The concept of industrial manslaughter in Australia is set to face its first test with the first prosecution launched under Queensland’s two-year-old industrial manslaughter laws. That the prosecution comes at the same time that Victoria is in the process of passing its own legislation only serves to highlight the process.
The Queensland case has been brought against Brisbane Auto Recycling Pty Ltd. And separate charges have been made against the two company directors for engaging in ‘reckless conduct’ resulting in a workplace fatality.
That fatality occurred on 17th May 2019 at a wrecking yard in Rocklea, when a reversing forklift struck an employee.
The charge of industrial manslaughter includes allegations that Brisbane Auto Recycling caused the death of their worker by failing to effectively separate pedestrians from mobile plant, and failed to effectively supervise workers, including the operators of mobile plant. The charges against the directors relate to their failure as directors to ensure that the business had those systems in place.
According to Queensland Minister for Industrial Relations, Grace Grace: “Individuals guilty of industrial manslaughter will face up to 20 years imprisonment, with corporate offenders liable for fines of up to $10 million.”
The financial penalties proposed in the Victorian legislation are even higher, with a maximum fine of $16 million in addition to the 20-year sentence.
The most significant difference between the Victorian legislation and that already in force in Queensland is in the scope of the offence. The proposed laws will also cover deaths caused by mental injuries, including trauma from bullying or other forms of abuse that was sustained on the job.
However, Victorian Attorney-General Jill Hennessy has reassured industry groups that the burden of proof for employers to be charged under the new laws will be high, saying that: "The standard is very high because the penalty is very high."
And therein lies the problem for other states (notably NSW) in introducing industrial manslaughter legislation. While existing legislation carries lower sentences, the prospect of punishment for accidents caused by poor WH&S practices is well established.
This led NSW Better Regulation Minister Kevin Anderson to comment: "We've been watching the approach that has been taken in other jurisdictions, and to be frank, it's one thing implementing laws that sound tough, but if you can't bring a successful prosecution then it's little more than a catchy title on a page."
While opinion is divided, among the major political parties, it is only the Greens that are committed to “the introduction of strong, nationally consistent industrial manslaughter laws”.
Not surprisingly, Trades Unions around the country continue to campaign for uniform industrial manslaughter legislation, while employers’ bodies in the main continue to resist.
Now, all eyes will be on the Queensland courts pending the case against Brisbane Auto Recycling.