Work Health and Safety (Mines and Petroleum Sites) Act 2013

The Act’s primary duty-holders are the mine holder and mine operator (ss 5, 7A). The mine holder is the PCBU who controls the right to carry out mining operations or, failing that, the PCBU actually carrying them out; a tourist mine’s holder is simply the PCBU operating the site. The mine operator is either the holder or a person appointed under the regulations; multiple operators may be appointed for different parts of a mine, and one operator may manage several mines (treated as one for regulatory purposes). Parallel definitions apply to petroleum site holders and operators (ss 5, 7C).

PCBUs at mines or petroleum sites (including contractors and service providers) owe duties under both the WHS Act and this Act, most visibly the notifiable-incident and site-preservation obligations (ss 15, 17).

Workers, especially at coal mines, gain enhanced representation rights. They elect site safety and health representatives and electrical safety and health representatives (s 38) and are represented at industry level by Minister-appointed industry safety and health representatives nominated by the Mining and Energy Union (s 28). These representatives exercise functions on behalf of all workers at all coal mines (s 29(1)).

Government officials (inspectors, mine safety officers, investigators) appointed by the regulator (s 18) and the regulator itself (the Secretary of the Department of Regional NSW, known as the NSW Resources Regulator – s 5(3)) are both empowered and constrained by the statute. Officials must disclose conflicts (s 20), notify operators of concerns (s 23), consult coal-mine representatives before inspections (s 44), and are subject to regulator directions (s 26).

The Minister holds significant residual powers: determining jurisdictional questions (s 12), constituting Boards of Inquiry (s 56), appointing industry safety and health representatives (s 28), controlling the Mining and Petroleum Competence Board (s 64), and publishing codes of practice (s 72).

The Mine Safety Advisory Council and Mining and Petroleum Competence Board are statutory advisory and standard-setting bodies whose membership is prescribed by regulation and ministerial appointment (ss 60, 65).

Finally, the Act binds the Crown (s 13) and therefore affects all state-owned or state-operated mines and petroleum sites.

Primary duty holders must ensure notifiable incidents are reported immediately by the fastest means (telephone followed by written notice within 48 hours – s 15(3)–(6)) and that incident sites are not disturbed until an inspector or government official authorises otherwise (s 17(1)). Coal-mine operators must also notify industry safety and health representatives (s 16).

Mine and petroleum site operators are deemed PCBUs (s 5(2)) and therefore inherit all WHS Act primary duties. In addition they must facilitate the election, training and functioning of mine safety and health representatives (ss 38, 45), display election notices (s 38(5)), keep representative inspection reports for 12 months (s 46(2)), and immediately forward gas, self-heating or danger records to the regulator (s 47(2)).

Industry safety and health representatives enjoy mine-wide entry rights (with or without notice in emergencies – s 29(3)(a)), may review safety management systems, participate in investigations, assist training (s 29(2)), issue directions to suspend operations where WHS laws or safety management systems are breached and danger exists (s 30), and delegate suspension powers to site representatives in defined circumstances (s 32). They may not, however, issue provisional improvement notices where the regulator has already acted on the same matter (s 31(1)).

Site and electrical safety and health representatives exercise WHS Act health-and-safety-representative functions for the entire mine (or, for electrical representatives, electrical plant only – s 42(2)). They may issue provisional improvement notices only after training (s 43(5)), must consult other WHS representatives before doing so (s 43(3)), and must report inspection results to the operator within seven days (s 46(1)). They enjoy consultation rights before official inspections (s 44).

Workers have the right to elect representatives, to be consulted, to be trained without loss of pay (s 45(3)), and to be represented in formal investigations (s 42(3)). They are protected from hindrance, obstruction, impersonation or intimidation of representatives (ss 34–36).

Government officials may issue improvement notices for likely contraventions (s 49) and prohibition notices on broader grounds than the WHS Act (s 50). The regulator alone may issue stop-work orders (s 51) that prevail over other statutory instruments (s 52). Officials must consult coal-mine representatives before inspections (s 44) and notify operators of safety concerns (s 23).

The regulator may publish enforcement and incident information (s 70), share information with corresponding regulators (s 71), and exercise any WHS regulator function at any workplace (s 12A).

Boards of Inquiry possess coercive evidence-gathering powers (s 58) and must produce reports for parliamentary tabling (s 59).

Penalties are expressed in penalty units and are additional to WHS Act offences. Key examples:

• Failure to notify notifiable incident or preserve site: 100 penalty units (individual) / 500 (body corporate) (ss 15, 17).
• Non-compliance with government-official requirement: 60 / 360 (s 25).
• Mine operator failure to comply with suspension direction: 100 / 500 (s 30(3)).
• Obstruction of industry safety and health representative: 100 / 500 (s 34); assault or intimidation: 500 / 2,500 or 2 years imprisonment (individual) (s 36).
• Failure to comply with stop-work order: 1,000 plus 100 per day (individual) or 5,000 plus 500 per day (body corporate) (s 55).
• Witness non-compliance with Board of Inquiry: 250 / 500 (s 58(8)).

Enforcement tools include improvement and prohibition notices (ss 49–50), stop-work orders (s 51), provisional improvement notices issued by representatives (ss 31, 43), and prosecution. Costs of executing a stop-work order are recoverable as a debt (s 53). The regulator may publish conviction, investigation and enforcement information (s 70), providing reputational as well as financial incentives for compliance. Because the Mines Act is construed as part of the WHS Act, the latter’s penalty, sentencing and evidentiary provisions apply.

Section 4(1) is the cornerstone: the Mines Act “is to be construed with and as if it formed part of the WHS Act”. Consequently every reference in the WHS Act to “this Act” or “the regulations” includes this Act and its regulations (s 4(2)). Improvement notices may therefore be issued for breaches of the Mines Act (note to s 4).

The Act expressly defers to or carves out other legislation: rail safety, roads, electricity supply, civil aviation and offshore petroleum are excluded (s 11(1)). It interacts with the Petroleum (Onshore) Act 1991 by adopting that statute’s definition of “petroleum title” (s 5) and treating geothermal energy as petroleum (s 8). Transitional provisions link it to the repealed Coal Mine Health and Safety Act 2002 and Mine Health and Safety Act 2004 (Sch 1).

Stop-work orders prevail over non-disturbance, improvement or prohibition notices under the WHS Act and over approvals under any other Act (s 52). Boards of Inquiry may be stayed by a court if they risk prejudicing other proceedings (s 56(7)). Information-sharing with corresponding regulators is authorised and protected (s 71). Codes of practice may be made jointly with the WHS Minister (s 72). Immunity under WHS Act s 270 extends to Council members, Board members, inquiry participants and industry safety and health representatives (s 73).

The most significant amendments occurred via the Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015. That statute substituted the former relationship provision (s 4), inserted comprehensive petroleum-site definitions and operator rules (ss 7B–7C, 10, 15(1A)), expanded the regulator’s title and functions (ss 5, 12A), adjusted the meaning of “mine” and “mining operations” (ss 6–7), aligned notice and enforcement provisions, and renamed the Competence Board to include petroleum. These changes implemented national harmonisation policy, brought petroleum onshore activities under the same safety regime as mining, and removed historical dual-regulator confusion.

Subsequent minor amendments have refined penalty levels (2022), updated departmental references (2017, 2022), expanded Minister’s probity-check powers when appointing industry representatives (2023), and adjusted service provisions (2019, 2022, 2023). The 2015 harmonisation package was driven by the need to eliminate the pre-2011 patchwork of mine-specific statutes, reduce regulatory duplication, and apply consistent risk-based duties across high-hazard extractive industries.

The provided text contains no reported decisions; however the structure itself has generated doctrinal tension. The conclusive Ministerial certificate on jurisdictional questions (s 12(6)) has been criticised as ousting judicial review, though it is expressed to preserve existing proceedings and not to create retrospective liability (s 12(4)–(5)). The interplay between industry safety and health representatives’ suspension power (s 30) and the regulator’s stop-work order (s 51) has prompted debate about overlapping authority and potential forum-shopping.

The 2015 expansion to petroleum sites raised questions about whether offshore-adjacent onshore facilities fall inside or outside the exclusion in s 10(2)(c). Transitional validation clauses (Sch 1 cll 16–17) that retroactively validate earlier regulatory action have been controversial because they deem coal-mining lease areas to have always been within colliery holdings, curing possible defects in inspector appointments and prosecutions.

Industrial-relations practitioners have queried the Industrial Relations Commission’s disqualification jurisdiction over mine safety and health representatives (s 41) and the extent to which WHS Act s 90(5) limits representative-issued notices. No High Court or NSW Court of Appeal authority is cited in the source text, but the broad definition of “mining operations” (s 7) and the Minister’s power to declare activities by Gazette order have been flagged as potentially uncertain in scope.

Most practitioners assume the Mines Act is merely procedural; in fact its definitional web can recharacterise an entire site. A “tourist mine” remains a mine if a prescribed hazard from former operations persists (s 6(2)), triggering the full operator and notification regime even though no active extraction occurs. Conversely, the power to declare by regulation that an activity is not a mining operation (s 7(2)) or to exclude classes of site by Gazette notice (s 10(2)(b)) means coverage can change without parliamentary debate.

The “local site” concept (s 5) pulls in adjoining or nearby land for processing, storage and construction activities; unwary contractors on adjacent land may suddenly become PCBUs at a “mine”. Industry safety and health representatives may suspend operations without prior regulator approval in imminent-risk cases (s 30(5)), yet the direction ceases only when an inspector attends (s 30(8)); this can create days of enforced inactivity before regulatory oversight.

Stop-work orders survive for the full 28 days even if the underlying risk is abated earlier, unless the regulator revokes them (s 51(10)). Costs of regulator-executed works are recoverable as a debt and can be ordered on conviction (s 53), creating a hidden financial exposure beyond the penalty. Competence Board assessments are not appealable on the face of the Act; only the Minister’s decisions on industry-representative appointments carry external review rights (s 28(6)).

Finally, s 12A’s mutual conferral of functions means a SafeWork NSW inspector may lawfully exercise Resources Regulator powers (and vice versa) without producing a Mines Act identity card; many officers and duty-holders remain unaware that enforcement can come from either agency at any site.

1. Map your site — Determine whether the workplace is a “mine”, “petroleum site” or “mineral/petroleum exploration/extraction site” using ss 6–7C. Document any ministerial declarations or regulatory exclusions.

2. Appoint and notify the operator — The mine/petroleum-site holder must formally appoint an operator under the regulations (s 7A(1)(b)). If multiple operators are used, delineate parts of the site in writing and notify the regulator.

3. Implement integrated management system — Align the safety management system required by WHS regulations with Mines Act duties. Ensure it addresses the additional objects in s 3 (emergency provisions, competence, representative participation).

4. Incident protocol — Create a rapid-response flowchart: (a) secure scene (subject to s 17(3) exceptions), (b) notify regulator by fastest means within minutes, (c) follow with written notice within 48 hours, (d) notify industry safety and health representative if a coal mine (s 16), (e) preserve evidence.

5. Facilitate representation — At coal mines, display election notices, allow paid training time (s 45(3)), maintain a danger-reporting book (s 47), and consult representatives before official inspections (s 44). Train representatives before they issue notices (s 43(5)).

6. Competence assurance — Engage the Mining and Petroleum Competence Board processes for any role prescribed as safety-critical. Retain records of assessments.

7. Official liaison — Provide prompt access to government officials, implement their written safety recommendations (s 23), and treat any WHS regulator officer as a Resources Regulator officer (s 12A).

8. Stop-work readiness — Maintain a protocol for immediate cessation upon receipt of a regulator order. Identify who must receive the order and cascade it to contractors. Budget for potential regulator-executed remediation costs.

9. Audit and review — Conduct annual gap analyses against both the WHS Act (as expanded by s 4) and the Mines Act. Test incident-notification timelines and representative-consultation processes. Monitor Gazette notices and regulatory amendments that can instantly alter coverage.

10. Documentation — Keep all representative reports (12 months – s 46(2)), delegation instruments (s 32(2)), training records, and jurisdictional determinations. Ensure service addresses are up to date for regulator notices (s 69(2A)).

Compliance is not a checklist against the Mines Act alone; it requires treating the statute as a seamless overlay on the WHS Act, maintaining live relationships with both SafeWork NSW and the NSW Resources Regulator, and recognising that elected worker representatives possess statutory powers that can lawfully halt production.