Your WHS management system must comply with the laws of the jurisdictions in which you operate

There are many businesses in Australia that operate in multiple states and territories. The WHS management system for these businesses is usually based on the law of the state that the head office is located.

Businesses are expected to comply with the laws of the jurisdictions they operate in. Among other laws, this also applies to workplace health and safety management systems.

For example, Victoria businesses that operate in NSW would run their health and safety management system for their NSW locations in accordance with the NSW WHS Act and WHS Regulation. There are some subtle and not-so-subtle differences between health and safety law in Victoria and health and safety law in New South Wales.

Running a Victorian-based management system in New South Wales, or a NSW-based management system in Victoria is not going to work. Each state and territory have their own Regulators. Each Regulator enforces the law of their jurisdiction.

Introductory Chapter 1 Interaction between Corporations legislation and State and Territory laws Part 1.1A of the Corporations Act 2001 (Page 21) says:

Section 5I - Regulations may modify operation of the Corporations legislation to deal with interaction between that legislation and State and Territory laws.

(1)   The regulations may modify the operation of the Corporations legislation so that:

(a)   provisions of the Corporations legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or

(b)  no inconsistency arises between the operation of a provision of the Corporations legislation and the operation of a provision of a State or Territory law specified in the regulations.

(2)  Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of the Corporations legislation:

… (a), (b,) (c), (d) omitted

(e)  does not impose an obligation on a person to the extent to which complying with that obligation would require the person to not comply with an obligation imposed on the person under the State or Territory law; …

An example of this would be the Model WHS laws which charge Directors with the duty to exercise “due diligence” to ensure the business has a WHS management system in place and that it is operated successfully. Under this law, Directors have specific actions they must do and be accountable for. (NSW WHS Act, S.27.)

In the Victorian OHS Act, there is no stated requirement that directors exercise “due diligence” nor any specific actions imposed on them for which they can be directly held accountable. Instead, Directors would be charged on the basis of “failing to take reasonable care.” (Ref S.144 VIC OHS Act.) 

Businesses operating in other states must abide by the laws of those states as per the Corporations Act, Clause 5I (2) (e)

In a WHS/OHS context that means that any business that has operations in other states must run their health and safety management system according to the legal requirements of that jurisdiction and with respect to the Regulator(s) for that jurisdiction.

If you are a business with operations in other states and you would like more information on WHS training or WHS compliance services, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066

March 28, 2024