Industrial manslaughter conviction: a reality check for business owners

By Sean Sullivan, Nicholas Beech and Georgia Gamble

The District Court of Queensland sentenced a Gympie businessman to the longest jail term for industrial manslaughter under the Work Health and Safety Act 2011 (Qld).

Key takeaways

• The Work, Health and Safety Prosecutor has a strong willingness to prosecute both corporate entities and individuals for industrial manslaughter under the WHS Act.
• The decision will see the first person serve time in jail under Queensland’s industrial manslaughter laws since their enactment in 2017.
• The term ‘worker’ has broad operation under the laws, and expressly includes a person who volunteers to help a business.
• Small business owners will not avoid convictions by relying on their limited resources to implement a safe system of work.

The decision

The defendant, Mr Jeffrey Owen, owned a small business in Gympie servicing generators called Owen’s Electric Motor Rewinds. On 3 July 2017, Mr Owen was operating a forklift to unload a generator weighing approximately three tonnes off the back of a flatbed truck.

Mr Owen’s friend, Mr Noel Ormes, was helping to unload the generator by placing dunnage on the underside. Mr Ormes was referred to as a ‘volunteer’ throughout proceedings because he was helping the business on a voluntary basis.

When Mr Owen raised the tines of the forklift, the forklift tilted forwards and the back wheels raised off the ground. The generator slid sideways off the forklift and struck Mr Ormes who tragically sustained fatal injuries.

Mr Owen was charged with industrial manslaughter under s 34C of the WHS Act as a ‘person conducting a business or undertaking’ (PCBU) who negligently caused Mr Ormes’ death.

The jury heard evidence over four days, including the findings of a Workplace Health and Safety Queensland investigation that:

• Mr Owen was operating the forklift beyond its weight capacity of 2.7 tonnes;
• Owen’s Electric Motor Rewinds did not have any adequate safety systems or controls in place for unloading the generator; and
• Mr Owen was not licensed to operate the forklift.

The prosecutor conceded Owen’s Electric Motor Rewinds lacked the financial resources to operate a sophisticated safety system, but this did not excuse Mr Owen’s negligence in failing to consider basic safety measures, such as instituting an exclusion zone around the forklift when carrying out such dangerous tasks, which was inexpensive and effective.

Mr Owen was sentenced to five years prison (from a maximum penalty of 20 years), to be suspended after 18 months. Significantly, Mr Owen will be the first to serve jail time under the industrial manslaughter laws in Queensland.

Implications for business owners

Mr Owen was not Mr Ormes’ employer. Despite the defendant’s submissions, the jury was satisfied that Mr Ormes was captured under the broad definition of ‘worker’ under the Act. This sends a powerful message to business owners that they have the duty to ensure the safety of persons who act on a voluntary basis for the business.

The ensuing prosecution was brought against Mr Owen as an individual PCBU under section 34C of the WHS Act. An individual can be prosecuted as a PCBU where the individual and the business are essentially one-in-the-same.

In this case, there was no corporate or other entity running Owen’s Electric Motor Rewinds. If Mr Owen had used a corporation to operate the business, the corporation would likely have been charged, with a maximum sentence of 100,000 penalty units (presently $13,700,000).  A recent example of this is the decision of R v Brisbane Auto Recycling Pty Ltd & Ors, where the defendant company Brisbane Auto Recycling Pty Ltd was convicted of industrial manslaughter and ordered to pay a fine of $3 million.

However, using a corporate PCBU does not mean a prosecution cannot be commenced, or also commenced, against an individual. Section 34D provides for the prosecution of a ‘senior officer’ of a PCBU. A ‘senior officer’ under the industrial manslaughter offences covers everyone who participates substantially in the management of the PCBU, regardless of whether they have a title such as ‘director’ or ‘manager’.

As a hypothetical example, if Mr Owen has used a corporate entity to operate Owen’s Electric Motor Rewinds, he could still have been charged with industrial manslaughter as a senior officer whose negligent conduct allegedly caused Mr Ormes’ death.

As all Australian jurisdictions except Tasmania have now introduced, or are in the process of introducing, similar industrial manslaughter offences, this decision has broad relevance and application to businesses across the country. PCBUs and officers should carefully consider the specific regime that applies to them.

For PCBUs on the ground, the decision is a timely reminder to be vigilant in actively considering, implementing, and reviewing workplace safety procedures. Senior officers should be proactive about their increased risk profile under the industrial manslaughter laws by taking all reasonable steps to ensure the health and safety of all workers.

Hall & Wilcox can advise PCBUs and senior officers on:

• reviewing all policies and procedures to ensure compliance with work, health, and safety legislation;
• the specific application of the industrial manslaughter regime in their jurisdiction;
• director’s and officer’s duties;
• ensuring all new workers undergo a thorough induction concerning safety risks and are adequately qualified and trained to complete their work safely;
• auditing safe systems of work including compliance with national safety standards, risk assessments, safe work method statements, workplace safety consultation and incident investigation; and
• training for managers and directors about their work, health, and safety obligations.

To discuss any of the above, get in touch with our National Workplace Health and Safety Team.