In a first for WHS prosecutions, on 11 June 2020, The District Court of Queensland handed down a judgement which became the first recorded conviction and sentencing under industrial manslaughter legislation in Australia.
Brisbane Auto Recycling Pty Limited was convicted and fined a record $3 million after pleading guilty to causing the death of a worker and being ‘negligent about causing the death’ contrary to Queensland’s new industrial manslaughter legislation.
Two directors of the Company were also both convicted and sentenced to 10 months imprisonment, with their sentence suspended, after being found guilty of breaches of their duty to exercise due diligence as officers and guilty of a ‘reckless conduct’ category one offence.
The convictions relate to a worker who was killed when a forklift, being driven by an unlicensed employee, reversed into the deceased and crushed him against the tilt tray of a truck being used to unload a motor vehicle body.
The two directors, Mr Hussani and Mr Karimi, were both immigrants who had migrated to Australia from Afghanistan, where they had been exposed to extreme violence including being abducted, kidnapped and held prisoner. These matters were taken into account in sentencing.
The Defendants did not have any WHS procedures in place and had not ensured that the driver of the forklift was qualified and licenced. The Court found that the costs of implementing appropriate risk management measures, including the installation of signage, plastic bollards and marked exclusion zones to manage traffic in the workplace was quite modest and easy to implement. The Court considered that there had been a conscious disregard for the safety of workers and that the incident did not arise from a momentary or isolated breach.
The Court also found that both individual defendants had engaged in deceptive conduct after the incident by attempting to deflect responsibility by lying about the identity of the driver and also by telling the deceased’s daughter that he had fallen from a truck.
The $3 million penalty handed down to the company is a record for any WHS prosecution for a single offence in Australia on one of only a hand full custodial sentences directed at individuals.
Whilst in NSW, we have found the introduction of industrial manslaughter a bridge too far, recent amendments to the Work Health and Safety Act 2011 (NSW) provide for the introduction of a new category one offence, being that of ‘gross negligence’ with maximum penalties up to $3,463,000 for companies, and $6,925,000 for individuals, together with five years gaol.
Other states and territories in Australia, however, have implemented similar industrial manslaughter legislation to that of Queensland, including Victoria, Western Australia, the Australian Capital Territory and Northern Territory.
Companies and their officers and directors are reminded that the legal risks of prosecution in serious work health and safety matters is high and that the potential penalties available are significant. They should ensure that they have proper systems and legal strategies in place for dealing with WHS issues and an appropriate legal strategy to protect their interests in the event of a serious incident.
How We Can Help
Roberts Legal is able to assist in the development of such policies and procedures and to provide training on serious incident management and dealing with regulator investigations and prosecutions.
Our WHS expert, Jeremy Kennedy, is available to provide assistance in the event of a serious incident 24/7. You can contact Jeremy via email on firstname.lastname@example.org or by phone on 1300 553 343.