Health and safety workplace reform in mining and energy resources

Tuesday 9 July 2013

Author: Tim Clarke

​The Government has introduced a new Bill in response to the recommendations of the Royal C​​ommission on the Pike River Coal Mine Tragedy. The main purpose of the Bill is to bring health and safety in the New Zealand mining industry into line with international best practice. As well as changes aimed at the underground coal mining industry, the Bill also seeks to introduce a new health and safety agency.

The Health and Safety (Pike River Implementation) Bill

The Bill makes the legislative changes necessary to enable the Government to implement its response to the recommendations of the Royal Commission. The Bill passed its first reading on 27 June 2013 and has been referred to the select committee. The select committee is due to report back on 20 October 2013. The Bill has three parts.

WorkSafe New Zealand

Part 1 of the Bill seeks to improve workplace health and safety by creating a new Crown agency called WorkSafe New Zealand. Worksafe will be a new stand-alone agency with a dedicated focus on health and safety. The new entity will assume the operational functions currently undertaken by MBIE relating to workplace health and safety and energy safety.

MBIE will maintain responsibility for providing policy advice to the Government on health and safety matters.

Amendments to the Health and Safety in Employment Act 1992 (HSE Act)

Part 2 of the Bill amends the HSE Act to support the introduction of a new regulatory regime on the management of hazards in the mining industry. The new regime will primarily be contained in new mining regulations. The regulations will include processes for managing hazards; strengthened minimum standards; requirements for health and safety management systems; new safety-critical roles, and strengthened training and competency requirements.

Mines Rescue Act 2013

Part 3 of the Bill will repeal the Mines Rescue Trust Act 1992 and create a new Mines Rescue Act 2013. The new Mines Rescue Act is intended to better reflect the role and functions of the Mines Rescue Trust in providing specialist search and rescue services in mining emergencies. The Bill also extends cover of the service beyond coal mines to include underground metalliferous mines and certain tunnels.

Safe mines: safe workers discussion document

Earlier this year, the Government released a discussion document seeking feedback on a number of proposed changes to the mining industry.

The proposed changes included broadening the Royal Commission's recommendations to cover all types of mines, not just underground coal mines; introducing a new regulatory approach for mining requiring processes for hazard management; strengthening training and competency requirements for safety-critical roles; increasing worker participation in health and safety in mining operations, and improving emergency preparedness. Feedback on the recommendations closed on 1 July 2013.

Petroleum Exploration and Extraction Regulations 2013

The proposed reform of the mining industry follows the recent introduction of new regulations raising the standard for workplace safety in petroleum exploration and extraction.

On 30 June 2013, new Health and Safety in Employment (Petroleum Exploration and Extraction) Regulations 2013 came into effect, replacing the 1999 regulations. The new regulations are aimed at strengthening the management of hazards, as well as safeguards associated with drilling. This includes ensuring well integrity at every stage of an operation by requiring an installation safety case, a well operations notice and a well examination scheme.

Recent High Court decision on scope of principal's liability

On 1 July 2013, the High Court dismissed an appeal by MBIE against the decision of the District Court in DOL v Southroads Limited. That case concerned the scope of a principal's liability under the HSE Act, and whether the principal had taken all reasonably practicable steps by engaging an expert as a contractor.

The District Court Judge had noted that each case is a matter of fact and degree, and found in that case that there was no breach of the HSE Act by the principal in delegating responsibilities to a contractor. The Judge also comme​​nted that the obligations on a principal under the HSE Act could not have been intended to require a principal "to be an insurer".

The High Court dismissed the case on the grounds that it did not give rise to a question of law, but went on to consider the substance of the appeal. The High Court upheld the District Court decision and held that the factual conclusion was available to the Judge on the evidence. The High Court endorsed earlier commentary that the requirement to take all reasonably practicable steps does not require a counsel of perfection; that the principal had no reason in the circumstances of that case to assume that its contractor (an expert) would make a fundamental error; and that it is always a question of fact and degree as to whether delegation of responsibilities was appropriate.

The decision is noted for the Court's recognition that a principal and contractor may agree to shift responsibility for health and safety matters under contract. However, this does not mean that a principal can entirely escape the risk of liability and each case will ultimately turn on its own facts.

The author gratefully acknowledges the assistance of Rebecca Compson of the University of Otago in preparing this article.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Rob Towner

    Partner Auckland
  • Tim Clarke

    Partner Auckland
  • Rachael Brown

    Partner Wellington
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