Mining rules or construction rules?

Here's a question that trips up contractors, supervisors and even safety people: you're doing a shutdown in a processing plant on a mine lease. Is that mining work or construction work? And which regulations does your SWMS need to meet?

Get it wrong and your SWMS cites the wrong regs, misses duties that apply, or isn't written at all when it should have been. All three get you knocked back.

One Act, three sets of regulations

WA's Work Health and Safety Act 2020 is backed by three standalone sets of regulations. Each covers a different type of workplace, and where one set applies, the others don't.

The myth: "it's construction, so construction law applies"

You'll hear this on site, and it's half right. Work on a mine can absolutely be construction work. But the Mines regulations apply to a workplace at a mine, and they contain their own construction chapter. So on a mine, the answer is usually Mines regulations, construction rules.

That matters for your SWMS because the references have to be right. Common knock-backs include a SWMS that:

• cites the WHS (General) Regulations for work that's on a mine,
• cites another state's regulations because the template came from the eastern states, or
• still refers to the old Mines Safety and Inspection Regulations 1995, which the WHS (Mines) Regulations replaced.

It also matters the other way. If your crew is doing the same job at a workshop in town, that's not a mine, so the General regulations apply and your SWMS should say so. Same task, different site, different regs.

Is it construction work?

Construction work covers work connected with building, altering, fitting out, commissioning, repairing, maintaining, refurbishing, demolishing or dismantling a structure. Regulation 289(2) of the Mines regs adds more types of work that count as construction on a mine.

Work on mining plant

This is where it gets tricky. WorkSafe WA says work on plant is only considered construction work in specific situations. The ones it lists are:

• the plant is a pipe, pipeline or underground tank,
• the plant is designed or used to provide support, access or containment during construction work,
• the work on the plant relates to work carried out in connection with construction work,
• the plant is fixed plant, and
• maintenance, overhaul or replacement work involving five or more PCBUs on site at any point in time.

Read the WorkSafe page and the regulation for the exact wording before you rely on any one of these for your job.

Shutdowns

Shutdowns may be construction work if they meet the definition, and the PCBU has to assess that before the shutdown starts. WorkSafe WA suggests asking three questions:

• Is there any activity, or the potential for one, that meets the definition of high risk construction work under r.291?
• Are five or more PCBUs likely to be involved over the duration of the shutdown?
• Is any activity listed in r.289(2) being carried out?

Is it high risk construction work?

A SWMS is only legally required for high risk construction work, which is defined in r.291. The list includes work such as:

• work with a risk of a person falling more than 2 metres,
• work in or near a trench or excavation deeper than 1.5 metres,
• work in or near a confined space,
• work on or near energised electrical installations or services,
• work in an area with movement of powered mobile plant,
• demolition of a load-bearing part of a structure, and
• work likely to involve disturbing asbestos.

Check r.291 for the full list. If any item applies, you need a SWMS that meets r.299, you need to follow it (r.300), give a copy to the principal contractor before the work starts (r.301), review it when things change (r.302) and keep it (r.303).

Workers doing construction work also need general construction induction training, the white card.

Work it out in four questions

Construction projects on a mine

A construction project is construction work where five or more people are, or are likely to be, working at the same time on a construction site. It must have a principal contractor, and only one at a time. The PC has to have a WHS management plan that covers, among other things, site rules and how SWMS will be collected, assessed, monitored and reviewed.

One mine can run several construction projects at once, each with its own PC and its own plan. If you work across more than one of them, you may need to tailor your SWMS to each PC's plan.

What to put on your SWMS

• A line stating the industry and type of work, for example "Mining: shutdown maintenance".
• The correct regulations: WHS (Mines) Regulations 2022 (WA) for work at a mine.
• Which r.291 high risk construction work categories apply.
• The principal contractor's name, and which construction project the work belongs to.
• No leftover references to other states' regulations or the old MSI regulations.

Once you know which rules apply, make sure you dodge the usual mistakes: the 3 reasons PCs reject SWMS on WA mine sites.

Common questions

Sources

• WorkSafe WA: Construction on a mine site
• Work Health and Safety (Mines) Regulations 2022 (WA), WA Legislation
• WorkSafe WA: Safe work method statement for high risk construction work (information sheet and template)
• WorkSafe WA: WHS (Mines) Regulations 2022 transitional arrangements

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