To prosecute or not to prosecute?

Materials World magazine
,
1 Dec 2009

That is the question considered by Mining Consultant Ray Parkin and Professor David Laurence, both active in the Australian mining industry.

The number of fatalities, serious bodily injuries and high potential injuries in Australian mines is unsatisfactory. People are still being killed and there is little evidence of a sustained improvement in safety over the last decade.

Important safety indicators are trending upwards and research undertaken at the University of New South Wales in Australia has found that large numbers of serious injuries are not being reported. In addition, the research shows that the current tendency to prosecute is counter productive.

There is no agreement as to what constitutes the most appropriate legislation in different Australian coal mining states. Furthermore, the time taken to conduct judicial inquiries and finalise outcomes is too long.

Injury time

The purpose of any safety legislation is zero harm and recent efforts have resulted in a reduction in the lost time injury frequency rate (LTIFR).

LTIFR = injuries x one million

-----------------------------------

manhours worked

The rate of lost time injuries fell from a frequency of 15 to five in the period 1997 to 2006/7. However, this value has reached a plateau. The fatal injury frequency rate increased from 0.04 in 2005/6 to 0.05 in 2006/7 (see chart). Over the past six years, the LTIFR is decreasing and the number of fatalities is increasing.

Data from the Australian states of New South Wales (NSW) and Queensland show another worrying aspect – other safety indicators are also trending upwards. In Queensland, high potential injuries and medical treatment cases are increasing at a rapid rate. Disabling injuries are also on the rise. In NSW, the serious bodily injuries have remained static from 2001 to 2006/07. However, notifiable injuries have risen considerably and miners are still being seriously hurt.

Legal differences

There are important differences between safety legislation in NSW and Queensland. In the latter, a large open cut mine can be managed by a person with no mining experience or qualifications – the only person requiring a statutory qualification is an open cut examiner. This means that the Queensland legislation has departed from common mining practice in terms of essential qualifications and experience.

An undermanager is now not mandated by legislation to be in charge of a shift and an inspector in Queensland no longer requires a first class certificate of competency to meet the new criteria for an inspector.

The lack of uniformity across state boundaries results in a number of problems with inspection and enforcement policies and strategies, the level of fines and infringement notices, and considerable variation in health and safety representative provisions. These provide a strong argument for nationwide and common health and safety representative provisions.

One of the disincentives to reporting safety incidents is the amount of paperwork generated. Updating all the elements of Safety and Health Management Systems (SHMS) is important, however, to improve the implementation they need to be less complex and the elements standardised across the industry. Mine workers must be trained to understand their obligations under the SHMS.

Prosecution

The function of prosecution in achieving compliance with occupational health and safety (OHS) legislation is a highly contentious issue, particularly in the NSW mining industry. It has precipitated a dispute between the NSW Mineral Council and major mining companies on the one hand, and the mine safety regulator and trade unions on the other. The companies believe that prosecution is counter productive, inhibiting appropriate safety investigation, encouraging a defensive rather than proactive approach to OHS, and driving away potential mine managers at a time of labour shortage.

The situation also creates a climate of distrust between the parties, and blocks attempts to find out what happened, why and what can be done to prevent a recurrence. The policy does not encourage near miss reporting because the findings could be used against the company in future cases. Since recent prosecutions have targetted the companies concerned as well as individual duty holders, it has become a major disincentive to a management role in mining. It moves away from the no blame culture, which the industry must have if the safety of the mining industry is to continually improve.

Companies are advised by their legal advisors to be careful about generating reports on an incident or accident. Employees are discouraged from producing documents in relation to accidents without the prior approval of their manager, because they may damage the legal position of the company, its directors, managers and employees.

The mining unions agree with prosecutions because they regard them as a deterrent to company law breaking, and are actively encouraging the inspectorate to expand the use of prosecution in order to improve OHS. In the Gretley case these issues came to a head. Two companies and three managerial staff were prosecuted for the first time in the history of coal mining in Australia.

The enthusiasm for prosecution in NSW has become infectious and there are moves in Queensland to take the same path. Managers in NSW who have the most contact with the inspectorate have indicated that prior to the prosecution policy, the relationship between management and the inspectorate was helpful and constructive. Now it is strained and difficult. The change is attributed to the prosecution policy.

The Construction, Forestry, Mining and Energy Union has been critical of the NSW Government for not prosecuting the Department of Mineral Resources in the Gretley inquiry, and states there is a lack of regulatory protection for the growing number of contract workers within the mining industry who, they claim, receive less training and induction for safe operating than mine employees.

The diachotomy was illustrated in two safety cases. In the Moura case, where 11 miners were killed in 1994 when two explosions occurred in an underground coal mine, the purpose was to determine the nature and cause of the blasts so that a panel could make findings and recommendations. The inquiry was completed and the report published within one-and-a-half years of the accident. No companies or individuals were prosecuted, and the union did not pursue legal action.

In the Gretley case (see below), the purpose was to find the cause of death and ascertain the case for prosecutions. The inquiry took eight-and-a-half years to complete and, in the process, changed the safety culture throughout the mining industry.

In the Wardens Court in Queensland (where there is no fear of prosecution), the average time taken for investigation between 1998 and 2001 was just over six months. Prosecutions in NSW, between 1995 and 2007, took on average over four-and-a-half years. Under the Queensland coroner’s court from 2002-07, it took on average 2.2 years. These timeframes may impact negatively on the objective of reaching zero harm.

 

The Gretley case

At the Gretley Colliery near Newcastle, Australia, on 14 November 1996, miners inadvertently broke through into the flooded workings of an abandoned mine, and four miners died in the inrush of water.

Gretley management had obtained old plans from the Department of Mineral Resources purporting to show the earlier workings. Unfortunately, the charts were wrong. In 1994 Gretley management began designing a new section of the mine close to the old workings.

Using the Department’s plans, a new version was created showing both the new workings and the believed site of the old ones. The mine surveyor assumed that the Departmental plans were accurate and the manager, relying on his surveyor, took the same stance. By the time of the accident, the mine had a different surveyor and manager, who both thought the maps were correct.

The operating company and its owning company were found guilty under the NSW OHS Act for failing to ensure the safety of employees, so far as reasonably practicable. The judge stated that management should not have relied on the plans provided but should have verifed their accuracy independently.


Further information:

This article is based on a presentation given to the Queensland Resource Council Mining Industry Health and Safety Conference 2009. Ray Parkin is a mining consultant.