Industrial manslaughter in the Queensland coal industry

While the Work Health & Safety Act 2011 (Qld) (WHS Act) was amended in 2017 to provide for the offence of industrial manslaughter, it was only in 2020 that the industrial manslaughter offence was extended to cover the resources sector including coal. The industrial manslaughter provisions commenced on 1 July 2020 with amendments made to a number of Mineral and Energy Resources legislative instruments including the Coal Mining Safety & Health Act 1999.

The new Part 3A in the Coal Mining Safety & Health Act 1999 provides for two offences of industrial manslaughter. The first offence applies to an employer and the second offence to a senior officer of an employer. The elements of the offences are as follows:

An employer/senior officer of an employer of a coal mine commits an offence of industrial manslaughter if:

• a coal mine worker dies or is injured and later dies in the course of carrying out work in a coal mine; and
• the employer’s/senior officer’s conduct causes the death of the worker; and
• the employer’s/senior officer’s conduct which causes the worker’s death is negligent.

The maximum penalty for an employer is 20 years’ imprisonment or 100,000 penalty units (approximately 13 million) and the maximum penalty for a senior officer is 20 years imprisonment.

Employer is defined as a person who employs or otherwise engages a coal mine worker. If the employer is a corporation, a senior officer of an employer is defined as the executive officer of the corporation or otherwise a person holding an executive position (however described) who makes, or takes part in making, decisions effecting all, or a substantial part, of the employer’s functions. Conduct causing death is defined for the purposes of Part 3A as conduct which substantially contributes to the death.

As negligence is a key element, it is important to understand the elements of negligence. Generally, negligence will be found where a duty of care is owed to a person, and there is a failure to appropriately discharge that duty of care. The failure may be as a result of a positive action causing harm, or by an omission to act. The failure must cause the relevant harm, which in the case of industrial manslaughter is the death of the worker. The chain of causation between the failure and the harm may be direct or indirect, although causation may be broken by an unrelated intervening event.

In 2020 there was the first industrial manslaughter prosecution in Queensland under the WHS Act, which resulted in the company pleading guilty to the industrial manslaughter charge and being fined $3 million and two directors pleading guilty to reckless conduct charges and receiving 20 months suspended imprisonment terms. The worker died after being struck by a forklift. The lesser charge against the directors was because it was not alleged the directors themselves had caused the death of the employee. As can be seen by the penalty it is still however a serious offence with the potential for imprisonment and this case was one of the first prosecutions against individuals for reckless conduct. The facts of the case included that the company had “no safety systems in place”, the forklift driver was not properly licenced, there had been no proper risk assessment of his competency to operate a forklift, there were no marked exclusion zones and the work was not adequately supervised.

A second industrial manslaughter prosecution has been initiated in Queensland under the WHS Act, and in this case is the first one where an individual has been charged with industrial manslaughter. The prosecution arose from an employee being killed after being crushed by a portable generator that was being unloaded by a forklift which flipped, according to the prosecution, because the individual charged with the industrial manslaughter overloaded the forklift. The prosecution is expected to go to trial in 2021.

The public policy rationale behind the introduction of the industrial manslaughter offence is to focus employers’ and senior officers’ attention on measures to eliminate a risk to health and safety at work, so far as is reasonably practicable. However, as can be seen from the first industrial manslaughter prosecution described above, even where the offence of industrial manslaughter cannot be made out, there were already significant serious charges that can be brought against a senior officer with the offence of reckless conduct and the positive due diligence obligation on senior officers.

The issues which must be continually reviewed include:

• Ensuring that risk assessments are conducted on the Company’s operations to understand what risks may exist that have a reasonably foreseeable consequence of serious injury or death. This will require sufficiently skilled and experienced health and safety professionals who can review the Company’s assets and operations to make an assessment of likely risks.  These experts also need to have a detailed knowledge of how the identified risks are addressed in other operations, both in Australia and overseas. The Company will need to assess whether it undertakes these reviews internally or through an expert third party. As you would expect, if the Company has its own personnel conduct the review it needs to be able to substantiate why, in its view, those internal resources had the relevant expertise to be able to conduct the review. It is less likely an internal resource will be able to be used where the review involves a very specific process or piece of equipment where the Company would acknowledge a specialist third party is in a better position to conduct the review.
• Where the Company is relying on a contractor to provide a safe workplace for the workers and others, the Company must have a sound and documented basis for its confidence in the competence of the contractor. This means having a pre-engagement process that identifies suitable contractors (including an assessment of their WHS systems and processes and how these were “tested”), a process when a contractor not on the pre-approved list needs to be engaged and an audit process for all contractors. Whether the audit involves ensuring that an Australian Standard has been met or a particular process, procedure or training was undertaken, it is likely this can be done by an internal Company resource. However, where the audit involves an audit of the quality of a specialised activity in which the Company’s internal safety advisors may not be qualified or experienced, an external resource should be used.
• Identifying all steps that can be taken to eliminate or substantially reducing those risks. Where the risks are in respect of a potential serious injury or death, and the Company is aware of an action that may eliminate or substantially reduce the risks, but for cost reasons it does not proceed with that action, it should expect that, in the result of any serious injury or death, the Company will need to explain why it took what will be portrayed as a cost saving measure as a trade-off for safety. Further, having not taken the identified action, the Company will need to demonstrate what other steps it did take and why, in its view, these alternative steps provided sufficient mitigation of the risk.
• Dealing with complacency and shortcuts – the human factor and, in particular, how an employer creates what regulators call a “culture of safety compliance”.
• Ensuring safety systems are being implemented. In other words, what are the means by which corporations and senior officers can be satisfied the safety measures in place are being adhered to. For example, are risk assessments which are regularly undertaken being conducted thoroughly or have they become “tick the box” exercises?
• Reviewing whether the training and supervision adequate for the identified risks. How confident is the Company that, for example, online unsupervised training results in the worker fully understanding the risk and the measures implemented to eliminate or mitigate the risk and the role they play in this?
• Reviewing how the company is assessing its risk of psychological or psychosocial risks and the measures it has in place.