Res desgnr obligmsir_20140219_b

RISK ENGINEERING SOCIETY
Legal Obligations for OHS Risk
Minimisation by Designers and Suppliers of
Mining Machinery
19th February 2014
Engineers Australia – West Perth
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No content may be reproduced without prior written consent of EUC Engineering Pty Ltd.

[CLIENT – EDIT IN MASTER SLIDE VIEW]
[PROJECT]
[SUBJECT/EVENT] – [DATE]

MIKE DEAN – ABOUT ME
• Electrical Engineer (UWA, 1984).
• Iron Ore industry 1981-87 and 1992-2000 (15 years).
• Insurance industry 2000-2003 – Energy & Mining Clients – Intro to
results when things go wrong.
• In 2004 completed Grad Dip Risk Management – UNSW Safety
Science
• Since 2004 minerals processing risk & safety involvement (mainly
alumina, iron ore)
• Since 2010 functional safety for machinery (iron ore industry) (to AS
62061/ISO 13849) and underground mine winder (2013, to AS
61508).

DISCLAIMERS
•
•
•
•

[PROJECT]

I am not a lawyer and I don’t work for a government department.
I have simply read the legislation and some relevant legal commentary.
None of this presentation should be considered “legal advice”.
Only some key aspects of compliance relevant to “designers & suppliers of
mining machinery” are being highlighted in this presentation.

ACKNOWLEDGMENTS & SOURCES
• Richard Robinson’s paper “Near enough not safe enough” [(Jan 2014),
Engineers Australia Magazine] got me thinking about this subject and has
formed a basis for the content.
• “The Relationship Between ‘Reasonably Practicable’ and Risk
Management Regulation” (2004), Bluff & Johnstone
(http://alturl.com/5eksi).
• HSE UK website (ALARP suite of guidance).

[PROJECT]

PRESENTATION OUTLINE
•
•
•
•

What Legislation Applies & Where To Find It.
What are the Legal Obligations for Designers & Suppliers.
What is “Reasonably Practicable”.
Observations on Why Conventional OHS “Risk Management”
Doesn’t Achieve Compliance.
• Model WHS Law – Possible Changes to Obligations?
• Summary.
• Question Time.

[PROJECT]

SCOPE
• Western Australian “mines”.
• Other facilities have own legislation:
• Petroleum and Geothermal Energy Resources .
• Rail.
• “Other” business sectors.

• As a designer/supplier: You need to know which legislation
applies.
• Facility owners need to make this clear in contractual
documentation.

[PROJECT]

RELEVANT LEGISLATION & WHERE TO FIND IT
• Two main pieces of applicable legislation:
• Mines Safety & Inspection Act (MSIA)(1994).
• Mines Safety & Inspection Regulations (MSIR)(1995).

• Compliance to both is required.
• Can easily obtain copies of this legislation for free at:
• http://www.slp.wa.gov.au/

• In addition there are approved Codes of Practice available at.
• http://www.dmp.wa.gov.au/6694.aspx#6884

[PROJECT]

WHO ADMINISTERS?
• Department Mines & Petroleum (DMP) – Resources Safety

[PROJECT]

ACT & REGULATIONS – WHAT’S THE DIFFERENCE?
• For the keen – but not hugely relevant to the presentation:
•
•
•
•
•

Acts become law by passage through both houses in the Parliament,
acceptance by the Governor and then proclamation in the Government
Gazette.
Regulations are a form of “subsidiary (or delegated) legislation”.
Subsidiary legislation can be enacted by the Governor, Ministers or other
bodies as allowed for under an Act.
The Act contains the “law”, whereas the Regulations are specific means
by which the law is to be observed.
For more info: http://www.department.dotag.wa.gov.au/_files/How_to_read_legislation.pdf

• The above is maybe of interest(?) – but compliance with both the
Act and Regulations is required (So you need a copy of both.)

[PROJECT]

MSIA (1994) – OBJECTIVES OF THE ACT
• Objects (Part 1 s3 (1))
• …
c) to protect employees against the risks associated with
mines, mining operations, work systems at mines, and plant
and hazardous substances at mines by eliminating those
risks, or imposing effective controls in order to minimize
them;
• …

[PROJECT]

WHAT’S RELEVANT FOR DESIGNERS & SUPPLIERS OF MINING MACHINERY

• MSIA (1994) Part 2 s14 – These are “Duties” under the Act…

Remember: “…must, so far as is practicable - …”

[PROJECT]


PENALTIES FOR BREACH OF MSIA (1994) S14

[PROJECT]

•
•

From s15 and s4A.
Penalties below are for “First Offence” only. Penalties for subsequent offences are +25% on
fines for first offence.

•

Gross Negligence is defined in s8B (next slide).

Nature of Breach
Causing death or serious harm
(due to Gross Negligence)

Penalty
Level
4

Causing Death or Serious Harm
(but not Gross Negligence)

3

Not Causing Death or Serious
Harm & Not Gross Negligence

2

Individual

Corp

$250,000 and $500,000
2 years
imprisonment
$200,000
$400,000

$100,000

$200,000

[PROJECT]

GROSS NEGLIGENCE DEFINITION (S8B)

[PROJECT]

SOME FURTHER RELEVANT BITS (FOR OTHER PARTIES)
• MSIA (1994)
• For installers/constructors – See Part 2 s14 (2).
• For designers/constructors of buildings or structures – See Part 2 s14
(3).
• For manufacturers, importers and suppliers of “substances” for use at
a mine – See Part 2 s14 (4).

[PROJECT]


• MSIR (1995)

[PROJECT]


• MSIR (1995)

• See also sub-reg (2)(b) and (c) – for “powered mobile plant”

[PROJECT]


• MSIR (1995)

See MSIR for list of items (a) to (f) that must be provided to the manufacturer by the
designer (See next slide).

[PROJECT]

MSIR (1995) R6.5 CONTINUED

[PROJECT]


• MSIR (1995) – Other Regulations (Heading Only provided)

[PROJECT]


• MSIR (1995) – Other Regulations (Heading Only provided)

BE AWARE!! These obligations for hazard ID, risk assessment and risk reduction under the MSIR
“ripple forward” and are inherited by the first party in the “supply chain” who is the legal entity
in Western Australia – this in addition to their own duties under the Act & Regs.
Inside WA

E.g. (Ref r6.9):
Designer

Manufacturer
Outside WA

Importer

Sale of Plant

Constructor

Importer inherits obligations of designer &
manufacturer under MSIR for hazard ID/risk
assessment and risk reduction

Client/Owner

[PROJECT]

PENALTIES FOR BREACH OF MSIR (1995) R6.4 TO R6.14
•
•
•

From r17.1 – Penalties below are for “First Offence” only.
Penalties for subsequent offences are +25% on fines for first offence.
Penalties apply to each regulation not complied with.

Employee

Individual

Corporation

$5,000

$25,000

$50,000

[PROJECT]

OTHER SPECIFIC REGULATIONS
• Note: There are likely to be other regulations requiring your
designs to include certain measures and features.
• These are not specifically identified here in this presentation.
• You need to read and understand any plant & machinery
specific requirements made in the MSIR – See for example:
• Part 4 (General Safety Requirements).
• Part 5 (Electricity in mines).
• r6.26 - 6.31 (Pressurised plant, moving parts, hot or cold parts,
electrical plant, industrial robots, lasers).
• r6.32 – 6.40 (Classified plant)….

[PROJECT]

OTHER RELEVANT DOCUMENTS - CODES OF PRACTICE
• Endorsed by MIAC and Approved by
the Minister (as provided under
MSIA).
• Provides practical guidance.
• This Code of Practice addresses
“Safeguarding of machinery &
plant”.
• Available for free at
http://www.dmp.wa.gov.au/6694.a
spx#6884.
• Compliance to code not mandatory,
but may be used by courts as
representing the standard.
• Non-compliance with code not
sufficient for prosecution.
• Get, read and deploy this
document.

[PROJECT]

BACK TO THE KEY ISSUE – MSIA (1994) S14

[PROJECT]

GETTING TO THE BOTTOM OF “SO FAR AS IS PRACTICABLE” –
DEFINITION IN MSIA

• (MSIA (1994) s4) “Practicable - means reasonably practicable
having regard, where the context permits, to —
(a) the severity of any potential injury or harm to health that
may be involved and the degree of risk of such injury or
harm occurring; and

(b) the state of knowledge about —
(i) the injury or harm to health referred to in paragraph (a); and
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the potential injury or harm to
health; and
(c) the availability, suitability, and cost of the means
referred to in paragraph (b)(iii); “

[PROJECT]

WHAT DOES “REASONABLY PRACTICABLE” MEAN?
• “Complex” legal topic – with considerable case law/papers.
• Involves weighing up (judgement) between:
•
•

“Quantum of risk” on one hand
The “Cost” of the measure to avert the risk on the other.

• Only if the “cost” is grossly disproportionate to the risk reduction
achieved can the measure be called NOT “reasonably practicable”.
• The “balance” and decision has to be made BEFORE the incident
(not after).
• If the judiciary make a judgement (afterwards) it will involve what a
“reasonable” person should have done and should have known in
making or not making a decision.
•
•

Suggested reference for more info is “The Relationship Between ‘Reasonably Practicable’ and Risk
Management Regulation” (2004), Bluff & Johnstone (http://alturl.com/5eksi).
Also HSE UK has excellent guidance on this subject: http://www.hse.gov.uk/risk/theory/alarp.htm.

[PROJECT]

GUIDANCE ON HOW TO DO IT (REASONABLY PRACTICABLE)

Governance Questions
(Tests of the results)

• Step One: Identifying the Circumstances, Hazards and Risks
•

(You need to do this under the MSIR anyway – Ref r6.3).

• Step Two – Determine What You Can Do (Ignoring Cost)
•
•
•
•

Use the hierarchy of controls (NB: Currently not a legislated requirement in
WA – but coming soon).
Look at options.
Don’t eliminate an option at this stage due to “cost”.
Record the process.

• Step Three – Determine What You are Reasonably Able to Do
•
•
•
•

Carefully – keeping in mind the severity/risk of harm – decide what can
reasonably be done.
Only eliminate risk reduction measures – which are clearly “unreasonable” to
do. Err on the side of caution.
Cost can be a valid reason for not proceeding with a risk reduction measure.
Record the process & decision making.

• Step Four – Periodically Review Decisions & Outcomes
•

Things change. You have to account for this in the design/delivery process.

What would a “reasonable”
person know or ought to know
about the hazards & risks?

What would a
“reasonable” person
know or ought to know
about the ways of
eliminating or
minimising the risk?

Is the process and
decision making
robust?
Have valid risk
reduction measures
been missed, glossed
over or discarded?

Review process in place?

This guidance is from: http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/774/Guide-ReasonablyPracticable.pdf

[PROJECT]

WHY CONVENTIONAL “RISK MANAGEMENT” PROCESSES CAN
FAIL TO ACHIEVE COMPLIANCE TO MSIA (1994) S14

It is important to note:
The conventional “risk management” approach according to many
company risk management guidelines – focussed at achieving a
company defined tolerable level of risk.
DOES NOT AUTOMATICALLY YIELD
Compliance with the (s14) MSIA/MSIR requirements for “so far as
is practicable” hazard/risk minimisation ….
• The process of the conventional “risk management” approach is not
usually targeted at determining/documenting “so far as is
practicable” decisions.
• This is an important reason why these MSIA/MSIR obligations can
be missed.
• Important issue for designers … and those involved in delivering risk
management/workshops etc to designers (and owners, operators).

[PROJECT]

WHY CONVENTIONAL “RISK MANAGEMENT” PROCESSES CAN
FAIL TO ACHIEVE COMPLIANCE TO MSIA (1994) S14

• From AS/NZS ISO 31000:2009
AS/NZS ISO 31000:2009
doesn’t explicitly address
treating risks until there
are no further
“reasonably practicable”
risk reduction measures
available.

[CLIENT – EDIT IN MASTER SLIDE
WHY CONVENTIONAL “RISK MANAGEMENT” PROCESSES CAN VIEW]
[PROJECT]
FAIL TO ACHIEVE COMPLIANCE TO MSIA (1994) S14- CONTINUED

Typically company “risk management” processes involve:
1-Low

2-Minor

Severity
3-Moderate

4-Major

5-Critical

5-Almost
Certain

11

16

20

23

25

4-Likely

7

12

17

21

24

3-Possible

4

8

13

18

22

2-Unlikely

2

Likelihood

1.
2.

Hazard/scenario identification.
{Possibly – risk assess “inherent”
risk of scenario}
3. Identify existing risk controls.
4. Risk assess current level of risk.
5. Compare risk level to tolerable
levels (if “low” risk – go to Step 10,
otherwise go to Step 6).
6. Identify additional (new) risk
controls.
7. Risk assess future risk level.
8. Compare risk level to tolerable
levels (if “low” risk – go to Step 9,
otherwise go to Step 6).
9. Implement additional/new risk
controls.
10. Periodic review.

1-Rare

IMPORTANT!
9
14
19
The MSIA doesn’t require that
1
3
10
the risk is6 as low as a 15
company defined tolerable
risk level. It requires you
determine and implement
“ALL reasonably practicable”
measures to reduce exposure
to the hazard(s)– and to not
stop until you have.
5

[PROJECT]

PRACTICAL EXAMPLE – CONVENTIONAL HAZID & RISK ASSESSMENT

[CLIENT – EDIT
PRACTICAL EXAMPLE – CONVENTIONAL HAZID & RISK ASSESSMENT IN MASTER SLIDE VIEW]
[PROJECT]

Hydraulic hoses near a large hydraulic cylinder near a walkway

• Hazard: Hydraulic hose containing high
pressure hydraulic fluid.
• Risk: Hose (or fitting) failure with person
in vicinity causing injury.
• Severity: LTI (Moderate).
• Risk Controls:
• Fit for purpose/AS compliant
equipment specified.
• Routine maintenance & inspection.
• Personnel wearing PPE.
• Assessed likelihood: Unlikely.
• Risk Level: “Green” “9” – Acceptable risk.
• Move on to next hazard….

2-Minor

Severity
3-Moderate

4-Major

5-Critical

5-Almost
Certain

11

16

20

23

25

4-Likely

7

12

17

21

24

3-Possible

4

8

13

18

22

2-Unlikely

2

5

9

14

19

1-Rare

Is this process familiar to anyone in the room….!!

1-Low

1

3

6

10

15

Likelihood

[PROJECT]

CONTRAST WITH S14 MSIA REQUIREMENTS
• Following slide is a hypothetical approach to meeting the s14
MSIA requirements of the machine designer addressing the
same hazard.
• Caution:
• This is a “discussion” starter to address a perceived deficiency in
current practice.
• Methodology has not been “endorsed” by risk fraternity nor is it
endorsed as achieving s14 compliance by DMP.

[CLIENT – EDIT
PRACTICAL EXAMPLE – S14 MSIA – POSSIBLE APPROACH IN MASTER SLIDE VIEW]
[PROJECT]

Hydraulic hoses near a large hydraulic cylinder near a walkway

• Hazard: Hydraulic hose containing high
pressure hydraulic fluid.
• Risk: Hose (or fitting) failure with person
in vicinity causing injury.
• Severity: Burns or pressurised liquid
injury (requires hospitalisation)
(=“Major”). Evidence presented of
hydraulic system hazards (see note
below).
• Likelihood: Assessed as Unlikely based on
hose/fitting failure data.
Level of Risk informs
degree of focus on
• Risk: High (14).
control measures
• Establish available risk reduction
measures according hierarchy of controls
(see next slide).
Note: See for eg: http://www.dennismac.co.uk/hands/hyd/index.html.


Gain knowledge of
“Severity”. Consider
reasonable worst case.

This operator was burned when a hydraulic hose,
neglected during maintenance, burst and spewed
hydraulic oil, at normal operating temperature,
over his entire body (from HandS – Dennis Mac).
This approach is the key
differentiator from conventional
risk assessment

Reasonably– EDIT IN MASTER SLIDE VIEW]
[CLIENT
Rationale
Practicable?
[PROJECT]

Hierarchy of
Controls

Available Measures

Elimination

None Identified.

N/A

Substitution

None Identified.

N/A

Isolation/
Separation

Hoses and fittings to relevant Australian
Standards.

Yes

Hoses run in web of beams

Yes

Guarding of walkway areas

Yes

Engineering
Controls

None Identified.

N/A

Administrative
Controls

Maintenance requirements in O&M Manual

Yes

Hydraulic System hazards in O&M Manual

Yes

Standard site PPE

Yes

High temperature oil resistant suit over Kevlar
body armour

No

PPE


This new/additional
control was revealed
through the MSIA
compliance mindset

This measure was
deemed to be Not
Reasonably Practicable –
with rationale given

User discomfort/health
impacts at high ambient
temperatures.

[PROJECT]

PRACTICAL EXAMPLE – S14 MSIA – POSSIBLE APPROACH
• Something like the previous slides isn’t often done.
• Focus shifts from conventional “is risk low enough” to identifying
available & reasonably practicable hazard/risk control measures.
• Would add cost/time to the HAZID & Risk Assessments already
being undertaken (in the conventional model).
• Cost impacts on plant & machinery for WA minesites to implement
all reasonably practicable hazard/risk control measures?
• Suggested work is to:
•
•
•

Discuss issues outlined here – is it a “real” issue needing addressing?
Obtain DMP view on how best to demonstrate MSIA s14 compliance.
Expedite and improve the process so it isn’t overly onerous in time &
expense.

[PROJECT]

OTHER REASONS WHY COMPLIANCE NOT ACHIEVED
• Companies use “Project Risk” mindset when doing risk
assessment (concerned with project delivery, missing OHS
risks).
• Observation: You don’t run the risk of jail time if you fail to identify a
project delivery risk.

• Designers rely on client “risk assessment” process instead of
their own.

[PROJECT]

THE IMPENDING “MODEL WHS” CHANGES
• From DMP website:
• “New work health and safety (WHS) legislation for the Western
Australian resources sector is expected to be introduced in early 2015.
• This will be based on model laws developed under the harmonisation
process driven by Safe Work Australia and the National Mine Safety
Framework.
• It is expected that this will be a single piece of safety legislation for the
resources sector in Western Australia, effectively combining mining,
petroleum and major hazard facilities into one act – the Work Health
and Safety (Resources) Act.”

[PROJECT]

NEW MODEL WHS ACT/REGS - IMPACTS
• By review of Model WHS Act/Regs – there will be minor impacts on
subject being discussed here.
• Slightly different wording for equivalent of MSIA s14 (see s22):

• Get used to hearing abbreviation “SFAIRP”.

• Hierarchy of Controls embedded in Regs (see r36).
• Summary is that Model WHS Act/Regs if implemented in WA will
not undermine / change the current MSIA requirements (will
strengthen them).

[PROJECT]

OTHER RELATED TOPICS OF INTEREST
• The “Safety Lifecycle” approach of AS 61508.1 offers a sound
framework for treatment of all machinery & plant.
• This is supported by the recent (2013) update of AS 3007 which
requires a full “lifecycle” approach to risks and risk management.
• Please consider.

• MSIA (1995) s14 and similar clauses – need to be achieved
even where Australian Standards/Codes etc require an explicit
tolerable risk target (ie AS 61508 for Functional Safety).
• Issue of reconciling SFAIRP and quantitative risk targets. NB: An issue
for risk engineers to ponder.

[PROJECT]

SUMMARY
• All designs for plant & machinery need to be subjected to OHS
focussed hazard ID & risk assessment.
• Conventional risk assessment isn’t sufficient for MSIA (1994)
s14 compliance.
• MSIA (1994) s14 compliance requires that every “reasonably
practicable” measure to reduce exposure of personnel to
hazards – has been taken.
• Demonstrating this will require additional efforts than applied
in most conventional HAZID/risk assessments.
• Devising a way to cost effectively do this is required.
• Model WHA Act/Regs coming to WA wont change/undermine
the current obligations of designers (only strengthen them).

[PROJECT]

THANK-YOU
Questions?

Mike Dean
0448 103 028
mike.dean@euceng.com.au

Res desgnr obligmsir_20140219_b

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