Foreign businesses must abide by Australian Work Health and Safety Laws

Many commercial businesses operating in Australia are owned and managed by overseas companies. In most cases, a company from another country establishes a local management team to oversee its Australian operations. The level of involvement and interaction between local and overseas management can vary.

The overseas business operating in Australia understands that it must comply with Australian laws, even if some of its policies differ from those in other locations. Given this, it is often in the company’s best interest to allow the Australian management team to take the lead in overseeing local operations. At the same time, senior leadership from other regions focuses primarily on core business functions such as product development, manufacturing, and supply. However, when it comes to workplace health and safety requirements, the business cannot apply its existing health and safety management system in Australia without ensuring compliance with local laws and regulations. State regulators oversee businesses within their jurisdiction to ensure they meet the relevant local requirements, regardless of where the company is headquartered.

Australian and International Standards

For many years, overseas companies operating in Australia benefitted in particular, as the former British OHS Standard BS OHSAS 18001 (Health and Safety Management Systems) was also recognised in Australia alongside AS/NZS 4801. (BS OHSAS 18001 was officially withdrawn in March 2021, while, since July 2023 certification to AS/NZS 4801 is no longer recognised.) Organisations are now encouraged to adopt AS/NZS ISO 45001:2018 to ensure compliance with current occupational health and safety management system standards.

However, not all standards are legally binding. Compliance is mandatory if an Australian Standard is explicitly referenced in Acts, Regulations, or legally enforceable documents. For example, AS 3000 (Electrical Installations—Wiring Rules) is referenced in electrical safety regulations in many states, making it legally enforceable. Meanwhile, AS/NZS ISO 45001:2018 is voluntary and serves as best practice guidance. (There are no references to Standards in the WHS Act, however there are in the WHS Regulation.)

A business does not have to be certified to ISO 45001. While a voluntary standard like ISO 45001 is useful, businesses must ensure that their WHS management system aligns with the requirements of the WHS Act and WHS Regulation, first and foremost.

Codes of Practices

Under Australian WHS laws, approved Codes of Practice are admissible in court proceedings to demonstrate what is known about a hazard, risk, or risk control. The court may rely on an approved Code of Practice in determining what is reasonably practicable in relation to a matter.

Some Codes of Practice may recommend following a specific Standard, but compliance with the WHS Act and Regulations may be achieved by following other methods or practices if those methods or practices provide an equivalent or higher standard of work health and safety than the Code of Practice.

Complying with Australian legislation.

Australian health and safety legislation is consistent in its foundational purpose, structure, and intent. Any business operating in Australia must comply with the relevant Health and Safety Act and Regulations applicable in their state or territory. The key requirement includes Legal Duty of Care to ensure the health and safety of workers and other persons at the workplace. Australian WHS laws are enforced by state and territory regulators such as SafeWork NSW (NSW), WorkSafe Victoria (VIC), or Workplace Health & Safety Queensland (QLD). Non-compliance can result in fines, legal penalties, or prosecution, especially for serious breaches.

Hence, an overseas entity must adapt its WHS management system to fully comply with Australian laws. While it can integrate elements of its global WHS framework, local compliance takes priority. If the overseas entity already has an existing WHS framework (e.g., ISO 45001 or company-wide WHS policies), it must:

• Review gaps between Australian WHS requirements and existing systems.

• Modify procedures to align with Australian laws.

• Ensure local management and WHS personnel have the authority to implement Australia-specific requirements.

If you work for a company with management based overseas, ensuring they understand and comply with Australian laws is essential. A company's internal policies, regardless of where its headquarters are based, do not override Australian law. Certain practices that may be acceptable in another country could contravene Australia's workplace health and safety regulations. In the event of a serious workplace incident, legal responsibility falls on local company directors, who may face fines or prosecution—not the CEO or executives located overseas on the other side of the world.

If you would like help with improving or updating your company health and safety policy to be better in compliance with Australian law and Australian requirements, feel free to contact us at Courtenell. Phone 02 9552 2066.