A stonemasonry company, LH Holding Management Pty Ltd trading as Universal Stone and Marble (LH Holding), has become the first company to be convicted of workplace manslaughter since the offence was first introduced in Victoria in July 2020.
LH Holding has been fined $1.3 million while the company’s sole director has been placed on a two-year Community Corrections Order to complete 200 hours of unpaid community service and a course in forklift operation. Both LH Holding and its director have also been ordered to pay $120,000 in compensation to the deceased’s family for pain and suffering.
The charges arose after a 25-year-old sub-contractor was killed in October 2021 when a forklift carrying a raised load on a sloped surface operated by LH Holding’s sole director, Mr Laith Hanna (Mr Hanna), tipped over and crushed him.
LH Holding was sentenced on 19 February 2024 after it pleaded guilty to the charge of engaging in negligent conduct that constituted a breach of a duty owed to another person and causing their death under s 39G of the Occupational Health and Safety Act 2004 (Vic) (OHS Act). Mr Hanna was also charged with an offence pursuant to s 144(1) of the OHS Act as an officer of a company that had contravened the workplace manslaughter provisions and the contravention was attributable to his failure to take reasonable care.
By its plea of guilty, LH Holding agreed that it had been reasonably practicable for the company to have reduced the risk of serious injury or death posed by operating the forklifts through control measures which included ensuring that forklifts carried loads as low to the ground as possible, were driven in reverse down any slope, were only operated when people were at a safe distance, and were not driven across or turned on a slope or incline.
Key Takeaways
This conviction is a sign of things to come in terms of regulators in jurisdictions that have introduced industrial manslaughter offences using these provisions to prosecute companies and their officers in relation to serious offences that result in a fatality. Industrial manslaughter provisions currently operate in Qld, Vic, ACT, NT and WA and will commence in SA in mid-2024. NSW is currently considering similar provisions and has released a consultation paper on introducing industrial manslaughter offences.
While industrial manslaughter offences impose significant penalties for conduct where gross negligence is involved, companies that are diligent in proactively managing workplace safety risks should have nothing to fear from such offences. Vigilance in proactively managing risks, and implementing and verifying controls, is critical to ensuring compliance with the duty of care and industrial manslaughter offences.
The 6 elements of the safety due diligence framework
The following 6 elements of the safety due diligence framework may assist companies and their officers to meet their WHS duties and avoid liability under industrial manslaughter and related provisions:
- Acquire and keep up to date knowledge of health and safety matters;
- Understand the nature of the operations of the business and the associated risks;
- Ensure the business has appropriate resources and processes in place to eliminate or minimise risks to health and safety;
- Monitor performance, incidents, hazards and risks and respond in a timely way to that information;
- Ensure the business has processes in place to comply with all health and safety duties and obligations under legislation; and
- Personally and proactively verify the provision and use of the resources and processes outlined in elements 1 – 5.
Fundamentally, businesses need to invest in understanding how work is done. Businesses should learn from normal work and increase their capacity as an organisation by deploying tools and resources where required and designing systems and processes to make safe work easy so that people don’t need to take ‘shortcuts’ or work arounds.
Would you like further information on workplace manslaughter provisions?
Proactively assess your company’s workplace safety measures to mitigate the risk of industrial manslaughter liability and stay informed about evolving workplace safety legislation to ensure your employees and business are protected.
Get in touch with our experienced ESG team that can assist you in understanding these provisions and how they may affect the WHS duties of your company and its officers.
For more information, please contact Michael Tooma, Partner and Head of ESG.
