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Grosvenor Inquiry Submission. There Are Unintended Negative -consequences From The Amendment Of Section 59 Of The CMSHA 1999 For Full Time Permanently Employed OCE At BMA Coal Joint Venture Mines.

Grosvenor Inquiry Submission. There are unintended negative -consequences from the amendment of Section 59 of the CMSHA 1999 for full time permanently employed OCE at BMA Coal Joint Venture Mines.

OCE Employment by SSE Unintended Consequences

BMA Restructure

BMA Q and A

Above is my submission and attachments sent today

Below is the first 6 of 13 pages of the submission

REASONS

There are unintended negative -consequences from the amendment of Section 59 of the CMSHA 1999 for full time permanently employed OCE at BMA Coal Joint Venture Mines.

 FULLTIME PERMANENTLY EMPLOYED BMA OCE’s have been told that due to the  LEGISLATION CHANGE they can NO LONGER BE EMPLOYED UNDER THE CURRENT PRODUCTION and ENGINEERING WORKPLACE AGRREEMENT .

A new POSITION has been created called OPEN CUT OVERSEER.

An OVERSEER is commonly defined as “a person who supervises others, especially workers”.

The definition of Overseer does not mandate ensuring safety and health it says “supervises.”

Definition. SUPERVISE is a transitive verb: to be in charge of: superintend, oversee supervise a large staff supervised the ship’s daily operations.

 BMA EA EMPLOYEE Q&A CMSH Act DUTIES RESTRUCTURE

  1. 1. What changes are Occurring at BMA mines?

The State Government recently passed the Minerals and Energy Resources and other Legislation Amendment Act 2020 (Old) (MERLA Act). The MERLA Act made changes to the Coal Mning Safety and Healthy Act 1999 (QId) (CMSH Act).

These changes include requiring the Coal Mine Operator (CMO) to ensure that persons who carry out certain safety and health responsibilities and duties prescribed under the CMSH Act (CMSH Act duties) are only appointed if they are employees of the CMO.

The CMO for BMA mines is BM Alliance Coal Operations Pty Ltd and BHP Coal Pty Ltd is the employer of employees who are covered by the BMA Enterprise Agreement 2018 (BMA EA 2018).

The CMO has decided and advised BHP Coal Pty Ltd how it will implement changes required by the State Government and the MERLA Act. It has also decided on the employment arrangements it will use.

As a result of the decisions by the State Government and the CMC). BHP Coal Pty Ltd has determined that from 19 November 2021. BHP Coal will no longer employ persons performing CMSH Act duties

  1. What Is the change made by the CMO?

The CMO will become the employer of all employees performing CMSH Act duties. These changes must be completed by the CMO no later than 19 November 2021.

This includes any person performing duties of an Open Cut Examiner.

As part of these changes the CMO has decided to create a new staff position — the Open Cut Overseer (OCO) — which will perform the statutory OCE duties.

The decision also affects employees, contractors and labour hire workers who are currently performing CMSH Act duties as part of another role such as Superintendents. Shift Compliance Coordinators and some managers.

 BACKGROUND

 The *State Development, Natural Resources and Agricultural Industry Development Committee’s examination of the Mineral and Energy Resources and Other Legislation Amendment Bill 2020.

 This Report in Section 2.3 states that the requirement that the Statutory Office Holders that are required to be employees of the operator are the

 

  1. Site Senior Executive and those appointed to be appointed in their absence.
  2. Underground Mine Manager and their alternate.
  3. First and Second Class and Deputies appointed to be responsible for the control and management of underground activities when the manager is not in attendance at the mine.
  4. Ventilation Officer those appointed to be appointed in their absence.
  5. Persons holding a first or second class certificate of competency or a deputy’s certificate of competency to have control of activities in one or more explosion risk zones;
  6. Persons with appropriate competencies appointed to control and manage the mechanical and electrical engineering activities of the mine;
  7. persons holding an open cut examiner’s certificate of competency appointed to carry out the responsibilities and duties prescribed under a regulation in surface mine excavations;

 

*State Development, Natural Resources and Agricultural Industry Development Committee’s examination of the Mineral and Energy Resources and Other Legislation Amendment Bill 2020.

 

Section 2.3.2 “The inability of contract statutory office holders to make safety complaints” goes for just under 4 pages of the Report.

 

Even though the requirement to be employed by the Operator to the seven categories, all the issues discussed about being subject to reprisals and adverse treatment relate to OCE’s and Mine Deputies.

 

None of the other categories are even mentioned in Section 2.3.2.

 

2.3.2     The inability of contract statutory office holders to make safety complaints

The committee heard that currently contract or labour hire OCEs are subject to reprisals and adverse treatment when they raise safety concerns:

 This is two address two categories of OCE’s it seems in particular, and Mine Deputies.

  •  Contract OCE/Deputy employed on a casual basis non-permanent basis.
  • OCE/Deputy employed by a Mining Contactor carrying out mining activities at the Mine the SSE has been appointed to by the Operator

 

 

THE OCE and the MINE DEPUTY are the front line Statutory Officials who on a continuous basis every shift are monitoring, measuring and assessing and deciding on whether the work are they are in charge of poses an acceptable or an unacceptable level or risk to Coal Mine Workers in the area of the Mine they are responsible for.

 They are appointed by the SSE and they are obliged to.

  •  Apply the Coal Mine Act and Regulations at the Mine on behalf of the SSE.
  • Follow and apply whatever the Mines Safety and Health System mandates, so long as it achieves an acceptable level of risk.
  • Applying their Recognised experience and knowledge to be able to form opinions and if necessary apply controls in excess of the minimum required under the Legislation and Site Procedures; so to ensure the risk to coal mine workers is as low as achievable and within acceptable limits.

 If all or any of the above occur, they are obligated to.

  1. Remove mine workers from that area of the mine.
  2. Erect physical barriers and signage to prevent mine workers entering and working in the unsafe area of the mine. The only exception being for entering and working to bring the risk within acceptable limits in that area of the mine.
  3. Inform the next Senior Statutory of the situation
  4. If it is within his resources, responsibilities, and ability, bring the risk in the area within acceptable limits.
  5. If not ensure (b)

 

 There are unintended negative  consequences from the amendment of Section 59 of the CMSHA 1999 for full time permanently employed OCE at BMA Coal Joint Venture Mines.

 FULLTIME PERMANENTLY EMPLOYED BMA OCE’s HAVE BEEN TOLD DUE TO THE LEGISLATION CHANGE THEY CAN NO LONGER BE COVERED BY THE CURRENT PRODUCTION and ENGINEERING WORKPLACE AGRREEMENT.

 They are then told that there is a new position created as a STAFF position employed under the STAFF Agreement.

 They are then told that because it is a “NEW POSITION” they will not be automatically offered the New Position with the Requirement to sign a new Staff Contract.

 There will be a new external and internal recruitment process. All the existing OCE’s are promised is an interview if they want one.

 They are then informed that they cannot be a full time OCE unless they are successful in the Recruitment Process.

 

If they either do not apply or are not successful in being offered and accepting the STAFF CONTRACT they will no longer be a full time OCE.

 They will just go back to Production and Engineering Jobs (Likely Short Haul Truck Driver or Coal Fleet) and at best will be used when there are not enough STAFF OCE’s on shift due to illness.

 The Unintended Consequence for the BMA OCE’s seems to be directly related to the likely Corporate Structure, as the diagram from Mr McFarlane from the QRC submission to the State Development, Natural Resources and Agricultural Industry Development Committee’s shows.

 In a joint venture like the at the different Joint Ventures BMA Coal has with different joint ventures at different Mines.

 

  •  The joint ventures appoint the Operator in Company A.
  •  The Production and Engineering Employees are employed in Company B
  •  All the Management and Staff are employed by Company C

 All that happens from an employment point of view is that the company the are employed under changes to the one that Employs the Staff on Individual Employment Contracts

This appears to be using the complicated corporate structure to stop current fulltime OCE’s they do not like from continuing in the job.

  

The QRC MacFarlane Diagram

 Mr Macfarlane noted:

… is not an issue of permanency of employment—these people are permanently employed—it is an issue of who are they employed by In the complexities of corporate structures … companies operate in the coal industry on the basis that they are in joint ventures, they have partners and they have structures within individual companies.

You have heard from some companies today who are in joint ventures where the joint venture does not actually employ the person but the person is in permanent employment

Meaning of site senior executive

(1)         The site senior executive for a coal mine is the most senior officer employed or otherwise engaged by the coal mine operator for the coal mine who—

(a)         is located at or near the coal mine; and

(b)         has responsibility for the coal mine.

 The QRC diagram does not

  1. Shows that the Production and Engineering Employees employment is as direct as that for the Staff Management Employees, it just uses a Different Company and the Workforce Company uses a P and E employment Collective Agreement
  2. State or show how the Operator employs or otherwise the Site Senior Executive or even if they employed under the Staff Employment Company.
  3. There is nothing to show that any Management and Staff are directly employed by the same entity as the SSE.
  4. Even though the SSE is the most senior Officer employed by the Operator, there is nothing to state that under Staff Employment Company C that those Management Report directly to the SSE.
  5. Would allow the illegal arrangement found by the DNRME Investigation into the Daniel Springer Fatality to exist. That is the SSE was not the most Senior Person on site appointed by the Operator.

 

DANIEL SPRINGER FATALITY DNRME INVESTIGATION REPORT FINDINGS

 Site Senior Executive

The investigation revealed evidence to suggest that the appointed SSE at Goonyella Riverside mine was not the most senior officer employed who has responsibility for the coal mine as required by section 25 of the Coal Mining Safety and Health Act 1999.

Evidence given by the maintenance manager showed that he did not report to the SSE but to the General Manager of Goonyella Riverside mine. 

 Since the SSE did not appear to manage the maintenance manager’s routine individual development and performance review process, he could not ensure that he had the competencies required to carry out his responsibilities, and that he was effectively carrying his responsibilities as stated in the management structure.

 This is contrary to section 55 of the Coal Mining Safety and Health Act 1999, which states that the SSE for a mine must develop, implement and maintain a management structure that helps ensure the safety and health of persons at the mine

  Page 22 Other Related Findings

 The mine’s SSE did not appear to be the most senior person employed or otherwise engaged by the coal mine operator who had responsibility for the mine as required by section 25 of Coal Mining Safety and Health Act 1999. 

 

The committee was informed that for many mine operations across Queensland the employing entity of workers is different to the entity operating the mine.  

Peabody staff at some mines may not currently employed by the CMO.

  They are employed by another Peabody company that employs our staff across our Australian business and mines. I would expect that others in the industry are also structured this way. 

 

Anglo American Site Senior Executives noted in their submissions:

 

This is a complex area where there has been no consultation with the industry to understand the likely implications, including a shortage of statutory positions in Queensland that cannot be filled under the current system. The requirement would also necessitate changes to hundreds of contractual arrangements for mining services, which apart from the compliance burden, may also have other unintended consequences for our operations that we have not yet had the opportunity to consider. 

 State Development, Natural Resources and Agricultural Industry Development Committee’s examination of the Mineral and Energy Resources and Other Legislation Amendment Bill 2020.

 59 Additional requirements for management of surface mines

  •  A site senior executive must appoint a person holding an open cut examiner’s certificate of competency to carry out the responsibilities and duties prescribed under a regulation in 1 or more surface mine excavations. Maximum penalty—200 penalty units.

(2) The coal mine operator for the surface mine must ensure that the site senior executive appoints a person under subsection (1) only if the person is an employee of the coal mine operator. Maximum penalty—500 penalty units.

 

 

This Post Has 7 Comments
  1. That change is the biggest injustice I have seen. Note there was not a single contract deputy that stated any issues only CFMEU permanent deputies and ISHRs. I put in a submission and so did a heap of other contract deputies who didn’t want this change. Now a company is using it in this way is the fault of the CFMEU.

    The mine I am at now is only going to offer fixed term roles which are even less secure than me being contract now. If you actually read that full report the last section is the other 3 politicians stating there is no factual evidence to support the change

    1. The problem was firstly about the situation where especially in Open Cuts they would contract out either a section of a Mine or the whole Mine but still be the Operator and appoints and Employ the SSE.
      The contractor would employ the OCE.
      If the Operator and SSE had any brains at all they would realise that a Statutory Official they directly employ is in their own best interest.
      They are the SSE’s eyes and ears on the ground so to speak to ensure as much as humanly possible that the mines is safe to work in an that people work safely and not expose themselves or others to danger

      Its at the end of the day the rights and protections the Statutory Officials have when they take the action required to do the above, no matter what production setbacks are required to make it safe.

      Deputies and OCE’s must have a choice about whether they want to be covered by a Production and Engineering Work Agreement.

      If they have a choice and want to be Staff, they reap what they sow.

      As we all know, take the Staff job, take all the company needles or you get told sorry, we think its best that you resign so you can further your career elsewhere

      Like Management or any other jobs there are extremely competent forceful when necessary OCE’s and Deputies, There are the usual competent ones, there there are ones who should never have been given a Ticket because of Incompetence and Laziness and then you have those that know better but have no courage’

      Having Deputies and OCE’s as Salaried Staff is in my opinion utter Lunacy.

      Some of the money people were getting paid to be contract Statutory Officials was insane.

      Then again paying Mine Managers a Million Dollar plus package when they have never put a roof bolt up or a vent tube up in Queensland and cannot even spell methane, ethylene and spontaneous combustion, let alone deal with it is worse

      Recent history from the time it started with Staff and Contract Deputies in the mid 2000’s was as history has proved led to what has happened at Grosvenor and North Goonyella

      You show me a safe mine and it will be a productive one.

  2. The key issue is and always will be about the difference between good and poor statutory officials. There was zero evidence supplied to force people to be employed by the CMO. I have seen good and bad on both sides of the employment table and never heard of a deputy targeted for raising a safety issue and being a contractor.

    I am now looking at a fixed term contract which is worse conditions than I have as a contract ERZC. No bank is willing to loan anything to a fixed term contractor. It is like paying ISHRs from the CFMEU coffers and expecting them to equally represent both union and non union members.

    Not sure about the money as permanent ERZCs are now on $300k (full packages), but everyone thinks the other side of the fence is always greener.

    I think now there shouldn’t be any choice as clearly it was determined by the Qld government that this was necessary and now I think people should reap what they have sowed. I find the most comical part of all this, that all the mines inspectors are actually contractors themselves…

  3. From the position of a stat official who has done both permanent and contract roles,
    The colour of the shirt or the name of the employer on it to me personally has no bearing on the how you perform the role.
    Just because you work as a contractor or a permanent employee doesn’t mean you change how you perform your statutory duties.
    If the person who is not going to fulfil their duties as a contractor, what makes people think they will as a permanent employee.
    I have had the delight or delama as you see it of having to hold mining companies to account for their inaction or short cutting on legislative requirements more so as a contractor than ever before. I have been told I don’t fit a company’s culture because I will defend my position on interpretation and implementation of legislative requirements as well as argue positions on HMPs and PHMPs and intended actions as required or railroaded by mining companies senior management. I for one believe my right to choose to be either a contractor or permanent employee has been taken away. They way I choose to structure how I get paid has been taken away due to inept capacity for persons not to do their statutory duty effectively.

    1. The Primary Responsibility of the ERZC or OCE is to without FEAR or FAVOUR ensure the Safety and Health and the of the workers and the area they are in charge.

      If the work area is not at an acceptable standard, their job is to halt other activities and make it so.

      The FEAR or FAVOUR part is vitally important.

      At least Permanent Employment provides certainty that you cannot be shown the door on an hours notice, no reason required.

      I am very glad that you are able to stand up and defend your decisions in the way you describe.

      Unfortunately many either do not, or cannot

    2. The same Fear or Favour applies to all levels of Statutory and Management Positions as well as the MINES INSPECTORS.

      When it comes to actual Stop Work Unacceptable Level of Risk to Safety and Health Section 167 Directives; all the current Mines Inspectors seem capable of is Stopping Workers re-entering the Mine when the Spontaneous Combustion TARPS are in Evacuation Level or after methane explosions or smoke coming out of the main fan.

      Way Way too late.

      Shutting the Gate after the horse has bolted

  4. Hi Stat Official.
    I think you are spot on,
    Good officials are good no matter their contract of employment.
    The not so good ones – what makes them want to get better?
    What training do you give them to improve their skills. A lot of those officials, and it is more than just ERZC’s it is not just a lack of knowledge that puts them in a catergory where they are perceived to need improvement.
    There is an argument that stat officials should be contracted.
    The not so good ones will not get contracts. However we have all seen the impact of a shortage of stat officials, especially when coal prices are high.
    The biggest issue is that the supervisor of a longwall panel is responsible for over $1M in profit (15000 tonnes @ $70/tonne) in a shift. That is a lot of responsibility!
    A good supervisor is also the leader of the crew generally, responsible for safety of their crew and the panel, responsible for compliance to the SHMS and corporate systems.
    Safety is most important, i always believe everyone who works in the mine should go home the way they came. That is what this website is all about. However that does not mean those other responsibilities are not present and do not exist.
    Maybe it is time to take a look at the role of supervision in coal mines.
    The Americans a long time ago separated the stat work out of the supervisors role. That is very hard to do in our industry.
    Another one of the international organisations in our industry believed the role of the supervisor, was purely that, with no administration work, it was all about making sure the crew worked well complying to all systems applicable, and they were responsible for the skills of the crew and its members.
    Maybe we need to reintroduce the role of overman so the erzc can have a smaller role and do it to a higher standard.
    I will always remember the advice of one of the branch presidents I worked with, focus on those coal miners that aren’t so good because they will still be here in 5 years, and it was my responsibility to make them better coal miners.

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