Division 1 Approval of companies
9 Minister may approve of one or more companies
(1) The Minister may approve (either conditionally or unconditionally) of one or more companies registered under the Corporations Act for the purpose of exercising one or more of the functions set out in Division 2 or 3 of this Part and in Part 4 if the constitution of the company concerned contains:(a) a statement of the company’s objects that reflects the functions concerned, and(b) provisions to the effect of those set out in Schedule 5.(2) The Minister may approve of a company for that purpose even though the company has a constitution containing additional provisions, so long as those provisions are not inconsistent with any provision of the constitution required by subsection (1).(3) However, the Minister must not:(a) approve of any company unless the company:(i) is wholly owned in equal shares by the CFMEU (or by a company wholly owned by the CFMEU) and the Minerals Council (or a wholly-owned subsidiary of the Minerals Council), or(ii) is the wholly-owned subsidiary of another approved company, or(b) approve of any one or more companies unless the statement of objects of at least one of the companies includes the object of establishing or administering (or establishing and administering), or providing administrative services in respect of, superannuation schemes for the benefit of mine workers (within the meaning of the Coal and Oil Shale Mine Workers (Superannuation) Act 1941), former mine workers and their dependants, or(c) approve 2 or more companies to exercise the function specified in section 10 (1) (k) at the same time, or(d) approve 2 or more companies to exercise the function specified in section 10 (1) (m) at the same time.(4) The Minister’s approval is to be given by a notice that:(a) is published in the Gazette, and(b) specifies any conditions of the approval, and(c) specifies the functions that the company is approved, under this Part, to exercise.(5) In addition to any other functions it has under its constitution, an approved company has the functions specified in its notice of approval.(6) The Minister is to act in accordance with such provisions of the constitution of an approved company as are set out in Schedule 5.Note. The constitution of an approved company will require (among other things) the Minister to appoint the directors of the company.
Division 2 Functions of approved companies
(1) An approved company must exercise such of the following functions as are specified in its notice of approval:(a) providing work health and rehabilitation services for workers engaged in the coal industry, including providing preventive medical services, monitoring workers’ health and investigating related health matters,(b) collecting, collating and disseminating accident and other statistics relating to the health and safety of workers engaged in the coal industry,(c) collecting, collating and disseminating other statistics related to the coal industry,(d) referring matters relating to the safety of workers engaged in the coal industry, as it thinks fit, to the Chief Inspector appointed under the Coal Mine Health and Safety Act 2002 for consideration,(e) reporting to the Minister as it thinks fit, or when requested by the Minister, on matters related to the health or welfare of workers engaged in the coal industry, or on any other matter arising out of its functions,(f) publishing reports and information of public interest concerning or arising out of its functions,(g) promoting the welfare of workers and former workers in the coal industry in the State, their dependants and communities in coal mining areas,(h) monitoring, promoting and specifying adequate training standards relating to health and safety for workers engaged in the coal industry,(i) approving training schemes required for a health and safety management system under the Coal Mine Health and Safety Act 2002,(j) monitoring dust in coal mines,(k) providing mines rescue and other services in accordance with Division 3 of this Part and Part 4,(l) establishing or administering (or establishing and administering), or providing administrative services in respect of, superannuation schemes for the benefit of either or both of the following:(i) mine workers (within the meaning of the Coal and Oil Shale Mine Workers (Superannuation) Act 1941), former mine workers and their dependants,(ii) employees of the approved company, former employees and their dependants,(m) establishing or administering (or establishing and administering), or providing, workers compensation insurance schemes in relation to workers engaged in the coal industry.(2) In addition, an approved company may do either or both of the following:(a) provide courses in the production and utilisation of coal under international development assistance programs sponsored or administered by the Commonwealth Government or approved by the Minister,(b) undertake, or take part in, any other activities of benefit to the coal industry in New South Wales as determined by the directors of the company from time to time.
For the purpose of exercising its functions, an approved company may:(a) undertake or arrange for research, inquiries, investigations, surveys, tests and inspections, and(b) require the keeping and furnishing of statistics, returns and other information relating to matters concerning or arising out of the company’s functions under this Act.
12 Powers relating to health of mine workers
(1) If an approved company is of the opinion that the health of workers at a coal mine is endangered, or is likely to be endangered, by any conditions at the mine or methods in operation at the mine, the approved company may, by notice in writing, require the owner or manager of the mine to do or refrain from doing such things specified in the notice as are necessary to protect the health of the workers.(2) An owner or manager of a coal mine must not, without reasonable excuse, refuse or fail to comply with a requirement made under this section.Maximum penalty: 200 penalty units in the case of a corporation or 50 penalty units in the case of an individual.
(3) However, the owner or manager concerned may apply to the Tribunal for a review of a decision of an approved company imposing a requirement under this section.(4) If such an application is made:(a) proceedings against the applicant for an offence under this section may not be instituted, and(b) any such pending proceedings are stayed,until the completion of the review process.(5) In this section, approved company means an approved company whose approval extends to the exercise of functions under this section.
(1) An approved company may, with the approval of the Minister, make orders, not inconsistent with this Act or the regulations, for or with respect to the approved company’s functions.(2) Without limiting subsection (1), an order under this section may make requirements of the kind specified in section 11 (b).(3) An approved company may, with the approval of the Minister, by order vary or revoke any order made under this section.(4) An order made under this section:(a) must be published in the Gazette, and(b) takes effect on the day it is so published (or, if a later day is specified in the order for that purpose, on the later day so specified).(5) Subsection (4) (b) does not prevent an order from specifying different days in relation to different portions of the order.(6) A person must not, without reasonable excuse, refuse or fail to comply with an order made under this section.Maximum penalty: 200 penalty units in the case of a corporation or 50 penalty units in the case of an individual.
(7) However, a person who is required to comply with an order made under this section may apply to the Tribunal for a review of the decision of the approved company that gave rise to the order.(8) If such an application is made:(a) proceedings against the applicant for an offence under this section may not be instituted, and(b) any such pending proceedings are stayed,until the completion of the review process.
Division 3 Principal functions of mines rescue company
14 Principal mines rescue functions
The mines rescue company has the following principal functions in connection with underground coal mines in the State:(a) making available rescue services and facilities to deal with emergencies in those mines and, in particular, ensuring that the Brigade has the capacity to deal with any such emergencies,(b) ensuring that adequate rescue equipment (such as breathing apparatus) is available to enable members of the Brigade to deal with emergencies in those mines,(c) training members of the Brigade in mine rescue procedures at those mines and, in particular, in the use of breathing apparatus,(d) establishing appropriate procedures and arrangements for ensuring the mobilisation of members of the Brigade and the supply of rescue equipment in response to emergencies in those mines,(e) ensuring that persons with an adequate knowledge of mine rescue work are available to provide technical advice to the owners of those mines if emergencies should arise in those mines.
15 Ancillary function of mines rescue company
The mines rescue company has, in connection with its principal functions, the ancillary function of acquiring or building, and maintaining or disposing of, mine rescue stations.
16 Discretionary functions—rescue services for other mines
The mines rescue company may (but is not obliged to) exercise the following additional functions in connection with mines (other than underground coal mines in the State):(a) providing rescue services and facilities at those mines, including rescue equipment (such as breathing apparatus),(b) providing training courses in connection with mine safety and emergency procedures at those mines (including, for example, fighting fires and rescuing mine workers and others who are trapped in those mines).
17 Discretionary functions—non-rescue services for mines and others
The mines rescue company may (but is not obliged to) exercise the following additional functions:(a) providing work health and safety services for employers of mine workers and others (not including rescue services but including, for example, training services or assistance in work underground or in confined spaces),(b) providing technical and advisory services to owners of mines and others (including, for example, calibrating and repairing methane gas detection instruments and maintaining and repairing breathing apparatus).
18 Discretionary functions may be exercised anywhere
The mines rescue company may exercise its discretionary functions under this Division (or any function ancillary to those functions) in the State or elsewhere, or both in the State and elsewhere.
19 Owners of coal mines to make contributions to fund mines rescue functions
(1) Owners of coal mines are to pay contributions to the mines rescue company to defray the costs incurred by that company in exercising its functions under section 14.(2) The mines rescue company is to determine, in respect of each financial year of that company, the amount that an owner of a coal mine must pay, in respect of the coal mine, under this section.(3) The mines rescue company may make different determinations under this section in respect of different coal mines, having regard to such of the following matters as are applicable to the coal mine concerned:(a) the quantity of coal produced from the mine during the period of 12 months preceding the financial year concerned,(b) the average number of employees employed at the mine during that period,(c) the cost incurred during that period in meeting the expense of having employees of the mines rescue company on stand-by in respect of the mine,(d) the cost incurred during that period in training members of the Brigade to carry out mine rescue work at the mine,(e) an amount, quantified by the mines rescue company, representing the risk of a mining accident occurring at the mine,(f) the cost likely to be incurred in actually responding to a call to the mines rescue company to provide rescue services at the mine.(4) The mines rescue company may (but is not obliged to) allow the amount determined to be paid by instalments, either generally or in a particular case.(5) The regulations may replace a determination made under this section by prescribing an amount, in respect of a particular coal mine, different from the amount determined by the mines rescue company in respect of the coal mine.(6) Any such regulation is taken, for the purposes of this Act, to be a determination made under this section.(7) Nothing in this section affects the liability of any person to pay any fees charged under section 22 (2).
20 Mines rescue company to serve notice of contribution payable on owner of coal mine
(1) The mines rescue company must, for each year, serve on each owner of a coal mine a notice specifying the following:(a) the amount that the owner is required to pay under section 19,(b) the method by which that amount has been determined,(c) the date by which the amount must be paid (or, if the amount may be paid by instalments, the amount of each instalment and the date by which that instalment must be paid).(2) If a regulation replaces a determination (as referred to in section 19 (5)), the mines rescue company must serve on each owner of a coal mine a further notice under subsection (1) in respect of the replacement determination.(3) A notice required by this section is taken to have been served on the owner of a coal mine:(a) if, in the case of an owner who is not a body corporate, it is delivered to the owner personally, or is sent by post to the owner’s last address known to the mines rescue company, or(b) if, in the case of an owner who is a body corporate, it is served in a manner authorised under the Corporations Act for service of documents on a body corporate.
21 Money due to mines rescue company
(1) The mines rescue company may waive or refund the whole or any part of any contribution, interest or other money due or paid to the company in any particular case or in any class of cases.(2) Any contribution, interest or other money due to the mines rescue company may be recovered as a debt in a court of competent jurisdiction.
Division 4 General financial matters
22 No fees for certain services
(1) The mines rescue company must not charge fees for services provided by it in the exercise of the functions specified in section 14.(2) Despite subsection (1), the mines rescue company may charge fees for providing rescue services and facilities (including rescue equipment) to deal with an emergency in an underground coal mine in the State.(3) However, the mines rescue company is not to charge any fee in respect of the first 8 hours (or such longer period as the regulations may prescribe) during which it provides those services and facilities in relation to the emergency.(4) A reference in this section to the providing of facilities includes a reference to the use of those facilities.Note. Section 14 sets out the principal functions of the mines rescue company. Except as provided by section 22 (2), the costs of exercising those functions are to be defrayed by the contributions, under section 19, of owners of coal mines.
23 Approved companies not subject to certain State taxes
(1) An approved company, and a subsidiary of an approved company, is not liable to taxation under any law of the State (other than under the Mine Safety (Cost Recovery) Act 2005) except in so far as the approved company or the subsidiary establishes or administers (or establishes and administers), or provides administrative services in respect of, a superannuation scheme.(2) Subsection (1) does not apply to an approved company, or a subsidiary of an approved company, that engages in activities outside the coal industry (except in so far as those activities are necessary to enable it to exercise its functions in relation to the coal industry).(3) Subsection (2) does not apply to the mines rescue company in respect of the exercise of its functions under Division 3 of this Part or Part 4 in relation to mines other than coal mines.
(1) All premiums and other money received by the workers compensation company under any workers compensation insurance scheme established, administered or provided by that company, and any other money received by the company for the purposes of the scheme (including, but not limited to, money received under subsection (2)), must be applied:(a) to pay any sum required to be paid by the company under any workers compensation scheme established, administered or provided by it, and(b) to pay any expenses incurred in the management and administration of any such scheme, and(b1) to pay, to the Minister administering the District Court Act 1973, such of the costs of operation of the District Court relating to a coal miner matter under section 105 of the Workplace Injury Management and Workers Compensation Act 1998, being costs incurred after 30 June 2005, as the Minister administering the District Court Act 1973 and the Minister administering this Act agree are to be paid from those premiums and that money, and(c) to pay for the provision of work health and rehabilitation services, and(d) for such other purposes related to the coal industry, to the company’s welfare functions or to workers formerly engaged in the coal industry as may be approved by the Minister.(2) If the workers compensation company is satisfied (from the results of an actuarial investigation or from other information) that there is an overall deficit in the funds to be applied for the purposes specified in subsection (1), the workers compensation company may, by notice in writing to each employer in the coal industry in the State, require the employer to pay to the company a contribution of such amount as the company may determine and specify in the notice.(3) The contribution is payable:(a) in respect of the financial year specified in the notice, and(b) at such time as is so specified.
Division 5 Appointment and powers of inspectors
25 Approved companies may appoint inspectors
(1) An approved company may, by notice in writing given to any of its employees or officers, appoint the employees or officers as inspectors for the purposes of undertaking inspections to assist the approved company in the exercise of its functions.(2) As soon as practicable after making its first appointment under this section, an approved company must provide the Minister with a list specifying the names of each of its employees so appointed. The company must also, as soon as practicable after the occurrence of any change that would affect the list, notify the Minister in writing of the change.
26 Powers of inspectors to carry out searches
(1) An inspector may enter, at any reasonable time, any premises for the purpose of making an inspection referred to in section 25 and may do any or all of the following:(a) search the premises,(b) take photographs, or make sketches, of the premises or any substance or thing at the premises,(c) inspect any book, record or document kept at the premises,(d) remove, or make copies of, any such book, record or document.(2) An inspector may not exercise any powers under this section in relation to premises unless the inspector has:(a) produced the inspector’s notice of appointment as an inspector for inspection by the occupier of the premises, and(b) informed the occupier of the purpose of the inspector’s entry of the premises.(3) An inspector may not, under this section, enter premises that are a residence unless the occupier of the premises has consented to the entry.(4) An inspector must use no more force than is reasonably necessary in effecting entry on to any premises.(5) If damage is caused to property by an inspector in exercising a power of entry under this section, reasonable compensation is payable by the approved company of which the inspector is an employee to the owner of the property, unless the damage resulted from, or was connected with, obstruction of the inspector.(6) In this section, premises includes buildings, land and mines.
27 Power to require information
(1) An inspector who has entered premises for the purpose of making an inspection referred to in section 25 may, to the extent that it is reasonably necessary to ascertain whether orders or requirements of the approved company in the exercise of any of its functions under Division 2 or 3 of this Part or Part 4 have been complied with, require a person to answer any questions put by the inspector and to produce any books, records or documents required by the inspector.(2) An inspector is not entitled to make a requirement of a person under this section unless the inspector produces his or her notice of appointment as an inspector for inspection by the person.
28 Retention of books, records and documents
If an inspector removes a book, record or document from premises under this Division, or a person produces a book, record or document to an inspector in accordance with a requirement of an inspector under this Division:(a) the inspector may retain possession of the book, record or document for such period as is necessary and reasonable for the purpose of ascertaining whether any orders or requirements referred to in section 27 (1) have been complied with, and(b) during that period, the inspector must permit a person who would be entitled to inspect the book, record or document if it were not in the inspector’s possession to inspect the book, record or document at all reasonable times.
29 Exoneration from personal liability
A matter or thing done or omitted to be done by an inspector acting under the direction of an approved company does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act, subject the inspector personally to any action, liability, claim or demand.
Division 6 Certain obligations of owners and managers of coal mines and employers in the coal industry in relation to approved companies
30 Contributions to be paid by due date
(1) The owner of a coal mine must pay any amount required by the notice served on the owner under section 20 on or before the date specified in that notice for payment of the amount concerned.(2) An employer in the coal industry in the State must pay any amount required by the notice served on the owner under section 24 (2) on or before the date specified in that notice for payment of the amount concerned.(3) If payment is not made on or before the relevant date, the owner or employer concerned must pay interest on the amount in respect of the period from that date until the date of payment at such rate, not exceeding 15 per cent per year, as the mines rescue company or the workers compensation company (as the case requires) determines from time to time for the purposes of this subsection.
(1) The workers compensation company has the power to require any employer in the coal industry in the State to effect with or through that company all workers compensation insurance in respect of the employer’s employees in the industry.(2) An employer in the coal industry in the State must comply with any such requirement.(3) The following are specifically authorised by this Act for the purposes of the Trade Practices Act 1974 of the Commonwealth and the Competition Code of New South Wales:(a) any matter or thing done by the workers compensation company in imposing a requirement under this section,(b) any agreement entered into by or with the workers compensation company for the purpose of effecting workers compensation insurance in accordance with a requirement made under this section,(c) the conduct of the parties in entering into any such agreement,(d) the conduct of the parties in performing any such agreement.(4) The maximum penalty that may be imposed for failure to comply with a requirement under this section is:(a) in the case of a corporation—100 penalty units for the first day the contravention occurs and an additional 50 penalty units for each subsequent day on which the contravention continues, or(b) in the case of an individual—50 penalty units for the first day the contravention occurs and an additional 25 penalty units for each subsequent day on which the contravention continues.(5) In this section:(a) agreement includes a contract, arrangement or understanding, and(b) a reference to the workers compensation company or an employer in the coal industry includes a reference to the officers and agents of, and other persons duly authorised by, the company or employer concerned.
32 Co-operation with inspectors
An owner or manager of a coal mine, or an agent or employee of such an owner or manager, must not, without reasonable excuse:(a) refuse to answer any question put to the person under section 27, or(b) knowingly make any false or misleading statement in answer to any such question, or(c) fail or refuse to produce any book, record or document required to be produced under section 27, or(d) delay, obstruct or hinder an inspector in the exercise of any functions conferred on the inspector under Division 5.Maximum penalty: 100 penalty units in the case of a corporation or 30 penalty units in the case of an individual.