Businesses should now be aware of Western Australia’s new Work, Health, and Safety (WHS) legislation and the implications concerning workplace deaths and industrial manslaughter. If a business owner, director or manager is found to have engaged in conduct that results in the death of a worker or is found to have failed their duty of care and engaged in conduct knowing it is likely to cause death they can be charged with industrial manslaughter. Business owners (Person Conducting Business or Undertaking) and senior managers (Officers) can go to jail for 20 years and be fined up to $5,000 000 if their conduct in failing to comply with their WHS duty of care causes death.
A recent Queensland case has highlighted the responsibility of business owners to create and maintain a safe work environment. Industrial manslaughter legislation and penalties in Queensland are similar to that in WA. Mr Owen the owner of Owen’s Electric Motor Rewinds, was sentenced to 5 years imprisonment, to be suspended after 18 months, for the death of a volunteer who died while undertaking work-related duties.
This case followed an incident that occurred at Mr Owen’s business in Gympie. A worker and friend, Mr Ormes was tragically killed by a generator that fell from the tines of a forklift and landed on him while he was performing unpaid work duties for Mr Owen at the business in July 2019. Mr Owen was using a forklift to remove a generator from the back of a truck, Mr Ormes was assisting him when the generator fell and fatally crushed him.
In sentencing Judge Cash QC regarded the following factors that attributed to the gross negligence of Mr Owens:
- There was no safety plan,
- The forklift used was not suitable for the task,
- Mr Owen was not licensed to operate the forklift, and
- Mr Owen continued to operate the forklift even after the risk of the generator becoming loose was apparent.
This demonstrates how with no safety system, engaging in poor safety behaviours, lack of appropriate equipment or licensing and continuing to engage in conduct that could likely cause death, Mr Owens was found guilty and sentenced to 5 years imprisonment for industrial manslaughter.
Implications for businesses:
This case highlights how important it is for business owners and senior managers to ensure they have and follow work, health and safety systems to meet their WHS duty of care. Business owners must understand their ability to be held liable for incidents and injuries that may occur in their business, and take steps to mitigate the risk. The new definition of ‘worker’ is particularly important in this case, as Mr Ormes was a ‘worker’ under the Work Health and Safety Act 2011 (Qld) as a volunteer, even though he was not an employee or contractor. This would be regarded the same way under WA’s Work Health and Safety Act (2020).
To avoid similar prosecution business owners must ensure reasonably practicable steps are taken to ensure the safety of workers. In this case, this would include, having policies for the safe operation of forklifts and unloading heavy items, ensuring forklifts operators are licensed or seeking alternative safe methods for the unloading of heavy items.
This decision follows two previous industrial manslaughter prosecutions in Australia each with increasing imprisonment periods, Brisbane Auto Recycling in 2020 and MT Sheds in 2021. These three recent cases indicate the current trend in imprisonment for WHS incidents.
If you are concerned about your WHS duty of care or the implications of the Work, Health and Safety Act (2020) please contact the WHS Team at ProcessWorx on (08) 9316 9896 or email enquiries@processworx.com.au. If you do not have a ProcessWorx WHS Package or any other WHS management system, please contact us to see how we can help you or see our WHS Packages here.
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