BAR Industrial Manslaughter Case and Safety

Many in Australia have been keen to hear the results of the Brisbane Auto Recycling, BAR Industrial Manslaughter Case. The case is one of the first rulings under the Industrial Manslaughter laws in Queensland, and indeed Australia. Organisations are actively following these prosecutions in light of how it may affect their companies.

Under investigation was the incident that led to the death of a 54-year-old worker (Mr Willis). He was a pedestrian and struck by another worker operating a forklift (without a ticket) that was reversing. The company who was charged was Brisbane Auto Recycling which is a Queensland auto wrecking business. The prosecution for the case stated:

BAR had effectively no safety systems in place. It has no system to ensure the separation of pedestrians and forklifts, which were commonly in the same work areas, and it had no system to ensure that the workers who drove forklifts were appropriately qualified and supervised. It is principally through those failures that BAR caused the death of Mr Willis.

This article discusses the ruling of the BAR Industrial Manslaughter Case and what it means for organisations. We also look at safely operating forklifts and the Industrial Manslaughter laws that are prevalent through much of Australia.

What Are Industrial Manslaughter Laws?

Industrial manslaughter laws are present in the ACT, Queensland, Victoria, Northern Territory and soon to be in Western Australia, placing workplace fatalities into the criminal arena and subject to prosecution. Currently, industrial manslaughter laws can inflict bigger penalties and jail time on an employer or owner of a firm then health and safety legislation.

Across the states, the maximum penalties for an offence of industrial manslaughter are on average 20 years’ imprisonment and $5 million fines for an individual responsible for negligently causing death and between $10-16 million fines for a body corporate.

Up to 19 December 2019, Safe Work Australia recorded 157 workplace fatalities for the year. Thirteen more workers died at work than the previous year. The BAR Industrial Manslaughter Case provides a timely warning that workplace fatalities can lead to significant prosecutions.

See our article, How to Adhere to Industrial Manslaughter Laws.

The BAR Industrial Manslaughter Case Ruling

In the BAR Industrial Manslaughter Case, on 3 April 2020, an indictment was presented charging the defendants with the following offences.

1. Brisbane Auto Recycling Pty Ltd is charged with industrial manslaughter, the conviction has been recorded, and they were fined $3 million.
2. Company Owner Asadulla Hussaini has a recorded conviction and receives a suspended sentence for ten months imprisonment.
3. Company Owner Mohammad Ali Jan Karimi has a recorded conviction and receives a suspended sentence for ten months imprisonment.

What Does the Ruling Mean for Your Organisation?

The BAR Industrial Manslaughter Case is the first in Queensland to apply a significant jump in the level of fines for workplace fatalities. In the past, Queensland deaths from construction sites have seen just $60,000 to $80,000 fines on average. Also, the risk of going to jail for such offences is a real threat to companies.

The ruling places the spotlight on workplace health and safety. Legally, a business must comply with industrial manslaughter requirements. Below are eight steps you can take:

1. Review all the potential hazards and risks (physical and psychological) in your workplace, and manage within a risk management framework.
2. Conduct a formal review of your safety systems and controls to ensure they are effective and a correct reflection of your processes.
3. Review all your existing policies and ensure they are complete.
4. Examine your health and safety leadership and culture for possible negligent practices.
5. Ensure all company directors, senior officers, and managers understand the implications of the legislation.
6. Review your incident action plans and responses.
7. Consider your business insurance arrangements. But remember in NSW and WA insurance policies cannot pay WHS fines.
8. Train all employees in the safe practice of high-risk activities. Regularly refresh the training to ensure ongoing competence and keep detailed reports and records.

See our article, Reporting to Comply With Industrial Manslaughter.

So Many Companies Operate Forklifts

Forklifts are useful vehicles, and they have changed the way warehouses, workshops and sites operate. They are prolific and found in many workplaces across the world. But they’re also dangerous pieces of equipment when not managed safely as they

• can weigh up to 4 tonnes, which is about three times heavier than most cars
• can reach speeds of up to 30 kph
• only have brakes in the front, making them harder to stop
• can carry heavy loads, making the counterbalance of weight sometimes difficult
• usually carry large and awkward loads, causing visibility issues for the operator.

Operating a Forklift is High-Risk

Operating a forklift can lead to fatalities and injuries. For example, Work Safe Queensland has seen on average 430 accepted workers’ compensations claims for injuries involving forklifts each year since 2012. Forty per cent of these involve serious injuries with five or more days required off work. Sprains and strains from sitting, or getting in and out of the forklift are the most common injuries. The next one is being hit by a forklift or coming into contact with its load as in the BAR Industrial Manslaughter Case.

It’s not just the forklift operator who is at risk. Manoeuvring around people, shelving, intersections and cornering can all place workers on foot in the line of fire. During the same period, Work Safe Queensland was notified of 137 incidents involving workers or bystanders being struck by, run over or trapped by a forklift. Two of these resulted in a fatal injury and for 88 workers, a serious injury requiring hospitalisation. It’s worth bearing in mind that if the two fatalities occurred today, they would be subject to industrial manslaughter laws just like the BAR Industrial Manslaughter Case and the judge may not have been as lenient.

See our article, The Compliance and Complacency of Using Forklifts.

How Can Tap into Safety Help?

Tap into Safety takes training seriously. We provide engaging methods to train how to manage workplace hazards using critical control measures. We understand that relevant and engaging safety training is crucial for the transfer of knowledge into practice. The training uses gamification to improve the trainee’s experience when using our software; however, we never trivialise the training content.

Each piece of training has a purpose. We understand that workers have other pressing tasks in their day, and we train to deliver critical messages quickly and succinctly.

Available on the Platform is a training module specifically on Forklift hazards. The training uses a 360-degree panoramic scene and animated microlearning to teach safe work practices and control measures when operating and working around operating forklifts.

To protect your business, the training platform provides comprehensive reporting so that you have evidence of your employee’s learning about high-risk tasks and their understanding of the correct control measures. The reports detail the gaps in their knowledge so that you can immediately rectify any misunderstandings. They also provide a record that you have proactively and regularly trained your employees about high-risk tasks, and this helps to meet your obligations under the industrial manslaughter laws.

To Conclude

Taking industrial manslaughter laws seriously is the key takeaway from the BAR Industrial Manslaughter Case. Not only did the company receive a hefty fine for safety breaches, but the company owners also received a spent conviction. Some would say that they got off very lightly, others like the Unions are pleased that the fine is substantial.

What does this mean for your business? Two things, continue to review and address high-risk tasks, and regularly train your employees and keep detailed records. Remember, you need evidence that your employees understand risk and they must remain notably competent and compliant.

NOTE: This article is also available as a Podcast.