Coal Mine Health and Safety Act 2002 No 129
Current version for 1 January 2014 to date (accessed 19 December 2014 at 13:17)
Part 10

Part 10 Oversight of coal operations

Division 1 Outline of this Part

144   Outline of this Part

(1)  This Part provides for the appointment, functions and powers of the following people, who are called government officials in this Act:
(a)  the Chief Inspector,
(b)  inspectors,
(c)  mine safety officers,
(d)  investigators.
(2)  This Part also provides for the election or appointment of the following people, who are called check inspectors in this Act, to carry out inspections as representatives of the workforce at coal operations:
(a)  site check inspectors,
(b)  electrical check inspectors,
(c)  industry check inspectors.

Division 2 Inspections by government officials

Subdivision 1 Appointment of government officials

145   Appointment of government officials

(1)  The Minister may appoint a person employed under Chapter 2 of the Public Sector Employment and Management Act 2002 as:
(a)  the Chief Inspector, or
(b)  an inspector, or
(c)  a mine safety officer, or
(d)  an investigator.
(2)  An instrument appointing a person under this section may limit the functions that the person has.
(3)  A person appointed under this section is to be issued with an identification card under section 157 of the Work Health and Safety Act 2011.

146   Qualifications of inspectors

A person may be appointed as an inspector only if the Minister considers that the person has:
(a)  a professional engineering qualification relevant to coal mining operations from an Australian university or any equivalent qualification, and
(b)  appropriate competencies, and adequate experience, in coal mining operations, to effectively perform the functions of an inspector.

147   Appointment of consultants as investigators

(1)  The Minister may appoint a consultant:
(a)  as an investigator for the purposes of carrying out investigations under this Act, or
(b)  to assist an investigator in carrying out such investigations.
(2)  A consultant appointed under this section has, while exercising the functions for which the consultant was appointed, the same functions as an investigator has under this Act and the regulations and the provisions of this Act and the regulations apply in respect of the consultant in the same way as they apply in respect of an inspector and anything done by an inspector.

148   Absence of Chief Inspector

If the Chief Inspector is absent from duty, or on duty but outside the State, the Minister may appoint an inspector to exercise the functions of the Chief Inspector.

Subdivision 2 Functions of government officials

149   Functions of Chief Inspector

(1)  The functions of the Chief Inspector are:
(a)  the control and direction of inspectors and mine safety officers, and
(b)  reviewing appeals from notices issued by inspectors and mine safety officers, and
(c)  the other functions that are conferred on the Chief Inspector by this Act or the regulations, and
(d)  any other function conferred by the Minister from time to time.
(2)  For the purposes of this Act, the Chief Inspector is an inspector.

150   Bringing concerns regarding health, safety or welfare to the attention of operators

(1)  This section applies if:
(a)  a government official exercises any of the powers conferred on him or her at or in connection with a coal operation or other workplace to which this Act applies, and
(b)  as a result of the exercise of those powers, he or she obtains any information or becomes aware of any practice at a coal operation that may, in his or her opinion, be relevant to the continued safe operation of a coal operation or the health, safety or welfare at work of the people who work at a coal operation.
(2)  In that case, the government official must, as soon as possible, so advise the most senior person in the management structure of the coal operation who is at work.

151   Consideration and investigation of complaints

(1)  A government official must consider any complaint made to the government official by an industry check inspector or by a site check inspector for a coal operation, being a complaint concerning the health, safety or welfare at work of the people who work at the coal operation.
(2)  A government official may investigate any such complaint if he or she considers it appropriate to do so.
(3)  A government official must report to the industry check inspector or site check inspector who made a complaint to the government official concerning the results of the official’s consideration or investigation of the complaint.
(4)  Nothing in this section prevents an industry check inspector or site check inspector from raising matters directly with the operator of a coal operation.

152   Audit and review of health and safety management systems

(1)  A government official may at any time audit and review the health and safety management system for a coal operation.
(2)  Such an audit and review may occur periodically, after the occurrence of an event prescribed by the regulations or at any other time that the government official thinks is appropriate.

153   Additional functions

A government official has the following additional functions:
(a)  in the case of a government official other than the Chief Inspector, to provide advice to the Chief Inspector on matters relating to the health, safety and welfare of people at work at coal operations,
(b)  to make reports on incidents or other matters at coal operations and to make recommendations for further action based on those reports.

Subdivision 3 Powers of government officials

Note. Section 156A of the Work Health and Safety Act 2011 provides that a person appointed as a government official under this Act is deemed to have been appointed as an inspector for the purposes of the WHS Act and has the powers of an inspector under that Act in relation to coal workplaces.

154   (Repealed)

155   Power of entry at any time

Despite Part 9 of the Work Health and Safety Act 2011, a government official may enter any place to which this Act applies at any time.

156   Power to require plan

(1)  A government official may require the operator of a coal operation to provide the government official with a plan of the coal operation marked with information that the government official considers necessary for an investigation or inquiry that the government official is making.
(2)  An operator must not fail to comply with a requirement made under this section.

Maximum penalty: 100 penalty units.

Division 3 Inspections on behalf of work force

Subdivision 1 Site check inspectors

157   Site check inspectors

(1)  For the purpose of enabling inspections to be carried out at a coal operation on behalf of the people at work at the coal operation, an individual may be elected as a site check inspector for the coal operation.
(2)  More than one person may be elected as a site check inspector if the operator agrees or the Chief Inspector directs.

158   Trigger for election

An election of a site check inspector for a coal operation must be held if one or more positions are vacant and:
(a)  a person employed in or about the coal operation requests in writing that an election be held, or
(b)  the Chief Inspector directs that an election be held.

159   Conduct of election of site check inspectors

(1)  An election for a site check inspector for a coal operation may be conducted:
(a)  if there is only one involved union in relation to the coal operation—by that involved union, or
(b)  if there is more than one involved union and all the involved unions are in agreement that a specified one of those unions should conduct the election—by that specified union, or
(c)  if there is no involved union in relation to the coal operation or agreement under paragraph (b) cannot be reached—by a person authorised by the Chief Inspector to conduct elections under this section.
(2)  A person employed in or about the coal operation may be a candidate in the election if and only if:
(a)  the person is not disqualified under section 161, and
(b)  the person is employed at the coal operation and has at least 3 years’ experience working at the coal operation or at a coal operation of the same type or has the other practical experience required by the regulations.
(3)  However, a person with less than 3 years’ experience may be a candidate for election if the Chief Inspector determines that the 3-year requirement is impractical in a particular case.
(4)  Subject to the regulations, all individuals employed in or about the coal operation are entitled to vote in the election.
(5)  Where there is only one candidate for the election, that person is taken to have been elected.
(6)  Where a person is elected as the site check inspector for a coal operation, the involved union or other person authorised under subsection (1) to conduct the election must, as soon as practicable after the person has been so elected, inform the Chief Inspector, the industry check inspector and the operator of the coal operation.
(7)  As soon as practicable after being so informed, the operator of the coal operation must cause a notice that the person so elected is the site check inspector for the coal operation to be displayed in a prominent place at the coal operation, that will allow all of the persons working in or about the coal operation to be notified of the election.

Maximum penalty: 10 penalty units.

160   Term of office

Subject to sections 161 and 162, a site check inspector for a coal operation holds office for 2 years after the date on which he or she was elected but is eligible to be elected for further terms of office.

161   Disqualification of site check inspectors

(1)  An application for the disqualification of a site check inspector for a coal operation may be made to the Chief Inspector by the operator of a coal operation, by all the individuals employed in or about a coal operation or by an involved union in relation to the coal operation, on one or both of the following grounds:
(a)  that action taken by the site check inspector in the exercise or purported exercise of a power under this Act was taken:
(i)  with the intention of causing harm to the operator of the coal operation or to an undertaking of the operator, or
(ii)  unreasonably, capriciously or otherwise than for the purpose for which the power was conferred on the site check inspector,
(b)  that the site check inspector has intentionally used, or disclosed to another person, for a purpose that is not connected with the exercise of a power of a site check inspector, information acquired from the operator of a coal operation.
(2)  If, after receiving an application under subsection (1), the Chief Inspector is satisfied that the site check inspector has acted in a manner referred to in subsection (1) (a) or (b), the Chief Inspector may, after having regard to:
(a)  the harm (if any) that was caused to the operator of the coal operation or to an undertaking of the operator as a result of the action of the site check inspector, and
(b)  the past record of the site check inspector in exercising the powers of a site check inspector, and
(c)  the effect (if any) on the public interest of the action of the Chief Inspector, and
(c1)  the views of the site check inspector, and any involved union that represents the site check inspector, concerning the disqualification, and
(d)  any other matters that the Chief Inspector thinks relevant to his or her investigation,
disqualify the site check inspector, for a specified period not exceeding 5 years, from being a site check inspector for any coal operation.

162   Vacation of office of site check inspector

(1)  A person ceases to be the site check inspector for a coal operation if:
(a)  the person resigns as the site check inspector, or
(b)  the person ceases to be employed in or about the coal operation, or
(c)  the person’s term of office expires without the person having been elected to be the site check inspector for the coal operation for a further term, or
(d)  the person is disqualified under section 161.
(2)  A person may resign as the site check inspector for a coal operation:
(a)  if the person was last elected as the site check inspector in an election conducted by an involved union in relation to the coal operation—by notice in writing delivered to the involved union that nominated the person as a candidate in the election, or
(b)  in any case—by notice in writing delivered to the operator of the coal operation.
(3)  If a person has resigned as the site check inspector for a coal operation:
(a)  if subsection (2) (a) applies—the involved union to which the notice of resignation was delivered, or
(b)  in any other case—the operator of the coal operation,
must notify the persons employed at or about the coal operation, and, in a case to which subsection (2) (a) applies, the operator of the coal operation, of the resignation.
(4)  If a person has ceased to be the site check inspector for a coal operation because of subsection (1) (b), the person must notify the following persons in writing that the person has ceased to be the site check inspector for that coal operation:
(a)  the persons employed at or about the coal operation,
(b)  the operator of the coal operation,
(c)  if the person was last elected as the site check inspector in an election conducted by an involved union in relation to the coal operation—the involved union, in relation to the coal operation, that nominated the person as a candidate in the election.

163   Notification of election

A person elected as a site check inspector for a coal operation must:
(a)  notify the operator of the coal operation of the person’s election, and
(b)  give to the operator the person’s address and telephone number (including any mobile telephone number).

Maximum penalty: 5 penalty units.

164   Functions of site check inspectors

The functions of a site check inspector for a coal operation are as follows:
(a)  to keep under review the measures taken to ensure the health, safety and welfare of people at the coal operation, including procedures to control risks,
(b)  to investigate any matter that may be a risk to health and safety at the coal operation,
(c)  to request an investigation by an inspector if a health, safety or welfare matter is not resolved after attempts to do so,
(d)  to inspect a coal operation to assess the level of risk to which employees are exposed,
(e)  to inspect documents and plans relating to health, safety and welfare that are required to be kept at the coal operation by this Act or the regulations or by the Work Health and Safety Act 2011 or the regulations made under that Act,
(f)  any other functions prescribed by the regulations.

165   Training of site check inspectors

(1)  A site check inspector for a coal operation must undertake a course of training relating to work health and safety that is accredited by the Minister for the purposes of this section.
(2)  The operator of a coal operation must permit the site check inspector for the coal operation to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

166   Rights of site check inspectors

(1)  A site check inspector:
(a)  has the right to be present when an inspector makes a formal report to the operator concerning a health, safety or welfare matter at the coal operation, and
(b)  has the right to accompany an employee, at the request of the employee, during any interview with the operator or a contractor about a health, safety or welfare matter at the coal operation, and
(c)  has the right to observe any formal in-house investigation of an event or other occurrence at the coal operation that must be notified to the Chief Inspector, and
(d)  has the right to require assistance and access to facilities that are reasonably necessary for the exercise of his or her functions.
(2)  A person must not obstruct a site check inspector in the exercise of any right conferred on the inspector by this Act.

Maximum penalty: 100 penalty units.

167   Duties of operators in relation to site check inspectors

The operator of a coal operation must:
(a)  on being requested to do so by a site check inspector for the coal operation, consult with the site check inspector on the implementation of changes at the coal operation, being changes that may affect the health or safety of persons at work at the coal operation, and
(b)  permit the site check inspector to make any inspection of the coal operation that the site check inspector is entitled to make under this Act, and to accompany an investigator during any investigation at the coal operation by the investigator, and
(c)  if there is no health and safety committee (established under the Work Health and Safety Act 2011) in respect of the operator’s employees at the coal operation—on being requested to do so by the site check inspector, consult with the site check inspector concerning the development, implementation and review of measures to ensure the health or safety of persons at work at the coal operation, and
(d)  permit the site check inspector to be present at any interview at which the site check inspector is entitled to be present under this Act, and
(e)  provide the site check inspector with access to any information to which the site check inspector is entitled to obtain access in accordance with this Act and to which access has been requested, and
(f)  provide the site check inspector with reasonable time, during normal working hours, to exercise the functions of the site check inspector without loss of remuneration or other entitlements, and
(g)  provide the site check inspector with access to any facilities that are:
(i)  prescribed for the purposes of this paragraph, or
(ii)  necessary for the purposes of exercising the powers of a site check inspector.

Maximum penalty: 100 penalty units.

168   Duties of contractors in relation to site check inspectors

A contractor carrying out work at a coal operation must:
(a)  on being requested to do so by a site check inspector for the coal operation, consult with the site check inspector on the implementation of changes at any coal operation at which employees of the contractor perform work for the contractor, being changes that may affect the health or safety at work of the employees, and
(b)  permit the site check inspector to make any inspection of the coal operation that the site check inspector is entitled to make under this Act, and to accompany an investigator during any investigation at the coal operation by the investigator, and
(c)  if there is no health and safety committee (established under the Work Health and Safety Act 2011) in respect of the contractor’s employees at the coal operation—upon being requested to do so by the site check inspector, consult with the site check inspector concerning the development, implementation and review of measures to ensure the health or safety at work of those employees, and
(d)  permit the site check inspector to be present at any interview at which the site check inspector is entitled to be present under this Act, and
(e)  provide the site check inspector with access to any information to which the site check inspector is entitled to obtain access in accordance with this Act and to which access has been requested, and
(f)  if the site check inspector is an employee of the contractor, provide the site check inspector with reasonable time, during normal working hours, to exercise the functions of the site check inspector, without loss of remuneration or other entitlements.

Maximum penalty: 100 penalty units.

169   Assistance to site check inspectors

The operator of a coal operation and all other people at the coal operation must afford every facility and assistance to a site check inspector for the purposes of an inspection of the coal operation by the site check inspector.

Maximum penalty: 100 penalty units.

170   Reports by site check inspectors

(1)  A site check inspector for a coal operation must, within 7 days after making an inspection of the coal operation or of any part of the coal operation, send to the operator of the coal operation a report of the results of the inspection.

Maximum penalty: 5 penalty units.

(2)  A report under subsection (1) in respect of a coal operation or a part of a coal operation must be kept at the coal operation by the operator of the coal operation for at least 12 months after it is made.

Maximum penalty: 100 penalty units.

171   Reporting of dangers

(1)  A report of the finding, during any inspection by a site check inspector for a coal operation, of:
(a)  noxious or flammable gas, or
(b)  the existence of self-heating by coal or other material, or
(c)  any other condition from which danger to the coal operation or to the safety or health of persons employed at the coal operation may be apprehended,
must be recorded by the site check inspector in a book or other form of records (to be kept at the coal operation by the operator for that purpose) on the day of the inspection and before the site check inspector leaves the coal operation following the inspection.
(2)  If any report recorded under subsection (1) in respect of a coal operation states the existence, or suspected existence, of any danger, the operator must immediately inform the Chief Inspector of the contents of the report and cause a copy of the report to be sent to the Chief Inspector.
(3)  The regulations may prescribe how the Chief Inspector is required to be informed under this section and what must be reported to the Chief Inspector.

Subdivision 2 Electrical check inspectors

172   Electrical check inspectors

(1)  For the purpose of enabling inspections to be carried out on electrical equipment at a coal operation on behalf of the people at the coal operation, a person may be elected as the electrical check inspector for the coal operation.
(2)  One electrical check inspector may be elected for each coal operation.
(3)  A person elected under this section must be:
(a)  the holder of the evidence of competence prescribed by the regulations, or
(b)  an electrical tradesperson with at least 5 years’ experience in coal mines in New South Wales.
(4)  Subdivision 1 applies to the election of electrical check inspectors in the same way as it applies to site check inspectors. However, an electrical check inspector need not work at the coal operation for which he or she is elected and the same person may be elected as an electrical check inspector for 2 or more coal operations.
(5)  Subdivision 1 applies to the functions of electrical check inspectors in the same way as it applies to site check inspectors, except that the functions of electrical check inspectors are limited to electrical equipment and issues and risks arising from its use.

Subdivision 3 Industry check inspectors

173   Appointment of industry check inspectors

(1)  The Minister must appoint a person as an industry check inspector if the person:
(a)  is nominated by the Construction, Forestry, Mining and Energy Union (Mining and Energy Division), and
(b)  is an authorised industrial officer within the meaning of Part 7 (Entry and inspection by officers of industrial organisations) of Chapter 5 of the Industrial Relations Act 1996, and
(c)  has the qualifications prescribed by the regulations.
(2)  However, the Minister is not required to appoint a person if there are already 4 people appointed as industry check inspectors.
(3)  If a person ceases to comply with subsection (1), that person’s appointment as industry check inspector is revoked.
(4)  An appointment under this section must be made in writing.

174   Functions of industry check inspectors

The functions of an industry check inspector are:
(a)  to review the content and functioning of the health and safety management system required under this Act or the regulations, and
(b)  to investigate any complaint from an employee at a coal operation regarding health or safety, and
(c)  to participate in investigations of events, occurrences or notifiable incidents, and
(d)  to assist in the training of site check inspectors, and
(e)  any other functions prescribed by the regulations.

175   Powers of industry check inspectors to suspend operations

(1)  This section applies if an industry check inspector is of the opinion that:
(a)  there has been a failure to comply with a provision of the Work Health and Safety Act 2011, this Act, the regulations under either of those Acts or any applicable health and safety management system, and
(b)  because of that failure there is a danger to the safety or health of persons at work at a place at the coal operation.
(2)  If this section applies, the industry check inspector may serve on the operator of the coal operation a notice:
(a)  stating that the industry check inspector is of the opinion referred to in subsection (1), and
(b)  giving particulars of the industry check inspector’s reasons for being of that opinion, and
(c)  giving particulars of the action which, in the industry check inspector’s opinion, should be taken to remove the danger.
(3)  That notice may direct that any operations being carried on at the place be suspended.
(4)  The notice must, if a form has been prescribed by the regulations for the purposes of this section, be in that form.
(5)  An operator who is given a direction must immediately:
(a)  comply with the direction, and
(b)  advise an inspector of the giving of the direction.
(6)  A direction ceases to have effect:
(a)  on attendance by an inspector and an assessment of matters to which the direction relates, or
(b)  on withdrawal, by instrument in writing, of the direction by the industry check inspector by whom it was given.
(7)  An operator who fails to comply with a direction given to the person is guilty of an offence.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—750 penalty units, or
(b)  in the case of a corporation (not being a previous offender)—500 penalty units, or
(c)  in the case of an individual (being a previous offender)—375 penalty units, or
(d)  in the case of an individual (not being a previous offender)—250 penalty units.

(8)  Despite a direction being given to an operator, the operator may cause work to be carried out in the place to which the direction relates for the purpose of preventing or mitigating danger.

176   Industry check inspector may delegate functions to site check inspector

(1)  An industry check inspector may delegate his or her functions under section 175 to a site check inspector.
(2)  A delegation must be in writing and must be sent to the site check inspector, the operator of the relevant coal operation and the Chief Inspector.
(3)  A site check inspector may only exercise delegated power under this section if:
(a)  the site check inspector has received any required training prescribed by the regulations, and
(b)  the industry check inspector is not available or it is not practicable for him or her to attend at short notice.

177   Care to be taken

In the exercise of a function under this Division, an industry check inspector must do as little damage as possible.

178   Identification of industry check inspectors

(1)  Every industry check inspector is to be issued with an identification card by the Minister.
(2)  The identification card must:
(a)  state that it is issued under this Act, and
(b)  give the name of the person to whom it is issued, and
(c)  state the date (if any) on which it expires, and
(d)  bear the signature of the Minister or an officer approved by the Minister for the purposes of this paragraph.

Subdivision 4 Inspections on behalf of work force

179   Inspections by check inspectors

A check inspector for a coal operation may:
(a)  at any time go into and inspect the shafts, roadways, working places, old workings and machinery and equipment at the coal operation, and
(b)  inspect any documents or plans that by virtue of the Work Health and Safety Act 2011 or the regulations made under that Act, or by virtue of this Act or the regulations made under this Act, are required to be kept at the office of the coal operation, and
(c)  when there is at the coal operation an event or other occurrence (being an event or occurrence for which notice is required by or under this Act to be given), inspect the place where the event or other occurrence happened and, so far as is necessary for the purpose of ascertaining its cause:
(i)  inspect any other part of the coal operation and any machinery, apparatus or other thing at the coal operation, or
(ii)  test the atmosphere at the place where the event or other occurrence happened.

180   Check inspector may be accompanied by operator’s representative

For the purposes of an inspection of a coal operation under section 179, a check inspector may be accompanied by the operator or a representative of the operator, if the operator thinks fit.

181   Check inspector must not leave work without prior notice

A check inspector employed at a coal operation must not leave his or her place of work for the purpose of exercising functions as a check inspector under this Subdivision unless the check inspector gives reasonable notice to the operator of the coal operation of his or her intention to do so. For this purpose, notice given to a supervisor is taken to have been given to the operator.

Maximum penalty: 20 penalty units.

Division 4 Offences

182   Offence of failing to comply with requirement of government official

A person must not, without reasonable excuse, refuse or fail to comply with a requirement made by a government official in accordance with this Act.

Maximum penalty:

(a)  in the case of a previous offender—150 penalty units, or
(b)  in any other case—100 penalty units.

183   Offence of interfering with check inspector or government official

A person must not, without reasonable excuse, wilfully interfere with a check inspector or a government official in exercising his or her functions under this Act.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—750 penalty units, or
(b)  in the case of a corporation (not being a previous offender)—500 penalty units, or
(c)  in the case of an individual (being a previous offender)—225 penalty units, or
(d)  in the case of an individual (not being a previous offender)—150 penalty units.

184   Offence of impersonating a check inspector or government official

A person must not impersonate, or falsely represent that the person is, a check inspector or a government official.

Maximum penalty: 100 penalty units.

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