LIABILITY ISSUES FOR COAL MINE SURVEYORS

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LIABILITY ISSUES FOR COAL MINE SURVEYORS

• Australian Institute of Mine Surveyors Seminar
• Catherine Bolger
• Association of Professional Engineers, Scientists
  and Managers, Australia

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Sources of Liability Include

• NSW
• Occupational Health Safety Act 2000 NSW (OHS
  Act NSW) and associated regulations
• Coal Mines Regulation Act 1982 NSW (CMRA) and
  associated regulations
• (soon to be replaced by the Coal Mine Health
  Safety Act 2002)

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Sources of Liability Include

• QLD
• Coal Mining Safety Health Act QLD 1999 and
  associated regulations

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The Gretley Case

• Prosecuted under NSW Occupational Health Safety
  Act 2000 (OHS Act)
• Summons issued against individuals in 2000
• Decision handed down in 2004
• Mine Managers Surveyor found guilty of offences
  under the OHS Act
• Penalty handed down in 2005 of 30,000 against
  Surveyor
• Under Appeal .

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Why was Gretley Groundbreaking?

• First prosecution in Coal Mining Industry using
  OHS Act not Coal Mining specific legislation
• First test of scope of concerned in the
  management of the corporation to staff
• Highlighted deeming provisions
• Highlighted weakness of available defences for
  staff
• Will test validity of appeals provisions
  capacity of criminal court to determine criminal
  penalties

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What did Gretley Consider?

• S26 Offences by corporations - liability of
  directors and managers
• (1) If a corporation contravenes, whether by act
  or omission, any provision of this Act or the
  regulations, each director of the corporation,
  and each person concerned in the management of
  the corporation, is taken to have contravened the
  same provision unless the director or person
  satisfies the court that
• (a) he or she was not in a position to influence
  the conduct of the corporation in relation to its
  contravention of the provision or
• (b) he or she, being in such a position, used all
  due diligence to prevent the contravention by the
  corporation.

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What did Gretley Consider?

• The Scope of s26 of the OHS Act
• In considering the meaning of the phrase
  concerned in the management of the corporation
  Justice Staunton commented

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What did Gretley Consider?

• What would appear to be a common and
  understandable factor in all the authorities to
  which I was taken was the persons decision
  making powers and/or authority going directly to
  the management of the corporation. That decision
  making role or authority on behalf of the
  corporation may involve advice given to
  management encompassing a participation in its
  decision making processes and the execution of
  those decisions going beyond the mere carrying
  out of directions as an employee. That decision
  making role or authority and the responsibilities
  inherent in them must be such as to affect the
  corporation as a whole or a substantial part of
  the corporation. In saying that, it does not mean
  that the person must be at the highest levels of
  management. The structure and size of the
  corporation is relevant as is the role of the
  person within the corporation relevant to his/her
  decision making powers on behalf of the
  corporation.

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Other Authorities Since

• Morrison v Powercoal Pty Ltd and Anor 2004
  NSWIRComm 297 on 18 November 2004 (the Powercoal
  decision)
• In the Powercoal decision the Full Bench did not
  provide a summarised view or set of criteria
  which may assist in determining if a particular
  manager is subject to s26, and stated

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Other Authorities Since

• There are no authorities directly in point as to
  the scope of what is encompassed by the term
  persons concerned in the management of the
  corporation as that phrase is used in the
  Occupational Health and Safety Act and in
  interpreting the phrase it is necessary to have
  regard to the normal rules governing statutory
  construction, which would include an examination
  of the context in which the expression is used
  and the objects of the Act. It is permissible,
  however, as an aid to interpretation, to have
  regard to how the phrase or similar working has
  been construed in other statutory contexts. at
  171

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Other Authorities Since

• In the Powercoal case, the court reviewed another
  case Griggs v Australian Securities Commission
  1999 SASC 405, which considered the term
  concerned in the management of
• Management of a company may take place at many
  levels. It is reasonably clear from the section
  that management is not confined to matters
  performed by the directors or a managing director
  of a company, nor is it limited to the
  formulation of policy and direction of the
  company. As Ormiston J pointed out in Bracht at
  829, there must be the exercise of some decision
  making powers. The question is how far down the
  management line does the definition extend.
  Bleby J at 41.

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Other Authorities Since

• That definition does not require that management
  be exclusively vested in one person. Different
  persons may undertake different aspect of
  management.
• That involvement must be more than passing, and
  certainly not of a kind where merely clerical or
  administrative acts are performed. It requires
  activities involving some responsibility, but not
  necessarily of an ultimate kind whereby control
  is exercised. Advice given to management,
  participation in its decision-making processes,
  and execution of its decisions going beyond the
  mere carrying out of directions as an employee,
  would suffice. Ormiston J in Bracht at 832-833

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APESMA Action SinceGretley

• Successfully lobbied NSW Government to change s26
  deeming provisions when there is a workplace
  fatality, to create a new offence of Reckless
  conduct causing death at a workplace by person
  with OHS duties.
• Key Improvements
• The onus of proof is on the prosecutor,
• Appeal Rights to Criminal Court
• Must be reckless conduct.
• Criminal Standard of proof
• But greater penalties.

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APESMA Action SinceGretley

• New Provision states
• A person
•  (a)               whose conduct causes the
  death of another person at any place of work, and
• (b)               who owes a duty under Part 2
  with respect to the health or safety of that
  person when engaging in that conduct, and
• (c)               who is reckless as to the
  danger of death or serious injury to any person
  to whom that duty is owed that arises from that
  conduct,
• is guilty of any offence.

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How is Gretley Relevant to QLD?

• There is a similar provision at s262 of the Coal
  Mining Safety Health Act QLD 1999 and
  prosecutions could be bought under this
  provision.
• The scope of Executive Officer at S 262 could
  potentially extend to Surveyors, depending on the
  facts of the case.

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Definition of Executive Officer

• Executive Officer of a corporation means a
  person who is -
• (a) a member of the governing body of the
  corporation or
• (b) concerned with, or takes part in, the
  corporations management, whatever the persons
  position is called and whether or not the person
  is a director of the corporation.

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S262 Coal Mining Safety Health Act QLD 1999

• Executive officers must ensure corporation
  complies with Act
• (1) The executive officers of a corporation must
  ensure that the corporation complies with this
  Act.
• (2) If a corporation commits an offence against a
  provision of this Act, each of the corporations
  executive officers also commits an offence,
  namely, the offence of failing to ensure that the
  corporation complies with this provision.
• Maximum penalty for ss2 - the penalty for the
  contravention of the provision by an individual.

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S262 Coal Mining Safety Health Act QLD 1999

• (3) Evidence that the corporation has been
  convicted of an offence against a provision of
  this Act is evidence that each of the executive
  officers committed the offence of failing to
  ensure that the corporation complies with the
  provision.
• (4) However, it is an defence for an executive
  officer to prove
• (a) if the officer was in a position to
  influence the conduct of the corporation in
  relation to the offence - the officer exercised
  reasonable diligence to ensure the corporation
  complied with the provision or
• (b) the officer was not in a position to
  influence the conduct of the corporation in
  relation to the offence.

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Liability - Is there a Magic Answer?

• Assuming you take all reasonable steps but an
  incident happens what could be your liability? IT
  IS NOT CLEAR.
• This is an emerging area of law
• Each prosecution is giving some guidance but each
  case turns on its facts
• We can get legal advice to minimise risk, but the
  Acts are interpreted by the judiciary, not the
  lawyers giving advice.

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Liability - What can you do?

• Surveyors should lobby for changes to the Acts
• Qld surveyors should look at the recent NSW
  changes.
• Surveyors should be actively involved in
  reviewing the Act and Regulations, and each
  decision as it is decided.
• Surveyors should consider legal advice on
  Standards etc .

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Disclaimer

• This is not legal advice !