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CLAUSE NOTES
MINES WORK HEALTH AND SAFETY
(SUPPLEMENTARY REQUIREMENTS) BILL 2011
PART 1 PRELIMINARY
Clause 1 Short title
This is formal provision specifying the title of the proposed Act as
the Mines Work Health and Safety (Supplementary Requirements) Act
2011.
The need for this Act is a consequence of the national harmonisation of
work health and safety laws through the adoption by Tasmania of the
national Model Work Health and Safety Act and Regulations (by the
development of mirror legislation).
The proposed mine safety chapter of the Model Work Health and
Safety Regulations has been delayed and is not expected to be finalised
in sufficient time for consideration by Tasmania before the proposed
commencement date of the rest of the package on 1 January 2012.
This Bill will supplement the provisions of the proposed new work
health and safety laws (based on the national Model Laws, without a
chapter on mine safety).
The provisions of this Bill drawn from existing Workplace Health
and Safety Act 1995, largely Part 5A on mine safety, supplemented
and modified where necessary to allow for operation in
conjunction with the proposed new Work Health and Safety Act
2011 (the new WHS Act).
Penalty levels have been kept the same as those which currently
applies (except where a penalty was inadvertently omitted) and
converted to dollar amounts for consistency with the new WHS
Act with which this Act will operate.
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Clause 2 Commencement
The Act will commence on the day on which the new WHS Act
commences.
Clause 3 Object of Act
The object states the purpose of the Act in broad terms. It
comes from the mine safety Part 5A of the Workplace Health and
Safety Act, slightly modified to reference the new WHS Act.
The existing mine safety laws were influenced by the
recommendations of a number of investigations and reports,
including, in particular, two Coronial reports one of which was a
report by Coroner Jones, published in 2008, on the inquest into
three mining fatalities in two separate incidents at Renison Tin
Mine.
The object is consistent with the legislative purpose
recommended by Coroner Jones. It sets the scene for the
provisions that come later and, if the situation arises, may aid in
the interpretation of the provisions.
Clause 4 Incorporation of Act into Work Health and Safety Act 2011
It is intended that the new WHS Act will apply to all workplaces,
including mines, as does the current Workplace Health and Safety
Act. It is further intended that the provisions of this proposed
supplementary Act dealing with mine safety, will operate alongside
and in conjunction with the new WHS Act a mines.
To enable the two Acts to work seamlessly at mines, and to avoid
unnecessary duplication of provisions, especially with respect to
definitions and enforcement provisions, this clause technically
incorporates this Act into the new WHS Act.
This means that, although there are two Acts, duty holders at
mines can read this Act, in effect as if it were a chapter of the new
WHS Act.
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PART 2 INTERPRETATIVE PROVISIONS
The provisions of this part are largely based on the equivalent provisions of
the Workplace Health and Safety Act.
Clause 5 Interpretation
This clause defines key terms used in this Bill. The provisions
are largely drawn from the existing provisions of the
Workplace Health and Safety Act. The term "regulator" is an
exception and refers to the regulator under the proposed new
WHS Act.
Three definitions, "mine", "mineral" and "mining operations"
between them determine the scope of the mine safety
provisions which apply in relation to a mine and/or mining
operations and/or specified persons at a mine, according to the
context. The definitions are based on current definitions and
are intended to retain the status quo as much as possible in
terms of coverage of the mining laws, notwithstanding the new
work health and safety legislative scheme.
A mine includes any place at, in, on or under which mining
operations are carried out.
A mine is therefore determined by the activities carried out
rather than any rights over the minerals present.
The definition of mineral is needed in the definition of
"mining operations" in Clause 6. The definition is broad and
captures all things that might be mined at what is considered
to be a mine in Tasmania.
Terms used in the WHS Act have the same meanings under
this Bill, and therefore do not need to be defined here.
Clause 6 Meaning of "mining operations"
In brief, mining operations are defined in this provision as
including:
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· exploration for minerals involving manual disturbance of
the ground;
· the extraction or excavation of minerals, or mineral
containing material, from the ground;
· preparation and processing, extraction, excavation and
handling of specified material and waste, construction
operations and maintenance and removal of plant and
buildings and the decommissioning, rehabilitation,
maintenance or repair of a place where specified
operations occurred, where the activities mentioned are
undertaken on the same site, adjacent to, or as part of, a
continuous process of extraction.
Mining operations do not include fossicking or activities
associated with the production on private land of rock,
crushed stone, gravel, sand or clay for the private, non-
commercial use of the owner.
Subclause (3) allows regulator, having regard to the nature of
the work, risks or hazards involved, to declare any other
activity or operation as a mining operation. This retains the
intended to allow for future coverage of emerging new
activities (e.g. carbon sequestration) and/or non-mining
activities (not covered by the proposed definitions) that use
processes that are virtually identical to processes utilised in
mining (for example tunnelling and dredging where the
purpose is for, say, construction rather than mineral
extraction).
Clause 7 Calculation of hours worked
There are a small number of provisions in the Act that apply
differentially to small mines than to medium and large mines.
This ensures that the requirements are not overly complex for
small mines that have less complex operations.
The number of hours worked per month at the mine has been
used as a measure of size and complexity. Although it is not
perfectly correlated with risk, there needs to be some means
of determining a cut-off point where some provisions will not
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be required or will be modified. This measure is relatively
simple to apply.
The number of hours worked at a mine in a month is the
average of the hours worked per month over the previous 6
months during which work has been carried out at the mine.
This is a moving average and is a retrospective measure which
can be easily verified. The measure covers everyone working
at the mine, whatever their capacity.
If a mine has not been operating for six months of the previous
12 months, then a prospective measure is used based on a
reasonable expectation of the of the number of hours to be
worked for the forthcoming month.
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PART 3 HEALTH AND SAFETY IN MINES
The provisions of this part are largely based on the equivalent provisions of
the Workplace Health and Safety Act.
Division 1 Chief Inspector of Mines
Clause 8 Chief Inspector of mines
This provision is a simplification of the current provision providing
for the appointment and functions of the chief inspector of mines.
It also includes updates the appointment process and functions to
better align with the role of the regulator under new WHS Act.
Clause 9 Chief Inspector of Mines may issue directions to mine
operator and site senior officers
In accordance with the intent to retain the status quo, as much as
possible, for mines, this clause incorporates a modified version of
the power of the Director of Industry Safety to issue a notice
under section 39 of the current Act to prevent injuries to and
risks to the health of workers.
The preventative purpose of such notices has made them a useful
tool in the mining industry and such notices are not replicated in
the new WHS Act. Currently they are issued in the mining
industry by the Chief Inspector of Mines under the delegated
authority of the Director of Industry Safety. This provision
enables the Chief Inspector of Mines to issue such notices in his
or her own right.
Given the scope of this Act, the scope of such notices has been
limited to the protection of persons at a mine.
Clause 10 Protection from liability
This clause provides protection from liability for the Chief
Inspector of Mines for the performance of his or her functions in
good faith.
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Division 2 Mine operators
Clause 11 Appointment of mine operators
The provisions of this section establish a regime where a
competent person is appointed to operate the mine safely.
The mine holder is required to appoint a mine operator to carry
out mining operations. This reflects the usual arrangements
where an individual or entity having the right to mine, determines
who, or what entity, shall operate the mine. This person or entity
does not have to be different to the mine holder, and this is made
clear in the next subsection.
The requirement to appoint an operator before mining
commences ensures that the process starts off correctly, right
from the beginning.
A mine holder may appoint himself, herself or itself (e.g. if the
mine holder is a company), as the operator of a mine.
Alternatively he or she may appoint another party, referred to in
the Bill as a "person conducting a business or undertaking" to
operate the mine. This ensures that the duties of the operator of
a mine are not passed on to an employee. "A person conducting
a business or undertaking" can be an individual or a body
corporate.
If an individual or entity other than the mine holder is appointed
as the mine operator, the mine holder must authorise that
individual or entity to have management or control of the mine, at
least to the extent necessary to discharge the mine operator's
duties. This is recognises that the mine operator's functions
cannot be properly carried out if the operator does not have the
appropriate level of control.
where the mine operator and the mine holder are different, the
mine holder must make the appointment in writing, with the
signed agreement of the proposed mine operator and must
include the date of effect of the appointment.
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Subclause (7) provides that the mine holder must exercise due
diligence in selecting an operator with the capacity and resources
to ensure the work can be carried out safely.
This holds the mine holder responsible for the choice of mine
operator selected. Selecting a mine operator without any enquiry
into the capacity of the proposed operator to carry out the work
safely is inadequate to ensure health and safety. This provision is
intended to act as a disincentive to doing so.
Clause 12 Advice of appointment, &c., to be given to Chief
Inspector of Mines
This is an administrative provision requiring notification, to the
Chief Inspector of Mines, of the name, contact details and start
date of the appointment. Such provisions enable the mining
inspectorate to know who or what entity is in charge of
operations at the mine, and how to make contact. The keeping of
such details by Workplace Standards Tasmania was a
recommendation of Coroner Jones.
Subclause (2) sets a time within which the notification of the mine
operator must be made, i.e. within 14 days after making the
appointment.
This provision follows from subsection (6) by requiring the mine
holder to notify of any change to the mine operator's details, or
termination of the appointment, within 14 days of such an event.
Clause 13 Chief Inspector of Mines may approve multiple persons
to have responsibility for certain mining operations
The primary concern with the appointment of more than one
mine operator is that safety may be compromised by inadequate
communication or coordination between the separate parties, or
that workers (or the operators) are not clear who is in charge of
what activities. These concerns are addressed by ensuring that
before the Chief Inspector of Mines gives an approval under the
above subsection, the mine holder must provide a clear statement
of the respective responsibilities of each party at the mine; and
the Chief Inspector must be satisfied that the proposed
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arrangement will enable sufficient coordination and control of the
work; and will not diminish occupational health and safety at the
mine.
The previous provisions are couched in terms of appointing an
operator for each mine. However, it is recognised that not all
mines operate in the same manner. Although it is usually
desirable to have one operator only for a mine, there may be
circumstances where there are good reasons to appoint more
than one operator at a single mine.
This provision allows the Chief Inspector of Mines to approve in
writing, and with or without conditions, an arrangement under
which more than one entity or individual has responsibility for
various mining operations at a mine.
Subclause (3) applies where the mine holder and mine operator
are different persons, and where a mine holder has any control or
capacity to control the resources available to the mine operator.
The provision requires the mine holder to, so far as is reasonably
practicable, ensure that adequate resources are available to the
mine operator to ensure that the mining operations can be
carried out safely. This places a positive duty on the mine holder
to ensure such resources are available if the operator is in a
position to exercise such control.
Subclause (4) is a more general requirement requiring the mine
holder, so far as is reasonably practicable, to pass on adequate
information and relevant plans to the mine operator. Again this is
drafted as a positive duty, and is intended to trigger the mine
holder to consider what information and documents he, she or it
holds that would be relevant to the safe operation of the mine
and hence should be passed on.
Division 3 Site senior officers
Clause 14 Site senior officers
In recognition that clarity about who is in charge at a mine is
important, this provision requires the appointment of a site senior
officer meeting the requirements of subsection (3).
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Although the mine operator is the primary duty holder at a mine,
in all but some of the smaller mines the mine operator will be a
corporate entity rather than an individual. The appointment of a
site senior officer recognises that in practice there is an individual
that is in charge on behalf of the mine operator. This provision
formalises that arrangement.
If the mine operator is an individual, i.e. a natural person, then he
or she may appoint himself or herself as the site senior officer.
This is expected to be relevant only to those smaller mines where
operations do not warrant the appointment or establishment of a
corporate entity as the mine operator.
The concept of a site senior officer being the individual in charge
and the "go to person" who makes decisions on safety (and
operations generally) requires that only a natural person can be a
site senior officer.
There is also a requirement that the site senior officer have the
qualifications referred to in subclause (4). This is a reflection of
the importance of the role.
The senior officer is required to have appropriate background,
experience and competence for the functions of site senior officer
under the Act, at the mine concerned, taking into account the
level of risk to health and safety arising from mining operations at
the mine, the size of the mine and the technical expertise available
to the site senior officer at the mine.
The second part of the qualifications requirement is to ensure
that the site senior officer has any requirements specified in the
regulations, including qualifications, training, background,
experience, knowledge and understanding. To provide flexibility,
the regulations allow the appointment of an assistant with the
requisite qualifications, if the site senior officer does not have
them.
Some very small mines are operated and worked by a single
individual and it would be meaningless to appoint a site senior
officer. It would also involve unnecessary paperwork. Therefore,
where mine operator is a natural person who does not employ
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any other mine workers, he or she is not required to appoint a
site senior officer.
The mine operator must:
· give written advice of the appointment to the person
appointed;
· give notice of the appointment, as far as reasonably
practicable to everyone employed or engaged at the
mine, and
· notify the Chief Inspector of Mines in writing of the
name and experience and qualifications as soon as
practicable after the appointment or any change in the
appointment is made.
Clause 15 Site senior officer to maintain presence at mine
Given the key role played by the site senior officer, a suitable level
of attendance at the mine is important.
This provision requires the mine operator to ensure the site
senior officer maintains a presence at the mine commensurate
with the nature, size and complexity of the mine and mining
operations and the associated risks, taking into account any
relevant guidance material published by the Chief Inspector of
Mines.
The amount of time required to be spent at the mine by the site
senior officer will vary according to the operations and risks at
the mine and will vary from mine to mine, and may also vary from
time to time at the same mine. Any prescriptive requirements in
this regard would be too inflexible to take all circumstances into
account. Therefore it is proposed that the legislative requirement
be general with more detail to be provided in guidance material.
Clause 16 Additional requirements if site senior office is not mine
operator
This provision applies where the site senior officer is not the mine
operator. It is relevant to later subsections that cover the
decision making authority of the site senior officer.
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Such a provision is not necessary where the site senior officer and
the mine operator are the same individual, being one and the
same, the site senior officer would have the same decision making
power as the mine operator.
Unless otherwise approved by the Chief Inspector of Mines, the
mine operator must ensure that the site senior officer at the mine
is the most senior officer (in terms of level of authority to direct
operations at the mine) employed or engaged by the operator at
the mine.
This ensures that the site senior officer is truly the decision maker
on site. If he or she is not, his or her decisions could potentially
be overturned, or another officer may make a different decision
that may lead to confusion. The thrust of the changes introduced
by the Bill is that there should be clarity in decision making and
responsibility to reduce the potential for confusion and
miscommunication, which in turn have the potential to
compromise safety.
In recognition that the circumstances of each mine are different,
the provision allows some flexibility by allowing the Chief
Inspector of Mines to approve other arrangements with or
without conditions. This will enable the Chief Inspector of Mines
to satisfy him or herself that any proposed arrangements are
suitable for the circumstances concerned before granting such
approval (or alternatively the Chief Inspector of Mines may refuse
any such request).
The mine operator must ensure that the site senior officer has
responsibility for mining operations and health and safety at the
mine and
· is based in Tasmania at times when the mine is
operational; and
· has sufficient authority and control over the mining
operations to close or suspend operations at the mine
or in parts of the mine that may expose employees to an
unreasonable risk to their health or safety.
This provision deals with two major concerns regarding current
arrangements for mine safety. At present the relevant provisions
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relate to responsible officer. The mines inspectorate has
encountered situations where a mine operator nominates a
responsible officer who is located overseas, which was not the
intent of the requirements. The more stringent requirements for
a site senior officer will mean that the site senior officer must be
based in Tasmania and requirements at subsection (3)(a) regarding
presence at the site are intended to address this concern.
The second concern is whether a responsible officer (under
current arrangements) can close a mine, or part of it, for safety
reasons. In introducing the new arrangements for a site senior
officer, this point is covered by requiring the mine operator to
give the site senior officer such powers. This addresses a
recommendation of Coroner Jones in this regard.
Subclause (5) requires the mine operator to ensure that the site
senior officer at the mine has input into
· the development, implementation, maintenance,
monitoring and review of the health and safety
management system at the mine, at the appropriate
stages in the life cycle of the system at the mine; and
· the development, implementation, and maintenance of
risk management systems at the mine; and
· the development, implementation and maintenance, at
the appropriate times, of the management structure for
the mine.
The site senior is a key person on site. Given this importance and
the requirements for the site senior officer's presence on site,
and required qualifications, the site senior is in a position to
provide valuable input into the health and safety management
system for the mine, risk management systems and the
management structure at the mine. Making it a requirement on
the mine operator to ensure the site senior officer has input into
these things ensures they are not developed in isolation and
without the advice of the key person "on the ground".
This should ensure that large companies who develop a whole of
company approach to health and safety and risk management
systems are required to take the local conditions into account in
the system applicable in each mine.
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Clause 17 Duties of site senior officers
The site senior office has an overarching general duty of care
responsibility to ensure, as far as practicable and in relation to
matters over which he or she has the capacity to control or to
influence control, that the mining operations or the state of the
mine do not adversely affect the health or safety of any person.
Subclause (2) provides more detailed requirements, without
limiting the site senior officer's general duty in the previous
subsection.
The provisions are detailed and specific, focussing on matters
relevant to safety within the scope of the role of the site senior
officer.
So far as is reasonably practicable, the site senior officer must
ensure:
· adequate planning, organisation, leadership and control
of operations to ensure that the operations do not
adversely affect health and safety;
· the carrying out of critical work at the mine that
requires particular technical competencies;
· adequate and competent supervision and control of
operations on each shift at the mine;
· regular monitoring and assessment of the working
environment, work procedures, equipment and
installations at the mine;
· appropriate inspection of each work area at the mine
including, where necessary, pre-shift inspections;
· compliance with the mine's health and safety
management system, if any;
· appropriate means, practices and procedures for
communication between
(i) workers; and
(ii) workers and management; and
(iii) shifts; and
· cessation of work, closure and or evacuation, as
appropriate, at all or part of the mine when there is an
imminent and material risk of serious injury, serious
illness or death, until the risk is eliminated or minimised.
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Clause 18 Absence of site senior officer
This provision requires absences of the site senior officer of a
significant period of time in relation to the complexity of
operations at the mine, their size and level of risk at the mine, to
be covered by another individual.
To ensure that the general requirement above does not lead to
unduly lengthy periods without a site senior officer, the second
part requires that absences of more than seven continuous days
during which mining operations are undertaken at the mine must
to covered with another individual.
Together the provisions mean that action must be taken where
the absence of a site senior officer is, at the most, longer than
seven operational days at a mine. However higher risk mines may
be required to take action sooner, in accordance with its
circumstances.
Subclause (2) requires notification of the absence of the site
senior officer when the absence is more than 14 days. It is limited
to medium to large mines, in this case expressed as mines where
the number of hours worked is 3000 or more per month (three
thousand hours per month equates to approximately 20 workers,
assuming a 38 hour week and 48 week year for each worker).
The requirement does not apply to a site senior officer who is the
mine operator. Given that such a mine is operated by an
individual (not a corporate entity) such mines are likely to be
small and the notification process is unlikely to be warranted.
At the medium to large mines to which this notification is likely to
apply, there is likely to be sufficient risk for the mining
inspectorate to be aware of changes at this important senior level.
The provisions require written notification to the Chief Inspector
of Mines, as soon as practicable, of the absence and the
arrangements put or to be put in place.
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Division 4 Compliance with directions
Clause 19 Compliance with directions of mine operator or site
senior officer
To ensure health and safety at a mine, all persons working at a
mine need to recognise the authority of the mine operator and
the site senior officer. This provision places a duty on persons
who conduct a business or undertaking at a mine (e.g.
contractors) and other workers to comply with reasonable
directors of the mine operator or site senior officer in relation to
health or safety.
This provision is based on similar provisions under the existing
Workplace Health and Safety Act, modified to take into account
the changes to duty holders that will be brought in under the new
WHS Act. These changes have made it possible to categorise the
duty holders for this provision into two groups persons who
conduct a business or undertaking a mine, and other mine
workers.
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PART 4 HEALTH AND SAFETY MANAGEMENT SYSTEMS
The provisions of this part are based on the equivalent provisions of the
Workplace Health and Safety Act.
Clause 20 Health and safety management system
A key focus of the Bill and the proposed supporting regulations is
the requirement for a health and safety management system,
which is intended to be the central means of managing health and
safety at a mine.
This provision requires a mine operator to develop, implement,
maintain and review an auditable, documented health and safety
management system in accordance with the requirements in the
regulations and commensurate with the nature, size and
complexity of the mine and mining operations, and the associated
risks. This establishes the basic requirement to have a health and
safety management system, with the detail of the requirements for
that system to be in supporting regulations.
It is expected that the health and safety management system will
specify how occupational health and safety is to be dealt with at
the mine, and will incorporate a risk management approach.
Regulations will require the health and safety management system
for a mine to be supported by other key documents including
major hazard management plans (dealing with particular major
hazards at the mine).
The implementation of a health and safety management system for
a mine is a well recognised approach to addressing mine safety at
a mine. The requirement for a health and safety management
system forms a central component of proposals for future
nationally consistent mine safety legislation in Australia.
The level of detail to be provided in a health and safety
management system will vary according to the nature, size and
complexity of the mine and mining operations, and the associated
risks. Small mines of lower risk will require less detail than larger,
more complex and higher risk mines.
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Subclause (3) provides that at a smaller mine, i.e. where the
number of hours worked is less than 3 000 per month,
implementation is required by 1 July 2012 or such later date as
the regulator may specify in a notice published in the Gazette.
(Three thousand hours per month equates to approximately 20
workers, assuming a 38 hour week and 48 week year for each
worker). This is an extension (by six months) of the current
proposed implementation date for small mines. The intent is that
small mines should not be required to comply with this provision
until the national approach to health and safety management
systems at small mines is determined.
Clause 21 Workers to be consulted in preparation and amendment
of system
Consultation with workers who may be exposed to risk to their
health or safety arising from the mining operations is a key
requirement during the preparation or amendment of any part of
the health and safety management system relevant to their
activities. This duty of a mine operator applies "so far as is
reasonably practicable" in recognition that there may be times,
such as prior to starting mining operations, when it may not be
possible to consult with relevant workers. Nevertheless the
provision reflects the principal that the people who work with
and may be affected by the risks have much to offer in
consultations on how to address the risks.
Clause 22 Work to be carried out in accordance with system
This provision supports the requirements for a health and safety
management system at a mine by requiring the mine operator to
ensure that work at the mine is carried out in compliance with
the health and safety management system for the mine (where
there is one, given that there is a phase-in provision). This
includes work undertaken by contractors and their workers.
Specification of contractors and their workers draws attention to
the need to cover such workers in the system and to require
compliance by these persons.
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Clause 23 Audit and review of system
This clause provides for the audit and review of part or all of the
health and safety management system by an inspector. It also
provides that the review may include any of the elements or
other requirements specified in the regulations.
An inspector may request the mine operator to provide the
pertinent documentation at any time.
Subclause (4) makes it clear that an audit and review is not limited
to an audit of the documentation.
An inspector may do whatever is necessary (within the scope of
his or her powers) to assess the relevant matters. This might
involve an inspection of parts of the mining operations to ensure
that the provisions of the system as document is reflected by the
practices and procedures at the workplace.
Clause 24 Inadequate health and safety management system
Having the power to audit and review the health and safety
management system at a mine requires the inspector to be able to
do something about any identified shortcomings. This provision
allows for the inspector to require the mine operator to amend
the health and safety management system or any of its
components as directed, or to review and revise the system or
any of its components to address the inadequacy.
The two options for action enable an inspector to tell the
operator how to fix the problem, when known, alternatively have
the mine operator determine how the matter should be fixed.
Such flexibility enables the inspector to take the circumstances
into account. For instance, if the inspector considers there is only
one appropriate means of addressing the inadequacy it is more
efficient to tell the operator what that means is. Where there
might be a range of means appropriate, or where the means
require consideration of, say, production issues, or consultation
with workers, it is likely to be more appropriate to require the
mine operator to review and revise the system to address the
inadequacy.
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Subclause (3) allows the inspector to specify the focus of a
directed review of the health and safety management system.
This is intended to simplify the review and revision process,
should there be only part of the health and safety management
system that requires attention.
Clause 25 Chief Inspector of Mines may require independent audit
Circumstances may arise where there is a need for a more
technical, specialised or complex audit of the health and safety
management system than could be appropriately undertaken by an
inspector. This proposed subsection therefore provides that the
Chief Inspector of Mines may direct the mine operator to obtain
an independent audit of the health and safety management system,
either in general or in relation to one or more specific aspects.
(Such a direction may be reviewed.)
It is intended that there would be a particular reason for such an
audit. This requirement is not intended to replace an inspector's
role with respect to an audit..
The provision therefore states the preconditions for such a
direction, being that the risks arising from the operation of a mine
have the potential to give rise to the serious injury or death of a
person, an emergency, or a dangerous situation, and the Chief
Inspector of Mines is not satisfied that the health and safety
management system for the mine adequately manages the risk.
The clause provides for the approval of the independent auditor
by the Chief Inspector of mines only if the person or group has
the necessary qualifications or experience to carry out the audit;
and the Chief Inspector of Mines is satisfied that the person or
group is able to provide an independent audit.
This provision allows for a group to be approved to undertake
the required audit. This recognises that the appropriate mix of
skills may rest in a group of individuals rather than a single
individual.
The mine operator may appoint a bipartite team to assist in
carrying out the audit, subject to the approval of the Chief
Inspector of Mines. This provision recognizes that that relevant
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skills may reside outside the usual providers of such services.
Unions, employer bodies and other mining companies could
equally employ people with suitable skills. This provision
therefore enables a mine operator to propose a bipartite team for
the audit, including people from industry and unions.
Establishment of such a group is likely to have benefits that extend
beyond the audit itself, such as the cooperation and trust
engendered by such an approach.
The provision is enabling only. Nothing in the legislation requires
a mine operator to appoint such a group or the Chief Inspector
to approve it if it is not appropriate to the circumstances. It
would require all parties to agree before such an approach would
be viable.
A member of a bipartite team incurs no civil liability arising from
anything done or omitted to be done in good faith in relation to
the audit.
This provision has been included to remove a potential
disincentive to participating in a bipartite audit. The protection
from liability does not apply to a person who operates as, or is
employed by, an entity whose line of work includes the provision
of consultancy services for payment in an area relevant to the
audit concerned.
Such persons, or the companies for which they work, are likely to
have their own insurance against civil liability, because the
provision of such audits is a normal part of their work. Other
persons likely to participate in a bipartite team, however, are not
likely to have such insurance for this type of work, and require
protection.
Clause 26 Exemptions
If a mine operator is required to prepare a safety management
system under the new WHS Act, and if the operator considers it
likely that the system proposed will cover all mining operations to
a level at least equivalent to the standard of this act, the mine
operator may request an exemption from the relevant provisions
of this Act. This situation may arise where the mine operator is
required to develop a health and safety management system for
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the mine as a major hazard facility under the proposed WHS
regulations.
This clause allows a mine operator to apply a single safety
management system to the entire mine, subject to meeting the
requirements of both Acts.
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PART 5 MISCELLANEOUS
The provisions of this part are largely based on the equivalent provisions of
the Workplace Health and Safety Act.
Clause 27 Notification of commencement of operations
In order to know when and where mining operations are
undertaken in Tasmania, this provision requires the Chief
Inspector of Mines to be notified by the mine operator:
· before mining operations are commenced at the mine;
· if mining operations are under way at the time this
provision comes into effect, within 14 days after the
date of effect;
· before mining operations are resumed after their
suspension;
· before mining operations are abandoned; and
· before mining operations are suspended.
An exception is provided for exploration to the notification
requirements except where the activity involves drilling (except
post hole drilling or drilling using only hand-held instruments).
This provision reflects the mine inspectorate's experience that it
is important to be notified about the high hazard activity of
drilling.
Clause 28 Persons conducting operations to consult about work
health and safety
A person who conductions a business or undertaking at a mine
and who is not the mine operator must facilitate consultation
between the workers and the mine operator on matters affecting
the workers' health and safety.
This provision recognises the need for the mine operator to
consult with all workers regardless of whether or not the mine
operator directly employs or engages those workers.
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Clause 29 Visitors to comply with health and safety requirements
In the same way that other persons at a mine have duties, visitors
also need to comply, so far as reasonably able, with the
reasonable health and safety directions by the mine operator or
site senior officer, any health and safety management system for
the mine [so far as the provisions are relevant to the visitor]; and
any other health and safety requirements relevant to him or her.
Clause 30 Record book
A mine operator must keep a record book in a form approved by
the Chief Inspector of Mines to record the inspections made by
inspectors, together with instructions given by those inspectors,
and other information specified in writing by the Chief Inspector
of Mines.
A record book is not required at a mine where the only mining
operation taking place is exploration.
The mine operator must ensure that the required record book is
made available for inspection by employees, contractors and self-
employed persons at the mine.
A record book is an important means of communication with
workers regarding the activities of inspectors at the mine, an
inspector's identification of any issues, and other matters required
to be recorded by the Chief Inspector.
Clause 31 Management structure to be maintained
The operator of a mine must establish and maintain an
appropriate management structure of competent persons for the
mine which includes having others acting in, and the timely filling
of, vacant positions in the structure (including the position of site
senior officer at the mine).
An appropriate management structure at a mine covering the
above requirements can be expected to contribute strongly to
improved health and safety outcomes.
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Clause 32 Mine layout, design and construction
This provision currently sits in the Workplace Health and Safety
Regulations. However, because it is in the nature of a general
duty, it has been imported into the Bill, given this is more
consistent with the new WHS Act.
Clause 33 Guidance material
As a means of providing further guidance, and informing the
decision making process at a mine this provision allows the Chief
Inspector of Mines to declare as guidance material all or specified
parts of any code, standard, rule, specification, provision or
document relating to occupational health or safety, whether
prepared or published by the Department or any other body or
authority.
Such guidance may incorporate by reference any other such
document either as it is in force at the time the guidance material
is approved or as amended from time to time.
This provision enables guidance to be issued to assist in the
development of a mine's health and safety management system,
without imposing prescriptive requirements. It provides a means
of directing mine operators to appropriate material, such as
relevant Australian Standards, without mandating the
requirements of the Standard (noting that Australian Standards
undertake extensive cross-referencing that can become unwieldy
and out-dated in a mandated scheme).
The clause makes it clear that the requirements of the Rules
Publication Act 1953 do not apply to a declaration made under this
section.
Clause 34 Certain decisions to be reviewable under Work Health and
Safety Act 2011
This clause and the table that follows it provides for the
provisions of the proposed new WHS Act that allow for the
review of particular decisions made under that Act to also be
used for the review of decisions under this Act.
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Clause 35 Transitional and savings provisions
These provisions preserve existing appointments and notifications,
so that they do not need to be done again when the provisions of
this Act come into effect.
This clause also preserves directions, exemptions and
specifications.
The preservation of notices issued under section 14A, 38, 39 or
40 of the Workplace Health and Safety Act are covered under the
provisions of the Work Health and Safety (Transitional and
Consequential Provisions) Bill 2011, and will apply equally to notices
issued with respect to mining operations as to other work.
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PART 6 CONCLUDING PROVISIONS
Clause 36 Administration of Act
Until administration is assigned under the Administrative
Arrangements Act 1990, it will rest with the Minister for
Workplace Relations and the department responsible to the
Minister will be the Department of Justice.
Clause 37 Regulations
The regulation making powers covers matters expected to be
needed, including transitional provisions, to enable the existing
mine safety regulations under the Workplace Health and Safety
Regulations 1998 to be repackaged as mine safety regulations
under this Act.
It is intended to retain the status quo as much as possible with
respect to the mine safety regulations, subject to suitable
modification to enable them to operate under this Act and
together with the proposed new WHS Act and regulations.
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