Five Serious Burns and Zero Convictions: Workers Dismayed at No Prosecution Decision
Background
In May 2020, five labour hire workers sustained severe burns after a Queensland coal mine exploded due to “spontaneous combustion” of highly explosive methane gas.
An investigation into the explosion (“the Investigation”) conducted by the Queensland Coal Mining Board of Inquiry (“BOI”) found that duty holders of the mine had failed to take “timely and meaningful” action to control excess levels of methane gas. BOI found that coal production regularly exceeded the mine’s gas drainage capacity of 70,000 tonnes a week, despite management being advised otherwise. In the weeks preceding the explosion, the BOI heard that there were 14 incidents of methane exceedance at the location – which are considered near misses in the industry.
The Investigation found a general perception amongst workers at the mine that raising “safety concerns at a mine might jeopardise their ongoing employment”. Another significant finding of the Investigation was a failure on behalf of the Resources Safety & Health Queensland (“the RSHQ”) to pre-emptively identify the risk at the mine.
The Mining and Energy Union Queensland (“the Union”) described the incident as an “accident waiting to happen”. The Union called for those responsible for mismanagement of the mine should face criminal prosecution for exposing workers to an unacceptable level of risk.
The Law
For an employer or a labour supplier to be criminally liable for an incident occurring in a Queensland coal mining operation they must be in breach of the Coal Mining Safety and Health Act 1999 (QLD) (“the Act”). Similar criminal liability provisions exist in New South Wales under the Work Health and Safety Act 2011 (NSW).
The Act clearly defines what constitutes ‘acceptable risk’, the actions that must be taken to reduce the risk to an acceptable level, what is to occur when the risk becomes unacceptable and the protocol for evacuating to a safe location.
No Prosecution to be Pursued
In August 2021, the matter was referred to the Office of the Work Health and Safety Prosecutor by the RSHQ. However, after reviewing over 90,000 pieces of evidence, Mr Guilfoyle, the Work Health and Safety Prosecutor determined not to commence criminal prosecution. In a statement to the media, he said:
“Having assessed the brief of evidence against the Guidelines of the Director of Public Prosecutions, I am not satisfied there exists a reasonable prospect of securing a conviction against any of the identified duty holders under the Coal Mining Safety and Health Act 1999.”
Recommendations Following Investigation
The BOI made 40 recommendations in their report. They called on managers of the Grosvenor mine to audit gas drainage, regularly assess production to ensure they do not exceed gas drainage levels and conduct an internal review on policies and procedures to improve safety incident and injury reporting.
More broadly, the BOI proposed for laws to be amended to compel mine managers to develop performance criteria for gas drainage, monthly reporting to the RSHQ and the conduct of regular internal and external audits.
While no criminal liability was determined in this case, the takeaway is that employers have a legal and an ethical duty to provide and maintain a safe working environment for their employees. The 2020 mining explosion represented a systematic failure in reporting and maintaining a safe working environment. As a result, five people were critically injured and require ongoing medical support.
If you have any questions about work health and safety obligations, please do not hesitate to contact Nick Stevens, Luke Maroney, Daphnie Klianis and Josh Hoggett.
