of improvement notices by government officials as the WHS Mines Bill provides for the additional circumstances where the official believes a person is ‘likely to contravene’ the WHS laws.  The new legislation will also give the Regulator the power to make a stop work order and, if necessary, require a person to carry out associated activities to make the site safe, where the Regulator believes the order is necessary to prevent a serious risk to the health or safety of any person.  This power to issue stop work orders is currently held by the Minister of Resources and Energy (Minister).

The Minister will also have the power under the WHS Mines Bill to constitute a person as a board of inquiry (Board) to conduct investigations into notifiable incidents at a mine, any other event that may affect the health and safety of workers or other persons at a mine or anything prescribed by the regulations.  Notably, witnesses summoned to give evidence at a board of inquiry have no right to silence and may be compelled to answer questions, notwithstanding that the answers may incriminate the witness.

The Mining Competence Board remains in place as the body responsible for the development of competence standards for persons exercising safety-critical roles and functions at a mine.  Additionally, the Minister must establish the Mine Safety Advisory Council which will provide advice to the Minister on any policy matter relating to work health and safety in mines.

What happens next – Commencement and regulations
The second reading speech and subsequent commentary in the NSW Parliament has indicated a proposed timeline for passing of the proposed legislation by 1 July 2013 in order to help ensure that New South Wales secures reward funding of $79 million under the Council of Australian Government’s National Partnership Agreement to Deliver a Seamless National Economy.  However, the Minister confirmed on 29 May 2013 that he agrees with the request by key industry stakeholders for a ‘sensible’ commencement date to allow an adequate amount of time for consultation and communications on the regulations, codes of practice and guidance material.  An extended industry consultation period of 6-8 weeks has been suggested by the Minister to be an appropriate amount of time given the scope and detail of the regulations.

Based on the content not included in the WHS Mines Bill (which is currently covered under the CMHS Act), we would expect the regulations to cover, among other things, matters such as mine health and safety management systems, major hazard management plans, management structure, duties regarding contractors, emergency management systems, and high risk activities.  We will continue to keep you informed on the proposed consultation period and the draft regulations through further client publications and on LinkedIn.

Click to view the WHS Mines Legisation Comparative Table

Useful Links

The full text of the Work Health and Safety (Mines) Bill 2013 (NSW) can be found here.

For up to the hour updates on developments in relation to work health and safety laws, link in with Jeremy Kennedy, Suzie Leask and Andrea Stolarchuk on LinkedIn, subscribe to WHS – NSW Mine Safety Law discussion group on LinkedIn or follow Jeremy on Twitter @WHSLawyer.

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.

Download PDF

In this section