Submitter feedback

Safety case regime

A safety case was supported by two of the ancillary service providers (Mssrs King and Stewart), and both unions - but was the primary option only for Mr King.

This approach generated strong opposing submissions:

Pro	Supporter profile	Con	Opposition profile
4	2 Ancillary, 2 Unions	6	2 Employers, 2 Sector, 1 Ancillary

Supporters considered this option would ensure operators, especially small mines, established before starting operations how they would manage safety, therefore building industry knowledge, and making it easier for the department to check and audit the safety systems. Supporters considered that operators should not enter the industry unless they are able to provide for safety and accept the costs associated with that.

Union submitters supported a safety case option alongside worker check inspectors. They noted that a safety case regime had not prevented fatalities in the rail industry in 2000, and that both the subsequent Ministerial inquiry and international research indicated that real worker participation was key to the successful operation of a safety case. They saw this finding as reflecting a need for worker/safety committee sign-off of the safety case, which could be supported by an ability to withdraw support for the case.

Newmont Waihi Gold supported the idea of a safety case, but without the requirement for departmental approval. They supported the Victorian practice (as described in the discussion paper), which more resembles a documented health and safety management system than a safety case option.

Submitters opposing the safety case option (Pike River Coal, Roa Mining, MinEx, EMA, McConnell Dowell) had the following concerns:

• requiring a full safety case would be too onerous and costly for the small mining industry, especially for small operators
• the model is relatively "untried" (despite operating in the rail sector, and its emergence for Australian mining) - submitters considered New Zealand lacks enough experience to operate it effectively without undue compliance costs, and
• submitters considered that the department does not have the resources to operate an approval system without causing undue delay and cost for operators.

Two submitters were more neutral. NZISM indicated that the cost and complexity, especially for smaller operators, could be dealt with by providing a standard system and simplified risk matrix. Ancillary submitters indicated that support models and services would need to be available for smaller operators. Solid Energy thought this was a good concept, possibly useful for smaller mines. However, it did not consider the department had the resourcing to administer it effectively. Solid Energy considered a safety case approach could potentially be combined with the documentation required for Crown Minerals.

Submitters' views about the contents of a safety case were similar to the contents of a health and safety management system.

Requiring specific controls for high risk activities

Licensing high risk activities

Requiring activities to be licensed was not the preferred option of any submitter, and was supported by only two. More submitters opposed this option:

Pro	Supporter profile	Con	Opposition profile
2	2 Union	6	2 Employer, 2 Sector, 1 Ancillary, 1 Individual

The EPMU saw licensing as part of a safety case, as a safety case would identify activities requiring a license. They considered licensing requests should be made by the health and safety committee.

Opposing submitters raised a number of concerns. Solid Energy considered it would be difficult to identify what should be licensed. Pike River Coal suggested that a standard matrix of risk factors would be needed. Mr King commented that if used, it would only be for one-off, unique activities. McConnell Dowell and Mr King noted that a licensing approach cuts across a risk management approach. MinEx, NZISM and individual submitter A considered this approach of little value. MinEx noted that licensing could be seen as transferring the employer's responsibility.

Several submitters provided ideas of what could be covered, even if they did not support the approach:

• MinEx and Pike River Coal referred to activities where there is innovation or the need to depart from an established industry standard, such as - working within 50m of a fault; working near old workings; development work in gassy mines; single entry headings beyond a certain length; introduction of new technology for roof support, explosives etc
• NZISM referred to gas drainage, dewatering, maintaining adequate ventilation, P5 explosive use, new development through faulted ground or where there are known or suspected areas of bad ground
• the NZCTU raised blasting and exploration.

NZISM raised the idea of having a 5-yearly "license to operate", where every main section of the mine, including production and development sections, shaft, pit bottom activities would have to meet minimum standards of housekeeping and discipline issues. The operating license would identify the things that need separate auditing. This concept appears similar to a safety case.

Some submitters raised issues about competency and licensing people rather than licensing activities. These comments are discussed below under amending the Mining Administration Regulations/competency.

Third party monitoring of high risk activities

Under this option certain activities would need to be performed by or under the supervision of an appropriately qualified person. Submitters took different interpretations of this option, and it was not a preferred option.

Several submitters (Mr King, Solid Energy, Pike River Coal, NZISM, McConnell Dowell and Mr Stewart) took it to mean certain activities being performed under third party supervision. Mr King was neutral, but considered it could be useful for smaller mines so as to avoid having to cover one-off activities in the safety case. The other submitters opposed this approach, noting that it duplicates the existing managerial qualification and competency requirements, and it is not risk-management based. NZISM commented that the existing system should be fixed before introducing a new one. Pike River Coal noted the small size of the New Zealand industry, the small number of specialists, and the risk of conflicts of interest.

Several submitters were more open to third party monitoring as a form of audit mechanism. From this perspective, some submitters supported monitoring - the unions and individual submitter A. Most were more neutral (Pike River Coal, Roa Mining, MinEx, EMA and Mr King). Submitters raised links with health monitoring under the HSE Act (NZCTU, EPMU and EMA), and most of the others raised ACC auditing and the need to align any monitoring with this. Some also said that auditing needs to be by a mining expert, not a generalist health and safety expert. Individual submitter A noted that a third party auditor could be more proactive than a departmental inspector. Individual submitter, Mr B, supported monitoring- by the department as the regulator.

Notification of high risk activities

Extending existing notification requirements by adding other activities was not a primary option for any submitters. It was supported by some submitters as part of a mixed approach, and was also opposed by some:

Pro	Supporter profile	Con	Opposition profile
4	1 Employer, 1 Ancillary, 1 Union	5	2 Employer, 1 Sector, 1 Ancillary, 1 Individual

Supporters of this option considered it could cover "non-core" activities (Newmont Waihi Gold), or "unusual" activities (Mr King), and outside "normal" activities that posed a risk (NZCTU).

Newmont Waihi Gold referred to shaft sinking or working near old workings, and that these should require notification and re-submittal of the hazard management plan. Mr Stewart saw it as inherent in a licensing system. Mr King considered this could apply to any activity that was outside the usual operation. The NZCTU referred to activities that could affect the local community, either through direct impact (e.g. injuries or flooding), activities which might affect services to a local community (e.g. loss in power, water supply) and activities which might affect the environment.

Submitters opposing further notification considered that this option lacked any value or purpose, as too bureaucratic, the department did not have the resources to follow up notifications, and there would be business risks from any delays (Solid Energy, Pike River Coal, NZISM, McConnell Dowell). They considered management of hazards would be best done through the hazard management plan. Individual submitter A noted that this implied that all activity should be notified since mining is a high hazard industry.

Some submitters were more neutral, considering the option could have merit, but they did not think it could operate effectively with current departmental resourcing (EMA, Mr Stewart, and MinEx).

Submitters considered that any notification should not duplicate the reporting requirements to Crown Minerals under the Crown Minerals Act.

Health & safety management system, hazard management

This option had the highest level of support as the primary approach for improving safety (all from employer-perspective submitters, as all the worker perspective submitters primarily preferred check inspectors). Many, including union submitters, also supported this option as part of a package of options

Pro	Supporter profile	Con	Opposition profile
4-6	1 Employer, 2 Sector, 2 Ancillary, 1 Individual	1	1 Worker

There was a consistent theme that requiring a health and safety management system should apply equally to smaller mines, as risks are the same regardless of size. Some noted, however, that smaller mines would have less complex systems.

Most submitters sought a risk management approach, to be supported by more detailed guidance (or an ACOP) to enable individual mines to prepare the content of their plans. Some submitters mixed this option with strengthening qualification /competency requirements, and/or with a notification system. Two submitters also supported third party monitoring in a mix.

Most supporters considered the system needed to cover all the risks and hazards of underground mining, not just some, although some thought it could emphasise the high risk hazards. Pike River Coal noted that: the system would identify the hazards and risks of the operation; describe how these risks are controlled; describe the management system to be put in place to ensure that the controls and processes are consistently applied; describe how the operator will specifically comply with the relevant Acts and Regulations covering their operations.

Some submitters considered a framework could easily be taken from Australian models, and some referred to MinEx guidance. Pike River Coal considered that a good start would be the Victorian model set out in the discussion paper (i.e. a documented safety system containing the safety policy, systems and procedures for controlling risks, performance standards for measuring the system's effectiveness, and the audit process, plus a safety assessment for major hazards, showing the methodology and likelihood and severity of potential harm).

Unions supported a documented health and safety management system covering employee participation, such as the involvement (or possibly sign off) of health and safety representatives/committees in the hazard management plans.

The NZCTU stressed the need for the safety system to be simple and clear so that workers could understand it, especially more vulnerable workers like migrants.

Some submitters sought better integration between improving the health and safety systems and the existing requirement to provide mine plans to Crown Minerals. The individual submitter A considered plans could be required to contain features such as adjacent workings, method of work, ventilation, gas management, fire fighting provision, self rescuer caches and accompanied by the associated risk assessments.

Increased guidance/ACOP

Two to four submitters preferred guidance/an ACOP as the best way to improve safety in underground mining (Solid Energy and the EMA had a clear preference, Submitter A had an indicative preference, and MinEx clarified its preference for guidance in its meeting with officials, but indicated it would also support regulating a documented health and safety management system).

Five other submitters supported increased guidance/ACOP as part of a package of options (Pike River Coal, NZISM, McConnell Dowell, EPMU and NZCTU). There was no real opposition to the idea of increased guidance, apart from two ancillary submitters who felt guidance was too general and did not add value, whereas a documented health and safety system or a safety case would be more site-specific.

Some thought guidance on best practice would be particularly useful for small operators (Solid Energy, McConnell Dowell).

In March 2008, MinEx released a suite a guidance, which was not referred to in the discussion paper. The MinEx guidance included an industry code and several specific guides. MinEx advised that they have received positive feedback from industry, and, would welcome working with the department to extend the guidance and potentially incorporate overseas information.

There was considerable consistency over what technical standards should be covered by guidance. The MinEx guidance covered:

• Environment - lighting, first aid, hot/cold environments, access, toilets
• Personnel - covers a range of things, including training and PPE
• Mine and tunnel planning (plans)
• Control of significant hazards: hazard identification and risk assessment; hazardous substances; fire and explosion; spontaneous combustion; inundation; outburst/rockburst; strata/lining failure; ventilation
• Equipment and machinery
• Compressed air environment
• Shafts and windings
• Emergency response

The MinEx guidance contained the most comprehensive list, but a number of other submitters made similar suggestions (Pike River Coal, NZISM, McConnell Dowell). These included: ventilation; gas management; engineering plans (covering mechanical, electrical and mobile equipment); explosions; inrush; strata control; the underground environment; support and planning, personnel provisions; traffic management; change management; mine inspection; change management; and gas monitoring.

Submitters often referred to existing Australian standards (note that Australian material has been considered and referred to in the MinEx guidance). One individual submitter, who was not aware of the MinEx guidance, said that a pre-2008 industry draft code was a "good start" (note that this document had clear similarities to the MinEx guidance).

One area of difference was inclusion of employee participation. The EPMU commented that employee participation has not been included in the MinEx guidance, whereas MinEx considered that the employee participation provisions of the HSE Act are sufficient.

Some submitters strongly supported development of guidance in consultation with industry involvement (Pike River Coal, McConnell Dowell, EMA). The EPMU said input was needed from experienced miners.

Submitters held differing views about whether to have an ACOP or industry guidance. Both provide evidence of practice, and an ACOP is evidence of preferred practice. NZISM, one individual, and the two unions preferred a detailed ACOP. Solid Energy and MinEx preferred guidance, saying this format would be equally enforceable and more flexible. MinEx commented that a number of existing ACOPs have been allowed to become out-of-date.

Expanding the Mining Underground Regulations

No submitters supported this option. Some thought the existing standards were sufficient, while some thought they were piecemeal and should be removed into guidance.

Mining Administration Regulations/competency requirements

Submitters, including Roa Mining, the smaller mine operator, generally agreed that the need for managerial competency is not dependent on the size of the mine, as the risks are the same regardless of size.

Most supported the specific proposal to revoke regulation 11(3) of the Mining Administration Regulations. The department did not receive any submissions from very small mine operators. One submitter, Mr B, opposed this revocation. Some submitters noted the need for a transitional process for this change.

Position	No	Submitters
Primary option in mix	1	1 Employer
Key component of package	8	2 Employer, 3 Sector, 2 individual, 1 union
Support amending Reg.11(3)	8	1 Employer, 3 Sector, 2 Ancillary, 2 union
Opposed to amending Reg.11(3)	1	1 Individual

There was a high level of overall support for ensuring mine managers are appropriately qualified and competent. Pike River Coal described managerial qualifications and competency as the "primary means of providing safety, industry specific guidance and governance at operational level".

Some submitters had concerns about levels of supervision and competency in practice. MinEx and Pike River Coal provided feedback on other ways to improve competency:

• extending competency requirements to all those in management or supervisory positions underground and key industry professionals such as mine engineers, surveyors, geologists etc, whose advice is used to make safety related decisions underground
• improving on-going competency development, and systems management (through the Industry Training Organisation setting standards and feeding into an accreditation body)
• extended competency requirements should not be a prerequisite to appointment
• the specific competency standards should be removed from the Mining Administration Regulations as gazetting is unnecessarily cumbersome, and
• recognising overseas qualifications because skill shortages and the size of New Zealand's industry mean we have to recruit from overseas.

Several submitters commented on the terminology of competence, qualification and skill. Pike River Coal and NZISM considered the term "competent person" needed to be defined in the law. The NZCTU considered there needed to be an agreed definition of "competent", and that this should link to skills development and the department's 2008 Skills Strategy discussion paper. The EPMU considered the requirement in the Mining Underground Regulations for certain roles to be done by a "competent" person could be supported by licensing. One individual submitter (Mr B) considered the department should reject the term "competent", and insist on qualified and experienced, as competency is too open to interpretation.

This issue was strongly linked to workforce issues - that mining is a growing industry, and it is increasingly hard to get skilled workers and managers. A number of submitters suggested ways to build the workforce; EMA suggested establishing a mining ("digger") school.

Employee participation

Check inspectors

The primary feedback from worker and union submitters was for improved employee participation through check inspectors, as the single most effective solution for improving health and safety in underground mines.

This option also had a high level of opposition:

Pro	Supporter profile	Con	Opposition profile
5	2 Unions, 2 Workers, 1 Individual	9	4 Employers, 3 Sector, 3 Ancillary

Union submitters saw the check inspector as an specialised form of employee participation (additional to any health and safety representative).

The EPMU considered they would be elected, have 5 years experience, hold a minimum of a mine deputy qualification, and would be required to attend training. They would have the following roles:

• to immediately order the withdrawal of employees from the mine or part of the mine believed to be dangerous to life or injurious to health (as determined by the inspector), or order immediate discontinuance of any dangerous practice, or evacuation of the mine in emergency situations
• to inspect the mine every two weeks (and upon a miner's request regarding a dangerous condition or practice), and provide a written report to the mine manager, and
• to support health and safety representatives and committees in the development of safety cases and make recommendations to the department regarding granting/withdrawing any high risk activity license.

The EPMU considered that check inspectors from larger mines could fulfil the role for smaller mines that were too small to have check inspectors of their own. Mr D saw check inspectors' role as more limited - having the power to request that a dangerous situation be fixed, or if not, to call upon an inspector.

The EPMU saw check inspectors as a "simple" change, not intended to be inconsistent with the current HSE regulatory framework, and they were not seeking legislative change to the principal HSE Act. They believed check inspectors could be implemented by a mix of specific regulation and as part of a safety case. The EPMU advised that they had not been successful in negotiating for check inspector-type roles under the employee participation provisions of the HSE Act, and, instead, the default provisions the default employee participation provisions applied (health and safety representatives and committees).

The EPMU advised that, in the past, check inspectors were respected by mine managers and worked effectively with them. They also said the union used this role only for safety, not for industrial bargaining.

The concerns raised by union and worker submitters were:

• payment of production bonuses to supervisors creates an inherent conflict with prioritising safety (EPMU, CTU, Mr C)
• managers were less likely to be experienced miners, and more likely to be trained in other specialties (EPMU)
• a perception that the HSE Act gave employers freedom to write their own safety regulations, and, employers were using "permits to work" on a regular basis when these were meant only for emergency situations (Mr C)
• a perception that the change to everyone being responsible for safety did not work, and meant that no-one was taking charge (Mr C)
• mines were deeper and harder to mine, increasing the risks, especially in coal mines (EPMU)
• hazard and incident reports "disappear into the system" and are not acted on quickly enough (Mr C)
• experienced miners are disillusioned with health and safety committees, because the meetings are unsatisfactory and there is not equal representation of union members and management (Mr C), and
• Mr D believed it was "common practice" for some officials to take a complainant off the job and replace him with someone who was willing to do the work.

Submitters coming from the employer perspective opposed check inspectors as a return to prescription and a more confrontational management style with workers and the union. They noted:

• mine operators already had to have qualified managers, and it duplicated a function already required of employees
• it blurred responsibility, as the HSE Act placed safety duties primarily on employers
• the HSE Act already provided for health and safety representatives, committees, hazard notices, and the right to refuse unsafe work
• there was no special case on the evidence for having a separate system just for mining, when there are other high hazard industries
• it risked creating tension in workplace, which had created poor working relationships in the past, and could be used for industrial reasons by the union, and
• they did not consider the EPMU had sought different employee participation arrangements.

ACOP for employee participation

No submitters supported an employee participation ACOP for underground mining as the best option to improve employee participation.

Mr King gave qualified support to the idea, and the NZCTU and NZISM considered an employee participation ACOP would generally be more applicable to all industries, not just mining.

Four submitters opposed an employee participation ACOP option (MinEx, EMA, McConnell Dowell and Mr Stewart). Some commented that an ACOP just for mining was not warranted. Six submitters, including the four opposing, considered that there are already good mechanisms through the existing HSE Act processes - health and safety representatives and committees, hazard notices and the right to refuse unsafe work. The two additional submitters in this group were Newmont Waihi Gold and Solid Energy.

Improving inspections

One individual submitter, Mr B, supported regulating for inspector visits. Five submitters opposed regulating increased inspection (Solid Energy, Pike River Coal, MinEx, Mr Stewart, and McConnell Dowell).

Four submitters (Roa Mining, NZISM, Mr King, Mr Stewart and NZCTU) supported increased resourcing for the inspectorate and more frequent visits, but not through increased regulation.

Mr B saw increased inspection as the best way to improve safety, especially for smaller mines, because this would address non-compliance with safety, which was the main problem as most fatalities were avoidable.

Supporters of increased inspection and inspectorate resourcing considered there would need to be a larger pool of inspectors, and that inspections could function as an audit (one submitter said they could look forward, not just at past performance).

Some submitters suggested three-monthly cycles of visits, or even shorter periods for smaller mines (NZISM, Mssrs B and King). NZCTU suggested more regular visits, and when an operation changes. They also suggested inspectors go underground to check the mine with the check inspector and health and safety representatives. Pike River Coal recommended a regular cycle of visits, with times worked out between inspector and operator.

The most common reason for opposing increased regulation for inspections was that mining should not be singled out from other industries. One submitter considered there was no value, another said it could create expectations that couldn't be met, and another noted that it would not pick up problems early.

Additional matters raised

Mine plans

As an additional question, submitters were invited to comment on whether it would be of value to implement a system to ensure all mine plans are available to those who require them, and ways of doing this.

Eleven submitters agreed strongly with the need for improvements here, including Crown Minerals, who were neutral in respect of the discussion paper generally. No submitters were opposed.

The EMA described such a system as "paramount" for improving safety and Mr B said it was a "no-brainer".

Some submitters made links between the requirements to keep and update mine plans under the Mining Underground Regulations, and the requirement to submit and update plans under the permitting process under the Crown Minerals Act. They wanted the processes to be more integrated to avoid duplication. Some preferred that the overall process should be administered by Crown Minerals, others preferred the department.

Some submitters wanted to improve coordination between the documentation and reporting under the Crown Minerals Act and the health and safety requirements under the Mining Underground Regulations. These comments arose particularly around coordinating a documented health and safety system or safety case, and regarding any increased notification requirements.

Crown Minerals advised officials that they are establishing a GIS database of underground mine workings for resource management, and are already working with the operational side of the department to investigate improving information sharing and management.

Clarity of mining regulations

In response to an invitation to raise any options that were not mentioned in the discussion paper, some submitters considered the current mining regulations very unclear, and need to be rationalised. Predominant themes were integrating the two sets of regulations, and removing prescribed standards from the Mining Underground Regulations.

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