Are your safety systems effective?

Recent legislative and case law developments have put the spotlight back on the now real consequences of failing to address known and foreseeable risks in the workplace. Whilst lots of attention has been placed on mitigating COVID-19 risks, workplaces need to make sure they don’t neglect other risks which can lead to significant consequences for their organisations and decision makers.

In this Insight, we look at one recent case and legislative amendments which will mean that businesses will need to be proactive and methodical in identifying and addressing risks to avoid prosecution and the wider implications that come with that.

First Industrial Manslaughter Conviction – Brisbane Auto Recycling decision

On 11 June 2020, sentences were recorded against Brisbane Auto Recycling Pty Ltd (Brisbane Auto), and two of its directors, for an incident at the workplace resulting in the death of an employee. Brisbane Auto was an auto wrecking business in Rocklea, Queensland. The employee was struck by a reversing forklift whose operator was not licensed. The directors supervised the work activities at the workplace.

Following the incident, one director told a treating paramedic that the employee had fallen from a truck. Eight days later, on 25 May 2019, the employee died from the injuries he had sustained. The incident was captured on CCTV.

Brisbane Auto was charged with the offence of industrial manslaughter under section 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act). The two directors were not charged with industrial manslaughter but rather category 1 breaches of the officers’ duty of due diligence.

All three defendants pleaded guilty at an early stage.

The maximum penalty in Queensland for an offence of industrial manslaughter committed by a body corporate is a $10 million fine. The maximum penalty for a category 1 offence by an officer is a $600,000 fine or 5 years imprisonment.

The Court imposed the following sentences:

  1. Brisbane Auto – Conviction recorded and a $3 million fine
  2. The directors – Convictions recorded and both sentenced to 10 months imprisonment, wholly suspended for an operational period of 20 months.

The Court noted that there were no safety systems in place at Brisbane Auto and the defendants knew of the potential consequences of the risk, which ultimately was catastrophic. There were steps available that could have been easily taken to lessen, minimise or remove the risk. These included a proper risk assessment of the task, measures to control the interaction between mobile plant and the workers, and proper supervision of the work. These steps were available but not taken.

The directors received suspended sentences in large part because of the risk of their deportation and the role they had as financial supporters of their respective families.

Workplace Manslaughter laws to commence in Victoria on 1 July 2020

Victorian businesses and officers will need to take notice of the Queensland decision as workplace manslaughter laws will commence in Victoria from 1 July 2020.

Under those provisions, the following persons can be found guilty of a workplace manslaughter offence:

  1. Any person (other than an employee or volunteer) who owes a duty under Part 3 of the OHS Act. This means that any employer (whether incorporated or unincorporated) can be charged with workplace manslaughter.
  2. An officer of a body corporate, unincorporated body, unincorporated association or partnership.

The offence is one of negligence (not recklessness) and requires the relevant persons to have a duty, and breach that duty which results in the death of a person.

When first enacted, the provisions provided for maximum penalties of a $16.5 million fine for a body corporate and up to 20 years imprisonment for an individual. However, in late May, the legislation was amended to increase the maximum penalty for individuals from 20 years to 25 years imprisonment.

Amendments to NSW WHS Act

Unlike Queensland and Victoria, NSW is not introducing industrial manslaughter provisions into its WHS legislation. Rather, the NSW Work Health and Safety Amendment (Review) Bill 2020 has been passed by parliament which clarifies that an offence of industrial manslaughter can be commenced under the Crimes Act.

The amendments also introduce the following changes:

  • Increasing WHS fines. For example, the maximum fine for a category 1 WHS breach will jump from $3 million to $3,463,000. Maximum fines for category 2 and category 3 contraventions will go from $1.5 million to $1,731,500, and from $500,000 to $577,000, respectively,
  • Making it easier to secure category 1 convictions (by expanding that category to include ‘gross negligence’ in addition to recklessness),
  • Creating a new WHS offence relating to entering into, providing or benefiting from insurance and/or indemnity arrangements for the payment of WHS penalties, and
  • Allowing inspectors to exercise their entry powers under s171 of the WHS Act for a period of 30 days.

The debate continues in WA

The Western Australian Parliament continues to debate the Work Health and Safety Bill 2019 which passed the Legislative Assembly (Lower House) on 20 February 2020.

Importantly, the Bill includes two separate offences for industrial manslaughter:

  1. Industrial manslaughter – crime
    This provision contains the highest penalties for a work health safety offence with:
    •  an individual exposed to imprisonment for 20 years and a fine of $5,000,000; and
    •  a body corporate exposed to a fine of $10,000,000
  2. Industrial manslaughter – simple offence
    This provision contains penalties for a work health safety offence with:
    •  an individual exposed to imprisonment for 10 years and a fine of $2,500,000; and
    •  a body corporate exposed to a fine of $5,000,000

What does the Queensland case and these legislative changes mean?

The Queensland decision and the amendments in Victoria and NSW (and the introduction of industrial manslaughter offences more generally in a number of jurisdictions), highlights the importance of organisations and their officers carefully scrutinising the adequacy of their existing safety management systems, reviewing those systems on a regular basis and ensuring that deficiencies are rectified as quickly as possible.

These developments also demonstrate that there are various options available to safety regulators to prosecute corporate officers for negligent or reckless conduct, including where it cannot be proved that an officer’s conduct caused a workplace death.

If you would like to discuss how these developments impact upon your business please do not hesitate to contact our team.

John Makris
Partner
+61 2 9169 8407
john.makris@kingstonreid.com

Michael Stutley
Partner
+61 8 6381 7060
michael.stutley@kingstonreid.com

Dominic Fleeton
Special Counsel
+61 3 9958 9616
dominic.fleeton@kingstonreid.com

Erica Elliott
Special Counsel
+61 2 9169 8409
erica.elliott@kingstonreid.com

Sevasti Xanthos
Lawyer
+61 3 9958 9609
sevasti.xanthos@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com