Insights

19/09/17

The winds of change: Mine safety, technology and the law

The digital future of mining

Earlier this year, Canadian company Goldcorp Inc. announced it had partnered with IBM in a “technology alliance”. IBM said that it was “taking the IBM analytics platform tested and proved in the oil and gas industry and adapting it to the mining industry, demonstrating that cognitive subsurface analytics can lead to performance enhancement across the entire natural resources sector.” (“Will mining’s new digital allies turn to disruption?”, Australian Financial Review, 4 July 2017.)

A month later, in April 2017, South32 Ltd became the first Australian mining company to enter into a technology alliance, with global giant GE. Chief Executive Officer and Chairman of GE, Jeff Immelt, has predicted on South32’s website that “the future of mining is digital”.  The accuracy of that statement is tangible: current examples in Western Australia include FMG’s autonomous haulage trucks at its Solomon hub and Rio Tinto’s aim of operating driverless trains in the Pilbara in the near future.

New mine safety legislation scheduled for 2019

After a couple of false starts under the previous State government, the McGowan Government has approved the development of a modernised Work Health and Safety Bill for Western Australia. The Minister for Mines and Petroleum, and Commerce and Industrial Relations, the Hon. Bill Johnston, has stated that "Occupational, health and safety legislation in WA is 30 years old and is out of date. This is why we're taking action – the new Bill is an important step in updating and improving the regulation of workplace health and safety." (See Department of Mines, Industry Regulation and Safety (DMIRS), Resources Safety Matters, Vol. 5 No. 2, August 2017, p. 26.)

The new Bill will replace three Acts: the Occupational Safety and Health Act 1984 (WA), the Mines Safety and Inspection Act 1994 (WA) and the Petroleum and Geothermal Energy Safety Levies Act 2011 (WA). It will be the primary legislation for workplace safety and health across all Western Australian industries, and will be more consistent with work health and safety laws across the rest of Australia. Currently, the Bill is expected to be introduced to State Parliament in mid-2019, after a period of stakeholder and community consultation.

The development of the new legislation coincides with the amalgamation of the Department of Mines and Petroleum with key divisions of the Department of Commerce, which has resulted in the new Department of Mines, Industry Regulation and Safety. The new Department is home to each of the safety regulators - Energy Safety, Worksafe and Resources Safety. The Department expects that the merger will lead to improved services, which may in turn lead to more inspections and audits by inspectors. In addition, the Hon. Bill Johnston has launched the Towards 2020 health and safety vision, which is intended to provide a structured approach for the new Department going forward. Making zero harm an aspirational goal was a driver in the development of the regulatory strategy. (See DMIRS, Resources Safety Matters, Vol. 5 No. 2, August 2017, pp. 1, 2 and 4.)

Increased expectations around use of technology

These developments point to a step-change in the regulatory approach to mine safety in WA, and should prompt mining and exploration companies to consider how they are placed to meet a potentially increased regulatory burden. Companies would be well advised to take stock of their current health and safety practices, and to ask: will they still be relevant and “best practice” in five or ten years’ time, or do advances in technology and knowledge about workplace safety require a change in approach?

Currently, the primary duty in section 9 of the Mines Safety and Inspection Act 1994 (WA) requires an employer to take “reasonably practicable” steps to provide and maintain a working environment in which employees are not exposed to hazards. In determining what is “reasonably practicable”, an employer is required to balance:

  • the severity of potential harm;  
  • the degree of risk of the harm occurring;  
  • the state of knowledge about the potential harm, the risk and the means of removing or mitigating the potential harm; and
  • the availability, suitability and cost of those means.

It seems inevitable that there will come a time (and it is possibly here already in some respects) when advances in technology, and community assumptions about the use of technology, will result in an increased expectation of employers. Examples of technology already being implemented on mine sites to reduce risks include:

Another possible use of technology might include location and biometric tracking, which could enable a response team to be activated before an employee is fully aware that they are in a hazardous situation. (Biometric tracking could also remove the need to conduct ongoing drug and alcohol testing once an individual’s baseline levels are established). While this might sound suspiciously “1984”, the technology is available now.  

Positive duty of due diligence

Already, courts are considering whether cameras and alarms ought to have been fitted in cases where poor visibility has contributed to heavy vehicles coming into contact with employees and causing injury. The harmonised mine safety legislation that operates in most Australian states (which the new WA legislation will mirror in many respects) imposes a positive duty of due diligence. If it is adopted in the new WA legislation, the positive duty of due diligence may make it easier to prosecute employers for failing to take reasonable precautions by (among other things) implementing technology where it would have reduced the risk of harm.

Using technology to reduce risks

The increased availability and relatively low cost of, for example, video, remote and autonomous technology, now means that the balance of convenience is more likely than ever to favour the use of technology to reduce risk. Accordingly, in the future, if it is shown that technology could have been used to reduce the risk of an accident occurring, but the technology has not been used, there will likely need to be a good explanation in order to avoid a finding that the employer has failed to meet their duty of care. Exploration and mining companies should therefore consider on a regular basis – for example, by appointing a technology officer and discussing at board/management meetings – whether their current measures of controlling and responding to risks are appropriate, and whether there are new (and reasonably affordable) ways to keep people safe on site.

Insight By
Lauren Shave
Lawyer
+61 8 9413 8437
+61 423 616 947

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