In January 2016, the Essendon Football Club stood in the Melbourne Magistrates Court to be sentenced for workplace health and safety breaches arising from its supplements program. No player had been shown to have suffered any harm, yet the club faced penalties of up to $600,000 and left with a $200,000 fine plus costs. The striking part of the case is that the club had safety procedures on paper. It simply did not follow them, and the court treated that as a serious breach of the law.
The supplements program and the charges
Between late 2011 and 2012, Essendon ran a supplements program, led by sports scientist Stephen Dank, that involved injecting players with substances. The program drew scrutiny from the Australian Sports Anti-doping Authority, and in 2014 the Victorian WorkCover Authority, the agency that now operates as WorkSafe Victoria, began its own investigation into whether the club had met its duties as an employer.
In November 2015, WorkSafe charged the club with two offences under s 21 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act), which were failing to provide and maintain a working environment that was safe and without risks to health. The club pleaded guilty in late November 2015.
The sentencing followed on 28 January 2016, days after the Court of Arbitration for Sport banned 34 past and present Essendon players for the 2016 season over the same program. Magistrate Peter Reardon convicted the club on both charges, fined it $200,000 and ordered it to pay WorkSafe's costs of $20,000 (ABC News, 28 January 2016; AFL.com.au).
What section 21 of the OHS Act requires
Section 21 of the OHS Act imposes the core duty on every Victorian employer. Subsection (1) requires an employer to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to health. Subsection (2) makes clear what that covers: plant and systems of work, arrangements for the use, handling, storage and transport of substances, the condition of workplaces, facilities for employee welfare, and the information, instruction, training and supervision employees need to work safely. Subsection (3) extends the duty to independent contractors engaged by the employer, and their employees, in relation to matters over which the employer has control.
The phrase "so far as is reasonably practicable" carries real weight, and s 20 of the OHS Act explains what it means. An employer must eliminate risks to health and safety so far as reasonably practicable, and if a risk cannot be eliminated, reduce it so far as reasonably practicable. In working out what is reasonably practicable, the Act directs attention to the likelihood of the risk eventuating, the degree of harm if it does, what the employer knows or ought to know about the risk and the ways of dealing with it, the availability and suitability of controls, and the cost of those controls. In the Essendon case there was no serious argument that the club could not have run the program safely: it was a well-resourced organisation that simply chose not to apply the controls it already had.
The legal question in the Essendon case was not whether any player was actually harmed. It was whether the way the club ran its supplements program had exposed players to risks to their health, contrary to the duty in s 21. Magistrate Reardon found that it had. He described a program conducted in secrecy, with no medical doctors involved, no prescriptions and no controls over any side effects players might suffer. He said it was impossible to tell how many injections players were given or what was in them. Players were told to keep quiet about the program, and the magistrate noted the power imbalance between a prestigious coach and young players who would have felt pressured not to question it. He called the program an invasion of the players' bodies by their employer, and described the offences as significant breaches of the Act.
Two features of the reasoning are worth dwelling on, because they are the parts that transfer to any business. First, the club had established its own protocols in January 2012, after concerns were first raised about what players were being injected with, but it failed to follow them. The court treated that departure from the club's own procedures as a serious matter. Second, the club argued that no player had been given a harmful substance and no one had suffered harm. WorkSafe's response, which the magistrate accepted in substance, was that this was largely because of poor record-keeping, and that the risk the program created was itself the offence.
The magistrate did take account of mitigating factors: the club's previously unblemished history, its co-operation with WorkSafe, its genuine remorse, and the heavy sanctions it had already faced, including a $2 million fine from the AFL, exclusion from the 2013 finals series and the loss of draft picks. That is why the fine came in well below the maximum. But the outcome still stands as a reminder that an employer can be convicted and fined for exposing workers to risk, even where no one is injured.
What the Essendon case means for your business
The Essendon case is not really about football. It is a demonstration of how occupational health and safety law operates in practice, and the points it makes apply to every employer:
- No injury is required: the offence under s 21 is exposing employees to risk, not injuring them. Essendon was convicted and fined despite no player being shown to have suffered harm. If your workplace creates an uncontrolled risk, that can be enough.
- Policies are only half the job: the club had protocols in place and ignored them. A safety manual that staff do not follow, or that management quietly bypasses, is not compliance. It can actually make things worse, because it shows the risk was known.
- Every employer is in scope: WorkSafe's statement after the sentencing made the point directly: professional sports organisations must protect the health and safety of their players, "many of whom are young and vulnerable workers". No industry, however high profile, is exempt from the duties in the OHS Act.
- The cost of getting it wrong has grown: a body corporate that breaches s 21 now faces a maximum penalty of 9,000 penalty units, which is about $1.83 million at the current Victorian rate of $203.51 per unit (Justice and Community Safety). That is a very different exposure from the roughly $300,000 per charge Essendon faced in 2016.
- Enforcement is active: WorkSafe completed 137 prosecutions and enforceable undertakings in 2025, with fines, costs and undertakings totalling $17.39 million, and it also prosecuted 35 duty holders over safety issues that were observed or reported rather than arising from an incident (WorkSafe Victoria). The Essendon matter itself was a prosecution with no injury at its centre.
The case also highlights who the law is most concerned about protecting. WorkSafe's statement singled out players as "young and vulnerable workers", and the magistrate noted the power imbalance that made it hard for young players to question the program. Most businesses employ people in that position: apprentices, graduates, casuals and junior staff who are unlikely to push back when a more senior person tells them how the work is done. If your safety systems depend on junior workers raising concerns to protect themselves, the Essendon case suggests that is not a system at all.
WorkSafe's enforcement focus remains on the industries where the most serious harm occurs, particularly construction, manufacturing and transport. But the regulator's record shows it will pursue employers in any industry where it finds evidence that workers are being exposed to risk, including workplaces that most people would never think of as dangerous.
There are a handful of concrete steps you could take this week, all of them drawn directly from what went wrong at Essendon:
- Audit what actually happens, not what the manual says: walk your workplace and watch how work is really done, then compare it with your documented procedures. Essendon's breach was the gap between its protocols and its practice.
- Map your operations against s 21(2): check plant and systems of work, how substances are handled and stored, the condition of your premises, welfare facilities, and whether your people get the information, instruction, training and supervision the work requires.
- Document your risk assessments: the "so far as is reasonably practicable" standard is judged on what you knew and what you did about it. Written records of how you identified risks and decided on controls are your best evidence if a regulator ever asks.
- Review how you supervise contractors: s 21(3) extends the duty to contractors and their employees over matters within your control, so know where that line sits in your engagement arrangements.
- Make it easy to report problems: a near-miss or concern raised early is a chance to fix a risk before it becomes an incident, or a prosecution.
How an OHS lawyer can help you stay ahead of WorkSafe
The Essendon case shows how much can turn on systems and records, which is exactly where a lawyer can add value before anything goes wrong. A legal practitioner can conduct a gap analysis of your safety systems against the OHS Act and the regulations, identify where your practice is falling short of your duties, and help you fix it before an incident or an inspection. That kind of early work is far cheaper than defending a prosecution.
A lawyer also helps with the parts of compliance that businesses commonly get wrong. They can draft or review your safety policies, training programs and risk assessment frameworks so they meet the reasonably practicable standard and are actually workable in practice. They can review your contractor arrangements so you understand where your duty under s 21(3) starts and ends. And they can advise directors and officers on their personal due diligence obligations, so that the people running the business know what is expected of them.
If WorkSafe does come knocking, either to investigate a matter or to issue improvement or prohibition notices, a lawyer manages the response: dealing with inspectors, controlling what information is provided, and protecting legal professional privilege over the advice you receive. If prosecution follows, a lawyer builds the defence, including on the central question of what was reasonably practicable in your circumstances, and negotiates on penalty, enforceable undertakings and other outcomes. The Essendon club's own experience, from investigation in 2014 to sentencing in 2016, is a reminder that these matters do not resolve themselves quickly or cheaply.
The lesson from the Essendon fine
OHS law does not wait for someone to get hurt. It punishes the risks you create and the systems you fail to run. Essendon had the protocols; its breach was the decision to bypass them, and the court fined the club for that decision alone. If your business has safety procedures that no one follows, or risks that no one has assessed, the Essendon case is the warning: the fine is for the exposure, not the injury.
To summarise, the key points from this case are these. Every Victorian employer owes the duty in s 21 of the OHS Act to provide and maintain a safe working environment so far as is reasonably practicable, and that duty extends to contractors over matters within the employer's control. The duty is breached by exposing workers to risk, even if no one is harmed, and having written policies is not enough if they are not followed. Penalties for a body corporate now reach about $1.83 million per offence, and WorkSafe continues to prosecute actively across all industries. The best protection is to run your documented systems for real, keep records of your risk assessments, and get legal advice on your duties before a regulator, or an incident, forces the issue.