Mining health and safety now a two-speed process

In May 2011, the Ministerial Council on Minerals and Petroleum Resources (MCMPR) agreed to adopt recommendations made by the National Mine Safety Framework (NMSF) Steering Group for core NMSF Drafting Instructions.

These core drafting instructions have informed Safe Work Australia?s drafting of the Model Work Health and Safety Regulations and Codes of Practice for Mines.

However, additional non-core drafting instructions would be prepared for Queensland, New South Wales and Western Australia to be added as required to core drafting instructions in those states? proposed complementary or stand-alone mine safety legislation and regulations.

This decision was made because key government and industry (union and employer) stakeholders could not agree on the content and direction of a future health and safety regulatory regime for the mining industry (and by extension, the quarry industry) in Australia.
Adopting a hybrid approach recognises the different needs of the jurisdictions.

In July 2011, the draft Model Work Health and Safety Regulations and Codes of Practice for Mines were released ? separately from the general model regulations and codes of practice ? for public comment.

Almost 100 submissions were received from stakeholders including mining companies, resources councils, unions and individuals.
At the time of writing, the draft model mining regulations and Codes of Practice (COP) are still waiting to be finalised. The non-core drafting instructions are also in waiting.

The submission from the Construction, Forestry, Mining and Energy Union (CFMEU) raised concerns that the draft Model Mine Safety Regulations (in their then form), provided inadequate protection for mine workers. In the CFMEU?s submission, Greg Dalliston, the industry safety and health representative for the CFMEU?s mining division, took objection to the use of the term ?reasonably practicable? throughout the document.

Dalliston said the CFMEU objected strongly to the term ?so far as reasonably practicable? being used at every chance and that in the union?s view better terms would be ?acceptable level of risk? and that the level of risk should be as ?low as reasonably achievable?.

Another of the CFMEU?s concerns lay in the fact that the draft COP did not vary between different types of mining and in a lot of cases the detail should have been in the draft regulations, not the draft COP.

However, Dalliston said that this has been addressed to some length in the changes being made to the draft mining regulations and there had also been agreement at the NMSF level that any issues in the non-core regulations, once finalised, would be brought into the COPs so that states and territories that do not use the non-core draft instructions would at least consider these matters via the COPs.

Dalliston said that in a number of cases the draft COPs were developed by states that had very limited mining operations and no specific mining legislation or departments.

?The MCOP [draft mining codes of practice] were written in-house by each state and territory, so some states and territories with very little mining expertise actually wrote some of the mining COP. Then the states with real mining experience only had a matter of a week or five working days in some cases to look at those and determine whether they were sufficient or not.

?These Codes were not given sufficient time for review by the NMSF committee members or the stakeholder organisations that are represented on it, and only limited time for comparison with the general Act and Regulation.?

He said it wasn?t necessary for laws to differ from state to state. ?It was pretty obvious that some states didn?t want to spend any money in this area because they won?t get back what they put in.?

Ultimately, Dalliston thought it was possible to have uniform mining safety laws but it would take a lot of work. ?In Queensland, the legislation we have in place now took nearly 10 years to develop and they have been trying to complete this process for the entire nation in just 15 months. It was never going to happen.?

Since the CFMEU?s submission, a joint meeting of the NMSF and Safe Work Australia has been held in Sydney. The CFMEU, who is on the steering group developing the NMSF, is now satisfied with the direction of the mining regulations and codes of practice.

?The 15 November [meeting] was the first time we ever had a joint meeting of Safe Work Australia and the National Mine Safety Framework Group. Before that it was only representatives. This time the entire two committees were there and on that day there were a lot of outcomes.

?If they let us keep working on what we have now, and finish it, eventually, with a couple of reviews over the next five to 10 years we will have good legislation.?


In its Model Mines Regulation submission, the Minerals Council of Australia (MCA) and its representatives reinforced their objection to industry-specific work health and safety laws, highlighting that uniform WHS laws would represent an important national reform that would inevitably bring significant socio-economic benefits to the Australian economy.

The MCA and its representatives believe the minerals industry is no different to other hazardous industries like construction, fisheries, forestry and chemicals, which are to be regulated within the model OHS regime and therefore should accordingly be treated in an equivalent manner.

The industry also considers that there are numerous situations where there is too much prescription within the Model Regulations, specifically in the Mines Chapter.

?There is still a level of prescription that is excessive and is considered to be inconsistent with the intent and framework of the Model Work Health and Safety regime. This detail should be included in the Codes of Practice or industry guidance material. Excessive detail in the Model Mines Regulations limits the flexibility required to achieve the intent of the regime ? specifically the provision of a risk-based regulatory framework tailored to the nature of a workplace and the roles and responsibilities of its employees.?

The submission also raised similar concerns to the CFMEU as to the interpretation of the term ?reasonably?.

?The concepts of ?reasonable steps?, ?reasonable concern? and ?reasonable grounds? are repeatedly used within the Mines Chapter.

?The use of the term ?reasonable? in the Model Act and Regulations and the Mines Chapter imports an objective element into the relevant provisions. A statutory requirement to act reasonably or on reasonable grounds is satisfied if the decision meets an objective standard of reasonableness. It therefore requires a consideration of what a ?reasonable person? would do in the circumstances. We recommend further statutory clarification on the rights and obligations involving ?reasonable concern?, ?reasonable grounds? and ?reasonable steps? is provided.?

In its submission on the COP, the MCA and its representatives raised concern that a number of the Codes were clearly guidance material and did not constitute ways of achieving compliance with the law.

The MCA stated that the Codes were structured in a raft of ways, most simply having a conversation around hazard and risk without providing any practical guidance on how to comply with specific regulations and there were also numerous statements of fact or opinion that provided no practical value.

The MCA and representatives requested a second consultation period to properly engage with technical and operational experts once the first draft of the Mines Regulations and Codes of Practice had been reviewed and updated.

Michael Alder, the manager of the Coal Industry and Mine Safety Section, Resources Division at the Department of Resources, Energy and Tourism said that while uniform mine health and safety laws were desired by some stakeholders, the six states and the Northern Territory could not reach agreement on a single uniform mine safety regime.

Therefore Non-core Drafting Instructions will apply in the larger mining states of Western Australia, New South Wales and Queensland and will build upon the provisions of the Work Health and Safety Act and the core regulations, which all jurisdictions have agreed to adopt.

Non-core measures will be adopted in a consistent manner across those states adding measures and controls believed necessary to ensure the ongoing maintenance of safety and health standards in those states, particularly for underground coal mines which include an additional range of health and safety hazards.

?The objective of the hybrid (core and non-core) approach is to improve consistency between the state and territory regulatory regimes for mine safety and health,? Alder said.

While uniformity was the objective of the broader parallel WHS legislative process being progressed by Safe Work Australia, national consistency was the aim for the NMSF, he said.

Dalliston believes there won?t be any negatives for mine workers because at the very least they will have plans for better legislation in each state then they have now.

This article first appeared in National Safety (No. 02, March 2012), the magazine of the National Safety Council of Australia, and is reprinted in Quarry with kind permission.

Leave a Reply

Send this to a friend