The NSW Department of Primary Industries in December held seven seminars in Singleton, Newcastle, Wollongong and Lithgow to outline the key new duties and requirements of the new Act and regulations, plus explain what the Government is proposing to do under the occupational health and safety regulations.

Coal mines are governed by two acts and two regulations. The principal, or parent legislation is the NSW Occupational Health and Safety Act 2000 and the OHS Regulation 2001 which governs all businesses in NSW.

This is then supplemented by mining industry safety specific legislation – the Coal Mine Health and Safety Act 2002 and the CMHS Regulation 2006, which must be read in conjunction with the OH&S Act.

It is the CMHS regulations which will be phased in within the next six months. In addition to this, the Government is also looking to extend the OH&S regulations to the mining industry – as it only partly covers the mining industry as it currently stands. This is the topic of a discussion paper that is available on the Department of Primary Industries website with comments open until March 9.

Separate to the seminars’ discussions is an independent review of the OHS Act 2000 which is currently being conducted by Paul Stein AM, QC with a report due out April 30, 2007.

Last month’s seminars addressed the changes to the CMHS regulations which DPI Industry Standards and Practice manager Darren McDonald said represented a move towards a more performance-based approach with a focus on outcomes and not simply the process.

“For example, the old legislation talks about prescribed hours that people must or mustn’t work to guard against the risk of fatigue. The new legislation no longer specifies hours but talks about the importance of the employer developing a fit-for-work program which assesses the risk of fatigue and obliges the coal operator to talk with their employees to come up with a program that minimises risks of fatigue,” McDonald said.

He said while the new regulations did take a step towards a performance model, there was still a whole range of areas where there were very clearly prescribed controls.

“The history of the industry is where risk controls have been prescribed in considerable detail. Where you have extremely dangerous work being undertaken – that is not necessarily inappropriate.”

However, NSW Minerals Council chief executive Dr Nikki Williams said the CMHS regulations were still too highly prescriptive.

“Bearing in mind that the Australian mining industry is the most highly technological and sophisticated than any other mining industry in the world – yet we still have regulations telling us how many bandaids to keep, how big shower cubicles should be and this sort of thing,” Williams said.

“There is this plethora of pointless, time-consuming prescription that really relates to another era.”

However, McDonald said much of this “time-consuming prescription” had been taken out of the new legislation: “Shower facilities and workplace amenities is a prime example of where the legislation has moved from pages of prescriptive requirements to a simple, succinct but clear performance statement that the employer must provide and maintain appropriate workplace amenities.

“This simple obligation is then supported by guidance material outlining the sorts of considerations the employer should take into account in ensuring amenities are of an appropriate standard to ensure the welfare of employees."

But Williams said the legislation failed to support a safety culture.

“The problem with this mining specific regulation is that it absolutely fails to encourage safety innovation and it fails to recognise significant technological advance,” Williams said.

She said part of the problem was the legislation did not support a focus by equipment manufacturers where safety was worked into the design phase.

McDonald on the other hand said the new legislation addressed OHS at the design and manufacturing stage. “This is exactly what the Government has done in applying the National Plant Standard to the coal mining industry in NSW. That national standard establishes duties for plant designers and manufacturers.”

He said the new legislation aligned itself better with its parent OHS Act in terms of a move towards a more performance-based risk management philosophy and clarified duty holders and their duties.

“The OHS Act works on a duty of care from the employer whereas the old coal safety legislation vested responsibility of safety in various persons,” McDonald said.

He said the legislation promoted and encouraged coal operators to have robust health and safety management systems in place.

It also introduced new requirements for the way in which coal operators are expected to ensure that their contractors are managing safety.

The legislative package also introduces to NSW coal mining for the first time a national plant standard detailing the duties and risk controls for high risk plant.

It also represents a move away from the department approving high risk activities or certain types of plant being used to a process whereby coal operators notify if they are going to undertake high risk activities and register high risk plant with the DPI.

“It is more of a notification and registration regime than an approval regime and will streamline the processes for coal operators,” McDonald said.

Main objectives of the legislation:

Progress towards closer alignment with OHS Act & OHS Regulation;

Clarify and bring greater certainty to the obligations of duty holders;

Support and encourage health and safety management systems;

Move from approvals to notifications, licensing and registrations; and

Contribute to securing safer coal workplaces.