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Fiona Austin, Special Counsel, +61 7 3258 6490, [email protected] 5 NOVEMBER 2014
OPERATIONAL DISCIPLINE AND ELECTRICAL SAFETY IN MINES
COURT ROOM UPDATE
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CONTEXT: RELEVANT LAW IN NEW SOUTH WALES
Current: • Work Health and Safety Act 2011 (NSW) • Mine Health and Safety Act 2004 (NSW) • Coal Mine Health and Safety Act 2002 (CMHSA) Proposed: • Work Health and Safety (Mines) Act 2013 • Work Health and Safety (Mines) Regulation
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MEET MARK (HYPOTHETICAL)
• Mark is an electrical workers working at the Happy Home underground coal mine. • He just started work for ZAP Electrical Contractors. • It’s Mark’s third mining swing, he’s 24 years old and has previous electrical
experience in factory work. • He doesn’t know a lot about the underground mining environment.
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MEET BRUCE (HYPOTHETCAL)
• Bruce is Operations Manager of ZAP electrical contractors. He reports to the
Directors on the Board. • He has 25 years underground mining experience. • Bruce is nominated on the management structure as the electrical manager for the
Happy Home mine.
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MEET FRANK (HYPOTHETICAL)
• Frank controls the budget for the Happy Home underground mine. • He knows safety and health is everyone’s responsibility, but he has limited
revenue available and shareholders to consider.
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THE JOB
• Bruce and Mark go down together to 400 Level to change out an electrical part (a control relay) within a switch board.
• Bruce tells Mark “I need to go isolate at the main switch.”
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THE SCHEMATICS
• Mark says to Bruce “Hey mate, didn’t they do construction on the 400 Level while we were off swing? Should we check the schematics?”
• Bruce is annoyed. The schematics are up at the above ground office. He’s been asking Frank every year for budget to organise electronic copies of updated schematics available underground via IPAD but there hasn’t been funding available for new technology. Not that they’ve ever actually costed the options in detail.
• Bruce knows that the SHMS requires them to revise the schematics, but says “No, we’ve got to get this job done as we’ve got a full of jobs list ahead while we’re down the hole. I planned the upgrade work was to be done – it doesn’t impact on this circuit”.
• Mark doesn’t say anything in response. • Bruce goes off to isolate, while Mark waits at the board.
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THE INCIDENT
• Bruce comes back and Mark asks – “Am I right to change out the part?” Bruce nods and starts filling out some paper work.
• Mark takes his screwdriver and begins to manipulate a screw on the board. • The part is live and Mark receives an electric shock. Unbeknownst to Bruce, the
upgrade works had changed, affecting this circuit, but the other supervisor had not told Bruce about it as part of the swing handover.
• Mark falls to the ground where he hits his head on a rock. Bruce calls for the ambulance but Mark dies 25 minutes later before the ambulance arrives.
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The pillars of operational discipline (Wilson Perumal & Company)
WHAT WENT WRONG? OPERATIONAL DISCIPLINE?
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WHAT DOES THE LAW SAY?
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HAVE MARK AND BRUCE BREACHED THEIR DUTIES?
Consider case law developments: • Inquest into the death of Michael Earle Auld (August 2013) (per prosecution of
Mr Rabuka) • Bell v Mr X (Queensland Magistrates Court, 2014) • DPP v Amcor Packaging Pty Ltd [2005] VSCA 219 (6 September 2005)
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WHAT IS REASONABLY PRACTICABLE?
What is reasonably practicable in relation to a duty to ensure health and safety means that which is or was at a particular time reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: a) the likelihood of the hazard or the risk concerned occurring; and b) the degree of harm that might result from the hazard or the risk; and c) what the person knows or ought reasonably to know about the hazard or the risk
and ways of eliminating the risk; and d) the availability and suitability of ways to eliminate or minimise the risk; and e) after assessing the extent of the risk and the available ways or eliminating or
minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
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HAS ZAP BREACHED ITS DUTIES AS A PCBU / CONTRACTOR?
Consider case law developments: • Comcare v Australian Postal Corporation [2011] FCA 1533
“Systems fail for many reasons, sometimes because they were not well thought through in the first place: other times, as here, they fail because however brilliant their conception, they are just not implemented. To describe something as a systematic failure is to camouflage individual failings, both at individual employee level, at immediate and supervisory level and further up the chain of command. They are not just systemic failings; they are individual failings. Australia Post of course, is liable for those individual failings of its various employees.”
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HAS ZAP BREACHED ITS DUTIES AS A PCBU / CONTRACTOR?
But see: • BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (28 July 2014)
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IS HAPPY HOME MINING COMPANY ACCOUNTABLE?
Consider case law developments:
• Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 • Smith v BHP Billiton Iron Ore Pty Ltd [2013] WASCA 111 • Essential Energy and Workcover Authority of New South Wales
[2012] NSWIR Comm 83
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WILL THE REGULATOR FIND OUT?
Consider case law developments: • Perry v Powercor [2011] VSC 308 • Kirby v Centro Properties Ltd (2012) 87 ASCR 229 • Matthews v SPI Electricity [2013] VSC 422
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ARE THE DIRECTORS / OFFICERS EXPOSED?
Consider case law developments: • Inspector Aldred v Hebert [2007] NSWIRComm 170 • Fry v Keating [2013] WASCA 109 • Newcastle Wallsend Coal Company Pty Limited & Ors v McMartin [2006] 159
IR 121
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OFFICERS’ DUE DILIGENCE - WHAT IS REQUIRED?
Up-to-date knowledge of WHS matters
An understanding of the operations of the business and its
associated hazards and risks
Resources and processes to identify, eliminate or control
hazards and risks
Processes to ensure compliance
by the company with its legal duties
Processes for receiving, considering and timely response to incidents,
hazards and risks
CO
NTR
OLS
A
SSU
RA
NC
E AW
AR
ENES
S
Verifying resources & processes to manage hazards, risks and incidents
and ensure compliance
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WHAT SHOULD WE DO NEXT?
Logan J (Comcare v Australia Post): “it is all very well to have well thought out policies but they are just chaff unless there is a concerted and continuous effort to enforce them and create a culture where enforcement is expected and adherence is the norm…” So perhaps operational discipline is not just a theory - it is the law.
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HOW CAN YOU BUILD THE PILLARS OF OPERATIONAL DISCIPLINE INTO YOUR ELECTRICAL SAFETY?
What can you do? • Build a common language and agreement within management • Knowledge – including legal knowledge • New hire selection • New hire orientation • Incident management and cultural analysis • Observations • Just culture models and consistent enforcement • Performance management - KPI’s and metrics
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The contents of this publication, current at the date of publication set out in this document, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
Herbert Smith Freehills LLP and its affiliated and subsidiary businesses and firms and Herbert Smith Freehills, an Australian Partnership, are separate member firms of the international legal practice known as Herbert Smith Freehills.
© Herbert Smith Freehills 2014
The contents of this publication, current at the date of publication set out in this document, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
Herbert Smith Freehills LLP and its affiliated and subsidiary businesses and firms and Herbert Smith Freehills, an Australian Partnership, are separate member firms of the international legal practice known as Herbert Smith Freehills.
© Herbert Smith Freehills 2014
DISCLAIMER
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Paul Smith Solicitor T +61 7 3258 6656 [email protected]
Fiona Austin Special Counsel T +61 7 3258 6490 [email protected]
Ellen Hooper Solicitor T +61 3 9288 1677 [email protected]
Charlotte Fenton Solicitor T +61 7 3258 6631 [email protected]
Harold Downes Partner T +61 7 3258 6590 [email protected]
QUEENSLAND
Rowan Kelly Special Counsel T +61 8 9211 7859 [email protected]
Anthony Longland Partner T +61 8 9211 7273 [email protected]
WESTERN AUSTRALIA
Sam Witton Senior Associate T +61 8 9211 7289 [email protected]
Julie Marotta Senior Associate T +61 3 9288 1470 [email protected]
Steve Bell Partner T +61 3 9288 1236 [email protected]
VICTORIA
Cormack Dunn Special Counsel T +61 2 9225 5164 [email protected]
Miles Bastick Partner T +61 2 9225 5722 [email protected]
NEW SOUTH WALES
HERBERT SMITH FREEHILLS AUSTRALIAN SAFETY TEAM
Asher Lindsay Senior Associate T +61 7 3258 6637 [email protected]
Lilly Knorr Solicitor T +61 3 9288 1256 [email protected]
Libby Mussared Solicitor T +61 8 9211 7239 [email protected]
Christie Jenkins Solicitor T +61 7 3258 6695 [email protected]
QUESTIONS?
