Saturday, 13 July 2013

Without Risk To Health

In a very recent post (Everybody Help Yourself) relating to Essendon and the ASADA investigation (though more specifically relating to the Evans Announcement), we mentioned that a further investigation and sanctioning of the club could have come via WorkSafe.
"d- The second point around the actual reason AOD-9604 is banned should bring another agency into action later down the track... WorkSafe. Because basically an employer authorized injections of 'not for human use' products into their employees. Such an employee health and safety breach cannot be allowed to go unpunished just because they are a football club. Why has no journalist or football personality thought through the actions in terms of an "employee / employer" (for that is what they are) perspective?" *
On this blog post we received an interesting response from 'Anonymous' that advised that legally sportsmen (other than Jockeys) were not covered under Section 16 of the Victorian Accident Compensation Act 1985. The original comment in that blog post is here, if you need to read it.

Section 16 of the Accident Compensation Act 1985 states
16. Sporting contestants
(1) Except as provided in subsection (4), where a person is engaged by an employer to participate as a contestant in a sporting or athletic activity, neither the employer or self-insurer nor the Authority or authorised insurer is liable to pay compensation for an injury received by the person if-
   (a)  the injury is received while the person is-
      (i)  participating as a contestant in a sporting or athletic activity;
      (ii) engaged in training or preparation with a view to so participating; or
      (iii) travelling between a place of residence and the place at which the person is so participating or so engaged.

The above suggests there is no liability against the employer [Essendon, or even perhaps the AFL] if any employee [football player] is injured while participating in, training or preparing for, or travelling to/from a sporting or athletic activity.

The position above is interesting, but in the context of the alleged doping case, are we really considering a club injecting players with substances 'not approved for human use' as an "injury"?
We think not.

Instead, we expect WorkSafe to tackle the issue from the approach of not providing a safe working environment.
Section 21 of the Victorian  Occupational Health and Safety Act 2004 is important in this regard. It states;
21. Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
    Penalty: 1800 penalty units for a natural person; 9000 penalty units for a body corporate.
(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following-
   (a)  provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
   (b)  make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
   (c)  maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
   (d)  provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
   (e)  provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

The determination of 'reasonably practicable' will be interesting, as it affects all of the above.
Will Essendon be able to show "so far as is reasonably practicable" that;
 - it had undertaken checks that the drugs administered were "safe and without risks to health"?
 - that the nature in which they were administered was "safe and without risks to health""
 - and the dosage rates of the drugs administered were "safe and without risks to health"?

The 'Dank Letter' that Essendon (and Stephen Dank) believe could absolve themselves of impropriety would be interesting for WorkSafe investigators and lawyers to examine. To date though, it remains unseen and undisclosed.

It is also worth noting the financial penalties above (described as 'penalty units'). The current value of a Victorian 'penalty unit' is $144.36, which makes the offence penalty;
  : :  $259,848 for a "natural person" (calculated as 1800 penalty units x $144.36), and
  : :  $1,299,240.00 for a "body corporate" (calculated as 9000  x $144.36)


Sub-section 3 also is of interest, as it implies any independent contractor employed by Essendon is also considered as part of the Essendon lines of responsibility.
(3) For the purposes of subsections (1) and (2)-
   (a)  a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
   (b)  the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
How the club employed Stephen Dank will be interesting here.
What was the contract he was working under?
Is there any clear documentation that defines him as being employed by the club, or by an individual(s)?
Who were listed as being Dank's direct reports, and who also signed off on his employment?


Subsection 4 then goes on to describes actions resulting from failing to "provide and maintain for employees of the employer a working environment that is safe and without risks to health".
(4) An offence against subsection (1) is an indictable offence.
Note However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).


Further, Section 22 of the Occupational Health and Safety Act 2004 adds;
22. Duties of employers to monitor health and conditions etc.
(1) An employer must, so far as is reasonably practicable-
   (a)  monitor the health of employees of the employer; and
   (b)  monitor conditions at any workplace under the employer's management and control; and
   (c)  provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety.
   Penalty: 240 penalty units for a natural person; 1200 penalty units for a body corporate.
Again, if Essendon have failed to monitor the medical actions of it staff, as documented by the Switkowski report, or failed to provide sufficient information to their employees (either directly themselves or their contractors), then they could be found liable.


It is important to remember that Essendon  is more than just a Football Club. They are also an employer, with obligations like any other employer. They have a duty of care toward their employees, and it appears as though that duty has been found wanting.


* While we had written that comment last week (5 July), and in the intervening time between that post and this, where we were researching further the above (that we are in no way trained or knowledgable of), there has been at least one article that has also looked a the WorkSafe angle of the Essendon drugs affair.
It was published today on the AFL website, and can be found here.

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