by James Mattson Bartier Perry

Industrial manslaughter charges, a $3 million dollar fine for the company and suspended prison sentences for directors will send a chill down the backs of businesses and boards. While industrial manslaughter charges against businesses and directors are unusual, the outcome isn’t. The case of R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 is another case of an employee being killed at work by a forklift and directors working in the business being blind to safety.

What sets this case apart from other safety prosecutions is the complete lack of safe work systems and processes to address, in a meaningful way, the hazards and safety risks at work. The risk of death from a forklift is obvious and well-known. The Court found the lack of any safety systems simply remarkable; the absence of a traffic management plan was simply inexcusable. It was reckless for the directors to not have a safe work system and to not foster a safe workplace culture. As the Court found, “the inaction by the defendants was due to expedience for commercial gain or complacency, or both, the moral culpability of each is high“.

The defendant company was an auto wrecking business. A worker on site was struck by a reversing forklift and died eight days later. The deceased worker was “crushed” by the forklift. The driver of the forklift was unlicensed and not looking when he reversed, only looking back when he hit the deceased worker. The directors of the business, and individual defendants, were 23 and 25 years old respectively. Their youth was no exemption from their statutory duties of due diligence under work health and safety legislation. They worked in the business and as leaders owed important duties. They were also not honest about how the incident occurred when first questioned.

In fact, the measures to ensure safety at the workplace were relatively simple. The installation of signage, plastic bollards and marked exclusion zones on site, along with adequate supervision and a traffic management plan, would have gone a long way, a modest cost, to ensure workplace safety. And a worker would be alive.

A safety culture starts at the top. A safe workplace is driven from the top. Directors and senior management, especially in dangerous and hazardous workplaces, need to be discussing and actively driving a safe workplace in board meetings, management meetings and when in the business. The approach to safety needs to be systematic and thorough. Businesses need to ensure hazards and risks from all work are identified and active steps taken to eliminate and control the risks. The safe work methods established need to be developed and communicated to workers, in a consultative framework. Safety needs to be supported with resources and knowledgeable and skilled staff. Safety messages need to be communicated regularly, reinforced and enforced. Never resting on one’s laurels, safety measures need to be systematically audited and reviewed.

The Board and management need to ensure all these measures have occurred and are occurring by the provision of adequate support, diligent enquiry and reporting. And if you are driving these steps to occur as a leader, then you can sleep peacefully at night. If you cannot answer any questions on these matters, then time to act.

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.

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 Overview

In what could become a portent for Victorian employers, this is the first conviction for industrial manslaughter in Queensland since the introduction of the offence in October 2017., where a company was fined $3 million and the two company directors to 10 months imprisonment, wholly suspended.

Read the full article here.

Or contact the authors from McCullough Robertson direct:

Cameron Dean, Tom Reaburn, Liam Fraser, Scarlet Reid and Nathan Roberts.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

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Free webinar

WorkSafe is conducting a free webinar with a panel of WorkSafe experts, who will explain what the introduction of the new law means for employers and what you need to do to comply.

There will also be an opportunity for you to ask the panel your questions during the live session.

To register click here.

As I predicted in earlier edition, the spectre of “industrial Manslaughter” is soon to become reality to Victorian employers, with the premier, Dan Andrews issuing the following press release:

“Neil found out his son had been killed from a news report.

He’d got a call about an accident at Jake’s worksite. On his way over, he switched on the radio and heard that someone had died.

The trench Jake was working in had collapsed. He was only 19.

That day in 2015 was just the beginning of the nightmare for the Kermeen family.

It took hours to get Jake out of that trench.

There was the inquiry that took months – and the painful waiting to find out what had gone wrong.

Jake’s employer pleaded guilty to breaching occupational health and safety laws, and received a fine.

That wasn’t the end for Jake’s family, though.

His death had a devastating effect – particularly for his mum.

Her mental health deteriorated to the point where she can no longer work.

Because when somebody dies at work, it’s not just a life that is lost.

Families, friends and communities are broken.

And nothing will ever fix that.

But workers’ lives are worth more than just a fine.

That’s why we’re changing the law – and we’re making workplace manslaughter a crime”.