Construction, Forestry, Mining and Energy Union v State of Queensland & Anor [2006] QSC 192 [2007] 1 Qd R 309

SUPREME COURT OF QUEENSLAND CITATION: Construction, Forestry, Mining and Energy Union v State of Queensland & Anor [2006] QSC 192 PARTIES: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (applicant) v STATE OF QUEENSLAND (first respondent) XSTRATA COAL QUEENSLAND PTY LTD (second respondent) FILE NO/S: 2439/06 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 1 August 2006 DELIVERED AT: Brisbane HEARING DATE: 24 July 2006 JUDGE: McMurdo J ORDER: 1. The application for declaratory relief, which is within paragraph 2 of the amending originating application filed on 21 April 2006, is dismissed. 2. The applicant pay to the first respondent its costs of and incidental to the claim in paragraph 1 of the amended originating application, filed 21 April 2006, including the costs reserved on 6 April 2006. 3. The applicant pay to the second respondent its costs of and incidental to the applications within paragraphs 1 and 2 of that amended originating application, including costs reserved on 6 April 2006. CATCHWORDS: MINING LAW – STATUTORY REGULATION OF CONDUCT OF MINING OPERATIONS – QUALIFICATIONS AND APPOINTMENT OF MANAGERS, ETC – where the operator of a coal mine is obliged to appoint a site senior executive – where the applicant seeks a declaration that the appointment of site senior executives to coal mines in July 2005 were invalid as the appointees do not meet the definition of “site senior executive” in s 25 of the Coal Mining Safety and Health Act -- 1 of 7 -- 2 1999 (Qld) – whether the appointments of site senior executives were valid appointments Coal Mining Safety and Health Act 1999 (Qld), s 6, s 7, s 25, s 25(1)(b), s 33(2), s 41, s 41(1)(d), s 42, s 54 COUNSEL: M D Hinson SC, with D R Kent, for the applicant P J Flanagan SC, with C J Murdoch, for the first respondent J E Murdoch SC, with A McLean-Williams, for the second respondent SOLICITORS: Hall Payne for the applicant C W Lohe Crown Solicitor for the first respondent Sparke Helmore Lawyers for the second respondent [1] McMURDO J: The expressed objects of the Coal Mining Safety and Health Act 1999 (Qld) (“the Act”) are the protection of the safety and health of persons at coal mines or who may be affected by coal mining operations and the maintenance of the risk of injury or illness from those operations at an acceptable level.1 To that end, the Act extensively regulates coal mining operations, and imposes obligations on coal mine operators and those “who may affect the safety or health of others at coal mines”.2 Within that second category are those who are given the responsibilities of the “site senior executive for the mine”. The operator of a coal mine is obliged to appoint a site senior executive, who must discharge the extensive obligations of that position as prescribed by s 42 and other sections. [2] The respondent, Xstrata Coal Queensland Pty Ltd, is the operator of those coal mines which together are known as the Newlands Project, and those coal mines which together are known as the Oaky Creek Project. This case concerns the validity of the purported appointment of site senior executives to those mines by the respondent in July 2005. The applicant says that the appointments were invalid and seeks a declaration to that effect. [3] The Newlands Project comprises both underground and surface operations. The respondent’s evidence is that it became the operator on about 18 July 2005. The applicant suggests that the respondent was the operator before then but that does not matter for present purposes. It is common ground that at the time of the purported appointments, it was the respondent which was the operator and thereby obliged to appoint any site senior executive. On about 22 July 2005, the respondent purported to appoint Mr David Stone as site senior executive for the underground mines in the Newlands Project, Mr Jack Wilson as site senior executive for the open cut mines at Newlands, and Mr Jon Romcke as site senior executive “for exploration activities outside the mining lease areas”. Those appointments were made on the respondent’s behalf by Mr Lindsay Richardson. [4] The Oaky Creek Project also comprises both underground and surface operations. Again the respondent says that it has been the operator of these mines since about 18 July 2005. And again, although the applicant suggests that the respondent was 1 Section 6 2 Section 7 -- 2 of 7 -- 3 the operator before then, it accepts that the respondent was the operator at least when the appointments relevant to Oaky Creek were made on about 20 July 2005. They were the appointments of Mr Simon Burnett as the site senior executive for Oaky No. 1 Underground Mine, Mr Heath Hannigan as the site senior executive for Oaky North Underground Mine, and Mr Morgan Wakely as site senior executive for the open cut mines. These appointments were made on the respondent’s behalf by Mr David Hetherington. [5] The applicant originally challenged these appointments, to both Newlands and Oaky Creek, upon a ground which it no longer pursues. It contended that the appointments were contrary to s 54, which provides that no more than one site senior executive is to be appointed for any mine and that, except in certain circumstances, a person is not to be appointed for more than one mine. The applicant’s argument, as advanced in correspondence and it seems at the outset of these proceedings, was that more than one person had been appointed for one mine in these cases. The State of Queensland was joined as a respondent because, through its Chief Inspector of Coal Mines, it had rejected that argument. That ground has now been abandoned and the applicant agreed that the State of Queensland need not be further involved in this case. [6] The applicant now relies upon the terms of s 25. Before going to that section it is convenient to refer to s 42 which prescribes certain obligations of a site senior executive. Those obligations are in each case a “safety and health obligation”3 with the result that a failure by the site senior executive to discharge the obligation would constitute an offence, for which various maximum penalties are prescribed according to the consequences of the offence in a particular case. Section 42 provides as follows: “42 Obligations of site senior executive for coal mine A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations – (a) to ensure the risk to persons from coal mining operations is at an acceptable level; (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive's coal mine workers is at an acceptable level; (c) to develop and implement a safety and health management system for the mine; (d) to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine; (e) to train coal mine workers so that they are competent to perform their duties; (f) to provide for – 3 As defined in s 33(2) -- 3 of 7 -- 4 (i) adequate planning, organisation, leadership and control of coal mining operations; and (ii) the carrying out of critical work at the mine that requires particular technical competencies; and (iii) adequate supervision and control of coal mining operations on each shift at the mine; and (iv) regular monitoring and assessment of the working environment, work procedures, equipment, and installations at the mine; and (v) appropriate inspection of each workplace at the mine including, where necessary, pre- shift inspections.” [7] The obligations of coal mine operators are prescribed within s 41 which provides in part as follows: “41 Obligations of coal mine operators (1) A coal mine operator for a coal mine has the following obligations – (a) to ensure the risk to coal mine workers while at the operator's mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state; (b) to ensure the operator's own safety and health and the safety and health of others is not affected by the way the operator conducts coal mining operations; …. (d) to appoint a site senior executive for the mine; (e) to ensure the site senior executive for the mine – (i) develops and implements a safety and health management system for the mine; and (ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine; (f) to audit and review the effectiveness and implementation of the safety and health management system to ensure the risk to persons from coal mining operations is at an acceptable level; -- 4 of 7 -- 5 (g) to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system.” [8] The applicant impugns the appointments upon the argument that none of the appointees meets the definition or description of “site senior executive” within s 25 which is in part as follows: 25 Meaning of site senior executive (1) The site senior executive for a coal mine is the most senior officer employed 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.” [9] The applicant says that there is but one person who fits that description at Newlands, who is Mr Richardson, and but one such person at Oaky Creek, who is Mr Hetherington. It says that Mr Richardson is the most senior officer employed by the respondent at Newlands and the terms of s 25 preclude the appointment, by him or anyone else on behalf of the respondent, of another as site senior executive. It makes the same argument in relation to Mr Hetherington at Oaky Creek. [10] It is necessary then to discuss the positions of Mr Richardson and Mr Hetherington. The facts to which I will now refer are from the unchallenged affidavit evidence of a solicitor employed by the respondent. The ultimate holding company of the respondent is Xstrata plc. It is also the ultimate holding company of Xstrata Coal Pty Ltd, which is a different company from the respondent and which employs both Mr Richardson and Mr Hetherington as regional general managers responsible for strategic and planning decisions for certain Queensland projects. Neither is, or was at the time of these appointments, employed by the present respondent in the sense of a relationship of master and servant. But each of the persons appointed as site senior executives was and is employed in that sense by the respondent, and was and is the most senior officer so employed by the respondent at the relevant mine. Mr Richardson has referred to himself in correspondence as “general manager, Xstrata Coal Queensland, Mackay Region”, but this is a description of convenience rather than an accurate statement of his employment. Mr Richardson’s responsibilities cover a wider region, which includes the Newlands mines, other coal mines at Collinsville and the Abbot Point train unloading terminal, stock piles and ship loading facilities. Mr Hetherington is employed as regional general manager, Emerald Region, Queensland. His responsibilities include the Oaky Creek mines as well as the Cook Underground Mine near Blackwater. Mr Richardson works from offices “located at Newlands” and Mr Hetherington from offices “located at Oaky Creek”. In the course of his work, each travels extensively and regularly and is away from Newlands or Oaky Creek, as the case may be, for “quite significant periods of time”. [11] Going then to s 25, the applicant’s argument is that each is the most senior officer employed by the respondent at the mine. But his employer, in the ordinary sense of the master/servant relationship, is not the respondent; it is a different company -- 5 of 7 -- 6 having the same ultimate ownership. How then is it said that each is an officer employed by the respondent? The applicant points to this fact: that Mr Richardson and Mr Hetherington were specifically authorised to appoint and in turn replace a site senior executive. The appointments are in identical terms and are each dated 20 July 2005 and signed for the respondent by a director. In the case of Mr Richardson, the appointment is in these terms: “This letter confirms that Xstrata Coal Queensland Pty Ltd, as the Operator of the mines listed below pursuant to the Coal Mining Safety and Health Act 1999 (“the Act”), has authorised you to appoint and replace Site Senior Executives (including temporary appointments) for those mines from time to time on behalf of the Operator in accordance with the Act: 1. Southern Underground Mine 2. Newlands Northern Underground Mine 3. Newlands Open Cut Mine 4. Suttor Creek Open Cut Mine This authority remains in force and effect until cancelled by Xstrata Coal Queensland Pty Ltd.” [12] The applicant says that by these appointments, Mr Richardson and Mr Hetherington became employees in the sense of s 25: that each became “employed by the coal mine operator” and as “the most senior officer (so employed)”. So it argues that “employed” in this context should not be limited to the relationship of master and servant but includes “wider relationships”. It argues that each is “the most senior officer” at the relevant mine and each “has responsibility for the coal mine” because each had the power to appoint and in turn replace the so called site senior executive. So as at the time that Mr Richardson appointed persons to be site senior executives, it was Mr Richardson, and only Mr Richardson, who met the description within s 25. Similarly it was only Mr Hetherington who met that description for Oaky Creek. Upon the applicant’s argument, Mr Richardson or Mr Hetherington became at once authorised to appoint a site senior executive and yet, by the same document, became unable to appoint anyone but himself. [13] Particularly when read with s 42 and many other provisions of the Act which prescribe specific duties of a site senior executive, the evident intention is that there will be an appointment of a person who works at or near the coal mine and who, on a day to day basis, is in charge of the operator’s workforce at the mine. The word “site” is significant for it indicates that the person’s work is specific to a particular mine. That is consistent with s 54, which provides that a person is not to be appointed as site senior executive for more than one mine except where the mines are part of the one mining project or are otherwise relevantly adjacent and associated (or consist only of exploration activities). [14] The (identical) terms of the authorisations given to Mr Richardson and Mr Hetherington are inconsistent with the notion that they are to act as site senior executives. Their authority is to appoint someone else to act in that role. The authority is not in terms which confers any “responsibility for the coal mine” other than a responsibility to make an appointment of or replace a site senior executive. It is not of an appointment to act on a day to day basis at the mine site to do the things -- 6 of 7 -- 7 required by s 42 and other provisions. The phrase “responsibility for the coal mine” in s 25(1)(b) refers to a responsibility to discharge those various statutory obligations. [15] When s 41 and s 42 are read together, the necessary relationship between the mine operator and the site senior executive is clear. The operator is to ensure that the site senior executive develops and implements a safety and health management system and develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine. This requires a relationship between the operator and the site senior executive whereby the executive works under the control of the operator. That relationship would exist by an employment by the operator of the site senior executive in the ordinary sense of a master/servant relationship. Conceivably it might also exist in a particular case where there is the same degree of control, although the employer in the strict sense is someone else. Instances of “loaned” employees come to mind. It is not suggested that there is that relationship in this case. When the relationship between mine operator and site senior executive is understood, the requirement in s 25 that the executive be “employed by” the operator is seen to be one of employment in the ordinary sense, or perhaps, some relationship involving the same elements. The site senior executive must be bound to do the things required by s 42 and other provisions, and subject to that control of the operator. [16] The applicant’s argument depends upon the proposition that Mr Richardson and Mr Hetherington were thereby appointed as the most senior officers employed by the respondent in terms of s 25. Once that argument is rejected, as it must be, the applicant does not now suggest that the appointments were invalid for any other reason. The result is that there is in the case of each mine a person who is apparently the most senior officer employed on a day to day basis who has been appointed the site senior executive and who is thereby responsible as such according to the Act. The fact that those persons have their performance subject to review by Mr Richardson or Mr Hetherington is not in any sense inconsistent with the operation of the Act. [17] Accordingly the applicant fails to establish that any of these appointments of a site senior executive was invalid. The relevant application for declaratory relief, which is within paragraph 2 of the amending originating application filed on 21 April 2006, should be dismissed and the applicant should pay the second respondent’s costs of that application. [18] The claim for declaratory relief within paragraph 1 of that amended originating application was that based upon s 54 which has been abandoned. Subject to any further submission, the applicant should pay the costs of the first and second respondents in that respect. [19] That leaves the applicant’s claim for declaratory relief in relation to certain earlier appointments of site senior executives, which have already been adjourned to a date to be fixed. -- 7 of 7 --