This case provides important guidance in relation to the operation of the industrial manslaughter offence. The Queensland case comes soon after the Northern Territory WHS Regulator commenced prosecutions against Kalidonis NT Pty Ltd for industrial manslaughter and its sole director for a Category 1 offence for reckless conduct. This followed the death of a worker in March 2020. Alternative charges have also been laid against the company and the director.
The jury in Mr Owen's trial delivered its guilty verdict in the Gympie District Court after four days of evidence. Mr Owen was sentenced to five years' jail, to be suspended after serving 18 months. The maximum penalty for a person found guilty of industrial manslaughter is 20 years' imprisonment.
Mr Owen was charged with one offence under section 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act), alleging that in July 2019 he negligently caused the death of a worker, Noel Ormes.
Mr Ormes sustained fatal injuries when he was crushed by a generator after it fell from a forklift operated by Mr Owen.
The jury accepted the prosecution's argument that:
- Mr Owen was a 'person conducting a business or undertaking' (PCBU) – this was the basis on which he was found to be guilty of industrial manslaughter. A 'senior officer' is yet to be convicted under the Queensland industrial manslaughter laws;
- Mr Ormes was a 'worker' under the WHS Act who died in the course of 'carrying out work' for Mr Owen;
- Mr Owen's conduct in operating the forklift caused the death of Mr Ormes; and
- Mr Owen was negligent about causing the death of Mr Ormes.
The prosecution argued that the forklift was overloaded by Mr Owen. There was evidence the generator weighed three tonnes and the forklift was rated to lift not more than 2.7 tonnes. There was also evidence Mr Owen did not hold a licence to operate the forklift.
CCTV footage of the incident showed Mr Owen used the forklift to lift the generator from a truck, the rear wheels of the forklift lost contact with the ground, the generator fell from the forklift, rolled to its side and struck Mr Ormes.
Was Mr Ormes a worker carrying out work for Mr Owen?
The defence argued that because Mr Ormes was not employed or contracted by Mr Owen, he was not a worker 'carrying out work' for a PCBU. This was despite the activities being carried out at Mr Owen's business premises. Rather, the defence argued, Mr Ormes was 'helping a friend'. In delivering its verdict, the jury rejected that argument. Under the WHS Act, a volunteer (which is defined as a person acting on a voluntary basis) is a worker if they carry out work in any capacity for a PCBU.
Mr Owen has one month to appeal against his conviction and sentence.
Practical implications for industrial manslaughter going forward
This case provides an important reminder of some key principles including:
- The WHS Act provides for offences to be brought against individuals in a number of ways. A person can be convicted of industrial manslaughter either as a PCBU (under section 34C) or a 'senior officer' of a PCBU (under section 34D). A prosecution of an individual as a PCBU will only occur where there is no separation between the individual and the business – such as where there is no corporate entity.
- The concept of 'worker' under the WHS Act is broad and captures any person carrying out work for a PCBU, including volunteers.
- It is critical that a PCBU undertake thorough risk assessments of dangerous activities and ensure a safe system of work is established.
Mr Owen's case follows the conviction of Brisbane Auto Recycling Pty Ltd (for industrial manslaughter) and its two directors (for category 1 reckless conduct offences) in June 2020. The company in that case was fined $3 million and its directors were sentenced (after guilty pleas) to 10 months' imprisonment, wholly suspended with an operational period of 20 months. While the circumstances are different, Mr Owen's sentence is significantly more serious in that he will serve 18 months' jail time.
Key features of Queensland safety regulator's approach to industrial manslaughter to date
- It is important for Executives and Boards to be aware that in the five years since the commencement of Queensland's industrial manslaughter offence, there has been no successful prosecution of a senior officer for industrial manslaughter. While the offence has increased the risk profile for organisations and their senior officers, the impact has been limited to a few exceptional cases.
- Industrial manslaughter convictions to date have involved small enterprises with limited safety management systems.
- Where individuals have been convicted, they have had personal rather than managerial involvement with the fatalities.
A summary of the status of the laws across Australia is set out below.
