For the first time since industrial manslaughter was introduced in 2017, an officer has been found guilty of industrial manslaughter and has been sentenced to five year’s jail, which will be suspended after 18 months imprisonment.

In 2019, Jeffrey Owen, the owner of Owen’s Electric Motor Rewinds used a forklift to unload a generator from a flatbed truck. The generator fell off the forklift’s tines fatally crushing Mr Owen’s friend. Interestingly, Mr Owen was charged with industrial manslaughter as a PCBU rather than a ‘senior officer’ under section 34C of the Work Health and Safety Act 2011 (QLD) (Act). It is unclear why this was the case, given Mr Owen was the owner of the business. WorkSafe QLD have yet to lay any charges against senior officers for industrial manslaughter.

To satisfy the elements of industrial manslaughter, WorkSafe QLD was required to prove:

1. Mr Owen was a person conducting a business or undertaking;
2. A worker died in the course of carrying out work for Mr Owen as a PCBU;
3. Mr Owen’s conduct caused the death of the worker; and
4. Mr Owen was negligent about causing the death of the worker.

It was obvious from WorkSafe’s investigation that Mr Owen’s conduct was negligent and directly resulted in the accident. He had failed to take account of obvious risks and had no controls in place. In particular:

1. He was unlicenced to operate the forklift;
2. He overloaded the forklift;
3. The lifting capacity on the forklift was inadequate; and
4. There were no health and safety procedures or work instructions outlining how to safely undertake the task.

Interestingly, one of the arguments ran by Mr Owen’s legal team was to claim the victim was not actually employed by Mr Owen and therefore did not constitute a ‘worker’ under the meaning of the Act. They tried to claim that the victim was simply Mr Owen’s friend who was only helping out a mate. This argument did not pass the pub test. Especially as volunteers constitute ‘workers’ under the Act; a volunteer is anyone who carries out unpaid work in any capacity for a PCBU.

As there were clear safe alternative methods for unloading the generators that were available to Mr Owen at low cost, the jury found Mr Owen guilty and he was convicted and imprisoned, a first in Queensland’s history!

Key Lessons

• PCBU and officers are responsible for the health and safety of anyone who carries out work on their site even volunteers
• Regulators will not hesitate to pursue PCBUs for industrial manslaughter
• Ensure risk assessments and procedures are in place for any high risk work