Sweeping changes for mine worker health and safety

WHO SHOULD READ THIS

• Mining industry stakeholders (especially coal); coal port, coal transport and coal fired power station stakeholders.

THINGS YOU NEED TO KNOW

• The Queensland Parliament’s Coal Workers’ Pneumoconiosis Select Committee (CWP Committee) has released its final report on its initial terms of reference issued on 15 September 2016. The Queensland Government’s initial response is required within three months. If adopted, many recommendations will require legislation, while some can be given effect through regulation. At present, legislation is currently expected by August 2017. Some recommendations appear to pre-empt the CWP Committee’s second report (due 29 September 2017).

WHAT YOU NEED TO DO

• Mining industry stakeholders need to understand the recommended sweeping changes to mining industry health and safety regulation and administration and be prepared to provide submissions to the Queensland Government and Queensland Parliament as opportunities are provided. The Executive Summary Report and Full Report can be accessed here.

In the second half of 2015, the first confirmed cases of coal workers’ pneumoconiosis (CWP) in Queensland coal mine workers in over twenty years came to light.

In December 2015, the Queensland Government commissioned experts from Monash University to conduct a Review of the Respiratory Component of the Coal Mine Workers’ Health Scheme (Monash Review). The final report based on the Monash Review was presented in July 2016. The Monash Review was highly critical of the operation of the Health Scheme and the quality of respiratory health screening of coal workers. The Queensland Government accepted the recommendations of the Monash Review and has been progressively implementing an overhaul of the Health Scheme.

On 15 September 2016 the Queensland Parliament established the CWP Committee. An interim report was tabled on 22 March 2017. The final report (entitled ’Black Lung, White Lies’) on these initial terms of reference was released on 29 May 2017. The Parliament approved new terms of reference for a second report which extends the focus beyond coal mine workers to include coal port, coal rail and coal fired power station workers.

The Senate Select Committee of Health decided in early 2016 to extend its scope to conduct hearings on CWP and it produced a report on the topic in April 2016. It was highly critical of aspects of the regulation of coal dust in the Queensland coal mining industry.

As at 29 May 2017 there are 21 confirmed cases of CWP amongst current or former coal mine workers in Queensland. Echoing the Construction Forestry Mining Energy Union’s (CFMEU) claims, the Committee states that ’many more coal miners are likely to be diagnosed with CWP.’ While not stated in the Committee’s report, the vast majority of confirmed cases are early stage CWP, meaning that the workers must not be exposed to dusty environments, but are otherwise fit for work. Only two cases are recorded in the Report as being ’complex’.

The Report at a glance

Reflecting their observation that ’there has been a catastrophic failure of the regulatory system that was intended to preserve and protect the health of coal miners’, the CWP Committee’s recommendations, if adopted by the Queensland Government, would involve some sweeping regulatory changes and additional costs for industry. However, the recommendations are not strictly limited to ‘mine’ workers in the coal mining industry or to CWP related issues.

The Report includes recommendations that:

• a new statutory Mine Safety and Health Authority be established, separate from the Department of Natural Resources and Mines. This new body would:
  • cover both coal and metalliferous mines, with the Petroleum and Gas Inspectorate presumably staying with the Department, and
  • be headed up by the Commissioner for Mine Safety and Health, who would oversee a multi-stakeholder board, with that board replacing the current advisory committees.
• the Mines Inspectorate and Safety in Mines Testing and Research Station (SIMTARS) would sit inside the new Authority, but SIMTARS would cease providing fee for service hygiene (e.g. dust testing services), leaving such services to be provided by the private sector
• the current safety and health levy would be abolished and replaced by funding from a designated proportion of coal and mineral royalties
• the respirable dust limit in Queensland should immediately be halved from 3.0 to 1.5 milligrams per cubic metre
• mine operators would need to submit and receive approval for dust mitigation and abatement plans
• real time personal dust monitors should be certified for use in underground coal mines as soon as possible
• half of all Mines Inspectorate inspections should be ’unannounced’ and Industry and Safety Health Representatives (ISHRs) would be able to undertake unannounced inspections without having to give ‘reasonable notice’ of the inspection
• the Coal Mine Workers’ Heath Scheme should be re-named the Coal Workers’ Health Scheme and cover all workers ’involved in the mining, handling, processing and transportation of coal’, so as not to be limited strictly to ‘mine’ workers
• underground coal workers have a full health assessment every three years, rather than the current five years and all other coal workers (including above ground mine workers but also those working at coal ports, in coal transport (both rail and tug boat crew) and at coal-fired power stations) should be assessed every six years, and
• the recommendations of the workers’ compensation stakeholder reference group should be largely adopted and CFMEU proposals for a separate CWP Victims Fund involving a separate 10 cents per tonne levy should not proceed.

Implications and potential submissions

Not surprisingly, given identified failings that extend over many years, the CWP Committee’s final report seeks sweeping changes to the regulation and administration of mine health and safety in Queensland. While legislation is expected by August 2017, it is currently unclear whether this will be developed by the CWP Committee as expected under its terms of reference, or whether the Queensland Government will separately undertake this process.

Of concern to some industry stakeholders would be the apparent pre-emption of the Committee’s second phase Inquiry by recommending that all workers ‘involved in the mining, handling, processing and transportation of coal’ should be covered by the recommendations.

For coal mining companies, there are significant cost implications from a recommended immediate halving of the respirable dust limit in Queensland, and this will no doubt have implications for New South Wales operators. There will also be additional costs from more regular coal worker health assessments and the additional plans required.

The replacement of the mining industry safety and health levy with a designated share of mining royalties could see that source of industry funding become quite volatile, mirroring the ups and downs of royalty revenues.

The Monash Review recommendations have been largely endorsed and the implementation already underway can proceed. Indeed, the final report says that the Monash review ’was a thorough and professional review of the respiratory component of the Coal Mine Worker’s Health Scheme’.

The CWP Committee invests a lot of faith in the proposed new Authority and seems prepared to risk a loss of current capability through the effective dismantling of SIMTARS and of the current advisory committees.

Of concern to mine operators would be the proposed additional powers for CFMEU-employed ISHRs and their equivalents in other mine safety legislation.

A win for the coal mine operators, pending the Government response to the recommendations, is that the CWP Committee has backed away from a separate levy-funded CWP Victims’ Fund, reflecting the industry’s pro-active work with Government to reform the workers’ compensation arrangements for CWP victims.

For non-coal mining stakeholders caught up in these sweeping recommended changes, they will have to consider the approach to be taken, including as the CWP Committee moves on to the work on their second terms of reference.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It 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.