Queensland’s first industrial manslaughter sentence was handed down yesterday by the Brisbane District Court for the death of a worker at an auto recycling yard in 2019.

The 58-year-old worker, Barry Willis, was crushed into a truck by a reversing forklift operated by another worker.  Mr Willis died eight days after the incident from the injuries he had sustained.  The incident was captured by CCTV used on the site but the cause of the injury was incorrectly identified to first responders.  The incident was not reported to Queensland Police or Work Health and Safety Queensland (WHSQ) by the business, resulting in a delay to the subsequent investigation.

Both the corporate entity, Brisbane Auto Recycling Pty Ltd, and its two directors were prosecuted for the fatality and pleaded guilty to offences.

The company, charged as the relevant person conducting a business or undertaking (PCBU), pleaded guilty to one charge of industrial manslaughter contrary to section 34C of the Work Health and Safety Act 2011 (Qld) (Act).  It was fined $3 million.

The company’s directors, Asadullah Hussaini and Mohammad Ali Jan Karimi, both pleaded guilty to one charge of reckless conduct – category 1 in contravention of section 31 of the Act.  Both were sentenced to 10 months imprisonment.  The sentence has been wholly suspended, with an operational period of 20 months.

Safety failings

During the investigation, it was admitted that the company did not have any formal or written safety policies or procedures within the workplace and that the business did not ensure that workers held the appropriate licences for the plant they operated.

The investigation found that, at the time of the incident, the company had no safety systems in place and no traffic management plan for the worksite, at which forklifts operated in close proximity to both workers and the public.  In addition, the operator of the forklift that struck Mr Willis was inexperienced, did not hold a high risk work licence as required, and neither he nor the company undertook any assessments to determine his competency to operate the forklift.

The maximum penalty for an offence of industrial manslaughter under the Act is $10 million for a PCBU.  In sentencing, the court acknowledged the guilty plea and lack of any previous record, before sentencing the company to a penalty of $3 million.

The maximum penalty for a category 1 reckless conduct offence under the Act is 6,000 penalty units (approximately $800,000) or 5 years’ imprisonment.  Taking into account the two directors’ guilty pleas and lack of previous offending history, as well as other factors, both were sentenced to 10 months’ imprisonment, wholly suspended with the condition that they must not commit another offence punishable by imprisonment within 20 months.

Lessons for duty holders

Judge Rafter SC said that the sentenced imposed should make it clear to PCBUs that “a failure to comply with obligations under the Work Health and Safety Act 2011 (Qld) leading to workplace fatalities will result in severe penalties”.[1]

This case reinforces the importance of compliance with work health and safety duties, in particular the requirement to have safety management systems.  By pleading guilty, the company acknowledged that its negligent conduct substantially contributed to the death of Mr Willis.  The directors, as officers of the company, recklessly failed to exercise their duty of due diligence to ensure that the company met its work health and safety obligations and in doing so exposed workers (including Mr Willis) to a risk of death.[2]

As part of the management of work health and safety, it is important that companies establish both safe systems of work and an incident response plan.  In this case, neither was present.

See our related article following the announcement of the prosecution, which contains a summary of the industrial manslaughter provisions.

[1] R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113, [99].

[2] Work Health and Safety Act 2011 (Qld), ss 27, 31.

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