Overhauling health and safety regulations in Queensland’s resources sector

Amendments to Resources Safety Acts slated for 2024

Comprehensive regulatory reforms are proposed for Queensland’s resources sector through the introduction of the Resources Safety and Health Legislation Amendment Bill 2024 (Qld) (Bill).

The Bill seeks to amend Queensland’s Resources Safety Acts (as well as their associated Regulations), made up of:

• Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act);
• Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSH Act);
• Petroleum and Gas (Production and Safety) Act 2004 (Qld); and
• Explosives Act 1999 (Qld).

The 242 page Bill was introduced to Parliament on 18 April 2024 following an initial four week consultation period that commenced after the Bill’s release on 27 September 2023, which was later extended for an additional two weeks.

Given the short consultation period, it appears the Queensland Government was eager to get the Bill before Parliament as soon as it could. This approach is concerning given the impact many of the proposed amendments will have on the day-to-day operations of participants in Queensland’s resources sector. We explore some of the most notable changes below.

Competency requirements for critical safety roles

The Queensland Coal Mining Board of Inquiry (Inquiry Board) undertook an Inquiry that examined a serious accident at Grosvenor Mine in 2020 and various methane exceedances across other Queensland coal mines between July 2019 and May 2020. Consequently, the Inquiry Board made recommendations about competency requirements in its Part I report.

The Bill adopted the Inquiry Board’s recommendations and includes some onerous requirements — most notably that a Site Senior Executive (SSE) for an underground coal mine must hold a first-class certificate of competency; and that the SSE for a surface coal mine must hold a surface mine manager certificate of competency. Due to significant pushback from the resources sector participants during the consultation period, the Minister for Resources has determined not to proceed with those proposals.

However, for other roles the Bill introduces the following new certificates of competency that must be held:

• electrical engineering manager (underground coal mines) or (surface coal mine) certificate of competency;
• mechanical engineering manager (underground coal mines) or (surface coal mine) certificate of competency; and
• surface coal mine manager certificate of competency.

For each of these roles, there will be a five year transition period after the relevant CMSH Act amendments commence for individuals to satisfy the competency requirements.

Powers of industry safety and health representatives and district workers’ representatives

The Bill allows an industry safety and health representative under the CMSH Act or a district workers’ representative under the MQSH Act (Representative) to enter any part of a mine at any time without notice to carry out the representative’s functions. Of course, it is important for the SSE and other senior managers of a mine to be aware of anyone who has entered the mine and where they are located.

This may prove particularly problematic where, for example, a Representative enters onto a mine in circumstances where there is an ongoing response to a serious accident or high potential incident (HPI). Where this occurs, time and resources will need to be devoted to responding not only to the regulator, but also to the Representative.

Secondly, the Bill provides a new power to allow a Representative to issue a directive to require a person who has a safety and health obligation to suspend mining operations in all or part of the mine. The directive can be issued to a person orally or by notice if the Representative believes a risk from mining operations is at an unacceptable level or may reach an unacceptable level.

The vague and ambiguous test of ‘may reach an unacceptable level’ of risk has the potential to result in the suspension of mining operations in a broad range of scenarios. If suspension occurs, such a directive can only be withdrawn by the Representative themselves or by an inspector. This gives rise to potential scenarios where an inspector may be required to intervene and make a determination whether to withdraw a Representative’s directive — potentially where an inspector’s view may differ as to whether risks to safety and health were being managed to an acceptable level, but in any case resulting in considerable cost to the mine operator.

Enforceable undertakings

Each of the Resources Safety Acts will soon include the ability for holders of health and safety obligations to seek to enter into an enforceable undertaking (EU) with Resources Safety and Health Queensland (RSHQ) in circumstances where they have been charged with a contravention under the relevant Act. An EU is an undertaking made to do certain things in the name of improving safety and health — for example by a mine operator within its own operations and to educate the broader industry. An EU is an alternative method to resolving a charge through the usual court processes.

Importantly, entering into an EU is not an admission of guilt. An EU will however not be available in circumstances where the alleged contravention has resulted in a fatality.

EUs have been available under the Work Health and Safety Act 2011 (Qld) for many years, although their uptake by the regulator (Workplace Health and Safety Queensland) has been lower by comparison to other states and territories. It will therefore be interesting to see how this new option to resolve charges is utilised. Entering an EU is by no means an ‘easy’ option to resolve a charge, and if the EU recently entered into by Fortescue Ltd with WorkSafe Western Australia is anything to go by (despite its unique set of facts), the requirements that need to be satisfied for an EU to be accepted may be significant.

Definition of contractor

The Bill amends the definition of ‘contractor ’ to be non-exhaustive and to include an entity that provides a service, performs work or provides labour to a mine. As such, in practice, there will be no distinction made by this definition between large scale, long term contractors who manage and control their own scope of works, and very small one-off labour hire companies whose employees work under the direction of the host (and even wear the same uniforms).

Adding to the already extensive safety and health obligations of an SSE, this aggregated definition is likely to also cause greater confusion as to the scope of safety and health obligations held by entities captured by this definition.

Remote operating centres

The Bill seeks to expand the current coverage of resources industry safety requirements in the CMSH Act and MQSH Act to extend to facilities that may not be located on site, but which receive operational information and make decisions and issue instructions for operations – referred to as ‘remote operating centres’. Workers in such centres will be required to be inducted, trained and competent to perform tasks assigned to them by the SSE. They will also be required to be included in safety and health management systems and will owe personal obligations under the resources safety laws.

Identifying whether an off-site location is captured by these requirements may be straightforward in some instances, but could also be challenging in others. As such, careful consideration of what work is undertaken offsite will need to be undertaken to ensure compliance is met where required.

The induction, training and competency requirements for workers in remote operating centres will not apply for the initial six months after commencement of the Bill’s amendments to enable these new requirements to be met.

Information sharing

The Bill provides for the Minister of Resources, the CEO of RSHQ or the relevant Chief Inspector to publish information about serious accidents or HPIs. Information which can be published includes the name and operator of the mine; a description of the serious accident or HPI; the injuries or deaths which occurred; and any other information considered appropriate.

RSHQ plays an important role in disseminating information about such events to inform decision-making related to similar risks. While this is acknowledged, it gives wide discretion to the Minister and senior RHSQ figures to publish sensitive information about an incident at the early stages of an investigation, before all facts are known, and which may never result in a prosecution.

Most concerning is that, where published information is later found to be false or inaccurate, there is no right to remedy or to seek redress for the affected company or person.

Ready or not, here it comes

With the Bill now before Parliament, we have a clearer picture in terms of what is ahead for safety and health reform in Queensland’s resources sector.

This is an article from our 2024 Edition of Emerging Issues for the Australian Energy and Resources Industry. To read more from this publication, click here.