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Five years imprisonment for business owner: A turning point in WHS prosecution

In an historic turning point for the offence of industrial manslaughter (IM) in Australia, a Gympie business owner has been found guilty by a jury and sentenced to five years imprisonment. The sentence will be suspended after he has served 18 months.

Since my appointment as the first independent Work Health and Safety (WHS) Prosecutor a little more than three years ago, I have consistently been asked to speak around the country on the topic of IM almost to the exclusion of every other WHS prosecution topic. The interest was understandable. With the enactment of IM in Queensland in 2017, and my subsequent appointment as an independent prosecutor in 2019, never before had there been such a tangible prospect of an individual being charged and convicted of IM.

When speaking on the topic as the WHS Prosecutor, two themes were a constant. First, that satisfying the elements which needed to be established to secure a conviction for IM was far from an insurmountable task based on the factual premises of both previous WHS prosecutions in Queensland and those which were landing on my desk. That a prosecution had not even been commenced since the enactment of IM in Queensland in 2017, notwithstanding that the workplace fatality rate had not markedly shifted, was surprising. Second, that continuing to debate the utility of the IM offence was a futile exercise given the public sentiment surrounding workplace fatalities. The offence appeared here to stay, and other State and Territories would likely follow suit by enacting IM offences.

This conviction speaks to both of those themes.

The circumstances of the incident are unremarkable. The defendant, Jeffrey Owen, operated a small business which included the servicing of generators. Early on the morning of the incident, he was using a forklift at the business premises to unload a generator from the back of a flatbed truck. An unpaid worker assisted him to do so, including by moving around the generator to place dunnage underneath it.

In the course of unloading the generator, the forklift tilted forward on its front wheels. That caused the generator to fall sideways off the tines, where it struck the unpaid worker, who tragically sustained fatal injuries.

Critically, the investigation disclosed that the weight of the generator exceeded the safe lifting capacity of the forklift. It also revealed that the business had no safety systems which required planning for the lift, and that the defendant did not hold a license to operate the forklift.

In Queensland, a person commits an offence of IM if:

  1. They are conducting a business or undertaking; and
  2. a worker dies in the course of carrying out work for the business or undertaking (or is injured and later dies); and
  3. the defendant’s conduct causes the death of the worker; and
  4. the person is negligent about causing the death of the worker by the conduct.

As the verdict of the jury has confirmed, those concepts are well within the grasp of a properly instructed jury.

Here, the defendant was alleged to have operated a forklift beyond its capacity, without a license and without any material controls in place to control the obvious risks of an incident.

It bears semblance to the facts in the first IM prosecution I commenced, against Brisbane Auto Recycling
(The Queen v Brisbane Auto Recycling Pty Ltd [2020] QDC 113).

Suitable plant should have been used and an exclusion zone should have been implemented. The required controls were far from onerous and the conviction is unsurprising, with the jury rejecting the submission from the defendant that he was not liable because the worker was unpaid and not carrying out work for the business.

Unfortunately, a lack of suitable controls, and the failure of officers and others responsible for ensuring those controls are in place, remains too commonplace, as evidenced by the recent increase in workplace fatalities in Australia.

The decision confirms that, in Queensland at least, the prospect of prosecution and conviction in the event of a workplace fatality is real. Those jurisdictions which do not, or will not soon, have an IM offence are in the minority. We have seen the Northern Territory regulator follow suit by laying the Territory’s first IM charge earlier this month. Whether the verdict provides any impetus for IM prosecutions by other State or Territory regulators is yet to be seen, but the latest IM conviction will likely bear on their thinking.

The decision also serves to highlight that the time for debating whether IM has a place in the WHS prosecution landscape has passed, and the focus of businesses of all sizes, and their officers, must be squarely on the elimination or minimisation of safety risks. That is the work which needs to be done to prevent workplace tragedies such as that which occurred here.

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Aaron-Guilfoyle-Special Council

Aaron Guilfoyle

Special Counsel