The purpose of the WHS Mines Act and Regulation is to bring the coal and metalliferous mining health and safety laws together into one single legislative scheme. The overall goal of the new legislation is to assist businesses in their mining and non-mining WHS processes by having a more straightforward and consistent approach across all industries and operations.
The WHS Mines Act is designed form part of the Work Health and Safety Act 2011 (NSW) (WHS Act) in order to complete the harmonisation process for WHS Laws in NSW. This is in contrast to the previous mine safety legislation in NSW, which stood separately and at times in conflict with the WHS Act.
The WHS Mines Act defines mines as ‘a workplace at which mining operations are carried out or a tourist mine with mining operations’. The WHS Mines Regulation outlines the obligations that apply to all types of mines, with specific controls for underground mines, coal mines and underground coal mines.
The mine holder is a the person conducting a business or undertaking (PCBU) with control over a right or entitlement to carry out mining activities, or the preparation or processing of extracted materials carried out in connection with mining activities or at an adjoining site or in the vicinity of such a site.
The WHS Mines Regulation places additional obligations on the mine operator. The mine holder is considered the mine operator, unless they have appointed another PCBU to be the mine operator.
It is important to note that multiple PCBUs can operate at one mine site and do not have to be a mine operator. For example, this often occurs through the use of head and sub – contracting arrangements.
The WHS Mines Act gives the Department of Trade and Investment (Regulator) additional enforcement powers to those that exist under the WHS Act. In the case of improvement notices there is now a lower threshold for a notice to be issued by a government inspector that under the WHS Act.
An inspector, mine safety officer or investigator can issue an improvement notice if they reasonably believe that a person is likely to contravene a provision of the WHS laws. These powers add to those detailed in the WHS Act.
A government official may also issue a prohibition notice where they believe that an activity at a workplace involves or could involve a serious risk to health or safety, or an activity at the workplace has or could cause a contravention of a provision of the WHS laws.
The WHS Mines Act gives the Regulator the power to issue a stop work order which requires a person to stop an activity at the workplace and, if necessary, can require a person to undertake actions to make the site safe.
The WHS Mines Regulation specifies a new requirement whereby a PCBU at a mine must ensure that a risk assessment is conducted by a competent person and must keep a record of each risk assessment. The name and competency of the person who conducted the risk assessment and the control measures implemented are to be recorded. The risk assessment must form a part of the safety management system. Other PCBUs at a mine are under the same obligations.
The WHS Mines Regulation requires that a mine operator must develop and implement a safety management system (SMS) to ensure, so far is reasonably practicable, the health and safety of workers and others is not put risk at the mine.
Although a similar obligation existed under the previous mine safety legislation, the WHS Mines Regulation is more rigid in specifying the content of the SMS. Procedures, plans, consultation arrangements with workers and between fellow duty holders, contractor assessment, emergency procedures, training and induction, conditions under which persons are to be withdrawn from the mine and notifiable incident response are but a few.
Organisational charts are also required to show a mines management structure and the positions with WHS responsibilities.
In relation to SMSs for underground coal mines, there are particular and detailed requirements for air quality, ventilation and dust, electrical safety, operation of belt conveyors, coal dust explosion and spontaneous combustion and the operation of shaft conveyances.
The mine operator must now provide for the development, maintenance and review of principal mining hazard management plans (PMHMPs), principal control plans and an emergency plan as well as various other plans, including health control plan, mechanical engineering control plan, electrical engineering control plan, and explosives control plan.
The concept for the PMHMPs has been taken from the major hazard management plans that existed under the now repealed CMHSA. The WHS Regulations outlines the following as principal mining hazards:
The obligations under the PMHMPs are more prescriptive than those that existed under major hazard management plans.
Also under the WHS Mines Regulation, the mine operator must employ particular control measures in managing specified risks that apply to mines, underground mines, coal mines, and underground coal mines.
WHS Mines Regulations make specific provisions for the work health and safety arrangements between mine operators and contractors. There is now a requirement for mine operators and contractors to ensure that the contractor’s health and safety management plan (HSMP) is consistent with the mine operator’s SMS.
It is now a requirement under the WHS Mine Act that a contractor cannot undertake work at a mine unless they have received written notice from the mine operator that their HSMP is consistent with the SMS for the mine. Alternatively the contractor can review the SMS and give the mine operator notice in writing that it is consistent with the contractor’s work health and safety systems.
The mine operator must keep a mine record under the WHS Mines Regulation containing details of provisional improvement and prohibition notices issued, incident notifications to the regulator and all first aid treatments. This record needs to be kept for seven years from the date it is made.
The WHS Mines Act and WHS Mines Regulation include similar notification requirements to that under the WHS Act. The mine operator and other PCBUs at the mine must ensure the Regulator is notified immediately if they become aware of any notifiable incident arising at the mine.
Notifiable incidents include fatalities, serious injuries or illness of a person, or a dangerous incident as prescribed by the regulation. At coal mines, the mine operator must also notify the Industry Safety and Health Representative when a notifiable incident occurs.
Where a notifiable incident occurs, the mine operator must ensure that the site is not disturbed until an Inspector arrives or as the Inspector directs (unless there is an urgent need like assisting an injured person or to make the area safe).
The Regulator must also be notified of certain other matters such as the appointment of a mine operator, high risk activities, health monitoring reports, mine survey planning, high potential incidents and incidents resulting in medical treatment. Notification must also be made for the commencement, significant interruption or suspension of mining operations.
The mine operator is required to give the Regulator a quarterly work health and safety report. The Regulator may also, by notice in the Gazette, require ancillary reporting of particular classes of incidents to be provided by mine operators.
Although the repealed CMHSA included a similar consultation arrangement, the WHS Mines Regulation has new requirements which are more specifically directed to workers having a greater input in the development and review of safety systems at a mine.
In consultation with workers, the mine operator must implement a mechanism that enables workers to contribute in the identification of principal mining hazards and take into consideration the control measures and the principal control plans to minimise those hazards. This includes consultation with workers on the development, implementation, and review of the safety management system.
In coal mines, the WHS Mines Act provides for worker representation in safety matters through the new classification of Safety and Health Representatives (SHRs). Industry SHR will replace the previously classified industry check inspectors and site and electrical SHR’s.
SHR’s have the same function as health and safety representatives (HSRs) under the WHS Act, however under the WHS Act an elected HSRs cannot issue a provisional improvement notice if an SHR is at the mine. There is no prohibition under the WHS Mines Act for HSRs to be elected in at a mine.
The WHS Mines Act also deals with election, term of office, training requirements and disqualification of SHRs.
Industry SHRs will also be able to suspend operations if, in their view, the mine has failed to comply with the WHS laws or with the SMS, and there is a danger to health or safety of workers.
In the other types of mines, the role of the site check inspector under the repealed MHSA has been removed with the appointment of HSRs under the WHS Act now being the workers representatives.
The WHS Mines Regulation has created a range of statutory functions including key statutory functions which include, mining engineering manager, electrical engineering manager, mechanical engineering manager, electrical engineer, mechanical engineer, quarry manager and ventilation officer.
The mine operator has an obligation to ensure that the person with the statutory function is readily available and capable of exercising the requirements of their role. In regards to a key statutory function a mine operator must ensure that the person performing the role is the only person nominated to do so at any one time. The mine operator must also ensure that no mining activities are undertaken if the key statutory position is vacant for more than seven days.
The person nominated to undertake the statutory role has an obligation to inform the mine operator of any issues than may interfere with their ability to exercise the statutory function.
1. Work Health and Safety Mines Act (NSW) 2013
2. Work Health and Safety Mines Regulation (NSW) 2014
3. Quick guide: What you need to know about the new laws – Mine Safety – NSW Department of Trade & Investment
4. Factsheet – WHS (Mines) Legislation – NSW Department of Trade & Investment