Industrial manslaughter laws tested in first charges
A Queensland company has been charged with industrial manslaughter in what might become the first conviction for industrial manslaughter under the Work Health and Safety Act 2011.
Brisbane Auto Recycling Pty Ltd was charged with industrial manslaughter. Two directors, Asadullah Hussaini and Mohammad Ali Jan Karimi have been charged with category 1 offences under Work Health and Safety Act 2011. The charges follow the death of a worker in a Rocklea wrecking yard in May 2019. The operator of the forklift has also been charged.
Companies found guilty of industrial manslaughter in Queensland can be fined up to $10 million. Individuals found guilty of the lesser charge under a category 1 offence can be sentenced up to five years imprisonment.
“After careful consideration, I decided to take action against the company and its directors”, Queensland’s WHS Prosecutor Aaron Guilfoyle said.
“This the first prosecution for industrial manslaughter in Queensland and is the result of a comprehensive investigation into the fatality.”
“The charge of industrial manslaughter includes allegations that Brisbane Auto Recycling caused the death of their worker by failing to effectively separate pedestrians from mobile plant, and failed to effectively supervise workers, including the operators of mobile plant.”
“The charges against Hussaini and Karimi relate to their failure as directors to ensure that the business had those systems in place.”
When the Industrial Manslaughter laws were introduced, the Honourable Minister for Employment and Industrial Relations, Grace Grace, said, the new laws would leave negligent employers culpable in workplace deaths nowhere to hide.
Whether the new laws will be as effective as claimed by the government is now to be tested.
If the industrial manslaughter charge is contested by the company, the WHS Prosecutor will have to produce evidence to prove:
- a worker died in the course of carrying work or is injured and later died;
- and the conduct of the company caused the death of the worker; and
- the company was negligent about causing the death of the worker.
At this stage there is no statement issued by the defendants, so we don’t know whether the charges will be contested, nor what their defence will be. However, all three defendants are represented by one of Queensland’s leading experts in work health and safety, suggesting it might not be easy for the Queensland WHS Prosecutor to secure convictions. If the charges are contested, it may take many months, and maybe years, for the case to be finalised.
What every director and senior executive should be doing is reviewing whether they can personally demonstrate that they have taken measures to ensure that their business is complying with the Work Health and Safety Act. The key words here are ‘personally demonstrate’.
Now is the time to review your business systems and processes. When was the last WHS Audit conducted in your business? Are there documented systems in place, with policies and procedures for all aspects of the business?
If you are not confident that your business could demonstrate adherence to work health and safety best practice, it’s time to conduct a review.
Australian Business Lawyers & Advisors can offer businesses a fixed fee initial review of WHS policies and procedures. This will provide the foundations for identifying any risk gaps for the business and for the directors and senior executives that can now be personally liable.