Industrial Manslaughter Conviction
Company fined but jail terms suspended for Directors
A Brisbane auto wrecker, Brisbane Auto Recycling Pty Ltd, has become the first business in Australia to be successfully prosecuted for industrial manslaughter, following the death of a worker initially injured at their main business premises. The business was fined $3m for the death, and both company directors were given ten months jail terms, suspended for 20 months.
The subsequent investigation uncovered what can only be described as a systematic failure by the business to provide either a safe system of work or a safe place of work.
The deceased worker was struck by a forklift operated by a co-worker who was reversing his machine. The evidence presented was that the driver had been looking forward during the movement, and only turned to look behind him at the point his forklift struck the worker. After initial treatment, the worker died in hospital eight days later.
The business, and the Directors, were charged with the offence of industrial manslaughter contained in Part 2A Work Health and Safety Act 2011 (Qld) inserted by the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld). The provisions commenced on 23 October 2017.
The investigation concluded that the negligence of the business caused the death of the worker. This conclusion was based upon:
No safety system was in place.
In particular, there were no traffic management plans at the workplace, despite the presence of a number of forklifts constantly operating in close proximity to both workers and members of the general public;
The driver of the forklift did not have the requisite high-risk work licence to operate the forklift;
The business failed to make sufficient enquiries as to whether the driver held the licence, nor did it undertake an adequate assessment of his competency to operate the plant.
In the determination of District Court Judge Anthony Rafter, the Directors of the business “were reckless as to the risk of workers and members of the public who had access to the workers.”
He further noted “The defendants knew of the potential consequences of the risk, which were catastrophic. Steps to lessen, minimise or
remove the risk posed by mobile plant were available. Those steps were neither complex nor overly burdensome.”
The Court acknowledged the guilty pleas of both Directors, however, found that the gravity of the offences and the moral culpability of each defendant was high. Fundamentally, he ruled that the conduct of Brisbane Auto Recycling Pty Ltd caused the death, as it failed to control the interaction of mobile plant and workers at the workplace, failed to effectively separate pedestrian workers and mobile plant, and failed
to supervise operators of moving plant and workers effectively.
This is a decision that every business needs to consider, as well as assess their current safety systems, including training, competency, assessment, and Safety management plans.
Western Australia – The Work Health and Safety Bill 2019 introduced in November 2019 is currently referred to the Standing Committee on Legislation on 21 May 2020. The Bill includes industrial manslaughter that carries up to 20 years’ imprisonment and a lessor class two offence for negligent behaviour with up to 10 years’ imprisonment. The offences will also carry a fine of up to AU$10 million for a body corporate.
Northern Territory – Industrial manslaughter laws were introduced in November 2019 with two offences of workplace manslaughter. The maximum penalty for an individual is imprisonment for life, and a business found guilty of the offence could face a maximum penalty of 65,000 penalty units or about AU$10.2 million.
Victoria – Industrial manslaughter laws commenced in November 2019 and are anticipated to operate from 1 July 2020. Where a business (which includes companies, associations and partnerships) is found guilty, they could face fines up to AU$16.5 million. A sole trader could face up to 20 years of jail time, and Officers found guilty of workplace manslaughter in Victoria face up to 20 years in jail. Unlike the Queensland offence, which applies to executive officers, the Victorian offence applies to any person considered an officer under the Corporations Act 2001 (Cth).
New South Wales – The NSW Government seeks to lower the threshold for the general criminal law of manslaughter without introducing indutrial manslaughter.
Other – The only State governments not actively considering the introduction of industrial manslaughter laws are South Australia and Tasmania.
Continue to review your safety management systems to ensure they are managed and are being implemented
for all workers, including contractors.
Ensure that officers in your business are supported to discharge their safety obligations. ·
Review and update deeds of indemnity for directors, senior management and officers.·
Managers need consistent external advice looking at their WHS systems to identify improvements.
Develop your Critical Incident Response Plan detailing what to do immediately following any major incident, including coordinating key stakeholders.
We acknowledge the good work and advice of DWF Lawyers in this area of law.
For queries about safety, industrial manslaughter, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.