What happens when your worker is exposed to workplace risks while working overseas?
An Australian journalist, Lauren Tomasi, made international headlines when she was struck, mid-broadcast, by a rubber bullet while reporting on riots in Los Angeles.
Behind the immediate concern though sits a more subtle question echoing through boardrooms and safety teams: what are our health and safety obligations when our people are working or injured overseas?
Tomasi, an Australian reporter based in Los Angeles as a US Correspondent, was reporting on a volatile protest unfolding when the incident occured. Footage released shows police firing crowd control munitions and hitting Tomasi in the process. The incident highlights a broader issue – how far do an Australian employer’s work health and safety (WHS) duties extend when the “workplace” is thousands of kilometres away, in a country not subject to Australian law?
This isn’t just a media issue though. It should be a wake-up call for any organisation with employees deployed internationally. It doesn’t matter whether they’re journalists, engineers, FIFO expats, aid workers, or even remote staff working from Bali on a six-month “work-cation”.
Legal framework: duties without borders?
The model WHS laws, implemented in all Australian jurisdictions except Victoria, impose a primary duty on persons conducting businesses or undertakings (PCBUs) (which includes employers) to ensure, so far as is reasonably practicable, the health and safety of workers while they are at work.
That duty is not territorially limited. While Australian WHS regulators may not be able to exercise powers overseas (that is, inspectors can’t exercise entry rights at workplaces at a warehouse in Paris, for example), the law still applies to Australian-based PCBUs sending employees abroad. This includes when:
- the employment relationship is governed by an Australian contract;
- the individual is seconded or assigned internationally from an Australian office; and
- the entity directing the work is an Australian company or its subsidiary.
If Tomasi was employed or contracted by a WHS-regulated Australian company, even while working overseas, her employer owes duties under Australian law.
“Based” overseas vs “posted” overseas: does it matter?
There’s a distinction between:
- a worker living and working permanently overseas, under a local employment contract or foreign subsidiary; and
- a worker temporarily sent on assignment by an Australian organisation.
In the first scenario, the worker (and their employer) would be governed by local employment and safety laws. In the latter, the worker remains the responsibility of the Australian PCBU.
Safety law looks beyond location to determine management or control, the person directing the work, and the person receiving the benefit of the work. Sending a worker overseas doesn’t absolve a PCBU of Australian safety obligations.
What is “reasonably practicable”?
Tomasi’s incident gives reason to consider the usual measures that an Australian PCBU could/should take when sending a worker overseas. And the risks of work overseas should attract all the ordinary considerations about reasonably practicable steps to be taken to ensure safety.
PCBUs sending workers to foreign (and potentially hostile) work locations would presumably need to consider:
- completing pre-deployment risk assessments (including political risks – think gold mining in West Africa);
- real-time intelligence monitoring;
- hostile environment safety training;
- providing and ensuring appropriate PPE (e.g. high-vis clothing, hard hats, protective footwear, safety glasses, etc.); and
- in-country support networks, evacuation plans, and security escorts.
Failing to plan for foreseeable risks can amount to a breach of Australian WHS duties (and also lead to workers compensation issues).
Broader implications for business leaders
This incident is the tip of the iceberg. The world is intricately connected and more so recently with the rise of the “internationally mobile” worker. The following examples come to mind:
- FIFO and fly-around engineers and mine workers working in Papua New Guinea, West Africa, or Mongolia;
- academics, scientists, or aid workers on global secondments; and
- employees approved to work remotely for extended periods from Indonesia, Phuket, or the Swiss Alps (wouldn’t that be nice?).
An assumption that “over there means not our problem” is dangerous. With remote work, cross-border mobility, and the age of decentralised workplaces, the legal exposure of employers is now geographically indifferent. It’s no different to the safety obligations a PCBU owes when ensuring its workers are safe while working from home.
Strategic takeaways
WHS professionals and business leaders should consider:
Mapping duties and control
- Who employs the worker?
- Who directs the work?
- Is there clarity in contracts, reporting lines, and insurance?
Pre-deployment risk protocols
- Does your organisation assess political, environmental, and security risks for overseas work?
- Are staff briefed, trained, and supported adequately?
- Have staff been given the PPE necessary to work safely while overseas?
Emergency and escalation plans
- Is there a process for responding to overseas incidents?
- Does the business have access to evacuation assets, local legal advice, or local security and trauma support?
Insurance and legal crossover
- Does your worker’s compensation policy cover overseas deployments?
- Could dual liability arise under foreign WHS or criminal codes?
The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.