NEW REGULATION REGIME FOR QUARRY MANAGERS

The certification of Quarry Managers will no longer be required after December 2005. Instead, the new legislation will require the holder of a work authority to ensure the quarry manager is ‘competent’ (One would think this would not be necessary to be put into law as clearly all work authority holders would themselves require their quarry managers to be competent). However, ‘competence’ is defined in the new Act as the work authority holder reasonably believing the person:

– Has acquired appropriate and adequate knowledge and skills, through training or experience or both, to be able to safely and competently control and manage the extractive industry operation; and

– Has an adequate knowledge of the Act and regulations and any other relevant legislation; and

– Is authorised to carry out, or supervise the carrying out, of any activity on the land in the work plan that is regulated by, or under any Act.

At this stage it is left to the industry to determine how the new requirements will be complied with. That is, how a work authority holder will determine competence.

Discussion to date has included the establishment of an industry body, similar to the Quarry Manager’s Advisory Panel (QMAP), to determine the experience and training of applicants, but there are difficulties with this. For example, how is such a body funded? And what experience and educational standards would be adopted? Another option is to do nothing – literally nothing.

Do nothing option – What this means:

In effect, the Quarry Manager’s Certificate serves to provide an assurance that the holder has at some point in time possessed experience and knowledge in:

– The safe operations of a quarry and the relevant Victorian legislation governing these matters; and

– Environmental and rehabilitation requirements pertinent to quarrying and the relevant legislation governing these matters.

The certification process also had some elements that suggested that the holder was equipped to manage a quarry, but these were hardly the role of government regulation and could not be used by a work authority holder to imply particular managerial skills or business acumen.

What changes in the absence of the certification process? Safety operations of a quarry will remain the responsibility of the employer under the OH&S Act, while environmental matters will still be regulated by the EPA and the DSE with the former organisation having broad responsibilities in air quality, noise etc and the latter organisation having a focus on quarry rehabilitation through the vehicle of the work authority and work plan.

What then will change with the abolition of the Quarry Manager’s Certification process and who will be affected? Do representatives from the EPA or OHS Commission ever ask to see the Quarry Manager’s Certificate? Probably not. Do these bodies even know about the system of certification? Again, probably not. As the DSE administers the certification process, its officers will be aware of the changes, but how will this affect its operations? DSE will continue to regulate the industry through the work authority and will continue to conduct routine audits and investigate incidents.

In effect the only party affected by the change in the certification process will be the work authority holder who, when selecting a person for the position of Quarry Manager, will no longer have a ‘second opinion’ about the applicant’s experience and qualifications in the form of a Quarry Manager’s Certificate.

How then will a work authority holder select a Quarry Manager? Answer: In the same way as other employment arrangements in many other industry sectors. By satisfying him/herself that the applicant has adequate skills and abilities. This can be done in a variety of ways from checking employment claims, referee checks, sighting education certificates, on-the-job assessments etc. Most businesses have had to work through a selection process that suits its needs. Sometimes an industry association or body assists by providing a basic checklist of skills and abilities considered essential and desirable.

If each work authority holder can demonstrate that the requirements of the OHS Act, EPA and the rehabilitation requirements of the Extractive Industries Development (EID) Act are being complied with, this should, as a package, demonstrate that the objectives of the ‘competence’ provisions of the new EID Act are being achieved.

In other words instead of devoting energies and funds to the development of new mechanisms to ‘certify’ quarry  managers, the industry would focus on compliance with existing laws and this be used to argue compliance with the competency’ provisions of the EID Act.

But is this workable and what are the impacts for the industry?

The positive impacts of this option are that it is a simple way to demonstrate compliance, providing of course, the DSE accepts this as a way to demonstrate competence. It involves no additional costs and, in fact, reduces the costs associated with the certification of quarry managers.

It also means that individual assessments of competence by work authority holders will not be subject to judgement for compliance by the regulator. Such judgements may necessarily be ambiguous and lead to claims of unequal treatment.

How then will a work authority holder select a Quarry Manager? Answer: By satisfying him/herself that the applicant has adequate skills and abilities.

It will be important, however, that the developing use of educational initiatives to up-skill industry members is not lost. This is an important issue that the industry must address at a strategic level.

This option becomes more viable following a recent review of the  Victorian OH&S Act that recommended that in addition to defining employers and employees responsibilities in work safety, officials should also have a role in these matters. The review recommends:

The role of company officers in ensuring workplace safety, like the role of employees, be recognised by a clear definition of their responsibilities. The Act should impose on officers an obligation – equivalent to that required on employees – to take reasonable care, within the bounds of their ability to exercise control, to ensure that the company complies with the Act.

An officer is defined in this context as including:

– A director, secretary or executive officer of the company;
– Any person who directs or gives instruction to the directors; and
– A person ‘concerned in the management’ of the company.

This wide definition clearly includes the role and function of a quarry manager.

The Review acknowledges that an officer will be expected to do no more than is reasonable in the circumstances. The scope of the officer’s duty will be limited by what he/she knows (or ought reasonably to know) and his/her ability to influence the relevant safety decisions.

The Review recommends a serious category of offence be created where an officer “wilfully or recklessly” places at risk the health or safety of any person at the workplace.

Should these recommendations be implemented, it can be argued that the OH&S Act will provide the necessary regulation of quarry managers, and that additional alternative ‘certification’ mechanisms are unnecessary. This, combined with the ‘package of compliance’ approach discussed earlier, should satisfy the requirements of competency of quarry managers in the EID Act.

Or should he be considering:

The concept that “certifying quarry managers is not the objective. Operating a safe and efficient business that complies with all the relevant laws including Occupational Health and Safety and Environmental, is the outcome that all work authority holders should strive for.”

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