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Directors convicted of industrial manslaughter in Queensland

Libby Pallot, Walter MacCallum, Anthony Massaro, Ben Tallboys, Abbey Burns, Caitlin Walsh, Caitlin Meers, Natasha Sim

Information current at date of publication: 30 June 2020.
The average reading time for this Alert is 6 minutes.

Last year we published an alert about the new Workplace Manslaughter laws coming into effect in Victoria in July 2020.  At that time, while there were comparable schemes in Queensland and the Australian Capital Territory, there had been no cases determined.

On 11 June 2020 the Queensland District Court made the first conviction for industrial manslaughter offences in Australia.

Brisbane Auto Recycling (BAR), the defendant company, operated an auto wrecking business in Rocklea, Queensland. BAR was operated by two directors and had been in operation for approximately 3 years when on 17 May 2019, an employee was crushed by a reversing forklift. The victim was transported to hospital, and died as a result of his injuries. BAR was charged with a breach of section 34C of the Work Health and Safety Act 2011 (QLD) (Act). Under section 34C, a person or organisation will be guilty of an offence if:

  • a worker dies in the course of carrying out work for the person or organisation; and
  • the person or organisation’s conduct causes the death of the worker; and
  • the person or organisation is negligent about causing the death.

Both directors of BAR were charged under section 31 of the Act. Under section 31, a person is guilty of an offence where a person has a health and safety duty (as the directors did as operators of a business), that person, without reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury and that person is reckless as to the risk of death or serious injury or illness.

Section 34C is Queensland’s specific industrial manslaughter offence, whereas section 31 relates to reckless conduct more generally.

The maximum penalty under section 34C for a body corporate is $13,345,000. The maximum penalty for a section 31 offence for an individual is a fine of $600,000 or 5 years imprisonment or both.

The Court found that in the hours after the victim was first transferred to hospital, one of the defendant’s directors misled investigators as to who was operating the forklift at the time of the incident, both in an interview with Workplace Health and Safety QLD investigators and later in a written statement to police. At this time, the director had viewed CCTV footage of the incident and would have known the identity of the forklift operator.

Critically, the Court also found that despite having been in operation for some years, between 1 January 2018 and the date of the incident, the defendants had failed to take steps to ensure that the risk posed to the workers was controlled, which amounted to recklessness. BAR had no safety systems in place, including no traffic management plan. Further, the directors had failed to ensure that the forklift operator was adequately qualified or experienced to operate the forklift.

The Court imposed a penalty of $3,000,000 on BAR, while its directors were each sentenced to 10 months imprisonment, wholly suspended for 20 months. In mitigation, the Court noted that the directors were Afghani immigrants, who may have been deported if they had received a sentence of 12 months imprisonment or more. Further, they had no history of prior offending and were the sole providers for their spouses and children who remained in Afghanistan.

What employers can take from this decision

While the Queensland legislation is expressed in different terms from the Victorian legislation, we would expect that the facts in this case would also have contravened the Victorian workplace manslaughter laws.  The worker’s death arose from a breach of a safety duty, and BAR’s conduct clearly was a great falling short of the standard of care, giving rise to a high risk of death or serious injury.

Accordingly, this decision can be viewed as an early indication of the sort of penalty which a Victorian Court may issue in similar circumstances.

Whilst employers in all jurisdictions in Australia have obligations with respect to the health and safety of their employees, contractors and members of the public, penalties have increased significantly. For this reason, it is more important than ever for company directors and officers to ensure they have proper safety systems in place.

Russell Kennedy principal Anthony Massaro can provide a training session to your Board on Workplace Manslaughter and Officers’ Duties.

To arrange a training session or find out more, please contact Anthony via email. You can also read our recent Alert on the substantial new penalties for work related deaths here

If you would like to stay up-to-date with Alerts and Insights from our expert Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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