ESSENDON BOARD OH&S RESPONSIBILITIES

The Essendon Board, together with Managing Director and Chief Executive Officer, Ian Robson were equally responsible with the AFL Commission for providing a safe workplace for the Essendon players. 

The Victorian Occupational Health and Safety Act assigned the overriding responsibility for occupational, health and safety to the Essendon Board and AFL Commission because both organisations are recognised as the employer of the players.

The board members also had onerous statutory OH&S obligations under the Commonwealth Corporations Act; obligations under the rules of the Australian Institute of Company Directions; obligations through various agreements it had with the AFL; obligations it had under the Work Health and Safety Act through the requirement of the Australian Sports Commission that National Sporting Organisation members complied with it. 

Sadly, the Essendon Board and AFL Commission failed miserably to fulfil their obligations and shafted Hird instead.

Irrespective of what the media or public thought, or wished, the law said the Essendon Board and AFL Commission was required to understand the OH&S laws and their obligations under it and they both were responsible for providing a safe workplace for their football employees. That should have been the beginning and end of the search to blame someone. The fact that the commissioners and board members may not have been involved in the day-to-day running of the organisation was irrelevant and was not a defence. 

The Victorian Occupational, Health and Safety Act

Section 21. Duties of employers to employees

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. 

Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following-

Provide or maintain plant or systems of work that are, so far as reasonably practicable, safe and without risks to health;

Make arrangements for ensuring, so far as reasonably practicable, safety and the absence of risks to health in connection with the use, handing, storage or transport of plant or substances

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;

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;

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.

Section 22

An employer must, so far as is reasonably practicable –

Monitor the health of employees of the employer; and

Monitor conditions at any workplace under the employer’s management and control; and

Provide information to employees of the employer 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.

An employer must, so far as is reasonably practicable – 

Keep information and records relating to the health and safety of employees of the employer; and 

Employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of employees of the employer

Section 35

When doing any of the following things, an employer must so far as is reasonably practicable consult in accordance with this Part with the employees of the employer who are or are likely to be directly affected by the employer doing that thing-

Identifying or assessing hazards or risks to health or safety at the workplace under the employer’s management and control or arising from the conduct of the undertaking of the employer;

Making decisions about the measures to be taken to control risks to health or safety at a workplace under the employer’s management and control or arising from the conduct of the employer;

Making decisions about the adequacy of facilities for the welfare of the employees of the employer

Providing information and training to employees of the employer;

Determining the membership of any health and safety committee

Inter alia, some of the responsibilities of the Essendon Board included ensuring the following tasks/protocols/policies were implemented or completed at Essendon:

• Risk Assessment – Every task performed in the organisation had to be identified. For example, administering substances to players was one such task. A risk assessment was not conducted at Essendon, let alone a risk assessment of the tasks undertaken in the football department/high performance unit.
  

• The health risk/ danger in performing each task must be assessed. For example, the board had to ensure a qualified person had to assess the risks of substances being administered to players.
  

• A process / procedure / protocol was then required to be put in place to eliminate, or if that was impossible, minimise the risk/danger in performing that task. 
  

• All procedures and protocols had to be documented.
  

• Each employee had to have their OH&S responsibilities explained to them and be trained in performing each of their tasks.
  

• Procedures had to be written to ensure compliance with each task.
  

• Records had to be kept.
  

• An OH&S manual should have been written containing all the procedures, protocols and processes. 
  

• The chief executive should have tabled a report with the board assuring them that Essendon had an OH&S manual, which included compliance responsibilities, which if followed, ensured the organisation would not breach the OH&S Act.
  

• The OH&S manual had to be readily accessible to all employees. 
  

• Audits should have been conducted at regular intervals to ensure compliance.
  

• The human resource manager should have tabled a regular report with the chief executive.
  

• The chief executive should have included a regular OH&S report 
  

• Although the law says the board was responsible for providing a safe workplace, the board assigns the chief executive the task of complying with the OH&S Act on its behalf. However, irrespective of how well, or how badly, the chief executive performs that task, the board is still responsible. Something they knew and something the AFL and ASADA knew.
  

• The chief executive then should ensure that those employees involved with each task fulfill their obligations which have been documented in the occupational, health and safety manual. 
  

• As the design and implementation of the supplementation programme was the responsibility of the football department, this meant that the general manager – football operations (Paul Hamilton); high performance coach (Dean Robinson); the doctors (Bruce Reid and Brendon De Morton); and sports scientist (Stephen Dank) all had certain obligations, which to varying degrees, and for different reasons, they did not fulfil. 
  

• Although every employee has general OH&S obligations, it should be noted as James Hird and Mark Thompson were on a different branch of the organisation structure from Hamilton and his high-performance unit, they had no responsibilities whatsoever with the design or implementation of the supplementation programme and should never have been charged or penalised. 
  

• Two things the AFL, ASADA and the hacks in the media have to understand are the OH&S Act and the Essendon organisation structure and job responsibilities decide who is to blame. Second, the OH&S Act was not created for coaches with honors degrees in civil engineering. They were also created for rugby league coaches, some of whom may not be able to read and write. 
  

There is no doubt that even prior to the employment of Robinson and Dank, Essendon did not fulfill its OH&S responsibilities. By law, the board had to accept responsibility for those failures. As the Essendon Board knew it was responsible for providing a safe workplace, it is incomprehensible that not one of them had the intestinal fortitude to put his/her hand up and say “get off James Hird’s back, the law says my board colleagues and I are responsible for OH&S at Essendon, and we are honourable enough to accept total responsibility”.

It’s unfathomable that not one media person knew, or had the courage to write, that the Essendon Board was responsible for providing a safe workplace for its employees.

It’s unconscionable that ASADA focused on creating a case against James Hird but only mentioned the Essendon Board once in its 437-page interim report.

It’s bewildering that the Ziggy Switkowski, who conducted an internal investigation of governance at Essendon, did not address the board’s responsibilities and state unequivocally that the board was responsible for governance and OH&S failures. 

Although all evidence to the contrary, the AFL Commission is not full of dills, so, it’s mind-blowing that the AFL penalised three people – James Hird, Mark Thompson and Danny Corcoran – who had no responsibilities whatsoever, but never mentioned the Essendon Board members. The $64 million question is why was the Essendon Board given a free ride by the AFL, ASADA and the media?

• Perhaps, because the big end of town looks after its own!
  

• Perhaps, because after the outrageous hyperbole by the Australian Crime Commission at the 7 February 2013 media conference, nailing low-profile Essendon board members would not have ingratiated the AFL and Caroline Wilson with the Federal Labor Government as much as nailing Hird and Thompson!
  

• Perhaps, if the AFL let the board members off-the-hook, it would ensure they said “how high” on the way up when the AFL said “jump”, and consequently, as Hird’s employer, the board would be able to control the much-aggrieved Hird!
  

• Perhaps, if the AFL had prosecuted each Essendon Board member, as it should have, the Essendon directors (or their insurance company) would have been liable to cough up the $2 million AFL imposed fine instead of the Essendon members. On that score, I have been advised that the members could mount a case against the directors that would require them to pay the $2 million fine, plus an amount for damages for Essendon having been excluded from the 2013 final series.
  

• Speaking of suing the Essendon directors, I have also been advised that Essendon members could mount an even stronger case against the directors for breach of their fiduciary duties in giving the AFL a copy of the Switkowski Report. 
  

• That report was commissioned by the Essendon board for internal purposes to identify, and fix, governance issues at Essendon. However, the board gave it to the AFL and the AFL used it against the club when determining ‘guilt’ and the various penalties. The board had a fiduciary duty to act in the members’ interests. It clearly put the AFL’s interests before the Essendon members’ interests, when it gave the report to the AFL.