WA's onshore petroleum, geothermal energy and pipeline operations get new OHS regime

By Saul Harben and Samereh Aljanabi.

Key Points:
Significant changes to the OHS legislative framework for petroleum, geothermal energy and pipeline operations in Western Australia have now come into effect.

Operators of petroleum, geothermal and pipeline operations in Western Australia must now comply with a new occupational health and safety (OHS) regime coming into effect on 14 May 2010.

The new regime has been implemented by amendments to the Petroleum and Geothermal Energy Resources Act 1967 (WA) and The Petroleum Pipelines Act 1969 (WA).

Prior to these amendments, the Occupational Safety and Health Act 1984 (WA) and the common law have been the main sources of authority for occupational health and safety (OHS) matters in relation to onshore petroleum, geothermal energy and pipeline operations. OHS obligations have been regulated by ministerial directions which would commonly attach a schedule to operation licences to deal specifically with OHS matters.

A comprehensive OHS regime

The amendments:

• introduce a comprehensive OHS regime in relation to onshore petroleum, geothermal energy and pipeline operations in Western Australia; and
• appoint the Resources Safety Division of the Department of Mines and Petroleum (the Resources Safety Authority) as the safety authority, which assumes full responsibility for OHS regulation of onshore petroleum, geothermal energy and pipeline activities. This represents an expanded role for the Resources Safety Authority, which previously merely provided safety and regulatory services to the Department's Executive Director, Petroleum and Environment Division, for these activities.

OHS duties

Amendments have been made to the main body of each of the Acts to include a specific OHS schedule, Schedule 1. The new schedule outlines OHS duties which have previously existed in principle and regulated by ministerial directions. OHS duties in Schedule 1 have been tailored specifically to petroleum, geothermal energy and pipeline operations and provide the basis of OHS regulatory framework for these type of operations. These OHS duties include:

• duties to secure the occupational safety and health of persons engaged in the onshore petroleum, geothermal energy and pipeline operations; and
• a duty of care on all persons engaged in petroleum, geothermal energy and pipeline operations. This means that, in addition to operators and their employers, OHS duties also apply to other persons, including:

(a) manufacturers of plant or a substance used in such operations;

(b) suppliers of a facility or plant for use in such operations; and

(c) persons who erect or install a facility or plant for use in such operations,

to protect persons in the vicinity of such operations who have been invited with the express or implied consent of the operators or persons who control part or all of the operations. This reflects the common law position of occupiers' liability.

The amendments also deal with the following new additional issues as part of the OHS regulatory framework:

• inspectors' powers;
• safety and health representatives;
• workforce representatives;
• safety and health committees;
• designated work groups;
• reviews and appeals;
• notifying and reporting accidents and dangerous occurrences; and
• codes of practice.

Geothermal energy operations covered

A new term, "geothermal energy operation", has been introduced. This was done to enable amendments in relation to OHS matters to apply to geothermal energy operations in the same way as they apply to petroleum and pipeline operations.

For OHS purposes, this term applies to a much broader scope of activities than "petroleum operations". A "geothermal energy operation" is an operation to explore and drill for geothermal energy resources and recover geothermal energy.

"Geothermal energy" is defined as thermal energy that results from natural geological processes and is contained in geothermal energy resources (a sub-surface rock or other subterranean substances that contain geothermal energy).

Consequences

The amendments represent a significant change in the OHS legislative framework for petroleum, geothermal energy and pipeline operations.

In particular, the amendments provide for a more comprehensive regime than previously existed and empower the Resource Safety Authority to ensure that the OHS regime is implemented and complied with by all parties involved in such operations. New penalty provisions have been introduced to enforce compliance.

In light of these amendments, it is an opportune time for operators, and also manufacturers and service providers to the onshore petroleum, geothermal energy and pipeline industries to:

• become familiar with the new OHS regime and revisit their OHS policies to ensure compliance;
• review and consider OHS clauses in their standard contracts; and
• consider the implications of the new OHS regime (including the imposition of duties of care) in their contract negotiations, including risk allocation for death and personal injuries between contracting parties.

For further information, please contact Saul Harben.