In an Australian first, Queensland wrecking yard Brisbane Auto Recycling Pty Ltd has been convicted of industrial manslaughter and fined $3 million after the death of a worker following an on-site accident last year.

Barry Willis, 58, was crushed by a forklift as he loaded tyres at the Rocklea site in May 2019. He died from his injuries eight days later.

Mr Willis’s death occurred in a workplace that featured a system of verbal safety instructions to workers. The forklift operator was unlicensed and unskilled, and according the Brisbane Auto Recycling’s own system of work, should not have been operating the forklift.

The operator was subsequently charged with dangerous operation of a motor vehicle causing death, while Brisbane Auto Recycling was charged with having negligently caused the death of a worker.

Specifically, Brisbane Auto Recycling was accused of failing to effectively separate pedestrians from the mobile plant and to effectively supervise workers, including the operators of the mobile plant.

Industrial manslaughter occurs in the event of a worker’s death by negligence on the part of a business or person. To secure ordinary manslaughter charges against corporate defendants has proven difficult in the past, which led to the introduction of the industrial manslaughter offence.

“These laws are about saving lives and ensuring all Queenslanders return home to their loved ones after a day’s work,” said Industrial Relations Minister Grace Grace in 2019.

“They are the first of their kind to be introduced by a state jurisdiction and leave negligent employers culpable in workplace deaths with nowhere to hide.”

The two directors of Brisbane Auto Recycling pleaded guilty to engaging in reckless conduct.

The pair were convicted of Category 1 offences under Work Health and Safety Act 2011 and sentenced to 10 months imprisonment, wholly suspended for 20 months.

“A lesser penalty would not adequately punish Brisbane Auto Recycling Pty Ltd or adequately deter others,” Judge Anthony Rafter said.

A Category 1 offence applies if the defendant engages in conduct that exposes an individual to the risk of death or serious injury or illness without reasonable excuse. The offence carries maximum penalties of five years imprisonment or a $300,000 fine for first-time offenders.

The WHS prosecutor argued that Brisbane Auto Recycling failed to put in place appropriate traffic management systems to ensure the safety of customers and workers.

It was this failure that escalated the seriousness of the offence.

Many Australian businesses do not have a traffic management plan in place.

“This case is an important reminder of the significance that most regulators attach to those who govern business,” says Iain Rennie, managing director of Australian Business Lawyers & Advisors (ABLA) corporate and commercial practice.

Taking a directorship or other senior office exposes the individual to many responsibilities for the actions of their company or business, he warns.

“Unfortunately, many boards do not appreciate the width of their exposure to personal liability, nor that they may be held individually responsible for breaches of serious criminal offences arising from the conduct of their business.”

The Brisbane Auto Recycling case should make directors and managers sit up and take notice of how health and safety must be made top priority in any workplace.

“We highly recommend directors implement the following,” says ABLA director Alan Girle.

“Conduct safety audits to identify risks, brief the board on industrial manslaughter and its implications, conduct a formal review updating documentation and communication, and update policies, procedures and training based on your findings.”

In the case of Brisbane Auto Recycling, failure to implement a simple traffic management plan resulted in the closure of the business and jail time for its directors.

“It is not just about the accounts and the corporations act,” Rennie says.

“Good governance requires vigilance, ongoing training and good operating systems that are constantly open for improvement.”

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