Various Australian jurisdictions have been slowly introducing an offence of industrial manslaughter, dealing with workplace fatalities that arise as a result of negligent conduct by a person conducting a business or undertaking (PCBU) or its officers.
At the moment, seven Australian jurisdictions have introduced this type of offence including the Commonwealth, Queensland, the ACT, Northern Territory, Western Australia, South Australia and Victoria, where the offence was introduced in 2020.
A recent decision of the Supreme Court of Victoria (The King v LH Holding Management Pty Ltd and LH [2024] VSC 90), is the first to record a conviction for industrial manslaughter under the Occupational Health and Safety Act 2004 (Vic).
In this matter, the Supreme Court was required to determine the penalties to be imposed on a stonemasonry business as well as its sole director and shareholder, who had pleaded guilty to the offence as a PCBU and as an officer.
In October 2021, a subcontractor was working with the director to move an empty A-frame rack from inside the warehouse to an outside area. The director was using a forklift to move the rack, which involved raising the rack and manoeuvring the forklift down a sloped driveway. The subcontractor, whilst attempting to assist the director, was positioned quite close to the forklift being operated. Whilst being manoeuvred, the forklift lost balance and tipped over, causing fatal injuries to the subcontractor.
The director had obtained a high-risk work licence some seven months before the accident and, in subsequent interviews about forklift safety, accepted that the manual provided during training required that a forklift operator must stop working if a person enters the work area and work must not continue until it is safe to do so.
The director also accepted that sharp slopes needed to be avoided as much as possible, and that he needed to be extra careful when dealing with irregular loads, such as the raised one that he had been dealing with at the time.
In determining the appropriate penalties, the Supreme Court noted that the principal sentencing purpose in cases of this nature was general deterrence, specifically at [95]:
Companies and their officers must understand that offences that involve negligent conduct in the workplace in breach of duties under the OHS Act, and that result in death, are serious and will attract substantial and just punishment that reflects the profound harm caused to the deceased and his or her loved ones.
However, whilst there was a need for some “curial denunciation” for such offences, it was moderated in this particular case to some extent by the director’s belief that the subcontractor had moved away from the forklift and also given the very brief nature of the negligent event. As noted by the Supreme Court, this was not a case of negligence over a sustained period of time.
The Supreme Court also considered that the needs for specific deterrence and protection of the community were also modest, given the PCBU’s and the director’s co-operation, admissions, pleas of guilty and previous good character. In addition to this, the Supreme Court noted the director’s remorse and the impact that the incident had on his mental health. The Supreme Court did not consider that the director (or the company, or any other company he might set up) would ever be involved in such an incident again. Accordingly, the Supreme Court considered rehabilitation to be an important sentencing purpose for the director, given his prospects of reform were so strong.
The Supreme Court therefore ordered the following:
This decision is the first conviction under Victoria’s workplace manslaughter laws and provides a clear indication of the potential consequences of breaching workplace safety laws – not just for PCBUs and officers, but for all workers involved.
It is critical that officers are aware of their duties under work health and safety laws and that they take proactive steps to ensure full compliance. Most states and territories have now introduced the offence of industrial manslaughter and we anticipate that it will be introduced in NSW very soon.
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