Industrial Manslaughter (Qld)

Several Australian jurisdictions, including Queensland, have introduced legislation to criminalise industrial manslaughter. The Queensland Legislature introduced the offence with an amendment to section 34C of the Work Health and Safety Act 2011. In addition, new industrial manslaughter provisions have been included in the Electrical Safety Act 2002, and the Safety in Recreational Water Activities Act 2011. In Queensland, a person conducting a business or undertaking (a “PCBU”) is guilty of this offence if they negligently or recklessly fail in their duty of care, leading to the death of a worker. This new law aims to encourage a culture of proactive risk management in the workplace, reflecting an increased commitment to protecting workers. This article looks at the offence of industrial manslaughter through the lens of the first prosecution and conviction for the offence in Queensland.

What is industrial manslaughter in Queensland?

Industrial manslaughter is a distinctly separate criminal offence from both manslaughter and murder. A person conducting a business or enterprise (PCBU) commits industrial manslaughter when they engage in conduct that breaches their duty of care causing the death of a worker. Specifically, the offence applies in Queensland when:

  • a worker has died, or was injured and subsequently died, while carrying out work for the business, including during a work break; and
  • the PCBU’s actions or lack of actions caused the death of the worker, or substantially contributed to the death; and
  • the PCBU was negligent in causing the death because they had departed substantially from the standard of care required in the workplace.

Importantly, the offence only occurs when the PCBU was aware of the potential for serious harm or death, or where they recklessly disregarded the likelihood of harm.

A PCBU who causes a fatal accident can be subject to substantial fines and potential imprisonment. The maximum penalty for an individual found guilty of industrial manslaughter is 20 years imprisonment, with a fine of 100,000 penalty units for a corporation.

Who is considered a PCBU?

In relation to the offence of industrial manslaughter, a person who is acting as a sole trader or a partner within a partnership is considered a PCBU. In addition, a director, chief officer, general counsel, or senior officer in a company, government department, or unincorporated association is also a PCBU. This term is intended to describe individuals in the highest levels of an organisation, who can influence workplace culture and establish safety management procedures. However, a person is not a PCBU if they merely provide advice to decision-makers. Also, a volunteer senior officer cannot be prosecuted for industrial manslaughter, under the immunity afforded volunteer officers under other health and safety law.

Case study

Queensland was the first state to record a conviction for industrial manslaughter against a body corporate or individual. The District Court of Queensland heard the case of R v Brisbane Auto Recycling Pty Ltd [2020], relating to the death of a 58-year-old worker at an auto recycling yard who was crushed by a forklift truck driven by an unlicensed driver. The family of the deceased worker reported the incident to the police who informed Work Health and Safety Queensland (WHSQ).

An investigation of the circumstances surrounding the incident found that the employer:

  • had no written workplace safety policies or procedures;
  • had no incident response or emergency response plans; 
  • had no procedures in place to ensure the workers held the necessary licences to operate machinery;
  • had no management plan for the safe operation of machinery; and
  • did not hold mandatory WorkCover insurance. 

The WHSQ further found that the company directors:

  • provided wholly inadequate workplace health or safety instructions;
  • did not enquiry into whether workers had the necessary competence to operate forklifts;
  • misled first responders about the circumstances of the incident;
  • misled the family of the deceased about the circumstances of the incident;
  • knowingly misrepresented who was operating the forklift at the time of the incident; and
  • failed to report the incident to the WHSQ.

The company pled guilty to the charge of industrial manslaughter. The court took into account the company’s failure to make recent superannuation contributions to employees, but also considered that the company had no history of workplace health and safety violations. The company received a penalty of $3 million.

Two directors of the company also pled guilty to charges of reckless conduct. The directors were found to have taken actions that were “designed to deflect responsibility”. The sentencing judge determined that the directors knew of the safety risk associated with the situation, and consciously disregarded that risk. The directors were each sentenced to 10 months’ imprisonment, with wholly suspended sentences. The directors’ young ages, their early guilty plea, lack of criminal history, and good standing in the community contributed to the suspended sentence.

This case underscores the importance of companies and directors complying with work health and safety duties, particularly when it comes to safety management systems. Through its guilty plea, the company acknowledged that it substantially contributed to the worker’s death through its negligent conduct, while the directors acknowledged that they had failed to exercise their duty of due diligence, and thereby contributed to the death of their employee.  

Please book an appointment or contact our experienced solicitors at Go To Court on 1300 636 846 for further advice about the offence of industrial manslaughter in Queensland, or any health and safety or employment law related matter.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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