Industrial Manslaughter (Qld)

Industrial manslaughter occurs when a person dies at work due to negligence by an employer. It is a relatively new offence in Queensland, having been added to the Work Health and Safety Act 2011 in 2017.

The law

Section 34C states that if a person dies while carrying out work, or is injured while carrying out work and later dies, and their employer’s conduct causes the death, and that conduct is negligent, the employer commits an offence. The maximum penalty is 20 years imprisonment for a person, or 100,000 penalty units ($13,345,000) for a company.

Section 31 defines the related offence of “reckless conduct – category 1”. A person commits this offence if they:

• have a health and safety duty; and
• without reasonable excuse, engage in conduct that exposes an individual, to whom that duty is owned, to a risk of death or serious injury or illness; and
• are reckless as to the risk to an individual of death or serious injury or illness.

The maximum penalty is 3000 ($400,350) penalty units or 5 years imprisonment. If the person is an officer in the company, the penalty increases to 6000 penalty units ($800,700) or 5 years imprisonment. For a company, the penalty is 30,000 penalty units ($4,003,500).

R v Brisbane Auto Recycling Pty Ltd [2020]

This case was the first prosecution of the new offence of industrial manslaughter.

The incident

In 2019, worker Willis was struck and crushed by a forklift at Brisbane auto-wrecking business. The forklift was being driven in reverse by an unlicensed and inexperienced worker. Willis died in hospital 8 days later.

The investigation

An investigation into the incident found the company had no written safety policies or procedures, and told workers to “be safe and look after themselves”. This included having no traffic management plan, meaning forklifts were constantly operating close to workers and the public. The company also had no screening process for workers’ licences or competencies, nor any WorkCover policy.

The hearing

The case was heard in the District Court, where the judge stated:

“Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, cost.”

Penalties

The company was convicted of industrial manslaughter and fined $3 million. Its directors, Hussaini, and Karimi, were also found liable and each was convicted of reckless conduct – category 1. Both were sentenced to 10-month prison terms suspended for 20 months.

Lessons for business

A workplace death can have long-lasting effects on the person’s family, work colleague and the company’s reputation. Companies can take steps to ensure their workplace is safe, such as:

• reviewing and updating (where needed) health and safety policies and procedures;
• conducting a safety audit to identify potential hazards and safety risks;
• reviewing all safety systems and controls to ensure effectiveness;
• offering regular health and safety training sessions and advice to all employees;
• ensuring all employees are adequately qualified and trained for their roles;
• ensuring a proper safety induction for all new employees;
• preparing, filing and reviewing records on workplace health and safety;
• reviewing insurance coverage for the company;
• fostering a proactive approach and a safety culture at the company.

Legislation in other states and territories

The Australian Capital Territory was the first state or territory to introduce industrial manslaughter as an offence, in 2004. It carries a maximum fine of 2000 penalty units ($320,000 for a person, or $1,620,000 for a business), or 20 years imprisonment, or both.

Victoria enacted industrial manslaughter law in 2020. The maximum penalty is 25 years imprisonment for a person, or a fine of 100,000 penalty units ($16,522,000) for a business.

The Northern Territory also enacted industrial manslaughter law in 2020. The maximum penalty is life imprisonment for a person, or a fine of 65,000 penalty units ($10,270,000) for a business.

Western Australia also enacted industrial manslaughter law in 2020. The maximum penalty is 20 years imprisonment for a person, and a fine of $5,000,000, or for a business, a fine of $10,000,000.

As of June 2021, New South Wales was debating a bill to create an industrial manslaughter offence.  South Australia and Tasmania were not planning to introduce specific industrial manslaughter legislation. Employers in these places can still be prosecuted for workplace deaths under criminal manslaughter laws and general workplace safety laws.

For advice or representation in any legal matter, please contact Armstrong Legal.