Industrial manslaughter occurs when a worker dies at work due to negligence by a business or its senior officer. It is a criminal offence. In this article, we explore the offence of industrial manslaughter in Queensland.

Queensland legislation for the offence of industrial manslaughter

In 2017, industrial manslaughter was included as an offence in Queensland under the Work Health and Safety Act 2011.

The Mineral and Energy Resources and Other Legislation Amendment Act 2020 was then passed in Queensland Parliament in May 2020, introducing industrial manslaughter as an offence into all resources laws, including mining, quarrying, oil and gas and explosives acts.

Relevant industrial manslaughter legislation for the resources sector

• Sections 48L-48O of the Electrical Safety Act 2002.
• Sections 48A-48D of the Coal Mining Safety and Health Act 1999.
• Sections 45A-45D of the Mining and Quarrying Safety and Health Act 1999.
• Sections 799I-799L of the Petroleum and Gas (Production and Safety) Act 2004.
• Sections 54A-54D of the Explosives Act 1999.
• Sections 25A-25D of the Safety in Recreational Water Activities Act 2011.

The maximum penalty for an individual convicted of industrial manslaughter is 20 years’ imprisonment. A company may be fined over $14 million.

Industrial manslaughter under the Work Health and Safety Act 2011 (Qld)

The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) introduced industrial manslaughter as a separate offence into the Work Health and Safety Act 2011 (Qld) (‘WHS Act’).

There are four categories of offences in the WHS Act; category 1, 2 and 3 offences and the offence of industrial manslaughter. Part 2A of the WHS Act establishes two criminal offences of industrial manslaughter (which sit outside the scale of category 1, 2 and 3 offences):

• Section 34C establishes the offence of industrial manslaughter by a person conducting a business or undertaking (‘PCBU’); and
• Section 34D establishes the offence of industrial manslaughter by the Senior Officer of a PCBU.

Who are PCBUs and Senior Officers?

Under section 5 of the WHS Act, a PCBU includes:

• sole traders;
• partnerships;
• companies;
• unincorporated associations; and
• government departments.

The term ‘Senior Officer’, whilst not well defined within the legislation, means a person who is concerned with or takes part in the corporation’s management. The term is intended to capture individuals of the highest levels within an organisation.

The Queensland Government has indicated that a ‘Senior Officer’ may include the following:

• A director or secretary of a corporation.
• Chief Executive Officers.
• Chief Financial Officers or Chief Operations Officer.
• General Counsel.
• General Managers.
• Officeholders in an unincorporated association (e.g., club president).

Elements to the offence of industrial manslaughter

A PCBU or Senior Officer will be criminally liable when:

• a worker dies in the course of carrying out work for the business or is injured in the course of carrying out work at the business and later dies; and
• the PCBU’s or Senior Officer’s conduct causes the death of the worker; and
• the PCBU’s or Senior Officer’s conduct is negligent, and that negligent conduct causes the death of the worker.

Notably, the following considerations are important when considering these elements:

• The reference to a worker carrying out work for a business or undertaking referred to in element (a) includes where the worker is on a meal break.
• A person need not die immediately. This is particularly important where workers die many years after the causal event or events (for example, silicosis).
• Conduct will be held to cause death if it substantially contributes to the death. Such conduct includes both acts (inaction or action) and omissions.

Proving industrial manslaughter

To be guilty of industrial manslaughter, it is necessary for the prosecution to prove that the PCBU or Senior Officer charged with the offence was ‘negligent’ in their conduct.

The existing standard of proof in Queensland for criminal negligence applies.

To establish liability, it must be established beyond reasonable doubt that the conduct so far departed from the standard of care incumbent upon the PCBU or Senior Officer to use reasonable care to avoid a danger to life, health, and safety, as to amount to conduct deserving of punishment.

Can volunteers be charged with industrial manslaughter?

Those who volunteer as a Senior Officer can not be prosecuted for industrial manslaughter. This immunity is consistent with the current immunity for volunteer officers under the WHS Act and is also included in both the Electrical Safety Act 2002 and Safety in Recreational Water Activities Act 2011.

Significant decisions for charges of industrial manslaughter

R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113

The first prosecution of industrial manslaughter in Queensland was in the case of R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113.

In 2019, Mr Willis was struck and crushed by a forklift at a Brisbane auto-wrecking business. The forklift was being driven in reverse by an unlicensed and inexperienced worker. Mr Willis died in hospital 8 days later.

An investigation into the incident found the company had no written safety policies or procedures and told workers to “be safe and look after themselves”. The company was convicted of industrial manslaughter and fined $3 million.

Its directors, Hussaini and Karimi, were also found liable, and each was convicted of reckless conduct – category 1 under the WHS Act. Both were sentenced to 10-month prison terms suspended for 20 months.

R v Jeffrey Owen [2022] QDCSR 168

On 25 March 2022, Jeffrey Owen was the first person to be found guilty of industrial manslaughter after a trial.

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 Ormes. As the owner of Owen’s Electric Motor Rewinds, where the accident occurred, Mr Owen was a PCBU under the WHS Act.

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

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.

The defence argued that because Mr Ormes was not employed or contracted by Mr Owen, he was not a ‘worker carrying out work'. This was despite the activities being carried out at Mr Owen's business premises. Rather, the defence argued that 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.

The jury in Mr Owen's trial delivered its guilty verdict after four days of evidence. Mr Owen was sentenced to five years' jail, to be suspended after serving 18 months.

Defences to industrial manslaughter

To date, no one has successfully contested an industrial manslaughter charge in Queensland.

Should you wish to contest an industrial manslaughter charge, the defences contained in Chapter 5 of the Criminal Code Act 1899 (QLD) can be invoked. Such defences include:

1. Ignorance of the law (section 22).
2. Mistake of fact (section 24).
3. Extraordinary emergencies (section 25).
4. Insanity (section 27).

Notably, the offence of industrial manslaughter specifically excludes the operation of defences under section 23 of the Criminal Code (Qld). For that reason, there is no defence of ‘unwilled act’ or ‘accident’ to a charge of industrial manslaughter.

To date, there has been no successful prosecution of a Senior Officer for industrial manslaughter, however, the cases referenced in this article serve as a reminder to employers and Senior Officers about the importance of having in place written safety policies or procedures in the workplace.

Get help from a criminal lawyer

If you’re being investigated as a result of a workplace death or you’ve been charged with industrial manslaughter, it’s critical you seek advice from a lawyer experienced in criminal law as soon as possible. Early gathering of evidence and preparation of your case is crucial in maximizing the success of any defence.

Contacting Gilshenan & Luton

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