A big wake-up call for employers to get their health and safety systems in order
A Queensland business was the first in Australia to be convicted of industrial manslaughter, with its directors handed a suspended jail sentence.
The accident caused the death of a 58-year old casual contractor crushed by a reversing forklift.
The company submitted that it could not pay a $3 million fine (maximum $10 million), but the Queensland District Court said: “However, that does not preclude the imposition of an appropriate fine in the circumstances.” The judge commented that:
“A lesser penalty would not adequately punish Brisbane Auto Recycling Pty Ltd or serve to adequately deter others.
The company pleaded guilty to a category 1 reckless conduct charge. The business had failed to put in place a safety system after 3 years of operation, failed to effectively separate pedestrian workers and mobile plant, and failed to supervise operators of moving plant and workers. Also, the two accused initially tried to deflect blame, saying the victim was the driver of the forklift and had fallen out of the truck.
A maximum jail sentence of 5 years could have been awarded, but the Court determined a 10–month suspended sentence was appropriate. The sentence was suspended due to mitigating factors in relation to the accused clean records and personal circumstances, namely they were the sole source of financial support for their families and as refugees they faced potential deportation if jailed and no longer met the good character test.
This is obviously an extreme case, but it is a wake-up call for all employers to get their safety systems in order.
What jurisdictions have industrial manslaughter laws?
The law commenced in Queensland in 2017. In Victoria it commenced on 1 July 2020 with maximum penalties of 25 years imprisonment for an individual and $16.5 million fine for a corporation. The ACT has had the laws in place since 2004 and sits under the Crimes Act, and in the NT the laws commenced in November 2019 with a maximum fine of $10.075 million and an individual can also face life imprisonment. WA recently introduced the Work Health and Safety Bill 2019 which includes industrial manslaughter, with maximum penalties of 20 years imprisonment for individuals and a $5 million fine, and $10 million fines for a corporation.
Work Health and Safety legislation penalties
‘Reckless Conduct’ charges in other jurisdictions, such as NSW, attract a maximum fine of $3 million for corporations, and $600,000 for individuals and potentially 5 years jail. A Category 2 High Risk Breach is potentially a $1.5 million fine and $300,000 for individuals. For employers who have a safety system in place, it is rare to be charged at the higher Category 1 level.
Lessons for employers
1. Employers must have a safe system of work in place and have implemented the system. Many employers have policies in place or a Work Health and Safety Manual, but have not implemented the policies and procedures in a practical way.
2. In the event of a serious accident, always co–operate fully and be honest in your responses.
3. Seek advice and consider options such as Enforceable Undertakings (up to Category 2 level) where available, to avoid legal proceedings.
4. Individuals are personally liable, and potentially can face industrial manslaughter charges in QLD, VIC, ACT, NT and likely in WA soon.
5. Jail time could result unless there are significant mitigating factors.
ER Strategies Work Health and Safety Service
ER Strategies’ WHS service can help your business set up a management system for Work Health and Safety to help you identify your hazards, assess, and control the risks.
Our WHS service aims to assist clients to meet these obligations and avoid or minimise potential prosecution and ultimately, workers compensation claims.
Contact our team on 1300 55 66 37 or complete a Contact form to discuss this service option for your business.
Any queries about the issues in this article or do you need help with other employee relations issues? Contact us on 1300 55 66 37.