For the first time ever, the industrial manslaughter provisions of the Work Health and Safety Act 2011 (WHSA) have been applied. The District Court handed down sentences for industrial manslaughter in The Queen v Brisbane Auto Recycling Pty Ltd and Hussaini and Karimi (2020) QDC 113 on 11 June 2020. The sentences handed down are a stark warning and ought to prompt employers to carefully consider whether they are fulfilling their statutory obligations under the WHSA.
The Court recorded a conviction following guilty pleas by all defendants. The company was fined $3 million. Convictions were recorded against the company’s directors, Asadullah Hussaini and Mohammed Ali Jan Karimi, and each were sentenced to 10 months imprisonment. However, the Court ordered that the whole term of imprisonment for both Hussaini and Karimi be suspended for an operational period of 20 months.
The employer was prosecuted in relation to a workplace incident in which an employee sustained fatal injuries after being run over by a forklift. The employee, Mr Barry Willis, was standing near the tilt tray of a truck he was operating at the employer’s Marshall Road workplace when he was struck by a forklift being driven by another employee. The impact was severe, and Mr Willis subsequently passed away.
Section 3(1)(a) of the WHSA requires employers to protect 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. Under section 34(c) of the WHSA, the maximum penalty for an offence of industrial manslaughter is $10 million dollars. Under section 31(1), an officer who commits a category 1 offence may be fined a maximum of $600,000 or sentenced to a maximum of 5 years imprisonment.
In reaching his decision, Judge A J Rafter SC outlined a number of factors which informed the penalties handed down. These included:
- Mr Husseini admitted that there were no written safety policies or procedures and that he merely advised workers verbally to be safe and look after themselves;
- Mr Hussaini required workers operating forklifts to be licensed, but did not actually require that they show him their licenses and merely relied upon what they told him. These investigations by the employer were insufficient;
- The employer had implemented no safety systems, and did not have a traffic management system despite the fact numerous forklifts operated at the worksite in close proximity to workers and members of the public;
- The driver of the forklift did not hold a high-risk work license to operate a forklift and had never been assessed as being competent to operate a forklift;
- Section 27 of the WHSA imposes a duty on officers of corporations and unincorporated bodies to exercise due diligence to ensure that the person conducting the business meets its work, health and safety obligations;
- It was not alleged by the prosecution that the offences by Hussaini and Karimi caused the death of the worker;
- Culpability is high because even if an event like this might not be expected to occur often, the gravity of the foreseeable resultant harm is extreme. 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 conduct of Hussaini and Karimi led to the death of the worker, as did the conduct of the forklift driver which itself was the result of prolonged failures to fulfil WHS obligations;
- The failures of the defendants were extreme.
What Response is Required?
Employers should take note of this decision and take the opportunity to review whether they are properly complying with their statutory obligations under the WHSA and other relevant legislation. While there is no need to panic, this decision has firmly established that non-compliant employers will be met with harsh reprimands. A few general and relatively simple steps an employer can take include:
- Reviewing their workplace health and safety policies and procedures;
- Ensuring that all new employees are properly inducted and aware of such policies;
- Ensure that formal training and regular refresher training is provided to employees;
- Keep records of any relevant qualifications and competencies obtained by employees in relation to the duties, including licenses to operate machinery and so on. Keep written records of all training, induction, risk assessments and reviews that are completed;
- Regularly review workplace practices to identify safety risks and implement corresponding control measures to eliminate, control and protect against the risk;
- Enforce health and safety procedures and policies, including ensuring that employees are provided with and wear prescribed PPE. Employers also need to enforce compliance with safety procedures for tasks such as manual handling or for the operation of machinery and so on.
An employer’s obligations are broad, and the above list is in no way comprehensive. Should you require further advice on particular matters concerning workplace health and safety, contact Samantha Cathcart or send us an enquiry using the form below.
This article was prepared by Conor Gillam and Samantha Cathcart.