The Work Health and Safety (Mines) Act 2013 (WHS Mines Act) has a wider application than previous laws. It applies to all workplaces which are defined as mines – such as:
- Where mining operations are carried out; or
- A ‘tourist mine’ (being a workplace only for tourism purposes but at which mining operations were formerly carried out and at which there was a hazard prescribed by the regulations).
The term ‘mine’ is defined as a workplace at which ‘mining operations’ are carried out (or a tourist mine). The term ‘mining operations’ is defined to mean:
- Activities (referred to as ‘mining activities’) carried out for the purpose of:
- Extracting minerals from the ground;
- Injecting minerals into the ground;
- Exploring for minerals; and
- Activities carried out in connection with mining activities at a site, or a site adjoining or in the vicinity of a site, at which mining activities are carried out.
Certain activities are expressly included in the definition of ‘mining operations’, and these include:
- Handling, storing, preparing or processing extracted materials; and
- Constructing a site where a mining activity is or may be carried out.
The scope of the term ‘mining operations’ means that the WHS Mines Act 2013 may extend to certain other activities which are not within a colliery holding or mining title, or at a place where extraction of material is carried out.
Duties of a “mine operator
The Work Health and Safety (Mines) Regulation 2014 (the WHS Mines Regulation) places primary obligations on the “mine operator” for the “mine”. The “mine holder” is the mine operator, unless the mine holder has appointed another person to be the mine operator.
The “mine holder” is the person conducting the 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 requirements on the “mine holder” to only appoint a person as a “mine operator” if:
- The person is a PCBU and is appointed to carry out mining operations at the mine on behalf of the mine holder;
- The person has the skills, knowledge, experience and resources to exercise the functions of the mine operator; and
- The mine holder authorises the person to have management or control of the mine and to discharge the duties of the mine operator under the WHS Act and WHS Mines Act and Regulation.
The WHS Mines Regulation introduces the ability of the Regulator (The Department of Trade and Investment, Regional Infrastructure and Services (DTIRIS)) to direct that one or more mine operators be appointed at a mine. The Regulator can give a direction, for example, that there be a single mine operator for the mine holding where the colliery holder/mine holder may have wished to appoint separate mine operators for separate and distinct mines.
Managing Risks – general requirements
A PCBU must ensure that a risk assessment is conducted by a person who is competent to conduct the particular risk assessment having regard to the nature of the hazard. This is a new requirement under the WHS Mines Regulation.
There are new obligations requiring PCBUs to maintain certain records in relation to risk assessments, control measures and reviews of those control measures. PCBUs which are mine operators have specific obligations concerning records of control measures which are to be reviewed in relation to certain events, such as notifiable incidents. The mine operator must maintain records relating to the causes of an incident, any WHS issues arising, recommendations, and a summary of any changes to the safety management systems. Similar obligations are imposed on other PCBUs at a mine.
These new obligations may impact on how mine operators currently conduct and retain internal investigations and claims for legal privilege. There are also penalty provisions which can result in fines being imposed for non-compliance.
Safety management system
The Work Health and Safety (Mines) Regulation 2014 requires that a safety management system be established and implemented by the mine operator. These requirements are similar to the “health and safety management system” under the CMHS Act and the “mine safety management plan” under the MHS Act and Regulation.
The WHS Mines Regulation is more prescriptive in a number of respects than the CMHS Act and Regulation and MHS Act and Regulation. For example, the WHS Mines Regulation requirements include that there needs to be procedures for responses to, and investigations of, incidents. Organisational charts are also required to show the positions and persons who have WHS responsibilities. The safety management system is also to include, for example, arrangements for consultation, co-operation and co-ordination between fellow duty holders, particular measures for contractor safety management, and the procedures and conditions under which persons are to be withdrawn from the mine.
In relation to all underground mines, there are particular and detailed requirements for air quality and ventilation including that the mine operator must prepare a ventilation control plan for the mine.
“Principal mining hazard management plans”, “principal control plans” and “emergency plan”
The WHS Mines Regulation requires development, maintenance and review of principal hazard management plans and principal control plans.
The primary concept for such plans has been transposed across from “major hazard management plans” under the CMHS Act and Regulation, to now apply to all mines under the WHS Mines Regulation.
The mine operator of a mine has a duty to prepare an emergency plan for the mine, and there are specific things that must be done in this regard for underground mines, including in relation to the number of exits, safe escape, and refuge.
The WHS (Mines) Regulation also creates obligations to develop, implement and periodically review various plans, including a health control plan, mechanical engineering control plan, electrical engineering control plan, and explosives control plan.
The WHS (Mines) Regulation also requires that specified risks are managed by having specific control measures in place for “all mines”, “all underground mines”, “all coal mines”, and “all underground coal mines”.
There are many areas that are new under the WHS Mines Act 2013 and The WHS Mines Regulation 2014 and it will be necessary to review existing systems to ensure they comply with the new laws.
Further information can be found at www.resourcesandenergy.nsw.gov.au/safety
Work Health and Safety (Mines) Act 2013
Work Health and Safety (Mines) Regulations 2014 (clauses 6 & 7)