Australia: Summary of changes to the Coal Mining Safety and Health Act 1999 (Qld)

This article outlines the implications of the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Qld) (the Bill) on the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). The Bill was passed with amendment on 20 May 2020.

The Bill has:

  • Introduced an industrial manslaughter offence;
  • Clarified the appointment requirement for statutory office holders; and
  • Clarified costs orders in relation to criminal proceedings before the Industrial Magistrates Court.

We discuss each of these below in more detail.

Introduction of industrial manslaughter

The CMSH Act will hold employers or senior officers liable for actions or omissions involving criminal negligence (recklessness or gross negligence) which result in worker fatalities.

The CMSH Act now includes an offence for industrial manslaughter for an employer or senior officer where a worker dies:

  • In the course of undertaking work or is injured and later dies; and
  • The employer or senior officer’s conduct causes the death; and
  • The employer or senior officer is negligent about causing the death.

The maximum penalty for an individual is 20 years and 100,000 penalty units for a body corporate ($13.345 million).

Industrial manslaughter will be an indictable offence and the usual criminal procedural requirements will apply, including the onus of proof. The guideline for industrial manslaughter prosecutions will be the same as those for manslaughter under the Criminal Code. The decision to prosecute will be made by the independent Work Health and Safety (WHS) prosecutor.

Similar to other manslaughter offences, as an indictable offence, industrial manslaughter under the CMHS Act will have no time limitation period for prosecution. Importantly, the defence of accident does not apply.

Clarification of appointment requirements for statutory office holders

The Bill amends the CMSH Act to clarify that only persons who are employees of a coal mine operator may be appointed as certain statutory office holders.

The following statutory roles can only be occupied by employees (not contractors) of coal mine operators:

  • Site Senior Executives (SSE), including anyone appointed to that role during a temporary absence of an SSE;
  • Open Cut Examiners (OCE);
  • Underground Mine Managers (UMM), any alternative UMM or any persons appointed to be responsible for the control and management of underground activities when the UMM is not in attendance at the mine;
  • Persons appointed to have control of activities in one or more explosion risk zones in an underground mine;
  • Persons appointed to have control of mechanical and electrical engineering activities of an underground mine; and
  • Ventilation Officers and anyone appointed to that role in the absence of the Ventilation Officer.

Maximum penalties of 500 penalty units ($66,725.00) apply for coal mine operators who fail to ensure compliance with the requirements. A transitional period of 18 months for compliance has been adopted to ameliorate the impacts on any existing statutory office holders who currently have a different employment status, such as contractors.

Clarification of costs orders

The Bill amends the CMHS Act to provide that costs orders for representation may be made for criminal proceedings before the Industrial Magistrates Court. The Bill also retrospectively validates costs orders made by an Industrial Magistrates Court in relation to a proceeding for an offence against the Act prior to December 2014.

This article was written by Aaron Anderson, Partner and Natalie Lesco, Graduate.

If you would like advice on these issues, please contact a member of the HSF team.

Aaron Anderson
Aaron Anderson
Partner, Brisbane
+61 7 3258 6528

 

 

Australia: Industrial Manslaughter and major change to statutory appointments for mining in Queensland

The Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Bill) was introduced to Queensland Parliament on 4 February 2020 .

The policy objective of the Bill relates to the Queensland Government’s priority to strengthen the safety culture in the resources sector through the introduction of industrial manslaughter offence provisions and requiring that persons appointed to critical safety statutory roles for coal mining operations must be an employee of the coal mine operator.

Industrial Manslaughter

The Bill introduces industrial manslaughter offences into Queensland’s Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999* to bring them in line with general work health and safety legislation.

The new offences apply to:

  • Employers for a (coal) mine; and
  • Senior Officers of an employer for a (coal) mine.

An Employer for a (coal) mine, is a person who employs or otherwise engages a (coal) mine worker.

A Senior Officer, of an employer for a (coal) mine that is a corporation, is a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

The elements of the new offences reflect those that have been in effect under the Work Health and Safety Act 2011 since October 2017. Those elements are:

  1. a (coal mine) worker dies in the course of carrying out work at a (coal) mine, or is injured in the course of carrying work at the (coal) mine and later dies; and
  2. the employer’s, or the senior officer’s, conduct causes the death of the (coal mine) worker; and
  3. the employer, or the senior officer, is negligent about causing the death of the (coal mine) worker by the conduct.

The maximum penalties for a breach of the industrial manslaughter offence are 100,000 penalty units (currently $13,345,000) for a body corporate employer and 20 years imprisonment for a senior officer.

*The Bill also introduces industrial manslaughter offences into the Petroleum and Gas (Production and Safety) Act 2004 and the Explosives Act 1999. The offences are to commence on a date to be fixed by proclamation.

Changes to statutory appointments at coal mines

The Bill introduces significant change to the appointment of site senior executives (SSE) at coal mines which prohibits a coal mine operator from appointing a person as SSE unless the person is an employee of the coal mine operator.

The requirement for a person to be an employee of the coal mine operator will also apply to the appointment of open cut examiners, underground mine managers and ventilation officers.

Upon commencement of the Mineral and Energy Resources and Other Legislation Amendment Act 2020, coal mine operators will have a 12 month transition period to ensure that persons appointed to these statutory positions at their mines are employees of the coal mine operator.

This is likely to have a significant impact on coal mine operators who subcontract operations at their mines, or otherwise enter into arrangements whereby the SSE (and persons in other statutory positions) is not directly employed by the coal mine operator. Coal mine operators in these categories should take steps to review the operational structures at their mines and consider how this change will affect them.

The Explanatory Memorandum to the Bill can be accessed here.

This article was prepared by Takara Raymond, Solicitor.  

For more information or advice on this topic, please contact:

Aaron Anderson
Aaron Anderson
Partner, Brisbane
+61 7 3258 6528
Kara Reynolds
Kara Reynolds
Senior Associate, Brisbane
+61 7 3258 6327