Time for OHS regulators to get off the bench and into the game

Imagine a construction company asks its employees to take some health supplements to increase their stamina, thereby enabling them to work more productively. Imagine that the efficacy and legality of the supplements are then called into question. Now imagine that after months of frenzied media speculation, the state’s workplace health and safety regulator remains on the sidelines.

Fanciful? Possibly in the case of a construction company. But in the case of the Essendon Football Club, it is reality.

To date, Victoria’s workplace health and safety regulator, WorkSafe Victoria, has chosen not to investigate events at the Essendon Football Club, choosing instead to keep its options open as other “more appropriate bodies” look into the issue.

Presumably WorkSafe Victoria was referring to one or more of the Essendon Football Club, Australian Sports Anti-Doping Authority (ASADA) and the AFL. Why these other bodies are “more appropriate” is not entirely clear, however. For all their rhetoric about the importance of the health and safety of the players, none have examined events through the prism of workplace health and safety.

The much-hyped Switkowski report, for example, does not examine the Essendon Football Club’s governance practices through a health and safety lens – the topic is wholly missing from the report. Nor can it be expected to be a focus of the still-confidential ASADA interim report. ASADA’s mission is to protect Australian sporting integrity through the elimination of doping, not to enforce workplace health and safety.

As for the AFL, it appears to have set itself up as judge and jury. However, the nature of the charges it has laid (engaging in conduct that is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game into disrepute), the persons against whom charges have been laid (people in operational positions, while no directors have been charged), and the speed with which the charges were laid after receipt of the ASADA interim report (11 days), combine to indicate that the AFL’s main focus is as much about preserving the reputation and integrity of the competition as it heads into the finals as it is about player health and safety.

Every employer in Victoria (and the rest of Australia) owes a duty of care to provide employees with a working environment that is safe and without risk to health (so far as is reasonably practicable). This includes professional football clubs.

And every employee in the state should be confident in WorkSafe Victoria’s ability and willingness to fulfil its statutory obligation to monitor and enforce compliance with the state’s workplace health and safety laws. This includes players in the employ of the clubs.

There is clearly enough evidence in the public domain upon which WorkSafe Victoria could commence an investigation. The Switkowski report alone paints a picture of a “pharmacologically experimental” workplace in which normal controls broke down, accepted procedures were contravened, and due diligence was lacking.

The existence of other investigations by other bodies is not a good reason for WorkSafe Victoria not conducting its own investigation. First, parallel investigations of workplace incidents are not uncommon. It is also not the responsibility of these other bodies to enforce workplace health and safety laws. Finally, the AFL is far from an independent and impartial arbiter of the matter.

Nor is the fact that we are dealing with professional sporting clubs and players a good reason. The events under investigation were not between combatants on the gladiatorial arena. They took place in offices and medical rooms between club officials in authoritative positions and players, some of whom were young, impressionable and eager to please – the very scenario targeted by WorkSafe Victoria’s “young workers” campaign.

What has happened at the Essendon Football Club – and what is to happen to the people involved – is not just about sport and the integrity of the AFL competition. It is a matter of public interest with the potential to shape people’s perceptions about the integrity of our workplace health and safety laws and the manner with which they enforced.

It is time for WorkSafe Victoria to get off the bench and into the game.

Eric Windholz worked with WorkSafe Victoria from 2001 to 2009, including as General Counsel and General Manager, Strategic Programs and Support.

This article was originally published at The Conversation. Read the original article.