On Friday the Minister for Industrial Relations announced the first prosecution in Queensland for industrial manslaughter under the Work Health and Safety Act 2011 (Qld) (the Act). The industrial manslaughter prosecution has been brought against Brisbane Auto Recycling Pty Ltd (Brisbane Auto) arising from the fatality of a worker killed by a reversing forklift on 17 May 2019. Two of Brisbane Auto’s directors have been charged for engaging in reckless conduct resulting in the death of a worker.
The industrial manslaughter provisions commenced on 23 October 2017 as a result of the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld). The criminal offence of industrial manslaughter applies to persons (both individuals and corporate bodies) conducting a business or undertaking (PCBU) and to senior officers of such a person. The industrial manslaughter offence provisions are engaged where a worker dies, or is injured and later dies, in the course of carrying out work for the business or undertaking and the person’s conduct (meaning an act or omission) causes (meaning substantially contributes to) the death and the person is negligent about causing the death. The Queensland regulator has previously stated that “…it is intended 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 non-compliance, or fails to create a culture of compliance within the workplace…”
Corporations are liable for fines of over $10 million (100,000 penalty units) while individuals may be imprisoned for up to 20 years. The reckless conduct offence (a category 1 offence) is committed if a person, without reasonable excuse, engages in conduct that exposes an individual to risk of death or serious injury/illness and the person is reckless as to the risk. The maximum penalty for a category 1 offence to which an individual who is an officer of a PCBU is exposed is 6,000 penalty units or 5 years’ imprisonment.
It is alleged that Brisbane Auto “…caused the death of their worker by failing to effectively separate pedestrians from mobile plant, and failed to effectively supervise workers, including the operators of mobile plant”. The charges against the directors are in respect of an alleged failure to put in place systems to achieve those outcomes. The proceeding is listed for mention on 1 November 2019 at the Holland Park Magistrates Court.
Once decided, the cases will likely provide guidance on the interpretation of the industrial manslaughter provisions, officer’s due diligence obligations and the recklessness offence. In addition, the prosecutions will increase public awareness, particularly among PCBUs and their senior officers, as to the risks involved with powered mobile plant (PMP), traffic management and the need for pedestrian/PMP separation.
The Australian Capital Territory has industrial manslaughter offence in the Crimes Act 1900 (ACT). Both Victoria and the Northern Territory propose to introduce industrial manslaughter laws. The latter recently sought submissions on the Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 (NT), which if passed would impose a maximum penalty of life imprisonment for individuals or just over $10 million for corporations.
The developments in the Queensland prosecution of Brisbane Auto and its directors may have some bearing on if and how other Australian jurisdictions decide to implement an industrial manslaughter offence.
