The Queensland safety regulator has initiated another industrial manslaughter court proceedings, this time under the Electrical Safety Act 2002, in relation to an incident near Little Mulgrave in far north Queensland in July 2019.
The regulator is prosecuting MSF Sugar Pty Ltd for failing to ensure the safety of a worker who was fatally electrocuted when a crane contacted, or came in close proximity to, overhead powerlines. An additional charge for a category 2 offence of failing to ensure that workers were not exposed to a risk of serious injury or death has also been commenced in respect of other workers who were exposed to harm. No prosecution has been commenced against any individual director or officer of MSF Sugar Pty Ltd.
This latest prosecution is a further sign from the Queensland prosecutor that industrial manslaughter laws, which were introduced in the state in 2017, are going to be used as part of its enforcement strategy.
With a maximum sentence of 20 years’ imprisonment for an individual and a maximum fine of $10 million for a body corporate, the potential liability for a company and its officers in Queensland is significant.
As of June 2021, industrial manslaughter laws have also been implemented in Victoria, the ACT, Northern Territory and Western Australia.
Though the details of the industrial manslaughter laws differ between jurisdictions, the overall operation is substantially the same. All offences involve elements of criminal negligence whereby the employer or officer’s conduct causes the death of an employee in the course of employment. In the Victorian legislation, criminal negligence is defined as “a great falling short of the standard of care that would have been taken by a reasonable person”. In some jurisdictions, the provisions also include recklessness as an alternative to negligence.
Queensland became the first jurisdiction to record a conviction against a company for industrial manslaughter in June 2020. In the case of R v Brisbane Auto Recycling Pty Ltd & Ors (2020), the Queensland District Court imposed a significant fine of $3 million on the employer company for industrial manslaughter. The charges brought against the company’s directors were category one – reckless conduct charges and not industrial manslaughter charges. Nevertheless, the Court imposed a 10-month term of imprisonment (wholly suspended for 20 months) on each of the two directors.
The prosecution of the company and its directors under the Work Health and Safety Act 2011 (Qld) was brought following the death of a 58-year-old worker in May 2019 who was struck by a reversing forklift. As one forklift reversed to allow another forklift to pass, Mr Willis was crushed against the tray of the vehicle where he was working and later died of his injuries. Some of the relevant features of the case include that:
- there were “no safety systems in place”;
- the forklift driver was not properly licensed;
- there was inadequate supervision of work; and
- there was a general failure in the “attitude to safety at the workplace” by the directors.