Anyone with an interest in safety who is on LinkedIn could not help but be aware of the decision in R v Brisbane Auto Recycling [2020] QDC 113, the first industrial manslaughter prosecution under Queensland health and safety legislation.
While the decision was lauded in many circles as being a great move forward for workplace health and safety in Australia and a "game changer" that was sure to jolt executives around the country out of their health and safety complacency, I think most people recognise it for the pointless waste of time that it really was.
Whatever satisfaction a serious criminal prosecution might bring after a workplace accident, it certainly adds no value to improving workplace health and safety.
While others have shared really helpful information about the technical legal aspects of the case (thank you Harold Downes), for me, there were two interesting points to take away from the case.
First, the overt recognition that the business operators were likely to be up and running again without having to pay the $3 million fine.
The court recognised that the company would not have the capacity to pay the $3 million fine or indeed any substantial fine but imposed it nonetheless (paragraph 132). However, as part of their mitigation the individual defendants brought evidence showing they were well regarded within their community, including contingency plans put in place in the event the company became insolvent because of the prosecution:
Mr Hussaini and Mr Karimi have made contingency plans in the event that Brisbane Auto Recycling Pty Ltd becomes insolvent as the result of the imposition of a substantial fine. Mr Hussaini and Mr Karimi had a meeting with 21 members of the Hazara community in Brisbane on 17 May 2020. The purpose of the meeting was to ascertain whether any members of the community would be willing to invest or lend money towards the establishment of a new business in the event that Brisbane Auto Recycling Pty Ltd is placed into liquidation. As a result of the discussions, Mr Hussaini and Mr Karimi are confident that they will be able to raise sufficient funds to establish a new business. hey say they will be very careful to observe all health and safety obligations. (paragraph 86) (my emphasis added).
Whilst the legal process played out exactly how it ought to have, looking at it from a health and safety perspective I find it questionable how this sort of legislative regime does anything to advance or improve health and safety in the workplace.
The second interesting point for me is the opportunity lost.
Here we had a successful small business that seemed oblivious to reasonably basic health and safety standards and requirements, all the time operating in a jurisdiction that shouts from the rooftops about the importance of health and safety and how they have the country's most significant fines to back that up. How is it that a small business in that environment did not understand or implement basic health and safety controls which would have prevented the fatality?
What could the business owners have taught us about the way health and safety regulators communicate to the business community and provide information and understanding about health and safety?
What could the business owners have taught us about the difficulties small business owners have accessing information about health and safety, understanding their responsibilities and developing and implementing systems to meet those responsibilities?
What lessons were available to us which could have given us insight into the trade-offs and compromises necessary to run a small business and how workplace health and safety fits into that?
Perhaps rather than prosecute in a case like this, the health and safety regulator in Queensland would have been better served to step back and engage with the business owners to try and understand why their efforts at education and compliance failed in this case.
Rather than be celebrated as a milestone in the development of workplace health and safety law and regulation in Australia, we should lament R v Brisbane Auto Recycling as another opportunity lost on a step backwards in our journey to try and learn and understand.