Workplace Health and Safety in the Mining Industry – Feeling A bit Overwhelmed?

In 2011 and 2012 the model Workplace Health and Safety Act and regulations came into force across most of Australia.

In 2022 Western Australia, with the exception of Victoria, became the last jurisdiction to adopt the model harmonised Workplace Health and Safety legislation. On 31 March 2023 all mines in Western Australia were required to have in place arrangements for the management of contractor safety, with the primary requirement being that all mines must prepare a mine safety management plan and ensure that contractors have prepared a health and safety management plan. Understanding what “compliance looks like” has been difficult and caused significant angst.

However, when thinking about health and safety legislation, trying to understand what it actually means and therefore how comply, it is helpful to think carefully about what it is trying to achieve, and importantly consider the legal context within which the legislation operates.

The prima facie position is that mines owe significant health and safety duties to their contractors to ensure they are safe at the mine and to ensure they are informed of risks at the mine to enable them to design their work, to respond to the risk posed by mine operations.

However, Mines do not owe obligations under Workplace Health and Safety legislation law to direct or supervise the work methods or safety arrangements of skilled independent contractors in respect of work that is under the management and control of the contractor.

What Does the Act Say?

To better understand the duties owed by mines it is critical to clearly understand the sections of the Act that determine the extent of the duty owed by a mine to its contractors.

Part 1 Section 16 of the Act confirms that duties owed under the Act, and hence the Regulations only extends to matters over which the person has the capacity to influence and control the matter.

An example would be engaging an independent contractor to provide crane services to a mine. The mine, as a PCBBU, certainly owes a duty to the crane operator under section 19 because they engage them to work. However, we must consider what the mine influences AND controls in respect of the crane operations to really understand the extent of the mine’s obligations.

Certainly the mine influences and controls such matters as the material to be lifted by the crane, access to the site, where the crane is to be located, traffic management but it does not control the selection of the machine to be used, the method of operation of the crane or the licensing or competency of the operator.

These are all matters that are solely under the management and control of the crane operator.

Section 19 sets out the primary duty owed to workers, including contractors, by a PCBU.
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of —
(a) workers engaged, or caused to be engaged, by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

Significant jurisprudence handed down across Australia by the High Court and State
Supreme Courts over the past century has considered the impact of reasonable practicability and the meaning of control on the extent of duties owed under section 19.

In 1986 in Brodribb Sawmill 1 the High Court confirmed that

“The essence of a contract of service is the supply of the work and skill of a man. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.”

In 2008 the WA Supreme Court in Reilly v Devcon 2 held that

“The question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person – that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have.”

In 2012 the High Court in Baiada v The Queen 3 considered that

“just because a Principal has a legal right to issue instructions and it is possible to take that step, this does not establish that it is a step which was reasonably practicable to provide and maintain a safe working environment”

In 2012 the WA Supreme Court in Kirwin v The Pilbara Infrastructure 4 held that

“Whilst the respondents could not delegate or contract out of their duties, they could perform them by ensuring that an appropriately experienced and qualified person was retained to deal with matters beyond their own knowledge and ability.”

Finally in 2022 Sanders v Mutliplex 5 the WA Supreme Court held that

“Contractors are workers BUT duties are limited to what we have control over and what is reasonably practicable.

“the deemed relationship of employer toward subcontractor and the subcontractor’s employees is limited to those matters “over which the principal has the capacity to exercise control”

Given the continued use of the doctrine of reasonable practicability to define, and effectively limit, the extent of duties owed under WHS legislation and the impact of section 16, there is no reason to consider that this precedence law is disturbed our undermined by the adoption of the WHS Act or Regulations. As a result, mines continue to be entitled to rely upon independent contractors to manage risks arising from their work without oversight by the mine.

What Do the Regulations Say?

Chapter 10 of the WHS (Mines) Regulations, which are subservient to the Act, set out the specific duties owed in respect of contractor safety management at mines. Specifically, the Regulations require that

1 STEVENS V BRODRIBB SAWMILLING CO PTY LTD (1986) 160 CLR 16

2 REILLY -v- DEVCON AUSTRALIA PTY LTD [2008] WASCA 84 (17 April 2008)

3 BAIADA POULTRY PTY LTD V THE QUEEN – [2012] HCA 14

4 KIRWIN V THE PILBARA INFRASTRUCTURE PTY LTD [2012] WASC 99

5 SANDERS -v- MULTIPLEX ENGINEERING & INFRASTRUCTURE PTY LTD [2022] WADC 31

1. The mine operator must provide the contractor with relevant information and access to the mine to identify risks associated with the operations the contractor intends to undertake at the mine.

2. The contractor must give provide the mine with relevant information to enable the mine to identify risks associated with the contractor proposed operations

3. Contractors work either under the mine safety management system (MSMS) and implement safety arrangements as prescribed within that system or elect to operate under their own safety management plan.
As a note the Act specifically states that a contractor continues to have primary duties as a PCBU even where they are working under the MSMS, however neither the Act, the Regulations nor the Code of Practice – Mine Safety Management System, clarify the impact on duties owed by a mine to contractors who undertake their work in compliance with and under the direction of the mine.

Given the significant case law confirming that where there is control there will be liability it is difficult to imagine that greater liability will not attach to a mine where a contractor is working in compliance with and under the direction of the mine in respect of safety.

On receiving the plan, the mine must

1. review the plan.

2. confirm the plan is consistent with the mine safety management system (where applicable)

3. confirm the contractor is capable and has the resources to implement the plan.

4. issue a notice to the contractor confirming the above It is this element of the regulations that may cause mines confusion and clarification of the extent to which a mine must do the above is needed.

If this regulation is considered in the context of section16 of the Act, the impact of reasonable practicability and Supreme and High Court jurisprudence the duties set out above can only arguably apply to matters over which the mine has control and therefore competency to assess.

Assessing and Accepting Contractor Health and Safety Management Plans
The assessment and acceptance of a contractor’s health and safety management plan should focus on confirming that the contractor’s health and safety plan.

1. clearly describes the scope of work.

2. is capable of implementation by workers i.e., practical and not overly complex.

3. is consistent with the mines management of principal mining hazards, where applicable to the contractor’s work

4. identifies other critical hazards and confirmation of processes to manage those.

Please note however the mine is not likely to be in a position to make any qualitative assessment of the risk management methods if the risks identified are not part of the mines operations.

5. sets out emergency management and incident response arrangements, including regulatory incident notification.

6. confirms communication and consultation with the mine and others impacted by their work.

7. identifies those responsible for management of safety and supervisory arrangements.

8. Be designed to be used as the primary means by which risks will be managed.