On 28 January 2016 the Essendon Football Club was convicted in the Melbourne Magistrates Court of two workplace health and safety offences and fined $200,000, with a further $20,000 in costs. The conviction had nothing to do with whether the club's players took banned substances, the doping scandal that had dominated the AFL for three years. It was about something more mundane and more transferable: the club ran a health program on its own employees with no medical oversight, kept almost no records, and ignored the safety protocols it had written down. WorkSafe Victoria, the state's workplace safety regulator, prosecuted the club the way it would prosecute any other employer, and the message it delivered was aimed at every Victorian business.
The sentencing landed in the middle of the doping saga's final act. In March 2015 the AFL tribunal had cleared the players of using the banned peptide Thymosin beta-4. The Australian Sports Anti-Doping Authority accepted that result, but the World Anti-Doping Agency appealed, and in January 2016 the Court of Arbitration for Sport found 34 past and present players guilty of doping and suspended them from the 2016 season. Essendon's legal problems in January 2016 therefore had two distinct parts: the doping appeals, fought at the international level, and the workplace safety prosecution, fought in a Melbourne magistrates court.
What happened: from supplements program to prosecution
The supplements program ran from late 2011 through 2012, during a period when the club was chasing a competitive edge. WorkSafe Victoria investigated the way the program was managed and, in November 2015, charged the club with two offences under s 21 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act): failing to provide a working environment that was safe and without risks to health. The club pleaded guilty to both charges on 30 November 2015.
In sentencing on 28 January 2016, Magistrate Peter Reardon found the program had been run in secrecy, with little regard for player safety. There were no medical doctors involved, no prescriptions and no monitoring of side effects. "It is impossible to tell how many injections these players faced and by who," he said. Players were told not to discuss the program, and the club's own protocols, introduced in January 2012 after concerns were first raised, were not followed. WorkSafe's case was that the club should have given its doctor a full summary of the clinical findings, the known and possible side effects of the substance and its compliance with anti-doping rules, had the doctor make a recommendation, and obtained signed consent from players before anything was administered. None of that happened.
The magistrate described the offences as significant breaches of the Act, amounting to an invasion of the players' bodies by their employer. The club was well resourced and could easily have provided a safe environment for its 34 players. "It did not. It did the opposite." Mitigating factors included the club's previously unblemished record, its cooperation and remorse, and the penalties it had already suffered, including a $2 million AFL fine in August 2013, exclusion from the 2013 finals series and stripped draft picks. The club had faced maximum penalties of up to $600,000 across the two charges. It was fined $200,000 and ordered to pay WorkSafe's costs of $20,000.
In a statement after the sentencing, WorkSafe Victoria said the outcome was 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. The regulator had also investigated the AFL itself over the supplements scandal, though no charges were laid against the league.
The legal question: what s 21 of the OHS Act requires
The charges sat on s 21(1) of the Occupational Health and Safety Act 2004 (Vic), which requires an employer, so far as is reasonably practicable, to provide and maintain for its employees a working environment that is safe and without risks to health. Subsection (2) spells out what that includes: safe systems of work, safe plant and substances, workplaces that are maintained in a safe condition, adequate welfare facilities, and the information, instruction, training and supervision employees need to perform their work safely.
"Reasonably practicable" is defined in s 20 of the Act. An employer must eliminate risks so far as reasonably practicable and, where elimination is not reasonably practicable, reduce them. Working out what is reasonably practicable involves weighing the likelihood of the risk eventuating, the degree of harm if it does, what the employer knows or ought to know about the risk, the availability and suitability of ways to eliminate or reduce it, and the cost. Cost is the last factor on the list, and it is weighed against everything else. For a well-resourced employer like Essendon, the argument that proper medical oversight was too expensive was never going to succeed.
Two features of the duty are worth noting. First, it extends beyond direct employees: s 21(3) covers independent contractors and their employees in relation to matters over which the employer has control. Many small and medium businesses engage contractors without realising the OHS Act already reaches them. Second, an offence against s 21 is an indictable offence, although it can be heard summarily in the Magistrates Court, which is how this case ran.
Most importantly for employers, the prosecution did not require proof that any player was harmed. The club's own counsel pointed out that no player was shown to have received a harmful substance or suffered injury. WorkSafe's response was that the absence of evidence was itself a product of the club's poor record keeping. The duty is about risk, not outcomes. An employer can breach s 21 without anyone being hurt, because the obligation is to eliminate or minimise risks before they cause harm.
Why this case matters for your business
The Essendon prosecution is a reminder that workplace health and safety law applies to every employer, whatever the industry, and that regulators will prosecute on risk alone. Consider what the case shows:
- No employer is exempt: WorkSafe prosecuted a famous, well-resourced football club and investigated the AFL itself. Professional sport is not above OHS law, and neither is any other industry.
- Breach does not need an injury: Essendon was convicted even though no player was shown to have been harmed. The duty is to manage risk, and a regulator can prosecute where systems are absent or ignored.
- Written policies are not enough: the club had protocols, introduced in January 2012, and the court found they were simply not followed. The gap between documented policy and actual practice is where prosecutions come from.
- Health programs need qualified oversight: any program that touches employee health, whether vaccinations, health screenings, fitness initiatives or wellbeing schemes, needs medical or qualified input, records and informed consent.
- The penalties have grown: at the time of the sentencing the club faced up to $600,000 across two charges. Today the maximum fine for a body corporate under s 21 of the OHS Act is 9,000 penalty units, worth about $1.83 million at the 2025-26 penalty unit value of $203.51.
The case also shows how a regulator builds a prosecution. WorkSafe's investigation focused on the club's systems of work: who was responsible for player health, what information flowed to the club doctor, what records were kept, and who could say no. The club had a governance structure on paper, but in practice the program operated outside it. That is the pattern regulators look for: a decision-making process that bypasses the people whose job it is to protect workers, and an absence of records that makes the risk impossible to assess.
For an ordinary business the lesson is not about sport at all. It is about who follows up. Magistrate Reardon asked why the club's head coach gave the program the go-ahead but never checked on it afterwards, and why nobody questioned what was being injected into players. In most workplaces, the equivalent question is whether the manager who approved a new process, a new chemical, a new piece of equipment or a new roster actually checks how it is being run and whether anyone is being exposed to risk.
Here are five things you could change this week:
- Audit the gap between your policies and your practice: compare what your safety documents say with what actually happens on the floor, because Essendon was convicted for ignoring its own protocols, not for lacking them.
- Put qualified oversight on any health-related program: make sure a medical or suitably qualified person reviews what employees are exposed to, documents side effects and obtains informed consent.
- Keep records you could show a regulator: WorkSafe argued that the lack of evidence of harm was a product of poor record keeping, so document training, inductions, hazard assessments and health checks.
- Train supervisors to escalate: make sure the people closest to the work know when and how to raise a concern, and that there is a channel that does not depend on the person who approved the risk.
- Get advice before the regulator arrives: how you respond to an inspector's questions, a notice or a document request can shape whether an investigation becomes a prosecution.
How a workplace safety lawyer can help you avoid a WorkSafe prosecution
Workplace health and safety is an area where legal help pays for itself long before a regulator appears. A lawyer specialising in OHS can review your business's safety framework against the duties in the OHS Act, or in the states and territories that operate under work health and safety laws based on the model WHS Act, and identify where your documented policies and your actual practice diverge. That gap analysis is exactly the kind of work that would have exposed Essendon's problem in 2012.
A lawyer can also help with the assessment side of "reasonably practicable". Working out what an employer knows or ought to know about a risk, what control measures are available and what they cost, and then documenting that reasoning, is a legal and practical exercise. Businesses that can show a considered, documented assessment of a risk are in a far stronger position if something goes wrong than businesses that simply hope nothing will.
If WorkSafe or a WHS regulator does contact you, legal advice early in the process matters. A lawyer can guide how to respond to an inspector, what to say and what to hand over, and how to deal with improvement or prohibition notices. If a prosecution follows, the difference between a well-presented case and a poorly handled one can be measured in penalties, because the court will look at the employer's cooperation, remorse and remedial steps, as it did for Essendon.
Finally, the exposure is not only the company's. Under s 144 of the OHS Act, an officer of a body corporate can be personally liable for a contravention that is attributable to the officer failing to take reasonable care. Directors and managers who make decisions about safety, or fail to follow up on them, can face personal fines. Knowing where the personal exposure sits is itself a reason to have a lawyer review who owns what in your safety structure.
The question Essendon could not answer
The fine on Essendon is usually remembered as part of the doping saga, but the conviction had nothing to do with whether the players took banned substances. The club was convicted because it ran a health program on its own employees with no medical oversight, no records and no one following up. The question Magistrate Reardon kept coming back to, who checked on the program after it was approved, is the question every business should be able to answer about its own workplace risks. If nobody follows up, the risk is not being managed, and the law treats that as an offence even when nobody is hurt.
In short: WorkSafe Victoria charged Essendon in November 2015 after a long investigation, the club pleaded guilty, and on 28 January 2016 it was convicted of two offences under s 21 of the OHS Act and fined $200,000 plus $20,000 in costs. The duty on every Victorian employer is to provide a working environment that is safe and without risks to health, so far as is reasonably practicable, and the maximum penalty for a body corporate has risen to 9,000 penalty units, worth about $1.83 million. If you are unsure whether your policies match your practice, or whether the people responsible for worker health actually have oversight, that is the point at which a workplace safety lawyer should review your arrangements.