First conviction for industrial manslaughter in Queensland

There have been limited industrial manslaughter charges since its introduction in various jurisdictions. Queensland was the first jurisdiction to introduce industrial manslaughter laws in October 2017, with it being introduced in the Northern Territory and Victoria in 2020. The other states are yet to introduce the law. In South Australia proposed industrial manslaughter law has just been re-introduced to Parliament by the Greens. This is commented on in the article below.

The first conviction for industrial manslaughter occurred in Queensland in March 2022, with Mr Owen being found guilty. This case is important as it provides guidance to regulators across Australia in relation to the operation of the industrial manslaughter laws following workplace fatalities.

Background

The Queensland Work Health and Safety Act 2011 (Qld) (WHS Act), provides for charges to be brought against individuals in a number of ways as a PCBU or senior officer. This charge arose from a small business, and the individual was charged as well as the business.

Mr Owen was charged with one offence under section 34C of the WHS Act alleging that in July 2019 he negligently caused the death of a worker, Mr Noël Ormes.

Mr Ormes sustained fatal injuries when he was crushed by a generator after it fell from a forklift operated by Mr Owen.

The prosecution’s argument was 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 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.

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’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 as he will serve 18 months’ jail time.

Application in South Australia

As commented on in the article above, industrial manslaughter is not a feature of South Australian law at this point in time.

However, there are some key principles that can be taken from this case:

• The concept of ​‘worker’ under any 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.