In brief - Employers take note: industrial manslaughter laws now implemented in NSW, and tougher workplace manslaughter laws in Victoria commenced on 1 July 

Meanwhile, a recent case in Queensland sees a company convicted of industrial manslaughter and its two directors convicted of breaching a reckless offence.

NSW Work Health and Safety: manslaughter and insurance now law

In our article of 24 November 2019, Work Health Safety Bill NSW to increase manslaughter penalties to 25 years and ban insurance for fines, we set out how the proposed amendments to the Work Health and Safety Act will implement the proposed industrial manslaughter laws and create an offence for any company that effects a policy of insurance for the payment of a fine for a breach of the WHS laws in NSW.

The amendments have passed both houses of Parliament and became effective on 10 June this year.

Key changes in NSW are:

1. Manslaughter offence now linked to workplace incidents.

2. Reckless offence now expanded to include gross negligence.

3. Fines increased due to changing a penalty unit regime.

4. Insurance and indemnity arrangements for WHS fines are now illegal in NSW.

5. WHS inspectors' investigation powers now increased.

Victoria

Further to our article on 13 November 2019, Workplace manslaughter fines to increase in Victoria, workplace manslaughter offences for both the company and officers of a company commenced on 1 July this year.

The gaol terms for officers is a maximum of 25 years and companies will face a maximum penalty of $16.5 million for negligently causing a workplace death.

Queensland 

In a recent decision of the District Court of Queensland, R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113, a company was convicted of industrial manslaughter and its two directors convicted of breaching a reckless offence under the Work Health and Safety Act of Queensland.

On the 11 June 2020, the Court fined Brisbane Auto Recycling Pty Ltd $3 million and sentenced each director to 10 months' imprisonment, suspended for 20 months.

Brisbane Auto Recycling Pty Ltd conducted a motor vehicle resale, parts and recycling business at Rocklea in Brisbane. Both directors supervised work activities at the workplace.

On Friday 17 May 2019, an employee was standing beside a truck he had recently operated, when a reversing forklift crushed him between the rear of the forklift and the truck. He was conveyed to hospital and died of his injuries eight days later. When the ambulance attended the scene, the officers were advised that the employee had fallen from the tilt tray of the truck.

A police and WHSQ investigation took place which revealed CCTV footage of the incident.

The investigation revealed the company had no written safety policies or procedures at the workplace. The company had no traffic management plan at the worksite where a number of forklifts operated constantly in close proximity to workers and members of the public.

One of the directors advised the WHSQ investigator that workers were advised to be safe and to look after themselves. Forklift operators were required to be licenced, but no workers' forklift licences were produced.

The company was convicted of industrial manslaughter by negligently causing the death of the worker. The maximum penalty the company faced was 100,000 penalty units.

The directors pleaded guilty to offences of engaging in conduct that exposes an individual to a risk of death or serious injury and being reckless as to the risk to the individual. The directors faced a maximum penalty of five years' imprisonment or 3000 penalty units.

The Court held that:

 The failure by the defendants to control the risk posed by mobile plant was consistent with their attitude to safety at the workplace.

And further, the Court stated, regarding the directors:

 …they knew of the risk to the safety of their workers, but consciously disregarded that risk.

In conclusion, the Court determined that "the gravity of the offending and the moral culpability of each defendant is high."

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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