On 11 June 2020, the State of Queensland recorded its first conviction under the new industrial manslaughter laws set out within the Work Health and Safety Act 2011 (Qld) (WHS Act).
The convictions came about after a tragic incident where an employee of a Brisbane auto recycling company was crushed by a reversing forklift in May 2019, causing him to die in hospital 8 days later.
The company in this case pleaded guilty to the offence of industrial manslaughter and was fined $3 million dollars by the court.
The company’s directors were each charged with and pleaded guilty to the lesser offences of reckless conduct—category 1 under the WHS Act and were each sentenced to 10 months imprisonment, wholly suspended for 20 months. Importantly, the directors were not charged with industrial manslaughter.
An investigation into the incident revealed that (among other things) the company had no safety systems in place, particularly with regard to managing the interaction of forklifts and pedestrians and supervising the operators of forklifts. The driver responsible for the incident did not have the necessary license, nor did the company take any steps at all to assess the worker’s competency to operate the forklift.
Queensland District Court Judge Anthony Rafter noted that the gravity of the offending and the moral culpability of each defendant was high. The conduct of the company caused the death of the worker and the directors were reckless as to that risk.
In sentencing the defendants however, Judge Rafter was mindful of significant mitigating factors that had to be taken into account in each case.
While the directors of the company had initially engaged in conduct that deflected responsibility for the incident, they did eventually cooperate with investigators, entered early pleas of guilty and were clearly remorseful.
They were both relatively young men who had grown up in Afghanistan and had seen difficult times there. Based on the prospects of deportation and their good character, the directors received a far lighter sentence than the maximum penalty for a category 1 offence under the WHS Act, which is a maximum fine of $600,000 or 5 years imprisonment.
In respect of the company, Judge Rafter concluded that a fine of $3 million was appropriate, because a lesser penalty would not have adequately punished and/or served to deter others and because the company did not have the capacity to pay a fine anywhere near the maximum for the offence of industrial manslaughter, which is $10 million for a body corporate.
Under the WHS Act, a person conducting a business or undertaking (PCBU) has the primary duty to ensure, so far as is reasonably practicable, the health and safety of workers within the workplace and officers of the PCBU must exercise due diligence to ensure that this primary duty is met.
Had the directors adequately complied with their duties under the WHS Act in the first place, then it is possible that this unfortunate accident may never have occurred.
Cases such as these highlight the importance of ensuring that even the most basic and common sense work health and safety measures are in place within the workplace and that continual review of these measures is undertaken.
If you are unsure about whether there are faults in your safety systems at work, or if you feel that a review is sorely needed then we encourage you to contact our Workplace Team today.
No App, No work, No Lunch: Enforcing a COVIDSafe App Download