Progress of harmonisation of Workplace Health and Safety laws for Australian Mining

  • By A Atkins FAusIMM(CP), Director, the AusIMM; T Morris, National WHS Partner, Sustainability Services, Deloitte; O Jones AO FAusIMM, past Principal of the WA School of Mines; and S Bell PSM, past Pike River Royal Commissioner and past Queensland Commissioner for Mine Safety and Health

Abstract

The Australian mining community needs to be aware of the lack of progress made towards harmonisation of Australian mines safety legislation and the potential impact this may have on mining operations and safety and risk governance.

Harmonisation of Australian safety legislation began in the mid-2000s as a result of recommendations from the Productivity Commission in order to promote cross-border mobility of work forces and to reduce contradiction, duplication and complication arising from multiple sets of safety legislation across the country and to bring about positive health and safety outcomes through greater simplification, uniformity, standardised training programs and benchmarking. General work health and safety (WHS) harmonisation has already taken place (ie the WHS Act, known in the mining industry as ‘core’ legislation), with every state except Western Australia (WA) and Victoria (Vic) signing up to the WHS Bill by 2013 (see Figure 1). The WHS Bills are enacted in each state and territory parliament based on a national model WHS Act which they mirror. Some argue that uniformity has not been reached as states have discretion (and some have used this discretion) to depart from some sections of the Model legislation (both the model Act and Regulation) and there is no way of guaranteeing ongoing uniformity because the states and territories retain the power to amend their laws. Some argue the Commonwealth should have used its powers to enact Federal legislation using the external affairs power or the corporation’s power, so that true harmonisation could be realised.

Negotiations to unify the ‘mining states’ (WA, Queensland (Qld) and New South Wales (NSW)) on the details of ‘non-core’ legislation, which were to supplement ‘core’ mine safety legislation (also known as Chapter 10 of the WHS Bill), occurred under the auspices of the Council of Australian Governments (COAG) endorsed National Mines Safety Framework (NMSF) between 2011 and 2013. The NMSF was dissolved in 2013 and since then the Chief Inspectors of Mines from each mining state have been meeting annually at the Conference of the Chief Inspectors of Mines (CCIM) to understand the differences between each mining states’ mines safety legislation to work towards finding a compromise. Unfortunately, the CCIM has lacked the necessary power to bring about legislative change.

One of the NMSFs aims was to harmonise the mining states’ legislation and Competency Frameworks (for statutory position holders), with reporting of all data to the Commonwealth Department of Industry for a national database on mine safety performance. The harmonised legislation is meant to reduce prescription and move industry towards a more ‘risk based’ approach. For various reasons the harmonisation process has not progressed. This is mainly due to the states not wanting to compromise on prescriptive details in their state based underground coal and metalliferous mine legislation (many argue these details are ‘written in blood’ from past mine disasters).

The harmonised mining ‘non-core’ WHS legislation was aimed at incorporating coal and metalliferous mining into one set of legislation, along with dangerous goods, major hazard facilities and onshore petroleum (at least in WA). However, many argue that these activities are so different that finding a way to create legislation that suits them all has, so far, and may continue to be, proven elusive. A move from fully prescriptive legislation to risk-based legislation also needs to avoid the industry ‘self-regulation’ route, where mining companies could potentially treat mines safety guidance as ‘optional extras’.

Being risk-based, the harmonisation process was supposed to retain helpful (prescriptive) details from regulations through development of national Codes of Practice and Guidelines, developed collaboratively by all mining states and endorsed by Safe Work Australia (SWA). It is our understanding that this process has been delayed indefinitely and that the details in these Codes are not guaranteed to represent the critical learnings from past mining disasters.

Figure 1
Figure 1 (click for larger image). Timeline of Model WHS harmonisation in Australia (Source: Alex Marsden, personal communication 15/09/16; Marsden Jacobs 2016) (NB: Updated after WA elections in March 2017 when Labour government was elected).

Introduction

Chronology of events developing the legislation

The chronology leading up to today’s state of play in national harmonisation of safety legislation is shown in Table 2. Since the 2000s work health and safety (WHS) legislation in Australia has been gradually moving towards a national harmonised model, starting with general safety legislation (ie the model WHS Act and Regulations replacing the OHS Act and Regulations in most states). The impetus for this harmonisation was to improve productivity, reduce red tape, improve safety outcomes and increase worker mobility between states, territories and the Commonwealth (Productivity Commission, 2010). Mine safety legislation has been part of the harmonisation program, but due to state based differences, the process has been fraught with difficulty and still has a long way to go.

In 2008, Ministers agreed national harmonisation of WHS laws would be best achieved through the use of model legislation, whereby the states retain the power to amend the legislation and deviate from the model, so there was no guarantee of consistency over time. Legal experts argue (personal communication Witton, 2016) that this could have been avoided if the Commonwealth had used its powers to enact federal legislation, using the external affairs power or the corporations power, but this would probably not have been well received by the states which had predominantly Liberal governments at the time (ie historically, Liberal governments have favoured federalism/ state power and Labour governments have favoured centralisation/ ACT power). Even though it is interesting to chart progress towards harmonisation against political parties in power in each state (Figure 1), it appears this was not a decisive factor in determining actions for or against harmonisation (eg  ALP’s election to power in Vic and Qld hasn’t changed much).

It appears the 2011 Intergovernmental Agreement (IGA) on ‘non-core’ drafting instructions proved ineffective, as the mining states have moved in different directions. The legislation changes are now called ‘modernisation’, not ‘harmonisation’. By April 2013 the harmonisation process for the mining industry stalled, symbolised by the dissolution of the NMSF Steering Group (NMSFSG). The CCIM took over the NMSFSG’s role of monitoring the implementation of the NMSF. The CCIM agreed that all mine safety data for each state and territory would be reported to a national database run by the Commonwealth Department of Industry. However, this has not materialised, apparently due to the CCIM’s inability to change laws and state-based differences in IT systems and reporting, making aggregation of data problematic.

Table 2 (click for larger image). Chronology of events during national harmonisation process.
Table 1a (click for larger image). Safety Legislation in Australian states – the mining states. (Sources: Marsden Jacobs 2016 – Table in RIS documents (http://www.marsdenjacob.com.au/work-health-safety-resources-regulations/ and Safe Work Australia website http://www.safeworkaustralia.gov.au/sites/swa/whs-information/mining/pages/mining).
Table 1b Safety Legislation in Australian states – other states. (Sources: Marsden Jacobs 2016 – Table in RIS documents (http://www.marsdenjacob.com.au/work-health-safety-resources-regulations/ and Safe Work Australia website http://www.safeworkaustralia.gov.au/sites/swa/whs-information/mining/pages/mining).
Figure2
Figure 2. Relationship between the core and non-core WHS legislation (when harmonisation was still a goal).

Before 2012, the states were aiming for ‘all or nothing’ harmonised WHS legislation, which is why they created the ‘core’ and ‘non-core’ mines safety legislation. The difference is now moot, but for completeness, here’s the difference between the two.

The difference between core and non-core WHS legislation

The ‘core’ policy was the extent of consensus achieved by May 2010 across all states and territories and mining industry stakeholders but it wasn’t until 2012 that a mining-specific Chapter 10 was developed.  Core mine Regulations were considered insufficient to maintain current standards for Qld, NSW and WA – the ‘mining states’ – who account for approximately 90 per cent of mining activity in Australia (Productivity Commission, 2010). The mining states argued that to maintain their current safety and health standards for their relatively complex, high hazard and large scale mining operations – including remote area operations – additional ‘non-core’ legislative and regulatory provisions would be required (in addition to the ‘core’ provisions required by Vic, SA, NT and Tasmania (Tas)). It was hoped additional ‘non-core’ provisions would ensure greater regulatory consistency across the mining states and create productivity gains including enhanced worker mobility through more consistent technical-operational and competency requirements.  ‘Non-core’ policy includes consistency in relation to the structure and content of work health and safety management systems (WHSMS) including principal hazard management plans (PHMPs) and principal control plans (PCPs).

The primary objectives of the ‘non-core’ process for Qld, NSW & WA were to (DNRM 2013):

  1. equitable working conditions (in terms of safety and health) between states
  2. effective risk management with a focus on principal hazard controls
  3. reduced red tape and increased interstate worker mobility
  4. efficient regulators
  5. consultation and national benchmarking of safety performance
  6. support for best practice safety systems that allow for innovation and continuous improvement
  7. a national competency framework for statutory positions
  8. consistent national assessment of competence for statutory positions
  9. standards for statutory competence (eg continuing professional development arrangements to retain practicing certificates)
  10. a technically robust system of competency assessment, with standards set and assessments undertaken by qualified, experienced and technically competent persons.

Model Codes of Practice and Guidelines

Model Codes of Practice are practical guides to achieving the standards of health, safety and welfare required under the WHS Act and the WHS Regulations in a jurisdiction. To have legal effect in a jurisdiction a model Code of Practice must be approved as a Code of Practice in that jurisdiction. An approved Code of Practice applies to anyone who has a duty of care in the circumstances described in the Code. In most cases, following an approved Code of Practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the Code. Like Regulations, Codes of Practice deal with particular issues and do not cover all hazards or risks which may arise. The health and safety duties require duty holders to consider all risks associated with work, not only those for which regulations and Codes of Practice exist.

Under a WHS Act in a jurisdiction, approved Codes of Practice are admissible in court proceedings. Courts may regard an approved Code of Practice as evidence of what is known about a hazard, risk or control and may rely on the Code in determining what is reasonably practicable in the circumstances to which the code relates. In terms of harmonised Codes of Practice for the mining industry (ie in support of the model Mines Regulations), a number of model Codes of Practice were jointly developed by the NMSF and Safe Work Australia.  By July 2011 these draft model Codes were released for public consultation, which led to the revised draft model Codes. However, these were never formally endorsed because the draft model Mines Regulations did not receive majority agreement and have not been enacted.

Current status

Figure 1 shows the chronology of changes to safety legislation nationally. Each mining state has taken different directions when modernising their WHS legislation. The ‘core’/‘non-core’ split is now no longer relevant as it was only relevant when the states were all aiming at a model WHS Act and Regulations with Chapter 10 for mines (ie prior to 2012, it was ‘all or nothing’).

Issues preventing harmonisation

The WHS harmonisation process has faltered in the mining states for multiple reasons including challenges with respect to:

  • penalty increases (see Table 3 for the model WHS Act penalty framework endorsed by Safe Work Australia)
  • union right of entry
  • capacity for health and safety representatives to direct work to cease
  • reverse burden of proof (in matters of discrimination)
  • concern over a ‘one size fits all’ approach (no compromise on some of the details in state based mines safety legislation – the so called ‘written in blood’ regulations – particularly concerning differences between coal and metalliferous mining inherent risks).
Table 3
Table 3 (click for larger image). National model WHS Act penalty framework in AUD (NB: each state has a different penalty system) (Source: WorkSafe).

Different states’ directions

General and mining specific WHS legislation currently in force, or about to be enacted, in each Australian state is shown in Table 1. National Codes of Practice, guidelines and other standards (supporting the risk-based WHS legislation) will not all be nationally harmonised and will be state specific for the mining states.

Qld regulators have maintained two separate Acts for the coal and metalliferous sectors as they believe that they should be kept separate due to (DNRM 2013):

  • different language and jargon; mining methods and processes; ventilation design and operation; industrial organisations representing workers between sectors
  • minimal movement of labour between sectors
  • sector specific statutory positions and competencies
  • stringent requirements for electrical designs, testing and certification against Australian and International Standards for underground coal (metalliferous does not have these requirements)
  • specific requirements to manage the risks associated with explosive gas and coal dust in underground coal.

In contrast, NSW regulators have brought coal and metalliferous legislation together under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW).

In WA, mining (metalliferous and coal), onshore petroleum, major hazards and dangerous goods are all expected to be brought together under the proposed Work Health and Safety (Resources and Major Hazards) Act and Regulations. The move by the WA Department of Mines and Petroleum (DMP) to abolish the Board of Examiners (BoE) and Certificates of Competency Framework is a signal that the long standing Mutual Recognition framework (enabling efficient worker interstate mobility) is about to change significantly (moving to an industry self-regulated approach). In contrast Qld & NSW regulators are not aggregating petroleum, dangerous goods and major hazards with mines safety legislation and plan to retain their BoEs and competency frameworks.

Agglomerating mines safety legislation with other industries

The intention of harmonised legislation in mining was to put coal and metalliferous mining into one set of legislation. In WA this also included combining mining with dangerous goods, major hazard facilities and onshore petroleum. But as these activities are so different, finding a way to create legislation that suited them all has proven very difficult. As a result, the draft harmonised mine safety Regulations have only been adopted in a modified form by NSW.

In comparison, the UK has functioned under the Health and Safety at Work etc Act (see UK Health & Safety Executive website), with this legislation applying to all industries. It is arguable that having separate legislation for different industries runs contrary to the view expressed by Lord Robens and his committee that outcomes based legislation that applied to all industries was the preferred model for WHS legislation (personal communication Witton, 2016). It could be argued that the different industries can be brought together under one Act with details which are specific to each industry/specialisation included in the Regulations.

Prescriptive to risk based, outcomes focused legislation

The new proposed harmonised WHS legislation moves away from prescriptive legislation to risk based, outcomes focussed legislation in an effort to reflect today’s more  mature corporate health and safety cultures and the adaptation to organisational, operational and environmental changes. This generalist move must navigate the issue of covering many completely different processes and industries in a meaningful way.

Risk-based legislation enables a form of ‘self-regulation’ whereby duty holders are responsible for the identification of hazards and developing control measures to reduce risks. It is vitally important that any self-regulated regimes are supported by an effective, independent and competent regulator with a comprehensive monitoring and enforcement regime (the same as for a prescriptive regime).

The primary focus of regulatory regimes throughout Australia must remain the ‘Duty of Care’ for industry employees. This means taking all reasonable care to minimise foreseeable risk of injury or adverse health effects to industry employees.  There is evidence of the industry’s shortcomings in this regard, with particular reference to health effects as evidenced by the re-emergence of historical mining-related lung diseases and questionable air quality standards in underground metal mines, particularly those where diesel-powered equipment predominate. Rectifying the situation requires a review of relevant current industry standards and guidelines, better resourced and upgraded regulatory systems, better qualified and trained regulatory and supervisory personnel and more stringent procedures in monitoring operators’ compliance with legislative and regulatory standards.

Big business vs small business, big miners vs contractors

An aspect of harmonisation to consider is the need for the legislation to be fit for purpose in terms of the size of business and what it can handle in terms of the administrative burden of compliance. Most pressure for harmonisation came from big business, which already operates at the standard of the highest common denominator, using risk-based, outcomes focussed methodologies. However, many small businesses prefer prescriptive legislation, negating the need for complex systems with research on what codes, guidelines and standards to comply with. Small business also often only operates in one jurisdiction, so harmonisation across states may not be as relevant to them. This difference explains the tension which materialised between proponents of the interests of small and big business regarding whether harmonisation was really necessary (Marsden Jacob, 2012).

Tension between performance (ie innovation and agility) and conformance (ie prescription and compliance) is an element of corporate governance (Tricker 2015) which applies to mines safety legislation. Big business prefers to move WHS legislation towards a performance enhancing paradigm instead of a conformance (ie rules-based) paradigm which stifles an organisation’s ability to adopt new technologies and techniques.

Conclusions

The aim of this article is to enhance the mining community’s understanding of the state of play of national harmonisation of mine safety legislation.

Progress to date

  1. It appears harmonisation is not likely to reach meaningful critical mass in Australia for many years – especially if it is left up to the states and territories
  2. It will take considerable analysis and negotiation to bridge the divide between state specific beliefs and cultural norms. Meaningful progress requires resolution of negotiation deadlocks between the states so that the national harmonised legislation encapsulates the essential items in each state’s current legislation
  3. If harmonisation is to become a reality it may need to be driven by the Commonwealth government.

Where to from here?

The question now is how do we get the national harmonisation process back on track? Is there still an appetite in government and industry to make this a reality? Does the argument for harmonisation by the Productivity Commission still hold true today? In order to move forward, we need to better understand the sticking points in past negotiations and find a workable solution.

There is a need for a national mine safety forum to share ideas, agree on mutual recognition matters, Codes of Practice and the collection of safety data for national benchmarking. This forum should be a regular, tri-partite exercise including representatives of mining companies (eg Minerals Council of Australia (MCA), Australian Mining and Exploration Companies (AMEC) and the Chamber of Minerals and Energy (CME)), government safety regulators and relevant unions.

Further work recommended

  1. Research the red tape and commercial cost implications of the differences between each state’s legislation
  2. Research leading practice for WHS legislation (eg UK model?) and benchmark Australian costs to the leading practice jurisdiction’s costs
  3. Re-establish a fully consultative national mine safety forum which will endeavour to consider the findings of the work already done – and recommended above – to enable a truly national standardized approach to mines safety.

Acknowledgements

The following are acknowledged for their advice:

  • Sam Witton, Senior Associate Herbert Smith Freehills, Perth (29/08/2016)
  • Alex Marsden, Associate Director, Marsden Jacob Associates, Perth (15/09/2016a).

References

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