Black lung update

Coal Workers’ Pneumoconiosis , or black lung disease, is a coal mine disease caused by cumulative, long-term inhalation of very fine, airborne respirable coal dust. Since 2015, there have been at least 22 confirmed cases of CWP reported in Queensland and three cases in NSW.

In September 2016, the Queensland Parliament established a six member bi-partisan CWP Select Committee to investigate the re-identification of CWP in Queensland. The findings and 68 recommendations of the CWP Select Committee were published in a report dated 29 May 2017(CWP Report No. 2).

These proposed reforms were in addition to reforms proposed by an earlier Monash University Review commissioned by the Queensland Government, which focussed on health and medical systems for the early detection of CWP. All of the Monash University Review reforms were accepted by the Queensland Government and most have been implemented. The Queensland Government has also implemented other reforms including reforming requirements for dust monitoring and the reporting of dust exceedances, and introducing new recognised standards for dust.

Government's response to the CWP Report No. 2

In September 2017, the Queensland Government published its response (Response) to the CWP Report No. 2.
The Response concluded that the Government supports, either absolutely or in principle (subject to further consultation or investigation), all the recommendations made in the CWP Report No. 2, including:

• To establish an independent Mine Safety and Health Authority (Authority) responsible for ensuring the safety and health of mining and resource industry workers in Queensland. The Authority should be governed by a Board of Directors (that includes the Commissioner of Mine Safety and Health (Commissioner), industry and union representatives, and others) (Board). The Response indicates that further consideration needs to be given to whether the Authority and the regulator should be funded by a dedicated proportion of coal and mineral royalties paid to the Queensland Government, in lieu of the existing health and safety fee funding model.
• To establish a new regulator within the Authority (independent from the Queensland Department of Natural Resources and Mines), to be responsible for all resources industries, including mining, petroleum and gas and explosives. However, the Response states that the new regulator must be free from the direction of Parliament, the Minister for Natural Resources, Mines and Energy (Minister) or any other entity “in exercising its operational or regulatory functions”. The regulator would otherwise be accountable to the Minister, and perhaps also a parliamentary committee. The new regulator should not be subject to the Board “in its operational decision making”, as a governance model that places a Board above the senior officer of the regulator “could give rise to undue interference in the exercise of regulatory functions”.
• The Commissioner should have an express power to direct the inspectorate (including the chief inspector) in relation to the investigation of possible offences.
• The new Authority and regulator be based in Mackay. However, the Response indicates that a business case demonstrating the sustainability of this arrangement is first required. Concerns with this recommendation are raised in the Response on the bases that existing public servants’ rights and interests need to be respected, that there may be difficulties attracting and retaining staff with the appropriate skills and experience, and that concentrating staff in one regional area may disadvantage other regional areas.
• The reduction of coal dust exposure limits to 1.5mg/ m3 and silica limits to 0.05mg/m3 calculated under AS 2985. However, the Response tempers this with the comment that any new limit should be based on scientific evidence. Support is given to the review of exposure limits currently being undertaken by Safe Work Australia. The Response expresses concern about the recommendation to require the Commissioner’s approval for mine dust abatement plans, as this risks shifting accountability for hazard management to the regulator.
• Increasing the proportion of unannounced inspections from the Mines Inspectorate. However, the Response suggests the proposal to increase the proportion of unannounced inspections to at least 50% needs further consideration and a better understanding of the evidence base for this particular level.
• The need for Industry Safety and Health Representatives to give reasonable notice of inspections is removed. However, the Response says that further consultation about this is required.
• Health assessments are expanded as follows (although it is acknowledged in the Response that further consideration and consultation is required):

The Response also states the Queensland Government will invest up to $21 million over two years to deliver on the recommendations of the CWP Report No. 2.

In October 2017, the CWP Select Committee published a further report called A Mine Safety and Health Authority for Queensland: A further response. In this further report the CWP Select Committee expressed some frustration at the Queensland Government’s Response, noting that it in fact provides unqualified support for only 14 of its 68 recommendations and stating that the CWP Select Committee considers the proposals outlined in the Response will be insufficient to adequately protect health and wellbeing in Queensland mines and quarries.

ORDI Report

In September 2017 the CWP Select Committee published a further report – Inquiry into Occupational Respirable Dust Issues (ORDI Report). The ORDI Report was the result of extended terms of reference given to the CWP Select Committee in relation to workplace dust issues for coal port workers, coal rail workers, coal-fired power station workers and other workers. It culminated in five further recommendations.

Key recommendations included the development of a code of practice on the management of respirable dust hazards in coal-fired power stations, and that the Guideline for Management of Respirable Crystalline Silica in Queensland Mineral Mines and Quarries be amended to require that all exposure monitoring data is reported to the Mines Inspectorate. The Queensland Government tabled an interim response to the ORDI Report on 15 December 2017, which effectively stated that the further recommendations are still being considered. 

Workers' compensation claims

The number of compensation claims relating to CWP has not been as significant as first anticipated. The claims that have been made have been medically complex and there is often a lack of consensus amongst the medical practitioners as to diagnosis and prognosis. WorkCover Queensland has generally focussed on returning the affected coal mine workers to work, albeit outside of the industry in the majority of cases.

On 23 August 2017, the Queensland Parliament passed the Workers’ Compensation and Rehabilitation (Coal Workers’ Pneumoconiosis) and Other Legislation Amendment Act 2017 (Qld). This provides stronger workers’ compensation protections for current, retired and former coal mine workers, including:

• the introduction of a free medical examination for retired or former coal workers who left the industry prior to 1 January 2017
• ensuring that workers can re-open their workers’ compensation claim and access further entitlements if workers with CWP or other types of pneumoconiosis experience disease progression; and
• the introduction of additional lump sum compensation for workers with pneumoconiosis, even where they are not suffering any permanent impairment or incapacity to work. 

New South Wales

In New South Wales, there were three cases of dust disease detected in 2017 – with two cases of mixed dust pneumoconiosis and one of simple silicosis. The Major Investigations Unit of the NSW Resources Regulator is undertaking investigations into each case to determine whether there may have been any breaches of WHS laws in respect of each case.

NSW has long standing arrangements in place through the industry body, Coal Services, for pre-placement and periodic health assessments and dust monitoring, as well as specific regulation concerning health monitoring, ventilation and air-borne dust under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW).

Authors:  Gabrielle Forbes, Partner; Brett Elgar, Counsel; and Elizabeth Watson, Graduate.