Industrial Manslaughter: What we know from prosecutions and what you need to do to protect your workforce (and yourself).

Industrial manslaughter laws are now active in all but two states and territories. Whilst Tasmania are yet to announce any plans to introduce the laws, South Australia have the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2022 drafted.

Safe Work Australia 's key WHS statistics Australia report released in 2022 provides some great trend analysis around work-related deaths and whilst worker fatalities have decreased by 35% in the last 10 years, there are still too many Australian's that go to work and never return home. The widespread adoption of industrial manslaughter laws have significantly raised the stakes for all directors, executives and senior leaders in Australia.

To date, there have been three charges laid for industrial manslaughter across Australia. This includes 2 in Brisbane and 1 in Victoria, with many jurisdictions having introduced the laws fairly recently, there is no better time to examine some common themes and learnings.

In all 3 cases to date:

• There were a lack of safety systems in place at the workplace.
• Forklifts were involved in the death of a worker.
• Business directors charged were either directly involved in or close to the work being undertaken at the time of the incident.
• Prosecution involved a small to medium-sized enterprise (SME)
• Operators of mobile plant did not have a High-Risk Work License (HRWL) - this is not yet confirmed for the most recent (Victorian case).

Prevalence of work-related deaths in Australia

Based on the key WHS statistics, Australia has had 169 fatalities to date. Since the publishing of this report, there have been a handful of publicized work-related deaths.

Safe Work Australia priority industries continue to be an issue in the context of work-related deaths, so take note if you work in one of the following industries:

• Construction
• Transport, postal & warehousing
• Manufacturing
• Agriculture, forestry & fishing

The mechanism of incident in work-related deaths in Australia suggest that organisations and SMEs need to focus on:

• Work-related driving
• Mobile plant and equipment
• Work at heights
• Dropped objects

Prosecutions and cases

Australia's first industrial manslaughter case

Brisbane Auto Recycling was fined $3 million and sentenced to 10 months imprisonment, suspended for two years, after a worker was killed by a forklift being operated by an unlicensed worker.

During an investigation of the incident, it was uncovered that:

• The business had no written safety policies or procedures within the workplace.
• The business had no traffic management plan at the worksite, across which a number of forklifts operated constantly in close proximity to workers and the public.
• Business owners simply told workers to ‘be safe and look after themselves’.
• The business did not check the licence status of forklift operators or carry out other assessments of worker’s competencies, but instead relied on what they were told by workers.
• The business did not have a WorkCover policy because the directors were not aware of the requirement to have one.

Gympie incident

In July 2019, a person tragically died after a generator fell from the tynes of a forklift and landed on him while he was carrying out work-related duties for his long-standing friend and Gympie business owner. The person was neither an employee nor contractor to the business but rather, volunteered his time. On 25 March 2022, a jury convicted the business owner of industrial manslaughter, an offence punishable by up to 20 years imprisonment in Queensland.

The jury accepted the prosecution’s argument that the person was a ‘worker’ under the Work Health and Safety Act 2011 (Qld) who died in the course of carrying out work for, notwithstanding that the person was not employed by, or otherwise engaged as a contractor to the business.

Those who have a health and safety duty should be aware that even if the elements of industrial manslaughter are not established, the lesser category 1 offence of ‘reckless conduct’ still carries a penalty of imprisonment.

During an investigation of the incident, it was uncovered that:

• There was a lack of safety systems
• The forklift that was used was inadequate for the task, another worker was observed standing on the back of the forklift as a counterweight
• The person was not licensed to operate the forklift
• The person continued to operate the forklift even after the risk of the generator becoming loose was apparent.

Victoria's first industrial manslaughter case

October 2022 saw the first person to be charged with workplace manslaughter in Victoria, Australia.

The director of a stonemason business was allegedly operating a loaded forklift on a sloping driveway when it tipped and landed on a 25-year-old subcontractor, fatally crushing him.

Workplace manslaughter was made a criminal offence under changes to Victoria's Occupational Health and Safety Act in July 2020, with a maximum penalty of 25 years in jail. Given how recent this case is, not a lot of information is available.

Other relevant prosecutions

Western Australia's first imprisonment under WA safety laws (prior to industrial manslaughter)

The director of a shed building company became the first person to be sentenced to a term of imprisonment under WA’s safety laws after being sentenced to two years and two months’ imprisonment following the 2020 death of one worker and the serious injury of another.

On the day of the incident, the two workers were installing roof sheets on a large machinery shed they were constructing on a farm for agricultural purposes without safety control measures in place. A strong wind or willy-willy lifted a sheet from the pack of roof sheets they were working near, causing them both to fall over 7 metres from the apex of the roof.

During an investigation of the incident, it was uncovered that:

• There was a lack of safety systems
• Neither workers had a High-Risk Work License (HRWL) for the work they were performing
• The director was operating a crane without the appropriate license
• The director allowed the worker who died to do construction work without holding a Construction Industry Training Certificate ('white card')

What you need to do to protect your workforce (and yourself)

Consider some of the information above and take steps to systematically address any areas you are concerned about or are unsure of. A regular gap analysis or external audit exercise can help in providing structure to strategies and action plans by identifying key areas and help the people within a business that are likely to be prosecuted in the event of a work-related death gain assurance with a 'keeping them honest' approach that verifies, validates or refutes the information being provided (although a proactive approach is required to meet due diligence obligations).

• All directors, executives and senior leaders should ensure that their business has a fit-for-purpose safety management system and seek assurance that the system is implemented effectively
• Consult with workers to identify the 'shit that could kill someone' and consider developing critical risk management programs to provide extra rigor or mandatory requirements for high-risk activities
• Ensure that strict systems and processes are in place to prevent anybody without a HRWL or appropriate training to undertake high-risk activities