1. The ACTU welcomes this opportunity to provide our response to the Draft Policy Framework Offshore Oil and Gas Safety Review [the Review]. An itemised response to each of the Reviews proposal is appended to this submission, see Parts A and B.
2. The ACTU has consistently supported harmonisation between offshore and onshore work health and safety regulatory framework. With the imminent passage of the Western Australian WHS Act, the difference between the regulatory protections provided to offshore workers only widens.
3. In accordance with the harmonisation principle, the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS) regime should only differ from the model WHS laws only where objectively justified and to the extent that they are tailored to address the industry’s specific requirements.
4. In December 2018 Boland Review of the Model WHS laws was tabled and in December 2020 the Decision Regulatory Impact Statement was published. As previously submitted the ACTU supports all 34 recommendations of that review and maintains that in the interests of harmonisation and provision of the best protections for offshore workers these recommendations need to be considered in this Review.
5. The case for harmonisation has been further bolstered further by the government’s development of an Offshore Clean Energy Infrastructure Bill in 2020, and the proposal that it should be administered by NOPSEMA. This would regulate offshore wind and transmission projects, with the first offshore wind project slated to being construction in 2023 in Victoria and others being developed in NSW and WA. The government has so far not given any indication what WHS framework would cover these workers – but they are not proposing that they be covered by the OPGGS Act. The ACTU and affiliates have argued that the development of this bill accelerates the importance of harmonising WHS jurisdictions, particularly the OPGGS Act and the Occupational Health and Safety (Maritime Industry) Act. Otherwise, the number of WHS jurisdictions in Australia will continue to multiply.
6. Whilst the ACTU does not oppose any of the proposals of the Review, we are disappointed that the Review has not taken the opportunity to harmonise with onshore WHS regulatory frameworks. As previously argued, there are no policy reasons why offshore workers, who work in a dangerous industry, are not afforded the same rights and protections as on shore workers.
7. Workers are exposed to many major physical and psychosocial hazards, exacerbated by the remoteness of work sites, the conditions which the work is conducted which for many are exacerbated by the precarious nature of their working arrangements – labour hire and casual work arrangements.
8. This review ought to have built on the significant work undertaken by the Senate Inquiry and by stakeholder participants, previous submissions to the Review, the 2018 Review of the Model WHS laws and the draft WHS Act currently before the Western Australian parliament.
9. The low oil price and the reduction in demand due to Covid restrictions has created a situation where the risks to workers offshore are multiplying. Rosters have been changed to include quarantine periods and extended time offshore, increasing fatigue and psycho-social hazards. Cuts have been made to maintenance and other facility workers, increasing work intensity and contributing to a maintenance backlog and potentially unsafe work environment.
10. At the same time many offshore facilities are reaching the end of their life and need to be properly decommissioned. It is projected that 65 offshore platforms and seven floating facilities will cease production by 2026, and that the number of facilities needing decommissioning will increase each year and continue beyond 2050. Worryingly, a Wood Mackenzie report commissioned by APPEA appears to advocate for facilitating ‘asset divestment and decommissioning liabilities’ including facilitating ‘late-life M&A transactions’ and tax measures ‘which could be particularly useful for Majors that are looking to divest and currently own large proportion of mature fields’. It is actions like these that have led to the Northern Endeavour fiasco, which lead to NOPSEMA having to shut down the facility due to its unsafe operation, and then the DISER taking on responsibility for the facility at the cost of taxpayers. This cannot be repeated and this review of regulation must implement reforms necessary to ensure the safe decommissioning of facilities.
11. A number of the changes proposed in this review appear to reflect recommendations arising from the Walker review of the Northern Endeavour. It would have been preferable if the consultation document had explicitly referred to this review, rather than leaving this to stakeholders to draw the connections themselves. We support the recommended changes, but stronger action is clearly needed to prevent facilities from deteriorating into an unsafe condition, and with decommissioning plans not carried out. We have made some recommendations to this effect in the table enclosed in our submission and look forward to robust recommendations to address this problem in the ongoing DISER Offshore Oil and Gas Decommissioning Framework Review.
12. Several recommendations are to improve diving safety. We suspect that these arise from the scandalous DOF Subsea rapid descent incident in 2017, which resulted in at least 15 divers presenting with symptoms of neurological damage, now known as high-pressure nervous syndrome (HPNS). Yet there is still very little information on the public record about this incident that would allow us to make an informed decision about the proposals. NOPSEMA said its autonomous Investigation Unit would make inquiries into the incident; but we are not aware of any report subsequently being released. Such an internal investigation is potentially problematic as NOPSEMA’s Regulatory Assessment division had given approval to DOF Subsea’s Diving Project Plan, and DOF Subsea has since stated that the dive was conducted in accordance with NOSPEMA’s Diving Operations Manual. NOPSEMA first said ‘details of the specifics of an incident are not provided while the matter is under review’, and subsequently have only announced that the Commonwealth DPP is prosecuting DOF Subsea in relation to the incident, with a first appearance on 14 August 2020 in Perth Magistrates Court. The next ‘mention date’ is on 20 November 2020.
13. As a result of the DOF Subsea incident, any confidence that offshore divers may have had in NOPSEMA’s role as a regulator has been significantly eroded. Offshore divers are not confident in NOPSEMA as the safety regulator. They are not confident to report safety incidents to NOPSEMA and are not confident in NOPSEMA’s ability to enforce compliance. The fact that the Department appears to be making recommendations to address the incident while providing virtually no information on the public record about it continues to erode confidence.
14. The ACTU calls on the Department of Resources and NOPSEMA to convene a tripartite Diving Safety Working Group that includes representatives of the diving workforce and unions to establish minimum safety standards for all offshore diving in Australia, particularly saturation diving and Exceptional Exposure diving – detail is provided below In Part B, page 21. Much clearer minimum standards are required in the Australian diving industry, and we understand that NOPSEMA has already issued directions to diving operators on compression times in the wake of the DOF Subsea incident. However this process needs to formalised and made more inclusive in order to rebuild the trust of divers, and ensure their safety.
15. There is still a lack of transparency in NOPSEMA’s investigation of fatalities and safety incidents, and no recommendations to improve this situation in the review. In the case of the deaths of Barry Denholm and Peter Meddens on the drilling platform the Stena Clyde on 27 August 2012, NOPSEMA published a 1.5-page summary later that year, announcing an investigation. No further detailed information was published until 10 December 2015 – and this was the Summary of Facts submitted to the Magistrates Court of Victoria. As this was a document prepared for court, it is not written in such a way as to provide advice to other operators or workers in the industry to prevent future incidents. The investigation into the DOF Subsea incident seems to be following a similar pattern.
16. This approach contrasts sharply to the investigation into the death of Andrew Kelly, an MUA member also killed in the offshore oil and gas industry. Andrew Kelly was killed on 14 July 2015 on board the Skandi Pacific, an offshore supply vessel which was not under NOPSEMA’s jurisdiction (although the vessel was located only 30m from an oil platform when Andrew Kelly was killed). As a result, the Australian Transport and Safety Bureau (ATSB) investigated the fatality and published a detailed 38-page report on 23 November 2016 (16 months after the incident), including consultation with vessel crew, unions, and next of kin, safety recommendations to both the vessel operator and the wider industry, and followed up with a clear Safety Advisory Notice to the industry on the key risks identified.
17. The ACTU supports the proposed changes contained in sections numbered 1- 22. See Part A. If adopted, these changes should see positive change in health and safety performance, but do not extend far enough.
18. The key areas where the proposals fall short of best practice and harmonisation with current WHS laws and recommendations for change include.
a. consultation during the Design Notification Scheme for new production facilities, election processes for selection of HSRs, ability for HSRs to choose their own training provider, role and participation of HSRs on Health and Safety Committees and adoption of shift rostering practices that would ensure good communication between HSRs.
b. improved arrangements for union official right of entry provisions. There is no policy reason why the rights and protections afforded to onshore workers are not provided to offshore workers.
c. adoption of regulations and notification provisions for psychological injuries. The COVID 19 pandemic has exacerbated the risks that offshore workers face and highlights the need for these workers, like on shore workers, to have the risks to psychological health controlled, as for physical injuries.
d. failure to the OPGGS Act to be closer to the draft WA WHS Act industrial manslaughter provisions. Given the number of operators off the West Australian coast this would provide consistency between onshore and offshore and would be simpler for operators who currently operate in both areas.
19. The ACTU supports the introduction of graduated enforcement mechanisms, including a civil penalty regime (section 21 of Draft Policy framework] if it is supported by an assurance of enforcement.
20. The ACTU detailed response to each of the Reviews proposals is provided in the table in Part B and refers the Review to previous ACTU recommendations in Part C.