In October, the Work Health and Safety Prosecutor commenced its first prosecution against Brisbane Auto Recycling Pty Ltd for industrial manslaughter under the Work Health and Safety Act 2011 (Qld) (Act).
Queensland enacted its industrial manslaughter provisions just over two years ago. This prosecution is the first of its kind in Australia under State safety legislation, despite the ACT having legislated for industrial manslaughter since 2004. The industrial manslaughter legislation is designed to punish companies and senior management whose conduct grossly falls below the standard required and which warrants criminal punishment.
The prosecution arises from a workplace fatality that occurred in May this year when a worker was killed after being struck by a reversing forklift at a wrecking yard in Rocklea.
If found guilty, the company could be fined up to $10 million for negligently causing the worker's death.
The company's directors Asadullah Hussaini and Mohammad Ali Jan Karimi have also been charged with reckless conduct and could be fined up to $600,000 each or jailed for up to five years if convicted.
In a statement issued by the Minister for Education and Minister for Industrial Relations, the Honourable Grace Grace it was reported that '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 Hussaini and Karimi are said to relate to their failure as directors to ensure that the business had those systems in place.
We understand the charges were mentioned in the Holland Park Magistrates’ Court on Friday, 1 November 2019. Further information will be published when available.
Since the complaints were laid, both Victoria and Northern Territory have passed amending legislation to introduce similar offences into their respective workplace health and safety Acts. The Northern Territory amendments follow a 'best practice review' of the Work Health and Safety (National Uniform Legislation) Act 2011 conducted by Tim Lyons, the independent reviewer also appointed for the Queensland Best Practice Review in 2016. The new offence goes much further than their inter-state counterparts, applying to a 'person' who has a health and safety duty (rather than a PCBU or senior officer). The offence is committed where a person intentionally engages in conduct that is in breach of their health and safety duty which causes the death of an individual (to whom the duty is owed), and the person is reckless or negligent about the conduct and causing the death. The amendments passed on 27 November 2019. The offence will commence on a date to be fixed.