Management of Contractors Under WHS Mines Regulations – Scratching you Head?

There is a funny quirk in the WHS Mines Regulations that requires a mine to obtain, assess and accept a contractor safety management plan prior to the contractor undertaking work at the mine. Mmmm so how does this work in the context of the position upheld by the High Court that it is not reasonably practicable for a Principal Contractor/ PCBU to do so in respect of a contractor’s specialist work. If we look at the WHS Act from which the regulation and duty comes. Part 1 section 16 of the Act clarifies the principles that apply to duties owed under the Act, and hence the Regulations. Section 16 (3) (b) confirms that a person must discharge the person’s duty (i.e. owed under the Act and Regulations) to the EXTENT to which the person has the capacity to influence AND CONTROL the matter. As we know Supreme Court and High Court jurisprudence has confirmed that a Principal Contractor/ PCBU does NOT control the methods of work adopted by independent contractors engaged by them and have repeatedly held that it is not reasonably practicable to do so. As a result, the duty to ensure the health and safety of contractors can ONLY extend, in my view, to the risks arising from the PC’ s undertaking. Therefore, the obligations set out in the Mining Regulations can only require a mine to assess and accept a health and safety management plan as it relates the matters that the mine has control over e.g., principal mining hazards, site hazards and the like. It cannot extend to the matters which are under the control of the contractor, unless those matters are also under the control of the mine. A good example is mobile plant. Both the mine and contractor may use mobile plant and as a result the mine needs to confirm the contractor’s arrangements to manage mobile plant risk aligns with their arrangements. By contrast a specialist drill operator attends a mine where drilling is not conducted. The duty to manage the risks arising from drilling rest solely with the contractor and it is not reasonably practicable for the mine to assess or accept the contractor’s safety arrangements. This significantly narrows the focus of any collection, assessment and acceptance of a contractor’s health and safety plan. I am speaking in WA on this topic (sorry sold out) and will be running a webinar on 24 Feb s2023 so stay tuned for the details to register.
I have also developed an operational approach to this conundrum with colleague Alan Tait from Tait’s Consulting in WA and will be sharing the details.
I’m interested in your thoughts.