by Rachel Drew, Partner and Kirinya Khamsone, Senior Associate, Holding Redlich
With Queensland’s first industrial manslaughter prosecution imposing a $3 million fine and suspended jail sentence for the company's two directors who were convicted of wreckless conduct, this case serves as a a "
significant milestone f
or work health and safety laws in Australia and a benchmark for future prosecutions".
Queensland, Victoria, ACT and NT have now introduced industrial manslaughter, with directors facing potential fines and jail. Western Australia's legalisation has been passed and is awaiting proclamation. NSW and SA are yet to introduce industrial manslaughter
(see a state by state summary at the end of the article).
Background
The prosecution of the company and its directors under the
Work Health and Safety Act 2011 (Qld) (
Act) was brought following the death of a 58-year-old worker in May 2019 who was struck by a reversing forklift. A third man, who was driving the forklift, has been charged with dangerous operation of a motor vehicle causing death. At the relevant time, two forklifts were being used to reposition car bodies in the main delivery area of the workplace while another worker, Mr Willis, was working next to a vehicle in close proximity. As one forklift reversed to allow the other to pass, Mr Willis was crushed against the tray of the vehicle where he was working and later died of his injuries. Some of the relevant features of the case include that there were “no safety systems in place”, that the forklift driver was not properly licensed, that there was inadequate supervision of work and that there was a general failure in the “attitude to safety at the workplace” by the directors.
The offence of industrial manslaughter under the Act is defined as negligent conduct that causes, or substantially contributes to, the death of a worker, and a prosecution may be brought against a body corporate or individual senior officer. It carries a maximum penalty of over $10 million dollars for a company, or 20 years’ imprisonment for a senior officer.
Importantly, while the failures of the directors, as well as the forklift driver, were imputed to the company, it was not alleged that the directors themselves caused the death of Mr Willis. They were instead charged with reckless conduct, a less serious charge but one that carries significant maximum penalties including imprisonment.
The directors had failed to ensure that the business had any effective safety systems in place. His Honour Judge Rafter SC found that, in pleading guilty to this offence, the directors accepted that they knew of risks to their workers and “consciously disregarded” those risks.
A Category 1 offence for reckless conduct exposing a worker to risk of death or serious injury has existed in Queensland since 2012. Like industrial manslaughter, this offence is defined as a crime and attracts serious penalties, with a maximum penalty of over $3 million for a company, and a fine of up to $600,000 or 5 years’ imprisonment for a senior officer.
The convictions of reckless conduct against the directors in this matter are also among the first of its kind in Queensland, with one previous conviction against an individual director in relation to another workplace death being overturned on appeal in 2019 (R v Lavin [2019] QCA 109).
Underscoring the tragic and unnecessary nature of the death, his Honour Judge Rafter SC noted that the risk management system implemented by the company after the incident on the advice of a consultant “consisted of little more than the installation of signage, plastic bollards and marked exclusion zones” and (together with a system of supervision) was, therefore, “neither complex nor overly burdensome”.
In imposing a fine of $3 million on the company and a 10-month term of imprisonment for each of the directors (and wholly suspended for a period of 20 months), his Honour took a number of factors into account, including:
- while they initially attempted to deflect responsibility, the directors cooperated with investigators and entered early guilty pleas
- there were specific mitigating factors related to the directors’ background and immigration status
- the victim’s family had suffered a profound loss and that the “gravity of the offending and moral culpability of each defendant is high”.
Importantly, in addressing the issue of general deterrence, his Honour’s remarks were as follows:
“The sentences imposed should make it clear to persons conducting a business or undertaking, and officers, that a failure to comply with obligations under the Work Health and Safety Act 2011 (Qld) leading to wokplace fatalities will result in severe penalties.”
Conclusion and lessons for employers
Queensland was one of the first jurisdictions (after the ACT) to introduce industrial manslaughter in Australia and this has been followed by legislation passed in Victoria and Northern Territory. As noted in this case, there were “no comparable sentences for industrial manslaughter” to which the court could refer. Therefore,
this case represents a significant milestone for work health and safety laws in Australia and a benchmark for future prosecutions.
There continues to be a significant number of workplace fatalities in Queensland each year and, in response to a number of recent fatalities in the mining industry, the Queensland parliament has passed the Mining and Energy Resources and Other Legislation Amendment Act 2020, which introduces the offence of industrial manslaughter to the mining industry, which had previously been exempt. On this basis, it can be expected that more industrial manslaughter prosecutions will follow.
However, the circumstances in this case, including the complete failure of the directors to implement any safety measures, make it fairly unusual and probably distinguishable from most operations in which some level of risk assessment and mitigation is implemented. This highlights the fact that industrial manslaughter prosecutions are likely to continue to be exceptional, albeit negligent conduct causing death could potentially be established where safety systems are in place but, for example, are consistently flouted or ignored. This case reinforces that:
- there are very serious potential consequences for breaches of safety obligations
- a very simple safety system might be all that is required to satisfy a health and safety duty and prevent a serious injury or fatality
- the “attitude to safety” adopted by senior officers is likely to be critical in either mitigating or elevating serious risks to workers.
Click
here to read more about the case.
Victoria
In Victoria, workplace manslaughter came into operation from 1 July 2020, with the
Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) inserting the criminal offence into the
Occupational Health and Safety Act 2004 (Vic).
Northern Territory
In the Northern Territory, industrial manslaughter was incorporated into the Work Health and Safety (National Uniform Legislation) Act 2011 (NT), and came into force on 1 February 2020.
Western Australia
The Work Health and Safety Bill 2019 contains an industrial manslaughter offence and it has been introduced to replace the Occupational Safety and Health Act 1984 (WA). As at 20 February 2020, the Work Health and Safety Bill 2019 has been presented to the Legislative Council, following the Legislative Assembly’s Third Reading. The Work Health and Safety Bill 2019 will come into operation on a day fixed by proclamation. While the Work Health and Safety Bill 2019 is currently making progress, it is difficult to predict when it will commence.
New South Wales and South Australia
There are currently no discussions on introducing an industrial manslaughter offence in New South Wales and South Australia.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.