The sentencing in the District Court of Queensland on 11 June 2020 in The Queen v Brisbane Auto Recycling Pty Ltd and Hussaini and Karimi 1 is the first time the industrial manslaughter provisions of the Work Health and Safety Act 2011 (WHS Act) have been applied.
The sentences handed down for industrial manslaughter provide a salutary lesson for employers and their officers who are not "protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances and plant"2 ".
In short, the court recorded a conviction after guilty pleas by each defendant and fined the company the sum of $3 million. It also recorded convictions against both Hussaini and Karimi and sentenced each to 10 months imprisonment but in respect of each ordered that the whole of the term of imprisonment be suspended for an operational period of 20 months.
The WHS Act provides for a maximum penalty of 100,000 penalty units ($10 million) for an offence of industrial manslaughter committed by a body corporate 3 and for a category-1 offence committed by an individual as an officer of a person conducting a business or undertaking, a fine of 6,000 penalty units ($600,000) or 5 years imprisonment 4.
The charges resulted from the workplace accident involving Barry Willis on 17 May 2019 and the death of Mr Willis on 29 May 2019. Brisbane Auto Recycling Pty Ltd employed Mr Willis. Hussaini and Karimi were directors of the company and had hands-on supervision of work activities at the company's Marshall Road workplace. On the day in question, Mr Willis was standing near the tilt tray of a truck which he had been driving when he was struck by a forklift being driven by one of the company's other workers. The impact was severe and regrettably, Mr Willis did not recover.
The following sentencing remarks of Judge A J Rafter SC are informative of the penalties imposed:
- he (Hussaini) made admissions to the effect that there were no written safety policies or procedures within the workplace;
- when asked who managed the safety of workers, he (Hussaini) said that he advises them verbally to be safe and look after themselves. He said that forklift operators are required to be licensed, although he had not seen workers' licences and simply relied on what he was told;
- the investigation revealed that Brisbane Auto Recycling Pty Ltd had no safety systems in place. In particular, there was no traffic management plan at the worksite, across which a number of forklifts operated constantly in close proximity to workers and members of the public;
- the investigation also disclosed that the driver of the forklift did not hold a high-risk work licence to operate a forklift. Brisbane Auto Recycling Pty Ltd had made no sufficient enquiries to confirm whether he held one. The driver was inexperienced, and there was no sufficient assessment of his competency to operate a forklift;
- officers of corporations and unincorporated bodies have a duty to exercise due diligence to ensure that the person conducting the business or undertaking meets its work, health and safety obligations 5;
- the prosecution did not allege that the offending by Hussaini and Karimi caused the death of Mr Willis;
- culpability would turn upon an overall evaluation of various factors, which may pull in different directions. Culpability is reasonably high because, even if the event which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, cost;
- the imputed conduct of Hussaini and Karimi led to the death of Mr Willis, as did the conduct of the forklift driver which flowed from the prolonged failures;
- there was no real attempt to assess and control the risks posed by mobile plant.
As noted, it was found that the failures of the defendants were extreme.
Steps Employers Should Implement to Comply
What steps then should an employer implement to comply with the WHS Act and other legislation containing the offence of industrial manslaughter 6?
- review your work health and safety policies and document same;
- ensure that all new workers are familiarised with such policies at the time of induction and orientation to your workplace;
- ensure that all workers have formal training and refresher courses on a regular basis;
- undertake and document regular reviews of workplace practices to identify risks to workers' safety and implement any remedial action and risk minimisation procedures required;
- ensure all workers have the correct clothing and equipment to fully protect them;
- ensure all workers are properly trained in the use of the equipment they require to undertake the duties;
- keep written records of each of the matters referred to in A to F above; and
- above all, from the Board to the hands-on worker, instil a culture of safety first.
The above list is not meant to be exhaustive of what an employer may undertake to protect its workers and each employer should look to its own industry peculiarities and standards.
If the above has raised any concern with you on your exposure under the relevant legislation we are happy to discuss with you the legislation and the steps that you may take to avoid breaching the relevant Act and/or assist you in documenting your policies and procedures
1 The Queen v Brisbane Auto Recycling Pty Ltd v Hussaini, Asadullah and Karimi, Mohammad Ali Jan (2020 )QDC 113
2 Section 3(1)(a) Work Health and Safety Act 2011 (Qld)
3 Section 34C Work Health and Safety Act 2011 (Qld) and Penalties and Sentences Act 1992 (Qld)
4 Section 31(1) Work Health and Safety Act 2011 (Qld)
5 Section 27 Work Health and Safety Act 2011 (Qld)
6 Part 2B Electrical Safety Act 2002 (Qld) and Part 2A Safety In Recreational Water Activities Act 2011 (Qld)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.