From 31 March 2022, industrial manslaughter laws will be in effect across five jurisdictions across Australia (Qld, Victoria, ACT, NT and Western Australia), with the potential for the offence to become law in South Australia and NSW later this year. It is inevitable that prosecutions for industrial manslaughter will increase given the growing number of jurisdictions in which the offence is available, in addition to the increased regulatory and political scrutiny that has been focused on workplace fatalities, and workplace safety in general.
This increased prospect of prosecution and the first individual conviction for industrial manslaughter in a recent Queensland case strongly highlights the need for persons controlling a business or undertaking (PCBUs) to be aware of the potential for a prosecution and the risks not only to the business but to persons controlling the business. As industrial manslaughter is a criminal offence the penalties are severe and include imprisonment for individuals.
To date, the sole successful prosecution in Australia for industrial manslaughter of a body corporate came as the result of a guilty plea by Brisbane Auto Recyclers in June 2020. In that case the company was fined $3 million.
On 25 March 2022, Jeffrey Owen, the owner of Owen’s Electric Rewinds, was convicted of industrial manslaughter, as an individual, meaning the maximum penalty available was 20 years’ imprisonment.
This makes Owen the first individual charged, prosecuted, and convicted of industrial manslaughter in Queensland since the offence was legislated in 2017.
The charge related to the death of a volunteer worker on 3 July 2019 at Owen’s Electric Rewinds. The worker suffered fatal injuries after being struck by a portable generator that was being unloaded by forklift, overloaded by Owens, that flipped over.
Owen was prosecuted by the Office of the Work Health and Safety Prosecutor. Owen pleaded not guilty to the charge and proceeded to trial before a jury in the District Court at Gympie. The trial was heard over 4 days commencing 21 March 2022. During the trial the Court heard evidence that:
- at the time of the incident Owen was operating a forklift, despite not holding licence;
- the generator Owen was attempting to lift was heavier than the forklift could manage – another worker was directed to stand on the back of the forklift as counterweight;
- Owen's did not have documented safety procedures for using the forklift to unload heavy equipment and the business safety systems were lacking at the time of the incident, although improvements were made after the incident.
The jury returned a guilty verdict on 25 March 2022. In reaching a guilty verdict the jury had to be satisfied of the following elements under s. 34C of the WHS Act:
- the volunteer was a ‘worker’ at the business; and
- the worker died in the course of carrying out work for the business; and
- Owen’s conduct caused the worker’s death; and
- Owen was negligent is causing the worker’s death.
The Court rejected an argument that the deceased was not a "worker" as he was just helping a friend. Under the WHS Act, a volunteer (ie. a person acting on a voluntary basis) is a worker if they carry out work in any capacity for a PCBU.
Owen was sentenced to 5 years’ imprisonment, to be suspended after serving 18 months in a correctional facility. Owen was taken into custody immediately following the sentence.
Owen has 1 month from the date of conviction in which to file a notice of appeal.
For PCBUs to consider
The case above serves as a critical reminder for PCBUs to ensure, so far as is reasonably practicable, the health and safety of its workers.
A PCBU’s primary duty includes ensuring, so far as is reasonably practicable:
- the provision and maintenance of a work environment without risks to health and safety; and
- the provision and maintenance of safe plant and substances;
- the provision and maintenance of safe systems of work;
- the provision of adequate supervision, instruction and training.
Undertaking adequate hazard identification and risk assessment, adoption of safe systems of work and keeping records to confirm doing so, are all reasonably practicable steps for a PCBU in discharge of its duty. Those actions and records will be closely scrutinised by a regulator in the event of an incident.
In the two examples noted above, both Brisbane Auto Recyclers and Owen were relatively small, unsophisticated businesses who had rudimentary safety systems in place. Nevertheless, a lack of resources or knowledge regarding health and safety duties is not a defence when a fatality (or even less-serious safety incident) occurs.
It is critically important for a PCBU and its officers to understand their health and safety duties.
Being proactive in acknowledging and fulfilling these duties and ensuring adequate policies, systems and procedures, training, reporting and verification steps are in place will be critical both to ensure a safe workplace and if you want to have any capacity to defend a prosecution for industrial manslaughter.
Clayton Utz can assist in reviewing your businesses' key safety documentation and approach and undertake a gap analysis to identify non-compliance and improvement.