Industrial manslaughter laws gain traction and a ban on insurance for penalties – WHS update for QLD and NSW
- First industrial manslaughter conviction in Queensland
- New industrial manslaughter laws for resources sector in Queensland
- NSW bans insurance for workplace health and safety penalties
Queensland’s first industrial manslaughter conviction
The first conviction under Queensland’s industrial manslaughter laws introduced in October 2017 was handed down last week in the case of R v Brisbane Auto Recycling Pty Ltd & Ors1. The company and its two directors were prosecuted and pleaded guilty to charges under the Work Health and Safety Act 2011 (Qld) (“WHS Act”) in relation to the death of employee Barry Willis.
The company was fined $3 million. The directors, Asadullah Hussaini and Mohammad Ali Jan Karimi, were each sentenced to 10 months imprisonment (wholly suspended for 20 months).
Mr Willis was struck by a reversing forklift while working at the auto wrecking business in Rocklea and died as a result of his injuries. During the workplace health and safety investigation, Mr Hussaini and Mr Karimi told authorities that Mr Willis had sustained his injuries after falling from his truck. It was only after Mr Willis’ daughter viewed CCTV footage of the incident and reported her findings to police that Mr Hussaini and Mr Karimi admitted the true circumstances of the incident.
The company pleaded guilty to the offence of industrial manslaughter under section 34C of the WHS Act. Mr Hussaini and Mr Karimi pleaded guilty to reckless conduct causing death under section 31 of the WHS Act. The operator of the forklift, Mohammed Yaqubi, was separately charged with dangerous operation of a motor vehicle causing death.
Mr Hussaini admitted that there were no safety systems in place on site and that they had not verified that Mr Yaqubi was appropriately licenced to operate a forklift (which he was not). Both Mr Hussaini and Mr Karimi knew of the danger this posed to workers but consciously disregarded this risk.
The court found that Brisbane Auto Recycling caused the death of Mr Willis because it failed to control the interaction of mobile plant and workers at the workplace, failed to effectively separate pedestrian workers and mobile plant, and failed to effectively supervise operators of moving plant and workers. Further, Mr Hussaini and Mr Karimi were reckless as to the risk to workers and members of the public who had access to the workplace.
New industrial manslaughter offences for mining and resources industry
The mining and resources industry is now subject to industrial manslaughter offences with the enactment of the Mineral and Energy Resources and Other Legislation Amendment Act 2020 (Qld) last month.
These laws mirror provisions already contained in the WHS Act but specifically apply to employers and senior officers in the mining industry and resources sector. Liability will extend to corporations and individuals for industrial manslaughter if a worker dies as a result of the employer’s negligent conduct.
The standard of criminal negligence applies to the industrial manslaughter offences, requiring a large or serious departure from reasonable standards of conduct. These changes are consistent with industrial manslaughter offences in the WHS Act.
If convicted under these new laws, individuals who are employers and senior officers could face up to 20 years’ imprisonment and corporations could be subject to a fine of up to $13 million.
The new industrial manslaughter provisions are being inserted into the:
- Coal Mining Safety and Health Act 1999
- Mining and Quarrying Safety and Health Act 1999
- Explosives Act 1999
- Petroleum and Gas (Production and Safety) Act 2004
New laws in NSW ban insurance for workplace health and safety penalties
On 10 June 2020, the Work Health and Safety Amendment (Review) Bill 2020 was passed to amend the WHS Act in NSW. The most notable change being that it is now against the law to either provide or benefit from an insurance policy which contains cover for penalties for workplace incidents.
The prohibition applies to workplace incidents occurring from 10 June 2020 onwards.
The amendment only prohibits policies or indemnity arrangements for payment of a penalty. Cover for payment of legal costs associated with a potential breach of the WHS Act are not illegal. Further, there is no specific reference to insurance contracts or arrangements to cover the costs of enforceable undertakings.
While the NSW Government did not include an offence for industrial manslaughter, an explanatory note was added to the legislation, stating that the death of any person at work may constitute manslaughter and be punishable by imprisonment for 25 years.
The amendment also introduced a penalty unit system into the WHS Act in NSW which increases the maximum penalties for Category 1, 2, and 3 offences under the Act. Category 1 offences have been expanded to include “gross negligence” in addition to reckless conduct.
  QDC 113.