WORKPLACE FATALITIES - THE EMPLOYER'S ROLE IN REDUCING INCIDENTS
According to Safe Work Australia, as at 2 July 2020, of the 91 Australians killed at work so far this year, 28 died in transport, postal and warehousing workplaces. There were 35 such deaths in 2019. No other industry, not even mining or construction, had as many fatalities as the transport, postal and warehousing industry. Whilst that is reflective of the heavy machinery and goods carried, it is a record of concern.
To focus industry on trying to better protect workers from injury and fatal accidents, State Governments have introduced steeper penalties, including in many jurisdictions the criminal offence of industrial manslaughter. The first prosecution under the recently introduced industrial manslaughter legislation occurred in Queensland and the judgment was handed down on 11 June 2020.
Prior to this, the High Court in April 2020 found that an employee can be compelled to provide incriminating evidence against its employer, tightening the responsibilities which apply around offending employers. This article examines the criminal penalties and framework which applies to employers across Australian states.
Industrial Manslaughter in Australia
Victoria’s industrial manslaughter laws came into force recently on 1 July 2020. To be found guilty of industrial manslaughter, the person charged must be a body corporate or a person who is not an employee or volunteer, they must have owed the victim a specified duty under the Occupational Health and Safety Act 2004 (Vic), they breached the duty negligently and caused the death of the victim. This means that persons such as directors, or officers may be found liable.
If convicted, individual persons such as directors or officers face a maximum 20 years imprisonment and corporate persons face a maximum fine of $16.52 million. This potentially crippling fine reflects the severity of the offence, and the level of scrutiny the regulator can place on the employer in relation to a workplace death.
While Victoria’s industrial manslaughter offence is new, the offence is not novel – the Australian Capital Territory has had industrial manslaughter laws since 2004, and the maximum penalty for individuals is $320,000 and 20 years imprisonment, and $1.62 million for corporations. In Queensland, industrial manslaughter laws were introduced in 2017 and carry a maximum penalty of 20 years imprisonment for individuals and $13.345 million for corporations. The Northern Territory’s equivalent law came into force earlier this year, with maximum life imprisonment for individuals or $10.2 million for a corporation. Western Australia has proposed two categories of industrial manslaughter, the lower of which only requires proof that the person engaged in conduct knowing that the conduct was likely to cause death. The proposed maximum penalty is 20 years imprisonment and $5 million fine for individuals, and $10 million for corporations. South Australia has proposed a similar bill, with maximum 20 years imprisonment but maximum fines are $1 million, considerably lower than the other States.
Tasmania, New South Wales and the Commonwealth have yet to implement industrial manslaughter offences. However this does not preclude an employer from being prosecuted for a failure to comply with its primary duty of care to ensure the health and safety of its workers.
Australia’s First Industrial Manslaughter Case
To illustrate the gravity of this offence, the District Court of Queensland on 11 June 2020 handed down Australia’s first ever sentence for industrial manslaughter in the case of The Queen v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113. The charges resulted from a workplace incident involving Mr Barry James Willis on 17 May 2019. Mr Willis was standing near the tilt tray of his truck when he was struck by a reversing forklift driven by another employee. He was crushed and subsequently died from his injuries.
The Court fined the employer company $3 million, and convicted its directors, Asadullah Hussaini and Mohammad Ali Jan Karimi, to 10 months imprisonment which was wholly suspended for 20 months. The Judge found that there were no written safety policies or procedures within the workplace, that there was no system in place to ensure that forklift operators were licensed (an unlicensed, inexperienced forklift driver had caused the incident), and no traffic management plan at the worksite. The Court found that forklifts operated in close proximity to the workers and the public, and the directors knew of the risk to the safety of their workers but recklessly failed to exercise due diligence to ensure that the company met its work health and safety obligations. While the directors in Brisbane Auto Recycling avoided jail time with a suspended sentence, the company became insolvent as a result of the fine levied. Employers, directors and officers need to be on notice of not only the substantial fines, but the potentially significant personal ramifications a criminal conviction will bring. The directors in Brisbane Auto Recycling were permanent residents of Australia aged 23 and 25 and faced deportation had they been awarded a sentence exceeding 12 months.
Compelling evidence from employees
The High Court's recent decision in Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 has important implications for corporations when workplace incidents are investigated and subsequently prosecuted. The facts are as follows. Helicopter Resources Pty Ltd (HeliRes) was engaged by the Commonwealth in 2012 to provide helicopter services to the Commonwealth’s Australian Antarctic Division (AAD). Services involved the transport of personnel and cargo in the Australia Antarctic Territory. On 11 January 2016, Captain David Wood, an employee pilot of HeliRes, was transporting aviation fuel to the West Ice Shelf when he fell into a hidden crevasse. He was rescued but died the following day from hypothermia.
Procedural history of HeliRes
On 19 September 2017, a coronial inquest was commenced into Captain Wood’s death.
On 20 December 2017, both HeliRes and the AAD were each charged in the Magistrates Court of the Australian Capital Territory with three criminal offences for breaches of the Work Health and Safety Act 2011 (Cth) (WHS Act) (WHS Proceedings). The charges involve allegations of failing to comply with the primary duty to ensure the health and safety of workers, where the failures exposed workers to the risk of death or serious injury.
On 21 December 2017, the inquest was adjourned to 1 May 2018 in light of the WHS Proceedings. However, on 31 January 2018, the Commonwealth notified the Chief Coroner that it requested Captain David Lomas, the Chief Pilot of HeliRes to be available for cross-examination at the inquest. As the Chief Pilot, Captain Lomas was in charge of flight crew training and operational matters. The Commonwealth intended to cross examine Captain Lomas on a number of topics including content and implementation of HeliRes’ policies and procedures, and training, support and resources provided to pilots in relation to crevasse risk identification and management. On 23 March 2018, HeliRes sought to adjourn the inquest until the WHS proceedings had been concluded.
On 12 April 2018, the Chief Coroner refused HeliRes’ adjournment application and issued a subpoena for Captain Lomas to give evidence at the inquest.
On 24 April 2018, HeliRes commenced proceedings in the Federal Court of Australia seeking judicial review of the Chief Coroner’s decision to subpoena Captain Lomas. It argued that Captain Lomas was its guiding mind and his answers would reveal matters central to its defence in the WHS Proceedings. It also argued that this would unduly interfere with the accusatorial nature of the criminal process by giving the Commonwealth the forensic advantage, as well as providing the prosecutor with admissions that could be attributable to HeliRes pursuant to section 87(1)(b) of the Evidence Act 2011 (ACT) (the wording is similar in other states and the Commonwealth statutes).
At first instance the Federal Court dismissed HeliRes’ application on 29 June 2018 on the basis that Captain Lomas, and not HeliRes, was being compelled to give evidence and he was no different from any other witness.
HeliRes appealed. On 15 February 2019 the Full Federal Court allowed the appeal and stayed the subpoena on the basis that by compelling Captain Lomas to give evidence, HeliRes was effectively being compelled to give evidence against itself.
HeliRes: the High Court decision
The Commonwealth appealed to the High Court. The High Court heard the matter on a narrow issue of the operation of section 87(1)(b) of the Evidence Act. Simply put, had Captain Lomas provided evidence and if the evidence pointed to a defective WHS system, the WHS prosecution could use this evidence as an admission against HeliRes. This would then have a negative effect against HeliRes’ defence of the WHS Proceedings.
HeliRes: the WHS Proceedings
The Magistrates Court found the Commonwealth guilty of two criminal charges, because it knew of the crevasse hazards and failed to implement reasonably practicable measures such as site assessments to ensure the health and safety of the pilots. HeliRes was cleared of all three criminal charges because the Court found that it was reasonably practicable for HeliRes to have determined that the Commonwealth was required to carry out the suite of measures, and that it was reasonable for HeliRes to have relied upon the expertise of the AAD.
The Commonwealth Director of Public Prosecutions has appealed the entire WHS Proceeding in the Supreme Court of the Australian Capital Territory against the acquittals and the Commonwealth has appealed the convictions.
In the meantime, the adjourned coronial inquest may continue soon.
Key Takeaways
Employers need to be aware that regulatory agencies have the coercive power to compel employees to provide evidence and to elicit information. This evidence may then trigger a criminal proceeding against the employer. Further, admissions made by these employees may be used against an employer, as long as the admission is within the scope of the employee’s employment. As shown by the HeliRes judgment, there is nothing the employer can do to prevent the employee from assisting the regulator with its investigations. Should a WHS incident occur, employers may wish to conduct thorough internal investigations to ascertain evidence that its employees may give, and also consider providing employees with access to legal representation and advice if employees are asked to provide evidence.
The implications of the HeliRes judgment are significant given a tightening of regulatory background where employers can be found guilty of industrial manslaughter, and the offence carries severe penalties.
Companies should ensure they have adequate safety policies and procedures, and an incident response plan in place. Directors, officers or managers need to be mindful of their WHS obligations and should actively create a culture of compliance within the workplace. This can include regular audits of the systems of work, training for all staff about their WHS obligations, and regular reviews to ensure the systems comply with the latest regulations.
Janine Liang, Senior Associate