Progress towards modernised workplace laws for the resources and major hazards facilities sectors in Western Australia

04 August 2016

The Consultation Regulatory Impact Statement (RIS) on the proposed Work Health Safety (Resources and Major Hazards) Regulations (model WHS Regulations) for Western Australia (WA) was released on 2 August 2016. The public comment period is now open and ends on 9 September 2016.

In 2015 the DMP consulted the mining, petroleum and major hazard facility (MHF) industries on the content of the proposed Work Health and Safety (Resources) Bill. Following this consultation, the WA Government decided to consolidate the work health and safety provisions for mining, petroleum and major hazard facilities (MHF) into one Act proposed to be called the Work Health and Safety (Resources and Major Hazards) Act. The Department of Mines and Petroleum (DMP) is now developing the model WHS Regulations.

This consultation

The process used by the DMP in preparing the model WHS Regulations is to review the national model Work Health and Safety Regulations and draft mining regulations for adoption in WA. Key principles are to remove highly prescriptive elements of the current regulations and focus on WA resources operations requirements with sections specific to mining, petroleum and MHFs as well as geothermal energy and greenhouse gas storage. Mr Ridge, Resources Safety  Executive Director says:

“As the resources sectors continue to transition towards a risk-based approach to health and safety, it is important legislation is less prescriptive and more adaptable to change. In addition to consolidating work health and safety provisions, the legislation is being modernised to help cater for new technologies and made more consistent across industries and between jurisdictions.”

Submissions are invited from parties interested in work health and safety using the cover sheet and template provided on the Marsden Jacob Associates website Marsden Jacob Associates. The DMP is seeking comment on the RIS criteria (both for the whole reform and the key changes) as well as any other changes that you consider significant but have not been specifically addressed in the paper.

If you prepare submissions you may request that they are kept confidential. All non-confidential submissions received in response to the Consultation RIS will be made available on the Marsden Jacob Associates website.

Overview of changes to the model WHS Regulations

The Consultation RIS for the model WHS Regulations identifies 33 key changes for mining, 6 key changes for MHF and 12 key changes for the petroleum and pipelines sectors. Broadly they propose:

Mining
  • Requirements for the commencement, suspension and closure of mines will be formalised.
  • Management and supervision positions will have additional requirements, including completing an approved health and safety risk management course and passing an applicable mining legislation test. Supervisors and ventilation officers will also be required to have a minimum of 2 years experience in similar operations.
  • Mine operators will be required to develop, maintain and implement a mine safety management system (MSMS) which must cover areas that will be prescribed and contractors will be required to operate under the MSMS or under their own developed safety management system (SMS) approved by the mine operator.
  • The risk management principles that businesses must use will be prescribed and will include requiring the application of the hierarchy of control and requiring risk assessments to be conducted by a competent person using appropriate methods.
  • Plant and structures will be managed using risk management principles.
  • New provisions dealing with live electrical work.
  • Exposure standards for atmospheric contaminants will be aligned to those published by Safe Work Australia.
  • Principal Hazard Management Plan (PHMP) are required an must cover all of the sites principal hazards and include:
  • Hazards associated with underground atmosphere
  • In rush and inundation
  • Geotechnical controls
  • Asbestos – in an asbestos management plan
  • Management plans will also be required for radiation, ground control, explosives management and site specific emergency management.
  • Hazardous chemicals will be required to be classified under the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) classification system.
  • In general, reference to the Australian Standards will be removed from the model WHS regulations.
MHFs
  • The operator of an MHF will need to be registered with the DMP and will have control of the overall facility and be responsible for the development and submission of the safety case.
  • The Safety Case will be required to cover work health and safety in addition to process safety to replace prescriptive controls and permit risk-based safety management.
  • A MHF will not require a dangerous goods licence as this will be covered by the Safety Case. However, the referenced provisions of the storage and handling regulations will still apply to assist the Department of Fire and Emergency Services to manage emergencies.
  • Dangerous goods incidents and reportable situations will be broadened to cover significant process safety incidents.
  • Operators will be required to report to the regulator every quarter on the status of injured employees, hours worked, number of workers and process lead/lag indicators.
Petroleum
  • Operators will be required to operate under a Safety Case and this will replace the Pipeline Management Plan (PMP). The Safety Case must describe the Design Basis (DB), Formal Safety Assessment (FSA), Safety Management System (SMS) and Emergency Response Plan (ERP).
  • The Minister’s consent will no longer be required to construct or operate a subsea pipeline as this will be managed under the Safety Case.
  • In the event a major accident event (MAE) that may affect the local community, the operator must notify relevant emergency service organisations, the local authority, and any person who may be affected. The definition of a MAE will be expanded to include impact on the general public.
  • Operators will be required to notify the DMP of pipeline operations to be performed under a Petroleum (Submerged Lands) Act (PSLA) title, and the regulator will then make a determination if the operation is appropriate to be covered under the model WHS provisions as a petroleum facility.

The consultation paper contains details of the issues raised in a number of consultation workshops on aspects of the proposed changes setting out the issues raised and the DMP’s report to each issue.

After the conclusion of the public comment period submissions will be analysed and a Decision RIS will be developed that examines each of the key changes as well as the impact of the proposed regulations as a whole.

A stakeholder forum will be held on 18 August 2016 and the DMP also plans to host workshops on the transitional arrangements on 25 August 2016. As currently proposed the transition periods vary from six months to up to five years. The shorter period relate to transition to become operators under the proposed WHS (R&MH) Act and requirements for construction induction certificates. The five year periods relates to safety cases, safety management systems (which is consistent with the five yearly review cycle currently in the relevant legislative provisions). Only a one year transition period is proposed for  MSMS to be in place. Two years are proposed for compliance with the additional training requirements for specified roles. To register your interest for either event, email whs@marsdenjacob.com.au 

What employers need to do

If you operate a business in Western Australia that comes under the Mines Safety and Inspection Act, Petroleum and Geothermal Energy Resources Act, Petroleum Pipelines Act, Petroleum (Submerged Lands) Act, Dangerous Goods Safety Act or Occupational Safety and Health Act (as it applies to MHF), you could consider the Consultation RIS and the likely impact of the proposed regulations on your business. If you are concerned about the impact you should make submissions in response to the discussion paper, as it is not clear that you will get any other opportunities to make submissions.

If you require assistance in preparing the submissions, we can help you.

This article was written by Sarah Harrison, Partner and Desiree Dyer, Solicitor

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