January 2016 marks the conclusion of several outstanding legal matters for the Essendon Football Club including the World Anti-Doping Agency’s (WADA) decision earlier this month. The WADA’s decision overturned the AFL Tribunal’s decision that initially held there was insufficient evidence that the players had taken banned substances.

In November 2015, WorkSafe Victoria charged Essendon Football Club and they subsequently pleaded guilty. On 28 January 2016, Melbourne’s Magistrates Court sentenced Essendon Football Club for breaching the Occupational Health and Safety Act 2004 (Vic) (OHS Act 2004).

The Court’s Decision and Sentence

The Essendon Football Club were charged with breaching the following sections 21(1) and (2) of the OHS Act 2004 which provide that an employer must, so far is reasonably practicable, provide employees with a safe working environment without risks to their health.

The Essendon Football Club have been fined well below the maximum penalty for these charges (which was approx. $300,000 for each charge). The court imposed a total fine of $200,000 for the two charges ($50,000 for the first charge and $150,000 for the second charge). WorkSafe Victoria began an investigation in the Essendon Football Club in 2015 and found that the supplements program and the way in which the club’s processes were ignored did not comply with the OHS Act 2004.

WorkSafe Victoria’s Response

The decision makes clear WorkSafe Victoria’s stance when it comes to looking into football clubs. They are not exempt from being looked into and must meet the same standards as other employers. In a statement released by WorkSafe Victoria, they stated that: “….today’s outcome serves as a warning to professional sports organisations that they must protect the health and safety of their players, many of whom are young and vulnerable workers. They cannot afford to ignore OHS laws.”

WorkSafe Victoria did clarify however that their focus will remain on employers and industries where there is the highest risk, and concern for employees. For example, in the building and construction industries were injury and fatalities are a concern. They will continue to “direct its resources to Victoria’s high-risk industry sectors – such as manufacturing, construction and agriculture – where, tragically, fatalities occur all too frequently, and thousands of Victorians continue to suffer injuries at work.”

Key Takeaways for Australian Businesses

This case and WorkSafe Victoria’s response reiterates that all employers should be aware of their obligations under the OHS Act 2004 or their state/territory’s relevant legislation and put in place procedures to ensure compliance.

Employers should take this obligation seriously and not only put in place policies, but make sure that staff members follow these. If you are concerned about the policies your business has in place or if you are an employee and believe that your workplace is unsafe, it is important to seek legal advice to be clear on your next best steps.

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Edith Moss

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