Workplace fatalities are tragic and devastating events. In order to reflect the seriousness of these incidents, some jurisdictions across Australia have amended their work health and safety laws to establish the offence of industrial manslaughter, where the negligent conduct by a person conducting a business or undertaking (PCBU) or officers causes the death of a worker.
Victoria is the most recent State to introduce new offences of workplace manslaughter with amendments to the Occupational Health and Safety Act 2004 (Vic) commencing from 1 July 2020. Victoria now joins other States and Territories with industrial manslaughter laws including the Australian Capital Territory, Queensland and the Northern Territory.
The effect of these provisions is already starting to be seen, with a Brisbane auto-wrecking company becoming the first PCBU to be convicted under the industrial manslaughter provisions of the Work Health and Safety Act 2011 (Qld) (Qld Act). The Qld Act was amended in 2017 to create new offences of industrial manslaughter by a PCBU or a senior officer whose negligent conduct causes the death of a worker.
In R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113, the Queensland District Court had to determine the penalty to be imposed on the PCBU and its two directors who were each separately convicted of a Category One offence of reckless conduct for engaging in conduct that exposed an individual to a risk of death or serious injury or illness and were reckless as to that risk.
In May 2019, the worker had just returned to the work premises after collecting a vehicle with a tilt tray truck. Two forklifts were operating around the delivery area, moving car bodies around to make way for the new vehicle the worker had delivered. The worker suffered a fatal injury after a forklift operator reversed, pinning and crushing the worker between the back of the forklift and the tilt tray.
An ambulance was immediately called, and it was reported that the worker had fallen from the truck. One of the directors later discovered after reviewing CCTV footage that the worker was crushed by a forklift but did not report this to Queensland Police and the regulator, Workplace Health and Safety Queensland (WHSQ).
The directors were also initially reluctant to provide the worker’s daughter with the CCTV footage and even proposed to put forward a different version of events of how the worker suffered injury.
In the subsequent investigation conducted by WHSQ, it was revealed that:
- The PCBU did not have any written safety policies or procedures in place;
- There was no traffic management plan for the worksite;
- The forklift operator did not hold a high-risk work licence to operate a forklift and no checks were done to ensure that forklift operators were appropriately licensed;
- The forklift operator was inexperienced, and no assessment was conducted of his competency to operate a forklift; and
- The PCBU did not have a WorkCover Policy in place.
The PCBU pleaded guilty and was convicted of industrial manslaughter while the directors also pleaded guilty and each had convictions recorded for the Category One offences.
The industrial manslaughter offence under the Qld Act attracts a maximum penalty of $10 million for a corporation, while the maximum penalty for a Category One offence is $300,000 or 5 years’ imprisonment.
In determining the appropriate penalty, the District Court had regard to the following:
- The lack of safety systems in place;
- The availability of simple steps to minimise or remove the risk of mobile plant;
- The modest cost of implementing safety measures;
- That the directors accepted that they knew of the risk but consciously dismissed it;
- The directors sought to deflect responsibility for the incident;
- The extended period in which workers were placed at risk;
- The loss of life and impact on the worker’s family;
- The PCBU’s and directors’ capacity to pay a fine;
- The prevalence of fatalities caused by forklifts; and
- The prospect of deportation faced by the directors, who were in Australia on residency visas and the resultant hardship on their families.
The District Court noted that while the PCBU did not have capacity to pay a significant fine, this did not mean that an appropriate fine should not be imposed. Accordingly, it ordered the PCBU to pay a fine of $3 million. The District Court also held that it was appropriate to sentence each director to 10 months’ imprisonment, to be wholly suspended for 20 months.
Lessons for employers
Work health and safety legislation seeks to ensure the health and safety of workers while they are at work and for workers to return home with their faculties, limbs and lives intact.
This decision is the first prosecution under Queensland’s industrial manslaughter laws, however, with the introduction of industrial manslaughter offences in a number of Australian jurisdictions, including most recently, Victoria, it is important that employers are aware of their safety obligations and ensure that work health safety systems are in place.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.