Health and Safety at Work Act 2015

Schedule 3 Health and safety in mining sector

s 68

Part 1 General provisions

1 Interpretation

In this schedule,—

alluvial mining operation means a mining operation carried out above ground and associated with—

(a)

the extraction of gold from river deposits of sand or gravel:

(b)

the extraction of ironsand from sand or gravel

Board means the New Zealand Mining Board of Examiners established under clause 27

coal means anthracite, bituminous coal, sub-bituminous coal, and lignite, and—

(a)

includes every other substance worked or normally worked with coal; but

(b)

does not include coal in the form of peat

industry health and safety representative means a person appointed in accordance with clause 17

licence or other permission means a lease, licence, or other instrument under which a person with an interest in land (including, for example, the owner of the land) permits another person to carry out a mining operation on the land

mine operator means,—

(a)

for a mining operation carried out under a permit granted under the Crown Minerals Act 1991,—

(i)

the person appointed by the permit operator to manage and control the mining operation; or

(ii)

the permit operator, if no such person has been appointed:

(b)

for a mining operation (not being a mining operation described in paragraph (a)) carried out under a licence or other permission,—

(i)

the person appointed to manage and control the mining operation by the person who holds the licence or other permission to carry out mining operations; or

(ii)

the person who holds the licence or other permission to carry out mining operations, if no such person has been appointed:

(c)

in any other case,—

(i)

the person appointed to manage and control the mining operation by the owner of the land where the mining operation is being carried out; or

(ii)

the owner of the land where the mining operation is being carried out, if no such person has been appointed

mine worker means a worker in a mining operation

mineral means a naturally occurring inorganic substance beneath or at the surface of the earth, and—

(a)

includes metallic minerals, non-metallic minerals, and precious stones; but

(b)

does not include clay, coal, gravel, limestone, sand, or stone

mining operation has the meaning given to it in clause 2

peat means combustible, soft, porous, or compressed sedimentary deposit of plant origin with a high water content

permit operator has the same meaning as in section 2(1) of the Crown Minerals Act 1991

quarrying operation has the meaning given to it in clause 3

site senior executive means a worker appointed as the site senior executive by the mine operator

tourist mining operation means an operation that has the purpose of—

(a)

mine education; or

(b)

mine research; or

(c)

mine tourism

tunnelling operation has the meaning given to it in clause 4.

2 Meaning of mining operation

In this schedule, mining operation

(a)

means the extraction of coal and minerals and the place at which the extraction is carried out; and

(b)

includes any of the following activities and the place at which they are carried out:

(i)

exploring for coal:

(ii)

mining for coal or minerals:

(iii)

processing coal or minerals associated with a mine:

(iv)

producing or maintaining tailings, spoil heaps, and waste dumps:

(v)

the excavation, removal, handling, transport, and storage of coal, minerals, substances, contaminants, and wastes at the place where the activities described in subparagraphs (i) to (iv) are carried out:

(vi)

the construction, operation, maintenance, and removal of plant and buildings at the place where the activities described in subparagraphs (i) to (iv) are carried out:

(vii)

preparatory, maintenance, and repair activities associated with the activities described in subparagraphs (i) to (iv); and

(c)

includes—

(i)

a tourist mining operation:

(ii)

a tunnelling operation; but

(d)

does not include—

(i)

exploring for minerals:

(ii)

an alluvial mining operation:

(iii)

a mining operation wholly on or under the seabed on the seaward side of the mean high-water mark:

(iv)

a quarrying operation.

Compare: 1992 No 96 s 19M

3 Meaning of quarrying operation

(1)

In this schedule, quarrying operation

(a)

means an activity carried out above ground for the purpose of—

(i)

extracting any material, other than coal or any mineral, from the earth; or

(ii)

processing any material, other than coal or any mineral, at the place where the material is extracted; and

(b)

includes the place where an activity described in paragraph (a) is carried out; and

(c)

includes any place in which any material extracted or processed in a quarry is crushed or screened.

(2)

Subclause (1) applies whether or not the material is to be extracted or processed for commercial gain and whether or not the material is extracted or processed by the use of explosives.

Compare: 1992 No 96 s 19N

4 Meaning of tunnelling operation

In this schedule, tunnelling operation

(a)

means an operation involving extraction of fill with the purpose of creating a tunnel or shaft or enlarging or extending any tunnel or shaft; and

(b)

includes the place where an operation described in paragraph (a) is carried out; but

(c)

excludes any tunnelling operation of a kind declared under clause 5 not to be a tunnelling operation.

Compare: 1992 No 96 s 19O

5 Regulations excluding tunnelling operations from clause 4

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring that certain operations or classes of operation are not tunnelling operations for the purposes of clause 4.

Compare: 1992 No 96 s 19P

Worker engagement, participation, and representation in mining sector

6 How Part 3 applies in mining sector

(1)

For the purposes of the mining sector, the provisions in Part 3, unless the context otherwise requires, must be read as if—

(a)

every reference to a PCBU were a reference to the mine operator:

(b)

every reference to a work group or members of a work group were a reference to—

(i)

a group of mine workers who are represented by a health and safety representative; or

(ii)

mine workers in a mining operation:

(c)

every reference to a business or undertaking were a reference to a mining operation.

(2)

Despite subclause (1)(a), references to a PCBU in section 84 must be read as references to the site senior executive.

Specific provision relating to competency of inspectors who inspect mining operations

7 Competency of inspectors appointed under this Act who inspect mining operations

A person appointed as an inspector under section 163 and who is to inspect mining operations must, unless the person already has experience relevant to health and safety in mining operations, have passed an examination or examinations in areas of knowledge that the regulator is satisfied are specifically relevant to health and safety in mining operations.

Compare: SR 2013/483 r 51(2)

Specific powers of health and safety representatives in mining sector

8 Power of health and safety representative to give notice requiring suspension of mining operation

(1)

This clause applies if a health and safety representative—

(a)

believes on reasonable grounds that the whole, or a part or an aspect, of a mining operation is likely to cause a serious risk to the health and safety of a person; and

(b)

has discussed or attempted to discuss the matter likely to involve a serious risk to the health and safety of a person with the site senior executive.

(2)

The health and safety representative may give a written notice to the site senior executive ordering the suspension of the whole, or a part or an aspect, of the mining operation.

(3)

The notice must set out the reasons for the health and safety representative’s belief.

(4)

If the site senior executive receives a notice under subclause (2), the site senior executive must stop the mining operation, or the part or aspect of the mining operation, specified in the notice.

(5)

If a notice ordering the suspension of the whole, or a part or an aspect, of the mining operation has been given by a health and safety representative, the site senior executive must notify the regulator of that fact.

(6)

A person who contravenes—

(a)

subclause (4) commits an offence and is liable on conviction to a fine not exceeding $50,000:

(b)

subclause (5) commits an offence and is liable on conviction to a fine not exceeding $2,000.

Compare: 1992 No 96 s 19ZG

9 Power of health and safety representative to require mining operation to stop in case of serious risk to health and safety

(1)

This clause applies if a health and safety representative believes on reasonable grounds that a serious risk to any person’s health and safety arising from an immediate or imminent exposure to a hazard is likely to be caused by the whole, or a part or an aspect, of a mining operation.

(2)

The health and safety representative may—

(a)

stop the whole, or a part or an aspect, of the mining operation and immediately advise the person in charge of the operation or part or aspect of the operation; or

(b)

require the person in charge of the operation or part or aspect of the operation to stop the operation.

(3)

If a health and safety representative requires a person to stop the whole, or a part or an aspect, of a mining operation, that person must do so.

(4)

The health and safety representative must, as soon as practicable after exercising the power under subclause (2), advise the site senior executive of the action taken under that subclause and the reasons for the action taken.

(5)

If a health and safety representative has advised the site senior executive of action taken under subclause (2), the site senior executive must notify the regulator of that fact.

(6)

A person who contravenes—

(a)

subclause (3) commits an offence and is liable on conviction,—

(i)

for an individual who is not a mine operator or site senior executive, to a fine not exceeding $10,000:

(ii)

for an individual who is a mine operator or a site senior executive, to a fine not exceeding $50,000:

(iii)

for any other person, to a fine not exceeding $250,000:

(b)

subclause (5) commits an offence and is liable on conviction to a fine not exceeding $2,000.

Compare: 1992 No 96 s 19ZH

10 Inspector may cancel order to suspend mining operation

An inspector may cancel the whole or part of a notice given under clause 8 (whether or not mining operations have stopped pursuant to the notice) or an action taken by a health and safety representative under clause 9 if the inspector does not consider that the operation or the part or aspect of the mining operation concerned is likely to cause a serious risk to the health and safety of a person.

Compare: 1992 No 96 s 19ZI

11 Competency and experience requirements for exercise of powers under clauses 8 and 9

A health and safety representative must not exercise any power under clause 8 or 9 unless he or she meets the competency and experience requirements for a health and safety representative at a mining operation prescribed by or under regulations made under this Act.

Compare: 1992 No 96 s 19Y

12 Mine workers must do other work

(1)

This clause applies if the whole or a part or an aspect of a mining operation is stopped under clause 8 or 9.

(2)

Section 86 applies with any necessary modifications to a mine worker who has stopped work under clause 8 or 9.

Compare: 1992 No 96 s 19ZJ

13 Work not to restart until no likelihood of serious risk to health and safety

(1)

The site senior executive must ensure that the operation or part or aspect of the mining operation stopped because a notice is given under clause 8, or stopped or required to be stopped under clause 9, is not restarted until the site senior executive is satisfied that it is not likely to involve a serious risk to the health and safety of a person.

(2)

A person who contravenes subclause (1) commits an offence and is liable on conviction to a fine not exceeding $50,000.

Compare: 1992 No 96 s 19ZK

14 Health and safety representative not to unnecessarily impede production

A health and safety representative must not unnecessarily impede production at a mining operation when performing functions or exercising powers under this schedule.

Compare: 1992 No 96 s 19ZO

15 Power to require assistance

(1)

A health and safety representative may require the senior site executive or person in charge of the relevant part or aspect of a mining operation to give the health and safety representative reasonable assistance in the exercise of a power under clause 3 or 4 of Schedule 2.

(2)

A person who fails to comply with subclause (1) commits an offence and is liable on conviction to a fine not exceeding $10,000.

Compare: 1992 No 96 s 19ZC

16 Obstructing health and safety representatives performing functions or exercising powers

(1)

A mine operator or site senior executive must not prevent or attempt to prevent a health and safety representative from performing his or her functions or exercising his or her powers.

(2)

A person who contravenes subclause (1) commits an offence and is liable on conviction,—

(a)

for an individual, to a fine not exceeding $10,000:

(b)

for any other person, to a fine not exceeding $50,000.

Compare: 1992 No 96 s 19ZL(a)

Industry health and safety representatives

17 Appointment of industry health and safety representatives

(1)

This clause and clauses 18 to 23 apply only to—

(a)

a mining operation associated with the extraction of coal and where any person works below ground (underground coal mining operation):

(b)

mine workers who work in an underground coal mining operation:

(c)

any union that represents mine workers who work in an underground coal mining operation.

(2)

A union or group of mine workers may, in any manner determined by the union or group, appoint a person to be an industry health and safety representative.

(3)

The person appointed must meet the competency requirements for industry health and safety representatives prescribed in regulations made under this Act.

(4)

The union or group of mine workers that appoints an industry health and safety representative must meet the costs of the representative.

Compare: 1992 No 96 s 19ZU

18 Notice to regulator of appointment or cessation of appointment of representative

A union or group of mine workers that appoints an industry health and safety representative must—

(a)

give notice to the regulator of that appointment; and

(b)

provide the prescribed information in relation to that appointment, and a photograph of the representative authenticated in accordance with any prescribed requirements; and

(c)

give notice to the regulator within 14 days after the date on which the person ceases to be a representative.

Compare: 1992 No 96 s 19ZV

19 Functions and powers of industry health and safety representatives

(1)

In addition to the functions and powers conferred on a health and safety representative specified in Part 3, an industry health and safety representative has the following functions and powers:

(a)

to give notice requiring suspension of a mining operation under clause 8:

(b)

to require a mining operation to stop in the case of an immediate or imminent serious risk to any person’s health and safety under clause 9:

(c)

to require the senior site executive or person in charge of the relevant part or aspect of a mining operation to give the industry health and safety representative reasonable assistance under clause 15:

(d)

to participate in investigations into accidents in mining operations that resulted, or could have resulted, in a serious risk to a person’s health and safety:

(e)

to assist with industry-wide initiatives to improve health and safety in mining operations.

(2)

Clauses 10, 12 to 14, and 16 apply with any necessary modifications in the case of an industry health and safety representative performing his or her functions or exercising his or her powers.

Compare: 1992 No 96 s 19ZW

20 Further provision concerning scope of functions and powers of industry health and safety representatives

An industry health and safety representative may perform his or her functions and exercise his or her powers in relation to any mining operation or mine worker whether or not,—

(a)

if the representative is appointed by a union, any worker at the mining operation or the relevant mine worker (as the case may be) is a member of that union; or

(b)

if the representative is appointed by a group of mine workers, any worker at the mining operation or relevant mine worker (as the case may be) is a member of that group.

Compare: 1992 No 96 s 19ZX

21 Application of certain provisions to industry health and safety representatives

Clause 10(1)(b), (d) to (f), and (h) to (i) and (2) of Schedule 2 and clauses 11, and 13 to 18 of Schedule 2 apply to an industry health and safety representative as if in those provisions—

(a)

references to a PCBU were references to a mine operator; and

(b)

references to a health and safety representative for a work group were references to an industry health and safety representative.

22 Identity cards

(1)

The regulator must give each industry health and safety representative an identity card.

(2)

The identity card must be in the prescribed form.

(3)

A person who ceases to be an industry health and safety representative must return his or her identity card to the regulator as soon as practicable, but within 14 days, after the date on which the person ceases to be a representative.

(4)

A person who contravenes subclause (3) commits an offence and is liable on conviction to a fine not exceeding $2,000.

Compare: 1992 No 96 s 19ZY

23 Production or display of identity card

(1)

Before an industry health and safety representative exercises a power under this schedule in relation to any person, the representative must—

(a)

produce his or her identity card to the person; or

(b)

display the identity card so it is clearly visible to that person.

(2)

An industry health and safety representative who exercises a power under clause 3 of Schedule 2 must—

(a)

produce his or her identity card to the person apparently in charge of the part of the mining operation being entered; or

(b)

display the identity card so it is clearly visible to that person.

(3)

If the representative is unable, despite reasonable efforts, to comply with subclause (2), the representative must, before leaving the mining operation, leave a written notice stating—

(a)

the representative’s identity; and

(b)

the address of a place where the representative may be contacted; and

(c)

the date and time of entry onto the mining operation; and

(d)

the representative’s reasons for entering onto the mining operation.

Compare: 1992 No 96 s 19ZZ

24 Register of industry health and safety representatives

(1)

The regulator must keep and maintain a register of industry health and safety representatives.

(2)

The purpose of the register is to enable members of the public to know the names and contact details of industry health and safety representatives.

(3)

The register may be kept in any manner that the regulator thinks fit.

(4)

The register must contain the prescribed information.

Compare: 1992 No 96 s 19ZZB

25 Alterations to register

The regulator may at any time make any amendments to the register that are necessary to reflect any changes in the information referred to in clause 24.

Compare: 1992 No 96 s 19ZZC

26 Search of register

(1)

A person may search the register for a purpose set out in clause 24(2).

(2)

The regulator must—

(a)

make the register available for public inspection, without fee, at reasonable hours at the head office of the regulator; and

(b)

supply to any person, on request and on payment of a reasonable charge, a copy of the register or any extract from it.

Compare: 1992 No 96 s 19ZZD

Part 2 New Zealand Mining Board of Examiners

27 New Zealand Mining Board of Examiners

WorkSafe must establish a board to be known as the New Zealand Mining Board of Examiners.

Compare: 1992 No 96 s 20D

28 Functions of Board

The functions of the Board are—

(a)

to advise WorkSafe on competency requirements for mine workers:

(b)

to examine applicants, or have applicants examined, for certificates of competence:

(c)

to issue, renew, cancel, and suspend certificates of competence:

(d)

any other function relating to training and competency requirements for participants in the extractives industry conferred on the Board by regulations made under this Act.

Compare: 1992 No 96 s 20E

29 Membership of Board

(1)

WorkSafe may at any time appoint a member of the Board.

(2)

The appointment of a member of the Board must be for a specified period.

(3)

WorkSafe must appoint one of the members of the Board as the chairperson of the Board.

(4)

When appointing a member of the Board, WorkSafe must have regard to the need to ensure that the Board has among its members knowledge and experience of—

(a)

mining operations:

(b)

health and safety inspection in the mining industry:

(c)

mining education:

(d)

mining industry training.

(5)

Without limiting subclause (4), the Board may include 1 or more employees of WorkSafe.

(6)

A member of the Board may resign by notice in writing to WorkSafe.

(7)

Clause 15 of Schedule 5 of the Crown Entities Act 2004 (Schedule 5) applies to the members of the Board as if they were members of a committee appointed under clause 14 of Schedule 5 by the board of a Crown entity.

Compare: 1992 No 96 s 20F

30 Proceedings of Board

The Board may determine its own procedure.

Compare: 1992 No 96 s 20G

31 Board levy

(1)

The Governor-General may, by Order in Council, in accordance with a recommendation of the Minister, make regulations imposing a levy on mine operators to fund the direct and indirect costs incurred by the Board in performing the Board’s functions to the extent that they relate to mining operations.

(2)

The regulations must—

(a)

specify how the levy rate or rates are calculated:

(b)

specify the mine operators or classes of mine operators responsible for paying the levy:

(c)

specify, if the levy is to be paid at different rates, the mine operators, mining operations, thing being extracted, or other things or the classes of mine operators, mining operations, thing being extracted, or other things to which the different rates apply:

(d)

specify when and how the levy is to be paid:

(e)

specify the persons or classes of persons (if any) exempt from paying the levy.

(3)

Without limiting subclauses (1) and (2), regulations may—

(a)

specify the returns to be made to WorkSafe or some other person or body for the purpose of enabling or assisting the determination of amounts of levy payable:

(b)

specify the circumstances in which, and conditions subject to which, persons may be allowed extensions of time for paying the levy:

(c)

for the purpose of ascertaining whether regulations are being complied with,—

(i)

require the keeping of accounts, statements, and records of a specified class or description by either or both of WorkSafe and the persons responsible for paying the levy; and

(ii)

require the retention of the accounts, statements, and records for a specified period:

(d)

provide for the establishment of a dispute resolution process for disputes relating to levies, including—

(i)

the appointment of persons to resolve the disputes; and

(ii)

the procedures to be followed by the persons; and

(iii)

the remuneration of the persons.

(4)

Before making a recommendation under this clause, the Minister must—

(a)

receive advice from WorkSafe on the proposed levy; and

(b)

consult the people responsible for paying the proposed levy.

Compare: 1992 No 96 s 20H