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Health and safety law enforcement in the resources industry has undergone a seismic shift. Safety regulators and prosecutors are more focused than ever on seeking penalties against senior officers of resource companies following incidents on site, and their enforcement approach is now targeting the entire organisational chart. 

The targeting of enforcement against individuals 

While the health and safety laws have remained relatively stable over the past decade (apart from the introduction of industrial manslaughter in many jurisdictions), the way in which the laws are being enforced has changed considerably. Senior resources officers are being charged with offences carrying potential imprisonment terms, with this tough regulatory approach actually seeing directors imprisoned following workplace accidents. This is a reality across all jurisdictions, for example:

a. an executive officer of a mining operator was sentenced to 18 months’ imprisonment with a six-month nonparole period, in relation to the death of a young worker crushed by an unguarded conveyor; 

b. a company director was sentenced to 12 months’ imprisonment, suspended after four months in custody, and his company fined $1 million, for not installing a safety rail which resulted in a fatal fall from height; and

c. Victoria, 2019, two directors were imprisoned for 10 months (wholly suspended), and their company fined $3 million, following a fatal forklift accident at an auto recycling plant in the country’s first industrial manslaughter conviction;

2. a director was imprisoned for six months for using a forklift to carry an employee inside a bin with steel, which ultimately failed and killed the worker; and

3. Western Australia, 2021, a company director was sentenced to two years and two months’ imprisonment, and the company fined $605,000, after two employees, who were installing roof sheets on a new farm shed, fell after strong winds hit.

While these ‘big stick’ offences were initially introduced to punish the most serious offending, we are now seeing it regularly deployed as the primary tool of enforcement following a fatal incident in the workplace. 

Impact on the resources industry

This tough enforcement model is being felt across the entire resources industry. 

In addition, rather than a single charge against a mining company, prosecutors are now charging a range of duty holders. For example:

1. a resources company and its director were fined $500,000 and convicted and sentenced to six months imprisonment (wholly suspended) for recklessness offences after a worker suffered serious head injuries working from a bucket of a loader at height;

2. a New South Wales blasting contractor and its director were convicted of recklessness offences, and fined $432,000 and $30,000 respectively before discounts for early guilty pleas, following a blast which saw 11 workers and members of the public taking evasive action as flying rock was ejected from a blast at a mine; 

3. a Queensland mining workplace supervisor was fined $3,000 for unlawfully certifying a young worker as competent during an induction, weeks before the worker was later killed; and

4. a New South Wales mining worker was fined $64,000 before a discount for an early guilty plea, after the worker installed a defective electrical switchboard that resulted in the death of the mine manager’s wife when she touched an energised shower fitting at the nearby living quarters

Now, more than ever, operators, SSEs, managers, supervisors and workers need to be vigilant about safety. The 2019 Brady Report into fatal accidents in Queensland mines and quarries, identified that the industry had a fatality cycle and ‘unless it makes significant changes to how it operates, the rate of fatalities is likely to continue at current levels.’

While there is a theoretical focus in the Queensland mining industry on the identification and controlling of hazards…the industry, in general, falls short in practice. Chronic unease is not evident.’

Safety regulators pay attention to industry publications, such as the Brady Report, and will examine a duty holder’s consideration and implementation of recommendations made to improve safety across the sector. 

How to manage this risk

Resources companies and their officers must remain vigilant and should focus on the following:

1. know what can go wrong in your business (i.e. identify and assess risk);

2. know what you have in place to control those risks (i.e. eliminate or minimise those risks so far as is reasonably practicable); and

3. know how you are tracking in managing the risk (i.e. monitor and review those risks and controls).

External assurance, through third party audits and inspections, can often give businesses and their officers valuable insight into WHS compliance. Properly implemented, these types of assurance activities can be key evidence of officers and senior resources personnel exercising due diligence and discharging their statutory duties

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