Chief Inspector of Mines TONY FORSTER answers questions that have been raised by the quarry industry on the draft regulations.
It has been said by a number of industry veterans that the current draft regulations relating to quarrying are “not fit for purpose” – would you agree?
It was never intended to impose the current Regulations 2013 as drafted on the quarry industry. Anyone suggesting that is misinformed. That option was rejected by the quarry industry and Government in 2013. Many negative views and concerns appear to have altered over the course of the 2015 IOQ/AQA quarry conference and as a result of industry meetings with WorkSafe in Auckland and the two Forum meetings held in Greymouth and Tauranga. If evidence from the 2015 Quarry Conference is accurate, the industry is maturing and moving forward including embracing the concept of regulations that are modified so as to be suitable for the entire extractives sector.
The mining and quarry industry was regulated up until 1990-1991 when the health and safety legislation was changed and the Mining and Quarrying Inspectorate was effectively dismantled to a large degree. It is said that all the information that the former inspectorate had on file regarding quarry sites was binned.
This is not the case. That database was for my purposes, out of date and not complete. Other data bases were simply PO Box addresses without a physical address. A new comprehensive digital quarry data base is under construction with the assistance of various entities. We are more confident that we now know the location of most quarry activities and we have started to verify this data and will share information with authorities and industry.
The original mining and quarry regulations prior to 1992 were still regarded as best practice from most of the larger operators within the industry. Over the past 25 years the standard across the whole of New Zealand lowered in some areas due to: new players entering the market without necessarily knowing ‘best practice’; current players not being inspected and kept to a standard; some companies flouting the H&S legislation; and, most likely, equipment not being upgraded to keep up with the times in some areas. This is not to say the whole industry was like this as the major players have invested heavily and have kept up with their general H&S requirements.
Yes. I agree with that.
The Pike River enquiry was aimed solely at the Pike River mine explosion and recommendations were made on this basis – would you agree?
The Royal Commission on the Pike River Coal Mine Tragedy made recommendations aimed at that industry it is true. However, to address wider societal concerns, the government launched the Independent Taskforce on Workplace Health and Safety which highlighted New Zealand’s overall poor workplace safety record when compared to similar developed countries (six times worse than UK and three times worse than Australia) hence the wider initiative to improve industry performance including the quarries industry.
When the government enacted the 2013 legislation the words “Quarries and Tunnels” were added at the last minute.
This is not the case. It was the original intention of the MBIE Expert Reference Group to bring the largest most technically complex quarries under the new ‘Mines and Quarries’ regulations. When the case was put to the quarry industry during consultation, that option was rejected and the quarries were therefore left out except for defining safety critical roles.
The HSE (Mining Operations and Quarrying Operations) Regulations 2013 were still used to anchor Certificates of Competence (CoC) for the quarry industry. Tunneling was defined as a ‘mining operation’ but quarries were left out of all operational aspects of the regulations except for Part 1, which deals with safety critical roles (managers) and a requirement to give written notice to WorkSafe of the manager or acting manager(reg.24).
How much of the 2013 legislation applies to quarries?
All of the HSE Act 1992 (reprinted on 16 December 2013) applies to quarries as it does to every other worksite. This places a statutory obligation on every employer to take all practical steps to:
- Provide a safe work environment,
- Provide adequate facilities at work for employees safety and health,
- Ensure plant is designed and maintained in a safe condition,
- Ensure employees are not exposed to hazards associated with processing, storage and transport at their place of work and also near their place of work where such areas fall under their employer’s control.
- Have procedures to deal with emergencies arising at work.
Employers must systematically identify and regularly reassess hazards at work and then take all practical steps to eliminate those hazards, or where this is impractical isolate employees from the hazard or mitigate their effects.
With the exception of safety critical roles and notification to WorkSafe mentioned above, none of the Mining and Quarrying Regulations 2013 applies to quarries. However, whilst there are no prescriptive operational obligations imposed by the Mining and Quarrying Regulations 2013, it can be seen that under the HSE Act 1992, the legal obligation to identify all significant hazards and eliminate them, isolate or mitigate their effects already exists, has done so since 1992, and every employer including quarry employers are bound by this duty.
Does the current definition of a “Quarry” apply to anywhere extraction and/or processing of materials occurs as long as it is not for the purpose of recovering coal or minerals?
This is basically the question “Am I a quarry”? To understanding this question, the starting point is to appreciate that the definition of a quarry operation is not within the Mining and Quarrying Regulations 2013, but under sect 19N of the HSE 1992. WorkSafe cannot change the Act but has made clear the legal interpretation should not be unreasonable nor overlap into other regulated areas such as building or civil construction. Nor is it intended to over-prescribe arrangements for ‘non-complex’ extraction i.e. shallow pits where there are no steep faces, benches, tips or explosives associated with farming or forestry. From an operational perspective WorkSafe has listened to quarry operator’s and agree that non-complex extraction of gravel from river beds where there is no processing, as well as loading out from stockpiles not associated with active extraction sites, should be excluded.
Some information on this topic has already been provided to AQA but a position statement outlining the views expressed above will be included in the Surface Mines, Quarries and Alluvial Mines Guidance document due for release in final draft form.
How are Certificates of Competence set?
The unit standards required to upgrade all current and new A and B Grade quarry tickets or Certificates of Competence are recommended by the newly established Board of Examiners (set by WorkSafe Board) and then Gazetted). Quarries have three members out of 12 on the Board of Examiners – Andy Loader, Dean Torstonson and Steve Ellis.
In light of the recent fatalities in the quarry industry there is now public pressure to have the quarry industry included directly with the mining industry, but the legislation has to cover a myriad of operations from large rock quarries in Auckland down to small mobile alluvial operations based out of numerous rivers, large numbers of lime works and gold recovery operations – it’s not one size fits all.
We are looking for ‘fit for purpose’ not ‘one size fits all’. The Mining and Quarrying Regulations 2013 would be amended to address the full range of complexity within the extractives industry ranging from gassy underground coal mines to small quarries but this is entirely achievable. The regulations are already sub-divided into duties imposed on ‘all mines’; ‘underground mines’ and ‘underground coal mines’. What is being discussed is therefore an extension of the existing structure to embrace quarries and alluvial mining operations but that would only happen following proper consultation.
It is common knowledge that there are quarries being operated around the country that may not be complying with the current H&S regulations, the Mining and Quarry regulations, or, in fact have qualified quarry managers on site at all. Is this due to lack of enforcement from the government agencies that are responsible for enforcing these laws?
I agree we must find better ways of bringing these illegal operations to ‘book’ but have repeatedly stressed WorkSafe must not be seen as a ‘police force’ and we will not get the change in safety culture by enforcement alone. We must regulate with the assistance of the quarry industry in order to achieve fairness and consistency across safety and production standards. This is a mature industry and operators working outside the law must be doing this knowingly and ‘in plain sight’ of many who are aware of their potential shortcomings. Due to a recent initiative to reconcile information sources, we believe we know where most of the sites are. It would be unfair to assume that all sites yet to notify WorkSafe are operating unsafely; indeed it would be an alarming indictment of the quarry industry if this was so. However, I need to be clear that our enforcement approach will evolve in response to those sites that continue to make no attempt to notify WorkSafe or operate safely.
There are a number of managers employed throughout the quarry industry who are not academically minded, but are nevertheless very competent at their jobs.
WorkSafe recognises and values experience. Existing B-grade managers and those holding a lifetime ‘site specific’ certificate need only one additional Unit standard (G2) in carrying out a risk assessment to upgrade their Certificate of Competence. This is a reasonable requirement and many B-grades have already successfully completed this unit.
The extra unit standards required to upgrade current A Certificates of Competence include one level 5 and one level 6 unit standards which are effectively at diploma level. Will there be issues with achieving these qualifications?
Many ‘A- Grade’ quarry managers are well advanced in taking these additional unit standards. Not all units are at a high level but some are. Modern quarrying equipment is sophisticated and the systems being implemented requires properly qualified people to take the industry forward in terms of maintaining and improving production efficiency as well as lifting safety performance in line with government expectations.
Will we have enough managers by the end of year deadline?
All the necessary training courses are up and running. There have been some undersubscribed courses and WorkSafe are urging candidates to enroll now. If there is anyone with a question about obtaining their CoC they should contact WorkSafe on BoE_Secretariat@worksafe.govt.nz Phone: 04 901 4980
Will WorkSafe be legally required to start shutting down quarries if there is not a suitably qualified person available?
No! All the quarry sites operating with current CoC holders require ‘additional’ unit standards. These managers are already qualified safety-critical post holders and able to manage the site safely but require to upgrade their existing Certificate. It will be self-evident where operators have made a real effort and we will recognise where managers have commenced the additional units. There is no ‘legal’ obligation to start shutting down quarries and I have categorically and repeatedly stated this will not happen.
Operators that have to be concerned are those illegal sites attempting to run ‘beneath the radar’ unsafely and without trained staff.
Everyone has a right to work in healthy and safe conditions and return home safe to their family. That is non-negotiable in my book. WorkSafe will continue to challenge unsafe and illegal quarry operations which not only harm those working there but damage the reputation of good operators and are a blemish on an otherwise excellent quarry industry sector.