Thinking | 16 June 2020

Australia’s first ever industrial manslaughter conviction: what are the implications for employers?

By Aaron Dearden, Jessica Luker and Stevie Bladen

On 11 June 2020, the District Court of Queensland delivered its decision in R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113, convicting the defendant company, Brisbane Auto Recycling Pty Ltd (BAR) of industrial manslaughter and imposing the highest workplace health and safety fine to date of $3 million.

The two directors of BAR, Mr Hussaini and Mr Karimi, were also found liable, each being convicted of reckless conduct - category 1 under sections 27 and 31 of the Work Health and Safety Act 2011 (Qld) (WHS Act).  Both received a sentence of 10 months imprisonment suspended for 20 months.

The decision signals the first prosecution of the relatively newly-minted industrial manslaughter offence under section 34C of the WHS Act which commenced on 23 October 2017. It is a further reminder to employers of the need to ensure workers are qualified to operate equipment and to ensure proper safe systems of work are in place such as traffic management plans.

The decision

On 17 May 2019, a worker, Mr Willis, was struck by a forklift being reversed by an unlicensed and inexperienced worker at BAR’s auto wrecking business. Mr Willis died in hospital 8 days later.

During an investigation of the incident, it was uncovered that the business:

  • had no written safety policies or procedures within the workplace;
  • had no traffic management plan at the worksite, across which a number of forklifts operated constantly in close proximity to workers and the public;
  • simply told workers to ‘be safe and look after themselves’;
  • did not check the licence status of forklift operators or carry out other assessments of worker’s competencies, but instead relied on what they were told by workers; and
  • did not have a WorkCover policy because the directors were not aware of the requirement to have one.

Ultimately it was held that Mr Hussaini and Mr Karimi were reckless as to the risk to workers and members of the public who had access to the workplace and failed on a number of other safety obligations. The conduct of BAR was also held to have caused the death of Mr Willis via the operation of section 244 of the WHS Act which provides that conduct engaged in on behalf of a body corporate by an employee or officer of the body corporate acting within the scope of his employment is conduct also engaged in by the body corporate.

In determining the sentence, Justice Rafter SC considered the moral culpability of each of the defendants to be high.  Both directors accepted that they knew of the potential consequences of the risk to the safety of their workers, but consciously disregarded it. They made no real attempt to assess or control the risk in circumstances where steps to lessen or remove the risk were neither complex nor overly burdensome. It was also relevant that the offending was not momentary or isolated - the extended period of time over which workers were placed at risk added to the criminality of BAR.

His Honour emphasised that the sentences imposed should make it clear to persons conducting a business or undertaking, and its officers, that a failure to comply with obligations under the WHS Act leading to workplace fatalities will result in severe penalties.

The 10 months imprisonment was suspended for 20 months which appears to be focused on the fact the directors were refugees from Afghanistan and faced deportation if they served any time in jail.

Implications for employers

The present case involved significant breaches of work, health and safety legislation, with a complete failure to implement any safety system at all. The implications in terms of liability for companies and their directors whose offending is less blatant may be less clear cut.

Nevertheless the high standards directors will be held to are likely to continue in light of the Queensland Regulator’s indication that  “…corporate and senior officer criminal responsibility will be extended to cases where a corporation’s unwritten rules, policies, work practices or conduct tacitly authorises noncompliance, or fails to create a culture of compliance within the workplace…[1]

While there has been some pushback against industrial manslaughter as an offence in other states, the general trend indicates increasing pressure on all states and territories to introduce the laws and take a tough stance on work, health and safety obligations. Employers may still be prosecuted for workplace fatalities in these states under criminal manslaughter laws and general workplace safety legislation.[2]

The decision is a stark reminder to employers that they must be vigilant in implementing and enforcing workplace safety procedures.  Hall & Wilcox can advise employers on:

  • reviewing all policies and procedures to ensure compliance with work, health and safety legislation;
  • 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.

Moving forward, regulators will be buoyed by the decision and motivated to ensure punitive penalties are imposed on employers that don’t do enough to protect workers and the public. Employers should be on the front foot to ensure they are not only adhering to all workplace safety laws but also cultivating a culture of safety compliance.

[1] https://www.worksafe.qld.gov.au/laws-and-compliance/compliance-and-enforcement/penalties/industrial-manslaughter-offence

[2] In Orr v Cudal Lime Products Pty Ltd; Orr v Shannon [2018] NSWDC 27, Cudal Lime Products Pty Ltd plead guilty to an offence that being a person who had a health and safety duty pursuant to s 19(2) Work Health and Safety Act 2011 (NSW), without reasonable excuse engaged in conduct that exposed a person to a risk of death or serious injury and was reckless as to the risk.

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