1

Queensland's Mine

Safety Framework

Consultation Regulator

Impact Statement __________________________________________

Submission by

Vale Australia Pty Ltd

11th November 2013

2

1. Questions

I am making this submission:

( ) as an individual

(X) on behalf of a group or organisation (please specify) Vale Australia

( ) other (please specify) ___________________________

Are you one of the following?

( ) Mining company officer or chief executive officer

(X) Coal operator

( ) Site Senior Executive - coal

( ) Underground Mine Manager - coal

( ) Site Senior Executive - metalliferous

( ) Underground Mine Manager - metalliferous

( ) Mine manager or operator – metalliferous

( ) Quarry manager or operator

( ) Mine worker directly employed – coal

( ) Industry safety and health representative

( ) Site safety and health representative

( ) District worker representative

( ) Mine worker contractor - coal

( ) Mine worker directly employed - metalliferous

( ) Mine worker contractor metalliferous

( ) Mine worker directly employed - quarry

( ) Mine worker contractor - quarry

( ) Mining industry association

( ) Union employee

( ) Union representative

( ) Member of mining community

( ) University representative

( ) Industry training organisation

( ) Government employee

( ) Other

3

Contents 1. Questions ........................................................................................................................................................ 2

2. Executive Summary ......................................................................................................................................... 4

3. Vale Australia Summarised Position on RIS Issues .......................................................................................... 5

4. Consultation .................................................................................................................................................... 6

5. Evidence Based Decision Making .................................................................................................................... 6

6. Costing ............................................................................................................................................................ 9

6.1 Board of Examiners and Statutory Positions Cost Analysis 9 6.2 Estimated cost of individual statutory positions 10

7. RIS PROPOSALS ............................................................................................................................................. 11

7.1 Contractor Management 11 7.2 Statutory Positions and Competencies 11 7.3 Notification of High Risk Activities 15 7.4 Increased stone dusting and use of explosion barriers 15 7.5 Changes to Executive Officers 15 7.6 Penalties, offences and imprisonment provisions 16 7.7 Rights to Appeal through the court system 16 7.8 Additional Court Orders 16 7.9 Limited Periods for Prosecution 16 7.10 Obligations of designers, constructors, erectors and demolishers 16 7.11 Protection from reprisal provisions 17 7.12 Entry to any Workplace for Inspectors 17 7.13 Proactive Inspector Powers 17 7.14 ISHR Directive to Suspend Operations 17 7.15 Number of ISHR’s 18 7.16 SSHR Election Process 18 7.17 Fitness for Work 18 7.18 Mine Plans for Abandoned Mines 19 7.19 Removal of the Requirement to Submit Annual Coal Mine Plans 19 7.20 Coal Mine Workers Health Scheme 19 7.21 Obligations on Manufacturers and Suppliers 19 7.22 Confidential Complaints System 19 7.23 Codes of Practice 20 7.24 National Mine Safety Database and Notifiable Incidents 20 7.25 Mine Record 21 7.26 Release of Information Regarding Incidents by Regulators 21 7.27 Submission of SHMS Electronically 21 7.28 Employment of Statutory Officials 22 7.29 Introduction of the Tri-State Competency Advisory Council 22 7.30 Short Term Absences of Underground Mine Manager 22

8. ADDITIONAL ISSUES NOT COVERED BY THE RIS ............................................................................................ 22

8.1 Reference to the CFMEU in the Legislation 22 8.2 The definition and application of Standard Operating Procedures (SOP’s) 23 8.3 Implementation of Common SOPs 23 8.4 Definition of a Medically Treated Injury 25

4

2. Executive Summary

Vale Australia representatives have participated in various industry forums and working groups over

the past few years commencing with the National Mine Safety Framework (NMSF). While in support

of the harmonisation proposals, Vale Australia has continued to maintain the position that the

Queensland Coal Mining Safety and Health (CMSH) Act and Regulations are a superior, risk based

piece of legislation that was developed by industry, government and unions through tripartite

working groups and following some of the most tragic mining disasters experienced within Australia.

As indicated by the Counsel of Australian Government (COAG), Vale Australia continues to support

the key criteria that was set when commencing the harmonisation processes and it is with this

criteria that we have based our review of the Regulatory Impact Statement (RIS) and subsequent

submission:

1. No diminution of current safety standards

2. Minimise or eliminate cost impacts

3. No increase in regulatory burden unless corresponding increase in safety outcome

To summarise Vale Australia’s review on all of the issues presented within the RIS, the table over

page indicates our position on whether we support or oppose each of the RIS proposals.

In addition to the items covered within the RIS, within Section 7 of this submission, Vale Australia

has taken this opportunity to suggest further improvement opportunities to the existing legislation.

5

3. Vale Australia Summarised Position on RIS Issues

Issue Raised Support () or

Oppose () Comments or Recommendation

Contractor Management

Support in principle however industry involvement required in the

development of any drafting instructions to ensure issues such as the

definition of what “one SHMS” is and the practical application of this

requirement at the mine site

Statutory Positions and Competencies

Oppose in principle as it is inconsistent with a risk-based approach. Vale

Australia do however support the proposal for a prescribed certificate of

competency or qualification for a:

Ventilation Officer.

Notification of High Risk Activities Oppose as it is an increased regulatory burden, and adequate provisions

currently exist.

Increased Stonedusting and use of Explosion Barriers Support in principle on the proviso that a risk-based approach can be

applied at each individual coal mine.

Changes to Executive Officers

Penalties, Offences and Imprisonment

Rights to Appeal

Additional Court Orders

Limitation Period for Prosecutions

Obligations of Designers, Constructors, Erectors and Demolishers

Protection from Reprisal

Entry to any Workplace for Inspectors

Proactive Inspector Powers

ISHR Directive to Suspend Operations

SSHR Election

Fitness for Work

Mine Plans for Abandoned Mines

Requirement for Annual Coal Mine Plans

Coal Mine Workers’ Health Scheme

Obligations of Manufacturers and Suppliers

Confidential Complaints System

Codes of Practice

National Mine Safety Database and Notifiable Incidents

Mine Record

Release of Information Regarding Incidents

Submissions of SHMS Not practical and an increase in regulatory burden with no benefit to

safety and health.

Employment of Statutory Officials This is an employment and organisational issue versus a safety and health

issue.

Tri-State Competency Advisory Council

Short Term Absences of UMM

6

4. Consultation

The historical approach of consultation within our industry has been very mature, and proven in

most cases to be better resolved using the tripartite approach to address the serious issues that

have confronted us. Understanding of course that ‘consultation’ is not designed to gain consensus,

rather be a genuine attempt to consult with affected parties with the aim of reaching agreement.

Specific to the development of the RIS, Vale Australia holds significant concern about the lack of

consultation that has occurred during the harmonisation process. It is our opinion that there has

been at best, minimal consultation and tripartite involvement with the industry (and union). It is our

opinion that we are being manoeuvred into pre-determined outcomes by the Inspectorate with an

inadequate amount of time or forums to effectively undertake a comprehensive review of the

limited information and evidence provided within the RIS document.

To progress with any legislative changes, we strongly support the recommendation of a suitable

tripartite process being established that includes the participation of content experts from within

the industry and regulator and involves the analysis of both accurate and current data.

5. Evidence Based Decision Making

The short timeframes at which the RIS has been moved along and the limited details or evidence

provided is a great concern and one where a more systematic, data-based process needs to be

adopted. Most of the data contained within the RIS lacks credibility with respect to accuracy and

correlation of data. The use of Lost Time Injury data is considered inappropriate as evidentiary

justification for legislative change.

The Lost Time Injury data that has been referenced has little to no correlation with the

recommended changes in the legislation and very little can be used as definitive reference material.

It should be acknowledged that there have been a number of repeat incidents of a high potential

nature. This increase in High Potential Incident Frequency Rate (HPIFR) from 5.3 in 2000 to 22.5 in

2012 is widely agreed and understood to be related to a substantial improvement in reporting as

opposed to an industry with declining safety performance.

In the corresponding period, the Lost Time Injury Frequency rates decreased from 11 to 4 (a

decrease of some 64 per cent).

In the corresponding period Lost Time Injury Severity rates dropped from 168 to 128 (a decrease of

some 24 per cent).

On review of the HPIs provided within the RIS presentations as evidentiary examples supporting the

change to legislation, a review was undertaken to determine what, if any correlation existed

between these HPIs and the RIS Components. Refer to the following table:

7

In addition, a number of other proposals indicated in the RIS are not included as a result of evidence

and data which demonstrates an improvement in safety, but as a result of negotiations made

between QLD and NSW regulators during the harmonisation process. This also brings into question

the evidence and data which support the case for change for all proposed items.

Throughout the facilitated DNRM Roadshows conducted after publication of the RIS, it was

continually reinforced that Industry’s submissions to the Government must be “evidence-based”.

Vale Australia does not believe that the same evidence based approach has been adopted by the

regulator in the development of the RIS. It is our strong belief that the RIS is based on data that is

unsound or where there is no discernible relationship between the data and the suggested changes.

In addition, the RIS has used the reduction in productivity as a result of lack of competence, as

justification to for the proposal of increased Statutory Positions. We believe the way the calculations

on productivity were undertaken are inaccurate and it is also inappropriate to use this data as it

does not meet the criteria as established for the review (refer COAG Criteria). We also believe that

the RIS conclusion that additional positions will increase productivity to be both reckless and ill

founded.

In contrast to the statistics and data provided within the RIS, the following table from Safe Work

Australia demonstrates how the mining industry fairs alongside other industries in the area of

workplace fatalities:

RIS Component and Stated Evidence

Ind

ivid

ual

Beh

avio

ura

l

Ris

k

Inte

rnal

Syste

mic

Issu

e

Co

ntr

acto

r M

an

ag

em

en

t

Incre

ased

Sta

tuto

ry R

ole

s

Fit

ness f

or

Wo

rk

Heath

Sch

em

e

Sin

gle

SH

MS

Imp

roved

En

forc

em

en

t o

f

Exis

tin

g R

eg

ula

tio

ns (

Min

e

sit

e a

nd

DN

RM

)

Non authorised personnel issued with methanometer keys and using them to bypass gas

monitors on equipment in gassy environments.

Deputies not carrying out inspections before repowering districts or starting auxiliary fans

Numerous diesels discovered with methanometers bypassed Electrician opening FLP

enclosure and working on live equipment in an ERZ zone

A contractor caught smoking underground

A deputy running and attempting to start a vehicle in a return when the gas concentration

was over the prescribed level

Numerous frictional ignitions through mismanagement – non compliance

with the SHMS.

Non technically qualified personnel involved in risk assessments leading

to a battery being changed on a ram car in an ERZ

Contract tunneling company now working in coal found to have three

times the silica limit when personnel monitors were fitted

Electrician repowered panel before deputy had inspected the panel

Emergency stop defeated on a continuous miner

Inexperienced crews – most experienced 10 months

Numerous incidents where over the proscribed limit of methane has

coursed through underground workings

8

On review of this available data, it can be concluded that mining is in fact in a steady state of safety

performance and over the previous decade has continued to site in the middle range for injury

compensation claims. It is obvious to conclude that these statistics have not been utilised in the RIS

as they do not appear to support the overall position proposed by the regulator to enact change.

0

10

20

30

40

50

60

70

80

Worker deaths 2012

Worker deaths year-to-date 2013

Safework Australia - Year-to-date 2013:

worker deaths by industry of workplace

9

6. Costing

The costs to implement the changes indicated within the RIS have been grossly under-estimated and their inaccuracy was reinforced during the RIS

Roadshow Presentations where the DNRM confirmed that it “was not explicitly modelled due to lack of data”. It was also confirmed during these

presentations that these costs were based on “how much it is to get there and not how much to sustain”.

To reinforce this under-estimation on just one of the RIS proposals, a cost analysis was undertaken with the proposed increases with statutory positions and

competencies (noting that the DNRM RIS estimate was indicated at just $2.6M over a ten year period for industry):

6.1 Board of Examiners and Statutory Positions Cost Analysis

VariableUnderground

SSE

Underground

Mine ManagerUndermanager Deputy

Electrical

Engineering

Manager

Mechanical

Engineering

Manager

Ventilation

Officer

Ventilation

AuditorMine Surveyor Fire Officer

Roadway Dust

SamplerSupervisor

Shot Firer

(person

handling

explosives)

Total costs for

Underground Coal from a

Zero Base

Existing Role (Requiring Competencies)

New Role

How Many Required at a Mine 2 2 5 28 2 2 2 2 2 2 26 10

How Many Required in the Industry 26 26 65 364 26 26 26 26 26 26 336 130

New Competencies Required

Required Competencies RII60309 RII60309 RII50909 RII40411 Multiple Not specified RIIUND603A Not specified Degree + RIISDM501A NA Not specified NA NA

Time Required for Study (Days) 52 52 52 52 NA 52 48 15 NA 4 15 3 5

Cost of Time for Study $ 52,000 $ 52,000 $ 42,740 $ 29,490 NA $ 37,753 $ 33,140 $ 8,877 NA $ 2,268 $ 8,877 $ 2,466 $ 4,110

Course Cost $ 33,600 $ 33,600 $ 15,280 $ 8,800 NA $ 33,600 $ 18,900 $ 22,600 NA $ 1,500 $ 22,600 $ 800 $ 1,130

BoE Examination Required Currently NA NA NA NA

BoE Examination Required - Proposed NA NA NA NA

Time Required for for BoE Preparation 13 13 13 13 NA 13 8 5 NA NA 5 NA NA

Cost of BoE Preparation (Days) $ 13,000 $ 13,000 $ 10,685 $ 7,373 NA $ 13,000 $ 4,734 $ 2,959 NA NA $ 2,959 NA NA

Backfill Cost $ 78,000 $ 78,000 $ 64,110 $ 44,236 NA $ 78,000 $ 39,768 $ 10,652 NA $ 2,268 $ 10,652 $ 2,959 $ 4,932

BoE Examination Cost NA NA NA NA NA

Total Cost per Person $ 176,600 $ 176,600 $ 132,814 $ 89,899 NA $ 162,353 $ 96,542 $ 45,088 NA $ 6,037 $ 45,088 $ 6,225 $ 10,172

Total Cost for Industry $ 4,591,600 $ 4,591,600 $ 8,632,926 $ 32,723,101 NA $ 4,221,189 $ 2,510,090 $ 1,172,279.45 NA $ 156,962 $ 1,172,279.45 $ 2,091,600 $ 1,322,360 $ 19,790,273.97

Variable Surface SSESurface Mine

Manager

Open Cut

Examiner

Electrical

Engineering

Manager

Mechanical

Engineering

Manager

Mine Surveyor Supervisor

Shot Firer

(person

handling

explosives)

Total costs for Surface

Coal from a Zero Base

Total costs for Coal from a

Zero Base

Existing Role (Requiring Competencies)

New Role

How Many Required at a Mine 2 2 4 2 2 Varies 55 10

How Many Required in the Industry 76 76 152 76 76 Varies 2087 380

New Required Competencies

Required Competencies RII60309 RII40209 Multiple Not specifiedDegree +

RIISDM501A

Time Required for Study (Days) NA 52 52 NA 52 NA 3 5

Cost of Time for Study NA $ 52,000 $ 29,490 NA $ 37,753 NA $ 2,466 $ 4,110

Course Cost NA $ 33,600 $ 8,800 NA $ 33,600 NA $ 800 $ 1,130

BoE Examination Required Currently NA NA NA

BoE Examination Required - Proposed NA NA NA

Time Required for for BoE Preparation NA 13 13 NA 13 NA NA NA

Cost of BoE Preparation NA $ 13,000 $ 7,373 NA $ 13,000 NA NA NA

Backfill Cost NA $ 78,000 $ 44,236 NA $ 78,000 NA $ 2,959 $ 4,932

BoE Examination Cost NA NA NA NA NA

Total Cost per Person NA $ 176,600 $ 89,899 NA $ 162,353 NA $ 6,225 $ 10,172

Total Cost for Industry NA $ 13,421,600 $ 13,664,592 NA $ 12,338,860 NA $ 12,991,575 $ 3,865,360 $ 56,281,987 $ 76,072,261

10

When considering the data listed above, it is also important to highlight that there will need to be

considerable work and further cost associated with expanding and improving the current BoE so that

it can effectively and efficiently manage the significant increase with required certification, especially

when considering they have only certified 13 First Class Mine Managers and 11 Undermanagers in

the previous eight years.

6.2 Estimated cost of individual statutory positions

Annual Certificates Issued (Excludes Mutual Recognition) 2003 - 2004 2004 - 2005 2005 - 2006 2006 - 2007 2007 - 2008 2008 - 2009 2009 - 2010 2010 - 2011

First Class Mine Manager's Certificate of Competency 0 3 4 0 2 1 1 2

Undermanager 4 2 2 1 0 1 1 0

Deputy 26 19 46 26 22 27 19 28

Reference Material

Queensland’s coal – mines and advanced projects

Board of Examiners Annual Reports 2003 - 2011

DNRM Annual HS Performance Reports 2001 - 2011

Skills DMC Website

Various RTO Websites

Assumptions

Dust Sampler Costs have been assumed to be that of a Ventilation Auditor

Mechanical Engineer costs equivalent to First Class Mine Managers Certification

Mechanical Engineer full annual salary (including on-costs) $265,000

Backfilling has 20% 'Casual' surcharge

Mineworker full annual salary (including on-costs) $207,000

Underground Mine Manager full annual salary (including on-costs) $365,000

Deputy full annual salary (including on-costs) $300,000

Undermanager full annual salary (including on-costs) $325,000

S1, S2, S3 - 3 days - $800

G2 - 4 days - $1,190

G3 - 5 days - $2,500

13 Underground Mines

38 Open Cut Mines

Ratio Supervisor to Worker 1:10 Underground (Supervisors excludes Deputies)

Ratio Supervisor to Worker 1:15 Open Cut

Costs AQF Costs

Study

Time

(Days)

BOE

Preparation

(Days)

Salary while

studying

Salary for

backfillingTotal Costs Back-filling costs

Costs to achieve Third Class Mine Managers

Certificate8800 52 13 $ 36,863 $ 44,236 $ 104,546

Costs to achieve Second Class Mine Managers

Certificate15280 52 13 $ 53,425 $ 64,110 $ 147,462

Costs to achieve First Class Mine Managers

Certificate33600 52 13 $ 57,877 $ 69,452 $ 178,695

Costs to achieve Ventilation Officer

Certificate18900 48 8 $ 33,140 $ 39,768 $ 109,573

Costs to achieve Surface Mine Managers

Certificate33600 52 13 $ 57,877 $ 69,452 $ 179,523

Mineworker full annual salary (including on-

costs) $207,000 (Average)

Deputy full annual salary (including on-costs)

$300,000

Undermanager full annual salary (including

on-costs) $325,000

Underground Mine Manager full annual

salary (including on-costs) $365,000

Ventilation Officer full annual salary

(including on-costs) $216,000 (Average)

S1, S2, S3 800 3 $ 2,466 $ 2,959 $ 6,225

G2 1190 4 $ 3,288 $ 3,945 $ 8,423

G3 2500 5 $ 4,110 $ 4,932 $ 11,541

Shotfirer 1130 5 $ 4,110 $ 4,932 $ 10,171

Support Shotfirer 1130 2 $ 1,644 $ 1,973 $ 4,746

11

7. RIS PROPOSALS

7.1 Contractor Management

This change in principle is SUPPORTED by Vale Australia however there remains concerns with the

practical application of this requirement, and industry has requested for quite some time

clarification specifics such as the definition of a single SHMS and how to apply the requirement.

Vale Australia recommends that an industry working group consisting of representatives from mines,

contractors, the inspectorate and those holding statutory responsibilities in relation to the SHMS be

formed under the advisory committees to develop the detail proposed within the RIS to ensure it

will function in practice.

Vale Australia does NOT SUPPORT the additional requirement/statement regarding training and

induction; this is already covered under CMSHR Part 11 and is relevant to all coal mine workers.

7.2 Statutory Positions and Competencies

Vale Australia does NOT SUPPORT the introduction of the majority of statutory positions being

proposed within the RIS along with the escalation of existing competency positions to BoE certified

or examinable positions.

Our opposition to this proposal is based on the following:

It is inconsistent with a risk-based approach

There have been no safety cases for any of the positions excluding the Ventilation

Officer and Radiation Officer positions

The current existing powers are not being utilised by the Inspectorate resulting in

regulatory failure

There are already alternative qualifications and recognition in place for some positions

The Board of Examiners are unable to scale up to meet both the current and proposed

demand

The cost to industry has been grossly under-estimated

In general terms, this proposal fails to adequately demonstrate that there is a safety and health

concern that would be best addressed via the introduction of additional statutory positions and

competencies. Vale Australia is concerned that the arbitrary introduction of most of these roles

actually has significant potential to diminish our safety standards in Queensland versus providing any

clear improvement in safety outcomes.

7.2.1 Board of Examiners

It is concerning that the process whereby it is acceptable for a person without equal or higher

qualifications and/or appropriate Trainer and Assessor qualifications is able to conduct examinations

is unique to the mining industry. Vale Australia believes that without revising the criteria for

members of the BOE to align with accepted practice, we do not support any additional BOE

practising certificate requirements.

By way of example, the BoE do not have the competency requirements for the Ventilation Officer,

Electrical Engineering Manager (EEM) and Mechanical Engineering Manager (MEM). If the BOE are

to continue issuing practising certificates, they should align with recognised protocols as required for

Recognised Training Organisations.

12

Vale Australia recommends that a review of the necessity for a BoE be conducted, and if the BoE is

to continue, it is the subject of an independent review of process and complete restructures to

ensure alignment with similar recognised frameworks.

7.2.2 Review of individual positions proposed within the RIS

Position Comments

COAL UNDERGROUND

Site Senior Executive (SSE) CHANGE OPPOSED

Oppose the additional requirement for an Underground SSE to have a First

Class Certificate based on:

Apart from the very subjective concerns raised by the Inspectorate,

there have been no discernible issues or risk-based analysis to justify

such a change.

Within current legislation, the SSE can ensure they have adequate

resources, competencies and skills to development and implement

the SHMS at the mine through the management structure.

This proposal will also add significant cost, bureaucracy and burden

to the industry through the requirements for training, ticketing,

recruiting, back-filling, salary and associated on-costs. Vale Australia

does not believe this cost is justified through any demonstrated

improvement to safety standards.

Undermanager CHANGE OPPOSED

Oppose the reintroduction of the statutory position of Undermanager for

underground coal mines based on:

There have been no discernible issues to warrant such a change.

The only apparent justification within the RIS is to align with the

current positions under NSW legislation, which Vale Australia does

not believe is adequate justification

This would add yet another layer of “controlling and managing” the

underground mine

This change also adds additional layers of statutory and ticketed

personnel and to elevate this competency one level up in the

organisational structure doesn’t remove the contradiction that the

UMM still has people reporting through to them with different

competencies than those held by the UMM.

This proposal will also add significant cost, bureaucracy and burden

to the industry through the requirements for training, ticketing,

recruiting, back-filling, salary and associated on-costs. Vale Australia

does not believe this cost is justified through any demonstrated

improvement to safety standards

13

Position Comments

COAL UNDERGROUND

Electrical Engineering

Manager (EEM)

CHANGE OPPOSED

Opposed based on:

Positions such as this are only attainable to personnel with specific

tertiary qualifications and Electrical Engineers are registered under

Engineers Australia and the Board of Professional Engineers

Queensland. To have positions made statutory and certified by the

BoE is a clear duplication of these existing requirements.

There have been no discernible issues or risk-based analysis to justify

such a change.

The BOE is currently not equipped to conduct oral and written

examinations to the extent which would assess the technical

competence of this role

This proposal will also add significant cost and Vale Australia does

not believe this cost is justified through any demonstrated

improvement to safety standards.

Mechanical Engineering

Manager (MEM)

CHANGE OPPOSED

Opposed based on:

The majority of MEM roles are filled with long-term employees who

have worked their way up in the industry from trade positions. This

requirement would significantly impact the resource pool from

which these roles could be filled.

There have been no discernible issues or risk-based analysis to justify

such a change.

The BOE is currently not equipped to conduct oral and written

examinations to the extent which would assess the technical

competence of this role

This proposal will also add significant cost and Vale Australia does

not believe this cost is justified through any demonstrated

improvement to safety standards.

Ventilation Officer (VO) CHANGE SUPPORTED

Supported based on:

Vale Australia believes this proposed change has merit based on a

risk-based approach.

It needs to be noted however that the BoE is currently not equipped

to conduct the oral and written examinations which would assess the

technical competencies of this role and that changes within the BoE

would be needed prior to implementing this change.

Roadway Dust Sampler CHANGE OPPOSED

Opposed based on:

This requirement is catered for under Part 11 (establishing training

needs).

14

Position Comments

COAL UNDERGROUND

Ventilation Engineer / Auditor CHANGE OPPOSED

Opposed based on:

This requirement is catered for under Part 11 (establishing training

needs).

COAL SURFACE

Surface Mine Manager CHANGE OPPOSED

Opposed based on:

Apart from the very subjective concerns raised by the Inspectorate,

there have been no discernible issues or risk-based analysis to justify

such a change.

To address concerns earlier this year from the Inspectorate, an industry

working group was formed to discuss the issue and possible alternatives to

the introduction of a Surface Mine Manager of which a Vale representative

participated in. This Working Group concluded that all open cut mines would

require this position within their management structures and that the

competencies for managing surface operations will vary between mines for a

variety of reasons which included:

A mine may have all relevant management competencies and

requirements filled by the SSE and OCE, and may not need a Surface

Mine Manager to sit in between these roles.

In the case of smaller mines it is impractical and unreasonable to

impose a requirement for a position that is not justified either by the

size or complexity of the surface mining operations at the site.

For many mines where there is an intermittent need for a higher

level of competency, for example when a new system is being

established, the SSE may choose to engage a contractor to do so.

The process for setting the management structure and determining

the required competencies associated with surface mining activities

should be flexible enough to cater for the variable risks associated

with individual sites.

15

Position Comments

COAL SURFACE

Mechanical Engineering

Manager (MEM)

CHANGE OPPOSED

Opposed based on:

The majority of MEM roles are filled with long-term employees who

have worked their way up in the industry from trade positions. This

requirement would significantly impact the resource pool from

which these roles could be filled.

There have been no discernible issues or risk-based analysis to justify

such a change.

The BOE is currently not equipped to conduct oral and written

examinations to the extent which would assess the technical

competence of this role.

This proposal will also add significant cost and Vale Australia does

not believe this cost is justified through any demonstrated

improvement to safety standards.

7.3 Notification of High Risk Activities

Vale Australia does NOT SUPPORT the proposal to include a schedule of high-risk activities for which

the Chief Inspector may require notification on the basis that the proposal is an additional regulatory

burden that will not provide improvement to safety performance.

In addition, the current inspectors’ powers already allow them to impose such a requirement if

required and this is acknowledged within the RIS itself (page 91) where it states “it is arguable that

under the Acts (CMSHA and MQSHA), our inspectors could already require production of documents

in relation to managing high risk activities, under their general powers to require production of

documents”

7.4 Increased stone dusting and use of explosion barriers

Vale Australia does in principle, SUPPORT the proposal to install explosion barriers and to stone dust

roadways after each 30 metres that the roadway advances during coal production as recognition of

the catastrophic risk that is present with coal dust explosions.

This support is on the provision however that the implementation of these changes is facilitated

through a risk-based approach that ensures full engagement and ownership at the mine to continue

managing the risk.

It is important to also highlight that Vale Australia believes the RIS has significantly under-estimated

the actual cost impacts at most of the productive mines and that to spread the cost across all mines

as an increase per tonne is not adequately recognising the greater cost impacts to individual mines.

7.5 Changes to Executive Officers

Vale Australia does NOT SUPPORT the proposal of changes to executive officers to adopt the WH&S

Act definition. This is based on yet another example of the RIS creating additional unnecessary

statutory obligations.

16

Vale Australia does SUPPORT the proposal to remove the blanket liability, reverse onus provisions in

the two Acts and support the standard provisions in the DRLA Bill being inserted into the Act, given

the evidence from the Bill that this would be consistent with broader Government Policy.

The Inspectorate has also foreshadowed introducing amendments to prevent directors and officers

from accessing directors and officer’s liability insurance in respect of breaches of their obligations.

The RIS suggests that if officers are discharging their duties, then they should have nothing to worry

about. This is inappropriate and strongly opposed with at the very least, directors and officers being

permitted to access D&O liability insurance to cover legal expenses.

7.6 Penalties, offences and imprisonment provisions

Vale Australia does NOT SUPPORT the proposal to adopt the higher penalties, offences and

imprisonment provisions of the WH&S Act. There is no evidence that the Courts have been limited

by the existing sentencing regimes and the RIS has failed to demonstrate that increased maximum

penalties will otherwise achieve greater safety outcomes. Additionally there is no evidence since the

introduction of the WH&S Act 2011 that increased maximum penalties have had any effect, and

levels of actual penalties imposed have reduced.

7.7 Rights to Appeal through the court system

Vale Australia does SUPPORT this proposal to introduce rights to appeal through the court system

either directly or after appeal to the Industrial Magistrate. The preferred approach is to establish

appeal rights under the Justices Act 1886 which is a well understood procedure that will maintain

consistency with other appeal processes.

7.8 Additional Court Orders

Vale Australia does NOT SUPPORT the proposal to introduce additional court orders such as training

adverse publicity orders on the basis that there is no evidence to support the RIS statement that “a

greater range of possible court orders will motivate better safety standards than only imposing

financial penalties or imprisonment after a serious breach of the legislation.”

7.9 Limited Periods for Prosecution

Vale Australia does NOT SUPPORT the proposal to introduce longer limitation periods for

prosecutions as no evidence is given in its support, nor is any explanation given as to why the

Inspectorate needs an extraordinarily long period of time to investigate a suspected contravention.

It is also inconsistent with the proposal to release important information about health and safety

related incidents as soon as practicable. Vale Australia proposes that the approach should be a time

limit commencing from the date of the incident, or from the date the regulator (as a whole)

becomes aware of the incident. This introduces certainty as all parties will know when time has

commenced, either from the date of the incident or when notice is given. On that basis, a time

period of two years could be appropriate. If the Inspectorate is incapable of achieving those time

limits, then whatever is causing that lack of capability should then be addressed.

7.10 Obligations of designers, constructors, erectors and demolishers

Vale Australia does SUPPORT the proposal in principle on the proviso that appropriate working

groups are formed to ensure that the amendments will not conflict with other laws relating to

building standards and approvals.

17

7.11 Protection from reprisal provisions

Vale Australia does NOT SUPPORT the proposal to introduce protection from reprisal provisions

from the WH&S Act 2011 on the basis that there is no evidence to support it and because it is

inconsistent with government policy to reduce legislation. Existing provisions already give ample

regulatory protection from reprisals.

Persons who provide information to the Inspectorate currently have three levels of legislative

protection from reprisals under the CMSHA. Vale Australia is of the view that the existing legislative

provisions already give a person who provides information to the Inspectorate ample regulatory

protection from reprisals.

Broader anti-discrimination and employment legislation also provides additional protections through

the Commonwealth’s Fair Work Act 2009 and Public Interest Disclosure Act 2013 as well as

Queensland’s Anti-Discrimination Act 1991 and Public Interest Disclosure Act 2010 protects

disclosure of information

7.12 Entry to any Workplace for Inspectors

Vale Australia does NOT SUPPORT the proposal to expand the powers of entry to any workplace for

Inspectors. This is opposed on the basis that there is no safety case established that confirms the

additional powers are necessary. There are existing mechanisms whereby Inspectors can gain access

to a general work site in cooperation with the WH&S Inspectors, or by requesting consent. There has

been no evidence provided to demonstrate the current provisions are inadequate and that this

would increase safety standards.

7.13 Proactive Inspector Powers

Vale Australia does NOT SUPPORT the proposal of introducing proactive inspector powers on the

basis that there has been no evidence provided to demonstrate that the current provisions are

inadequate and that this would improve safety performance. Again, there are already existing

provisions for an Inspector to issue a directive to any person to take corrective or preventative

action to prevent a risk from reaching an unacceptable level.

7.14 ISHR Directive to Suspend Operations

Vale Australia fully SUPPORTS Option 2 within the RIS being to “provide that ISHRs and DWRs will

have a role in the notification of potential risks but will not be able to issue a directive to suspend

operations”.

Under this option, ISHRs and DWRs would have a role in notifying potential risks but would not be

able to issue a directive to suspend operations. ISHRs and DWRs would retain all other powers and

can still proactively advise SSEs and inspectors of inadequate or ineffective safety and health

management systems. If an ISHR or DWR is on site at the time of an imminent or immediate danger,

they should advise workers under existing provisions in the CMSHA or MQSHA to withdraw to a

place of safety, if the workers are not competent or able to eliminate the danger, any worker,

including an ISHR or DWR, can also advise site safety and health representatives at the mine who

may stop operations under existing provisions in the CMSHA or MQSHA, if there is an imminent or

immediate danger.

18

7.15 Number of ISHR’s

Vale Australia SUPPORTS the proposal to increase the number of ISHR’s from three to four subject to

the following:

Removal of the s167 Directive Power

A focus on only their functions as stated in the legislation

Consideration on re-balancing to have two ISHR’s with Underground experience and

qualifications (Deputies Certificate) and two with Open Cut experience and

qualifications (Open Cut Examiners Certificate)

7.16 SSHR Election Process

Vale Australia SUPPORTS the proposal to amend the SSHR election process and to retain the current

legislative requirements for SSHRs and safety committees rather than replacing them with the

provisions from the Model Act.

We support, in principle the proposal to streamline elections by removing the Chief Inspector

approval before an election is held. Vale Australia does however oppose the proposal to involve the

AEC after a single objection. It is recommended that workers can object to the Chief Inspector after

the election only if the process was flawed who could then direct another election to be held by the

AEC.

It is important to emphasise that SSHRs are intended to represent every coal mine worker, not just

those that are members of an industrial union. When utilised correctly they can make a significant

positive contribution to the SHMS of the mine, and many do exactly that. As discussed elsewhere

within this submission, the SSE also has an obligation to develop and implement the safety and

health management system for all persons at the mine. Vale Australia strongly believes that the only

way the SSE can meet such an obligation is to ensure that the process for selecting an SSHR provides

every coal mine worker an equal opportunity to participate in the process.

7.17 Fitness for Work

Vale Australia SUPPORTS the proposed changes to the fitness for work provisions in the mine safety

and health legislation which will allow for the SSE of coal mines to manage risks associated with the

fitness of workers in the same way as all other hazards on a mine site by:

Amending s42 CMSHR to follow the s10 process and have these developed in the same

way that SOPS are developed for other hazards at the mine

Removing the need for an agreement with a majority of the workforce for criteria for

assessment (i.e. remove the need by deleting section 42(6)(A) of the CMSH Regulations

Revoking Recognised Standard 07 allowing SSEs to implement appropriate drug testing

regimes

Provide SSEs with the authority to request a worker to attend a medical assessment

Vale Australia considers that the CMSH Act and subordinate instruments have become far too

prescriptive on the issue of workers’ fitness for duty and there are no other high risk industries, even

including Queensland’s metalliferous mining industry, who are hampered in this way.

19

It is also important to note that in conducting such reviews of process or procedure, you cannot rely

on opinions of majority; that will clearly be subject to bias, in that it represents convenient views

around what is tolerable in society and is not relevant to their occupation or the risk.

7.18 Mine Plans for Abandoned Mines

Vale Australia SUPPORTS the RIS proposal to require operators to submit mine plans when a mine

becomes non-operational temporarily or if it goes into receivership, as well as when it is abandoned,

to allow proper assessment of the post use risks. This proposal is a potential contributor to health

and safety outcomes.

7.19 Removal of the Requirement to Submit Annual Coal Mine Plans

Vale Australia does NOT SUPPORT the proposal to remove the requirement for the submission of

annual mine plans as it is important to retain a central repository for:

Better managing interaction risks that can exist between new workings and old

workings

Providing potentially valuable exploration data

This proposed change is considered a reduction in current safety standards.

Vale Australia does however SUPPORT the change to generally require maps to be submitted

electronically, provided that DNRM has an appropriate system.

7.20 Coal Mine Workers Health Scheme

Vale Australia does SUPPORT the proposal to focus Coal Mine Workers Health Scheme on industry

monitoring and on the basis that:

If it is a matter of fitness to work in the industry, it falls under employment law

jurisdiction and is decoupled from the safety and health legislation

If it is a matter of harm caused to a Coal Mine Worker as a result of their employment

(caused or arising out of employment), it is health and safety jurisdiction and at a

department level should be monitored and at a mine level should be managed through

workers compensation and rehabilitation processes

If it is a matter of ongoing fitness and capability to perform a role in the industry it is

again an employment law jurisdiction

7.21 Obligations on Manufacturers and Suppliers

Vale Australia SUPPORTS the introduction of these obligations as this proposal is a potential

contributor to health and safety outcomes.

7.22 Confidential Complaints System

Vale Australia does NOT SUPPORT the introduction of a new complaints system on the basis that the

resources industry has a culture of information sharing and an already established appropriate

complaints process.

20

Vale Australia notes Recommendation 2 of Coroner Hennessey when publishing the finding into the

Blee Inquiry, and suggests this could be a potential means for fostering greater information sharing

and furthering the development of an effective safety culture within the industry:

Recommendation 2: That the Minister for Mines give serious consideration to

amendment of the Coal Mining Safety and Health Act to provide for tripartite

investigations involving the employer/coal mine operator, Department and ISHR, into

serious accidents involving grievous bodily harm and all fatal incidents. Further,

consideration be given to amending the Act to ensure that all material generated as

a result of such investigation including but not limited to all statements, reports,

diagrams, digital images and recordings be privileged such that they cannot be used

by any person (including the Department) in any proceeding under the Act, any other

statute or the common law, other than a Coronial hearing.

If the government wants to further the confidence of people to openly discuss why incidents occur

and how they can be avoided in the future, then those that make disclosures should be given the

confidence that their words will not be used against them.

7.23 Codes of Practice

Although not called out as an issue for specific consultation, the RIS does makes several references

to the replacement of Recognised Standards and “guidance material” by Codes of Practice. This was

reinforced during the RIS Roadshow Presentations where the DNRM confirmed on numerous

occasions that CoPs would replace the existing Standards and Guidance Material.

Vale Australia has significant concern that the creation of mining specific codes of practice, and the

potential to call up other codes could mean an extra layer of prescription is introduced by stealth.

It is important for industry to understand what Codes of Practice are designed for and how this does

not fit neatly with how Recognised Standards have been developed and the actual purpose for their

existence.

None of these codes should be automatically applied. The purpose and need for every draft code

that has been or will be developed under the umbrella of the NMSF must be the subject of

subsequent extensive and targeted consultation with the Queensland Mining Industry.

Particular concern is expressed over the potential for QGN16 on Fatigue to become a Code of

Practice as this has the potential to bring the Industry to an unnecessary standstill with no actual

consideration of risk management.

Vale Australia recommends that a tripartite group be assembled to review the current lists of

Guidance Notes, Guidelines and Recognised Standards with the view to removing most of those that

currently exist and those that have been in abeyance since the introduction of the new legislation

(due to their misalignment with what a Code of Practice is for).

7.24 National Mine Safety Database and Notifiable Incidents

Vale Australia SUPPORTS the introduction of a national mine safety database in principle provided

that there is no duplication with current requirements of an increase in costs.

21

7.25 Mine Record

Vale Australia does NOT SUPPORT what the RIS has incorrectly stated as “minor additions” to the

Mine Record on the basis of it adding further resource requirements for no additional safety benefit.

The items listed as “minor” will significantly increase the amount of work assigned to managing the

Mine Record. There is clearly some confusion with the actual requirements for a mine record, as

prescribed in legislation, and a records management process which would be contained in all SHMS.

Vale Australia therefore recommends that the provision for the mine record is not changed, but an

additional requirement be included for the SHMS to include an appropriate records management

process.

7.26 Release of Information Regarding Incidents by Regulators

Vale Australia SUPPORTS the proposal, provided that there is no intention to introduce a formal

system of disciplinary proceedings for certificate holders as appears to be inadvertently suggested in

the RIS.

The RIS proposes “minor additions to current Queensland provisions to give statutory backing to the

release of safety alerts and information about disciplinary proceedings in relation to practising

certificates”. Following discussion with DNRM officers, it appears that the reference to “disciplinary

proceedings in relation to practising certificates” was an error and does not reflect any intention to

introduce such proceedings. Vale Australia has been informed that this proposal is only intended to

facilitate early information flow after an incident while protecting the Regulator from any

proceedings against it for the release of that information.

7.27 Submission of SHMS Electronically

Vale Australia does NOT SUPPORT the proposal to amend legislation to require all coal mine

operators to submit to the District Inspector of Mines electronically a copy of the SHMS for the

operation. The document would have to be updated annually by the coal mine operator and any

amendments submitted by the required date upon the written request of the Chief Inspector to the

Site Senior Executive.

Compliance to this requirement is actually physically impossible and unacceptably onerous. The

SHMS of any developed mine can house thousands of documents, forms, reports, inspections,

audits, injury and incident information, rehabilitation, pre-start, maintenance records, permits,

appointments, etc. It is unrealistic and unacceptable to require a coal mine to put this together in an

electronic format.

To make this provision more sensible would necessitate the introduction of a definition of what a

safety and health management system is for the purposes of annual reporting. If this proposal is to

be progressed, Vale Australia recommends that only the following documents be submitted annually

for this purpose:

Principal Hazard Management Plans

SOPs as required by regulation

Management Structure

Safety and Health Management Manual/Plan

Emergency Management Plan

22

7.28 Employment of Statutory Officials

Vale Australia does NOT SUPPORT the proposal to require statutory officials at a coal mine to be

directly engaged by the operator. This is on the basis that the employment relationship between a

mining operation and its employees is not a matter for government regulation and does not belong

in safety and health legislation.

It is understood that this issue was raised through the CMSH Advisory Council (CMSHAC) specifically

in relation to the employment structure and the exorbitant rates of pay that coal mines were forced

into in order to obtain people to fill critical safety positions such as Deputies and OCE’s in a very

buoyant market.

It is important to note in relation to this proposal that this high cost issue will emerge again within

the industry if the DNRM pursue the proposal to vastly increase the number of statutory tickets that

will be required.

7.29 Introduction of the Tri-State Competency Advisory Council

Vale Australia does NOT SUPPORT the introduction of a Tri-State Competency Advisory Council as

described in the RIS as it has removed the tripartite structure currently applied to the CMSHAC. This

change would essentially remove Industry from being represented in decisions made on

competencies affecting coal mine workers.

7.30 Short Term Absences of Underground Mine Manager

Vale Australia does NOT SUPPORT the proposal to require replacement during short term absences

of the Underground Mine Manager. If however this proposal continues to be considered, Vale

Australia recommends a period of 14 days minimum be adopted for necessitating a replacement by

another first class certificate holder as this would be consistent with the current requirement

applying to the SSE.

8. ADDITIONAL ISSUES NOT COVERED BY THE RIS

8.1 Reference to the CFMEU in the Legislation

The CMSHA makes reference to the "union" in several places, particularly in relation to the selection

and appointment of ISHRs. The Act states in the Schedule 3 Definitions that "union" means the

Construction Forestry Mining and Energy Union-Mining and Energy Division Queensland District

Branch. Vale Australia is opposed to the exclusive recognition of the CFMEU in this way.

The nomination of a specific union in safety and health legislation is misguided and misplaced and

affords this particular union powers it should not have. It should be noted that while there is a

significant number of non-union workers, and the unions and associations active in the coal mining

industry are:

CFMEU

CEPU

AMWU

APESMA

23

This would make the nomination of one body presumptuous and also provide that employee group

with powers and rights that are nonsensical where there is no commensurate obligation held by

them, yet at the same time giving it powers to stop the SSE fulfilling their obligations.

It is recommended that all aspects of the CMSHA that support the exclusive rights of the CFMEU to

represent coal mine workers' safety and health is out-dated and should be removed.

8.2 The definition and application of Standard Operating Procedures (SOP’s)

The Definition of an SOP (Section 14) has been a consistent area of concern that has historically been

misused to create administrative burden when developing procedures. To have any documented way

of work then have to follow the CMSHR requirements under Section 10 of the Regulations causes a

number of issues:

The administrative process would be so onerous that coal mine workers would avoid

following the risk processes

Minor, low risk tasks could tie up resources preventing work with no benefit to the

safety and health of affected coal mine workers

Mischievous personnel could use this process to delay work

This level of bureaucracy would significantly increase administrative burden

(development, filing, reviewing, updating, training, etc.)

Documents not traditionally considered as SOPs could be deemed to be SOPs due to

such a loose definition

It is therefore recommended that the definition of an SOP is restricted and simplified to those SOPs

required by the Regulations and no other. Coal Mines would then be able to develop other

documents such as work method statements or standard work procedures (by way of example) for

all other tasks. Vale Australia firmly believes that Section 10 of the Regulations is the correct process

to follow for those single and multiple fatality risks, but not for everyday activities such as yard

maintenance and simple maintenance tasks.

8.3 Implementation of Common SOPs

Through various forums, it has long been discussed, including through the Coal Mining Safety and

Health Advisory Committee for a number of SOPs to be made common across a company that has

more than one coal mine operation in the state. This tripartite support was in support of the work

needed to simplify a coal mine’s SHMS.

For this to be effective, a change to the wording of section 10 would be required to enable such a

process of developing common SOPs.

24

The following table is an indication of those SOPs that have been currently agreed by all parties as

having the potential to be ‘common’:

All Coal Mines

Section 21 Access to exposed electrical conductors

Section 38(3) Electrical first aid and resuscitation

Section 56 Using hazardous substances

Section 65 Using appropriate PPE

Section 72(a) Maintenance of tyres and rims

Section 72(f) Identification of lifting plant

Section 72(g) Towing of plant

Section 78 Tagging and isolation

Section 92(3) Using personal protective equipment for working at heights

Section 96a Working in confined spaces of mine

Section 96b Performing manual handling tasks

Section 96(c)(iii) Laser and radiation emissions

Section 88 Asbestos

Surface Mines only

Section 116(1)(d) Accounting of explosives

Section 116(1)(f) Minimising theft or misuse of explosives

Section 116(1)(i) Keeping record about misfires

Section 134 Using explosive powered tools

Section 135 Using fixed plant or mobile plant near electric cables & overhead

electrical conductors

Section 145 Spray painting and spraying of other substances

(note this should not be an SOP as it is a competency)

Underground Mines only

Section 202(2) Using portable electrical equipment in NERZ

25

8.4 Definition of a Medically Treated Injury

Through various forums, it has long been discussed, including through the Coal Mining Safety and

Health Advisory Committee for a number of SOPs to be made common across a company that has

more than one coal mine operation in the state. This tripartite support was in support of the work

needed to simplify a coal mine’s SHMS.

The existing legislation requires the following for Medically Treated Injuries:

S16 Giving notice of incidents

(1) The site senior executive must give an inspector notice, in the approved form, about a following

incident at the mine within 1 month after it happens—

(a) a person suffers an injury—

(i) of a severity that requires treatment by a doctor, or a nurse as defined under the

Nursing Act 1992, or a person qualified to give first aid;

The annual report sent out from the DNRM has the same definition.

On discussion with various company representatives, it seems this is applied very differently, the

following being the two most common approaches:

Medically treated means treated by a doctor (other than treatment that would

otherwise have been performed by a first aider) and that is what is reported

Medically treated as per the definition verbatim – First Aid Cases (FACs) from First

Aiders, Nurses, Paramedics, etc.

As a consequence of the current definition, individual mines report differently, some within the

same company. It is also misaligned with how general industry categorises these types of injuries.

Vale Australia recommends that this definition within the legislation be amended to reflect the

current industry accepted definition (e.g. OSHA Definition).