The proposed Coal Mine Heath and Safety Act (CMHS) planned for introduction in the spring session of the New South Wales Parliament represents a significant change to the legislative framework under which the NSW coal industry operates.
The CMHS Act will function as associated legislation within the framework of the Occupational Health and Safety Act 2000 (OH&S Act 2000). Where there is inconsistency the OH&S Act 2000 prevails.
The OH&S Act 2000 is the principle legislation applicable to NSW mines now, however its application is, to some degree, "distorted" by the CMR Act and regulations. That "distortion" will be removed. The duties, obligations and penalties imposed by the OH&S Act 2000 are onerous and are not well understood by the people most exposed.
The importance of existing duties and obligations and new developments need to be understood by operators, directors, managers, supervisors and employees alike well ahead of the introduction of the new legislation, notwithstanding the 12 month proposed transitional provision, particularly their respective potential liability.
The OH&S Act 2000 imposes absolute and wide ranging obligations on employers, self employed persons, controllers of premises, plant or substances and designers, manufacturers and suppliers of plant and substances.
The duty imposed on employers is an absolute duty to ensure that their workplaces are safe and without risks to health. It is insufficient for employers to take reasonable care for the health and safety of employees.
The duty requires the employer to make certain that the health and safety of employees is protected. Once an accident has occurred an employer cannot argue that the undertaking did not hold some potential risk to the health of its employees. The absolute duty extends to careless, inattentive employees or an employee exercising poor judgement.
If there is a foreseeable risk because of an employee's carelessness, inattentiveness or poor judgement then this must be taken into account. The duty cannot be delegated. If an employee assisting a contractor is injured for example, the employer would remain liable for the employee and may be subject to prosecution for failing to ensure a safe workplace. Unless a defense could be established the directors, managers and supervisors could be liable in the same manner as the employer.
The OH&S Act 2000 contains a "deeming" provision. If a corporation is found to have contravened a provision each director and person concerned in the management of a corporation is taken to have contravened the same provision unless they avail themselves of a statutory defense. Statutory defenses are very limited and line managers and supervisors will, almost certainly, be concerned in the management of a corporation.
How complicated is the proposed framework? Compliance with the detailed provisions of the proposed CMHS Act may not be sufficient to demonstrate compliance with the absolute duty imposed by the OH&S Act 2000. However, a failure to comply with the provisions of the CMHS Act may be used as evidence of a failure to comply with the absolute duty imposed by the OH&S Act 2000.
Even compliance with the OH&S Regulations 2001 is not in itself a defense in any proceedings. A person is, however not guilty of an offence under Part 2 of the OH&S Act 2000 if an act or omission is specifically required under associated legislation.
Employers are also vicarously liable for acts or omissions of their employees, including a breach of statutory duty. In general terms the employer will be liable for an act or omission of an employee that injures another, even if that act or omission was careless, of poor judgement, lacked attention or in most cases even deliberate.
The CFMEU appears to have lobbied well, with the powers of site check inspectors and industry check inspectors widened in the proposed CMHS Act. Site Check Inspectors will have all the functions, powers and rights of the OH&S representative under the OH&S Act 2000, supplemented by additional provisions in the proposed legislation. Industry Check Inspectors, of which there will be four, can only be nominated by the CFMEU and will have extensive powers as an authorised representative.
The CMHS proposes to obligate the operator to assess, re-assess and control risks within their operation. These obligations extend not only to employees but also to employees of contractors, suppliers representatives, visitors and even trespassers.
It is crucial that operators, particularly directors, managers and supervisors understand their obligations, educate employees, implement systems, audit systems, audit the application of those systems and ensure a safe workplace free of risk to the health of their employees.
This is an absolute requirement as discussed above. Failure to do so carries potentially severe penalties including imprisonment for previous offenders. A preoccupation with running the business and a failure to fully appreciate the potential liability already existing, but not adequately understood, coupled with the proposed changes may have serious consequences for directors, managers and supervisors.
* Steve Baldwin is managing director of Norwest Corporation's Brisbane office.
"Our key people have extensive operational experience, are registered mine managers and collectively have qualifications in law, engineering, and occupational health and safety," Baldwin said. "Norwest can provide operators, managers, supervisors and employees with coal industry specific relevant advice on their obligations, assess their compliance and provide a program for continued monitoring of compliance. Norwest does not provide legal advice."
