Victorian businesses face new workplace manslaughter laws under the Occupational Health and Safety Act 2004 (Vic) commencing on 1 July 2020. We have been advising businesses and holding training sessions on these news laws to assist companies and their officers to understand and rectify any gaps where there may be potential exposure.
Given the hefty maximum financial penalties and imprisonment terms that may be imposed for these offences, its critically important for businesses and their leaders to be across the detail of this development.
First conviction
Recently the District Court of Queensland handed down judgment on sentencing in R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113, the first Australian corporate entity to be convicted of an industrial manslaughter offence.
Brisbane Auto Recycling Pty Ltd pleaded guilty to an industrial manslaughter offence under the Work Health and Safety Act 2001 (Qld), causing the death of a worker. The company operated a car recycling facility that collected vehicles for recycling. An employee, Mr Willis, was engaged as a truck driver on a casual basis to collect vehicles from customers and deliver them to the recycling facility. In the course of strapping down four tyres onto the tilt tray of the truck at the company’s recycling facility, Mr Willis was hit by a reversing forklift, crushing him between the forklift and the tilt tray. Mr Willis died from his injuries.
Brisbane Auto Recycling had no safety systems and in particular had no traffic management plan, despite there being a foreseeable risk of serious or fatal injury from forklifts operating in close proximity to workers and members of the public, which was known and consciously and recklessly disregarded by the directors. There was no real attempt to assess or control the risks posed by mobile plant at the facility.
Further, the forklift operator did not hold a high risk work licence to operate a forklift, and was not sufficiently assessed for competency to operate a forklift. He was charged with dangerous operation of a motor vehicle causing death.
The sentencing Judge noted that, following the incident, a consultant was engaged and implemented a safe system of work consisting “of little more than the installation of signage, plastic bollards and marked exclusion zones” at modest cost.
Brisbane Auto Recycling was convicted and fined $3 million. The two directors of the company each pleaded guilty to a reckless conduct (category 1) offence and were found equally responsible and convicted and sentenced to 10 months’ imprisonment, wholly suspended for 20 months.
What do you need to do?
The new workplace manslaughter laws in Victoria do not introduce any new duties but they do introduce significant consequences in terms of sizeable penalties for businesses and potential imprisonment for officers who engage in negligent conduct in breach of statutory OHS duties, causing death.
This case is a timely reminder to all businesses to ensure:
- high safety risk activities, such as mobile plant and people interface on worksites, are assessed and control measures including a safe system of work are implemented;
- workers are effectively trained in the safety system including any traffic management plan and sign on training records are made and retained;
- workers are licensed (as required), qualified and competent to safely perform the work they are engaged to do (eg high risk work licence to operate a forklift is checked and monitored); and
- through ongoing consultation and review, safety procedures are updated and revised as necessary and workers are re-trained, particularly when there is a change in work practices or activities, work location or new plant is introduced to site.
Unfortunately we have seen many cases of businesses leaving the assessment and management of working safely in the hands of workers. This exposes people to serious and fatal injury risks, and now, businesses and their officers to workplace manslaughter offences.
If you have any questions about the case or the application and implications of the workplace manslaughter laws to your business, please do not hesitate to contact us.
This article was written by James Allen (Senior Associate) and Gina Capasso (Principal Solicitor).
