WorkSafe New Zealand’s deputy chief inspector, Extractives, David Bellett, made a presentation about health and safety legislation at the 2017 QuarryNZ conference in Auckland. ALAN TITCHALL was there.
TALKING TO DELEGATES at a special WorkSafe presentation on health and safety, David Bellett acknowledged that leading quarrying companies, familiar with risk management and risk assessments, places them ahead of other industries still coming to terms with the Health and Safety at Work Act (HSWA) 2015, which came into force in April 2016.
David began his working life as a 15-year-old apprentice fitter turner and worked in construction here and overseas for 15 years. He has worked as an inspector and manager for 23 years, first with the Department of Labour and now WorkSafe, where he reports to chief inspector Mark Pizey.
“I spent 18 months as a lead investigator on the Pike River inquiry. It’s pleasing to see safety improvements coming from industry and the work that the quarrying industry is doing to lift its own standards.“
David’s conference presentation provided an overview of health and safety legislation that applies to quarries and he acknowledged the challenge faced by quarry companies and the amount of information they have to understand and comply with.
However, there is still some confusion and misunderstanding about the legislation in terms of how it all works; definitions and how legislation links into risk assessments; and the cost of applying risk controls and what’s practicable for each business.
Legislation that predominately relates to quarrying is built into HSWA, which is performance-based. It’s important to understand HSWA, its definitions and the definition of a ‘quarry’ is specific in the Act, he says.
“It defines what is ‘not’ a mining operation. This is important because some regulations that sit under HSWA particularly focus on mining operations.
“’Activity’ is an important definition. Some people say that since they extract only twice a year, that’s the only time their site is a quarry, even when the property gate advises a quarry is within. Because not all the legislation has been tested in court, quarry operators need to look at what each word actually means, and whether ‘activity’ should be ‘all’, or ‘some’.
“Other important words include ‘or’ and ‘and’ in a quarry site definition and could include ‘any’ place where material is extracted or crushed and screened. The old Quarries and Tunnels Act was more defined and placed measures depending on how technical or complex the quarry is.”
The new legislation has been expanded to cover any extraction place, rather than targeting high risk activities, David says.
“The Health and Safety at Work (Mining Operations and Quarrying Operations) Regulations 2016 provides guidance, notifications and Certificate of Competence (COC) requirements.
“There are many pieces of health and safety legislation which apply to quarries, including the Electricity Safety Regulations which came back under the regulator’s umbrella in 2010. It has a schedule directly aimed at quarrying operations.”
If you are currently a quarrying operation and are unfamiliar with these regulations, you need to improve your knowledge, he stresses. WorkSafe inspectors regularly report non-compliant electrical installations.
The Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 have also come about following HSWA coming into force.
These regulations spell out legal obligations/duties around facilities; first aid; and emergency management plans.
Operators must practise these plans onsite annually, he says, acknowledging that this is harder for smaller operators.
“Operators should use the mining regulations for guidance on emergency management. The likes of New Zealand Mines Rescue can provide quarrying industry services to help operators develop emergency management plans.
“Other relevant regulations include the Worker Engagement, Participation and Representation Regulations, particularly relevant for larger companies. It determines how and when worker representation is required. Businesses of a certain size must have worker representatives on a site-by-site basis, calculated on staff numbers and risk factors.”
Many operators will be familiar with the previous Health and Safety in Employment regulations, which weren’t entirely repealed when HSWA came into force, says David. This means there are parts of the 1995 regulations which still apply and overlap with general risk regulations.
“The 1955 regulations are still on the Government Legislation website and clearly show which parts were removed and which parts remain.
“Quarrying is excluded from the definitions of construction work but there are other parts of the 1995 regulations that remain. For example, if you’re doing some tree felling in your site as part of stripping.
“The Health and Safety at Work Hazardous Substances Regulations 2017 will be the new kid on the block, replacing the old HSNO Act.”
It was decided that HSWA was broad enough to absorb hazardous substances management. “Its coverage is extensive and covers things like approved shot firing handlers and diesel storage.
“It is an important new piece of legislation. Note also the regulations around asbestos, which could apply to older sites with asbestos cladding and pipe work. There’s a COC for this so it’s important if you have asbestos at your site.
“Finally, the Health and Safety and Employment Pressure Equipment, Cranes and Passenger Ropeways is a legacy piece of legislation originally replacing the Ministry of Transport’s Boilers, Lifts and Cranes Act.”
Understanding ‘reasonably practicable’
Some people are misinterpreting the word ‘practicable’ and replacing it with the word ‘practical’, says David. They mean two different things.
“What really matters is what the law says ‘practicable’ means. It’s important when reading legislation not to apply your own definitions of what the legislation might mean.
“‘Practicable’ (in the common meaning) means it’s achievable, capable of being done and attainable. Remember that the definition for ‘practicable’ is not practical. One of the key foundations of HSWA is the term ‘so far as is reasonably practicable’ and that is all about how you manage risk.
“The regulations also talk about a particular time, so it’s totally ‘situational’. What might be practicable in one situation may not necessarily be practicable in another. Everything reasonably practicable must be taken into account and you must weigh up how far you go with this.
“We’re not asking you to examine how the world works, just relevant matters relating to that particular activity.”
David says this is a commonly failed compliance area as the person concerned has to ‘reasonably’ know about a particular risk and how to fix it.
“What an operator might view as low risk or ‘unlikely’ to happen, might be viewed as ‘likely’ by an inspector because it has happened before.”
The expression ‘ought to have reasonably known’ has already been defined and tested under previous legislation, he adds.
“It means ‘might not have known, but ought to have’. When WorkSafe investigators investigate a fatality, they don’t just look at what was in the operator’s mind then. They also look at what should been in their mind as someone in that position who ought to have known.
“Knowledge is key. You must know about hazard or risk, how to eliminate or minimise, and consider availability and suitability of how to do this.”
Costs of compliance
Legislation asks operators at the front end to look at ways to protect against risk first, and then secondly, the availability and suitability of those ways, says David.
“It’s a greenfields type approach to look at ways of eliminating and minimising risk, the availability and suitability, and what you ought to know about it. Only then do you think about costs. The legislation is clear that you must consider the risks first and ways of managing them before considering costs.”
David proposed that some people might rule out some risk controls because the cost is disproportionate to potential harm, but that doesn’t mean the controls shouldn’t have been considered in the first instance.
“It’s only after assessing the risk’s extent and available mitigations that the associated costs and available ways of eliminating or minimising the risk are considered. This includes whether or not the cost is grossly disproportionate.”
The message from WorkSafe’s high hazards team is, says David, that when you have principal hazards, putting health and safety at risk, you must look at whether control costs are grossly disproportionate to potential harm
“How much value do you put on a life?”
While legislation can be dry, he adds, it’s necessary to know it because you need to make sure your compliance protects both your business and individuals.
“For businesses that refuse to accept their responsibilities under the act and don’t respond to the other enforcement mechanisms – a jail term is a possibility, so it’s serious stuff.”
David’s homework for conference attendees was to download the regulations and look at guidance on WorkSafe’s website on risk and workplace management regulations.
“WorkSafe wants open dialogue with the sector as improving health and safety performance is best achieved by industry and regulator working together,” he says.