Significant resources safety act changes in the pipeline
Representing the vanguard of upcoming changes to Queensland’s resources safety laws, in late 2022, the Coal Mining Safety and Health Act 1999 (Qld) was amended to include ‘direct employee requirements’. Those changes now provide that a coal mine operator must not appoint a person to certain statutory positions unless the person is an employee of:
- the coal mine operator;
- an associated entity of the coal mine (e.g. a subsidiary of a parent company); or
- an entity that employs or engages 80% or more of the coal mine workers at the coal mine.
These rules apply to persons appointed to the positions of Underground Mine Manager, Site Senior Executive (although will not apply where only exploration activities are being carried out), Ventilation Officer, Open-cut Examiner, Explosion Risk Zone Controller, Mechanical Engineering Manager and Electrical Engineering Manager. Additionally, the latter four roles are specifically excluded from being able to be an employee of an associated entity of the coal mine.
The changes are designed to ensure that those appointed to these ‘safety critical roles’ and who have significant influence over coal mine operations are empowered to speak up and raise safety concerns without fear of reprisal. This is based on the premise that coal mine operator employees are more likely to feel more secure and comfortable in doing so than if they were engaged as contractors. Addressing a perceived under-reporting of safety incidents within the Queensland resources industry – and asserted reports of individuals fearing reprisal for doing so – is high on the agenda of Resources Safety and Health Queensland (RSHQ).
Last year, RSHQ developed and released the Facilitating High Reliability Organisation behaviours in Queensland’s Resources Sector and Modernising Regulatory Enforcement’ Consultation Regulatory Impact Statement (CRIS). The CRIS outlined a raft of proposed changes to Queensland’s resources safety laws.
The changes proposed by the CRIS are broad and, in some cases, potentially problematic. Some of the proposed changes include:
- extending the reach of the industrial manslaughter offence to ensure all potentially liable parties are encompassed including the mine operator; the holder of a mine, labour hire companies, contractors or any other person who employs, engages or arranges for a worker to perform work; and a senior person of such an entity;
- the authority for the relevant Minister, Chief Executive Officer and Chief Inspector of RSHQ to publish information about the number of High Potential Incidents (HPI) and serious accidents at a mine, including identifying the mine at which they occurred and the mine operator;
- the option to enter into an enforceable undertaking with RSHQ for non-fatal events as an alternative to defending a prosecution;
- additional roles at coal mines being required to hold a Certificate of Competency;
- the requirement to provide an immediate oral report to RSHQ as soon as practicable after becoming aware of a serious accident, HPI or a death (already in place in the petroleum and gas jurisdiction); and
- the extension of time that would now see a prosecution able to be commenced up to two years after the offence comes to the notice of the Work Health and Safety Prosecutor.
There have of course been changes to the Queensland resources safety laws in recent years, the most significant being the introduction of the industrial manslaughter offence in 2020.
The resources (particularly mining) sector in New South Wales has not experienced the same level of public and political scrutiny of its safety performance as has been seen north of the border. However, while the offence of industrial manslaughter has so far not made its way into law in New South Wales (such as the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)), the change in government at the March 2023 State Election could see it brought to the fore and swiftly enacted. It is clear the ‘big stick’ approach to regulating safety in the resources industry continues to build momentum. With bigger fines, potential imprisonment, and very active regulators in all jurisdictions, the sector needs to be prepared for these changes and, in some cases, spend some time in the detail to ensure compliance.
We have been working closely with our clients to help prepare them for what is ahead in terms of these changes as many are concerned with the potential implications that these changes may have on their day-to-day operations going forward.
For more information on this topic, or to explore other articles from our 2023 edition of Emerging Issues for the Australian Energy and Resources Industry, click here.
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.