The mining industry was exempt from industrial manslaughter laws three years ago, but now Queensland’s Mines Minister wants it included, so senior safety officers could be jailed for up to 20 years if a worker is killed on the job.
The Queensland Law Society says it’s unjust, and one big mining company says the take-up of senior site executives would become less desirable. The law was introduced to Queensland three years ago, but the mining industry was exempt. It has now been proposed by the Mines Minister as part of the broader Mineral and Energy Resources and Other Legislation Amendment Bill 2020. It would carry a 20-year maximum sentence for employers and senior safety officers at coal mines where workers are killed on the job.
In a statement, Mines Minister Anthony Lynham said his Government made no apology for laws that were about acting on negligence and saving lives. “Eight people have died in our mines and quarries over the past 20 months,” he said. “These laws already apply in every other Queensland workplace.
“The committee will report to the Parliament after it has considered all of these submissions.”
It is one of a handful of reforms by the Queensland Government to address a recent spate of fatalities in the state’s resources sector. Some have welcomed the move to make senior safety officer positions only available to permanent employees — a move intended to improve safety transparency onsite.
But the proposal may have some way to go with mining companies, the Queensland Law Society, and the mother of an injured mine worker who have labelled the law as excessive.
Law would ‘infringe and deny fundamental rights’
The State Development, Natural Resources and Agricultural Industry Development Committee has received 74 submissions from mining companies, industry bodies, unions, and workers who would be affected if the law is introduced. Many of the submissions address just two clauses of a 257-page document.
The first is where the bill requires critical safety statutory roles for coal mining operations be an employee of the mine operator itself — roles often held by contractors.
The second sets out that employers, and senior employees, can face a maximum 20 years’ imprisonment if a worker dies because of a workplace injury.
In its submission, the Queensland Law Society (QLS) opposed the introduction of the industrial manslaughter law and said existing legislation to prosecute those responsible for mine deaths was adequate. “QLS opposes the introduction of new criminal offences without cogent evidence to demonstrate their need and evidence that existing laws are not capable of capturing the conduct which is the target of the offence,” president Luke Murphy wrote.
But he said if the industrial manslaughter law must be introduced, it needed serious adjustment. “…the particular framing of obligations imposed on individual duty-holders under the Resources Safety Acts have the potential to make proposed industrial manslaughter laws particularly harsh and unjust,” Mr Murphy said.
“QLS is particularly concerned that an accused will therefore not be able to plead circumstances of accident, involuntariness or acts independent of their will.
“In the absence of appropriate defence or excuse provisions, these provisions essentially become strict liability offences, which infringe and deny fundamental rights given to those accused of homicide offences which carry an extremely high maximum penalty.”
Anne Smith has worked with the Queensland Mining sector for 30 years and has four family members in the industry. Dr Smith said her perspective as a mother of a seriously injured mine worker was what drove her submission to the committee. She said she was fearful that the laws would make post-incident safety investigations less effective.
“One of the possible serious outcomes, if this legislation is implemented, could be the culture of transparency and of freely sharing information as it relates to safety will diminish, and cooperation in the event of an accident investigation would likely decrease.
“As the mother of a seriously injured coal mine worker, if I believed for one moment that this proposed legislation would reduce major accidents and deaths in the coal mining sector you would not be hearing from me. But I fear it will add an extra burden and stress to those already working in a high risk industry.”
She said she was also of the opinion that the 20-year maximum sentence was excessive, almost as long as the sentence for murder. “The distinction between murder and manslaughter is the element of intent, the intent to kill,” she said.
Companies concerned law would make safety jobs ‘less desirable’
Mining companies Anglo American and BMA, which have both had workplace deaths at their central Queensland mine sites over the past two years, welcomed the State Government action but said the details of the proposed law were too extreme. BHP submitted that the individual offence of industrial manslaughter be limited to the most senior levels of its organisation, excluding onsite safety representatives, from prosecution.
“We have already seen this effect within our business, in that the proposed ‘senior officer’ offence has already generated significant anxiety amongst our SSEs [site senior executives] and those reporting to them,” it said in its submission. “…the additional potential exposure to an industrial manslaughter offence … could make the SSE qualification, and the take-up of SSE positions, less desirable.
“The consequence of this is that the coal mining industry could face a rapid decline in the level of skill and experience held at the SSE level. This would undermine the bill’s objective of strengthening safety culture.”
Anglo American’s head of corporate relations, Victoria Somlyay, agreed. “The exposure of site statutory positions and other site employees to criminal charges, with limited defences, would be a strong deterrent for the individuals in those positions to take ownership of safety-related decisions including risk assessments,” she said in her submission.
Dr Smith said she welcomed the State Government’s proposal to have safety statutory roles, like SSEs, only held by permanent employees of mine operators. “Due to the nature of contract employment, workers can be terminated at any time for any reason or no reason given. Due to the conditions of their employment these employees often do not fit within the parameters of the Fair Work Commission, so they have no recourse,” she said.
“I am aware of numerous individuals who have identified safety issues who have been terminated or whose contracts were not renewed. Whilst not the norm, this culture exists.”
Jason Meikle, an open cut examiner at the Goonyella Riverside mine and a member of the Board of Examiners, which issues all statutory mining tickets, agrees. In his submission to the parliamentary committee, Mr Meikle welcomed the move to make safety statutory roles only available to permanent employees.
“I have personally witnessed open cut examiners employed by labour hire companies not being able to do their job as they are in fear of reprisals,” he said. “Also having witnessed two fatalities at my mine, I believe these changes are needed and that they will bring major change to the industry. “I also believe amendments to the legislation would stop ticket holders putting their livelihood ahead of safety.”
But mining company Anglo American said stopping contractors from being hired as statutory officials would be problematic. “Currently, there are many statutory officials who are employed by related corporate entities or by contractors working at our sites,” Anglo American’s submission said. “There are a range of reasons for these arrangements, including that they work for contractors doing specific pieces of work, as relief arrangements for employees or by personal choice.”
Public hearings are being held in Brisbane and Moranbah to further discuss submissions to the proposed changes.
Source: ABC News