38   Modification of owner’s obligation to comply with determination

(1)  The obligation imposed on the owner of an underground coal mine by section 37 (2) or (5) is modified to the extent that the mines rescue company:

(a)  has refused to appoint as a member of the Brigade a person whose name is included in a list provided by the owner under section 37 (3), or

(b)  has terminated the appointment of a member previously appointed from a list so provided.

(2)  That obligation is also subject to the willingness of the persons whose names are included in such a list to be appointed as members of the Brigade.