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Request for Prosecution - Victorian WorkCover Authority

Request for Prosecution - Victorian WorkCover Authority

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Published by ABC News Online
Request for Prosecution - Victorian WorkCover Authority
Request for Prosecution - Victorian WorkCover Authority

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Categories:Types, Legal forms
Published by: ABC News Online on Jun 17, 2014
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06/17/2014

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REQUEST FOR PROSECUTION PURSUANT TO SECTION 131 OF THE
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 (VIC) (THE ‘ACT’)
 1 This notice is a request of the Victorian WorkCover
Authority (the ‘Authority’) made under
section 131 of the Act to investigate and prosecute the employers referred to in this notice in relation to the acts, matters and things specified below constituting offences against the Act. 2 The Austr
alian Football League (‘AFL’) runs a competition (the ‘League’) involving 18 AFL Clubs (‘AFL Clubs’) licensed by the AFL to participate in the League.
 3 On 15 October 2013 the AFL published a statement selectively disclosing results from a sur
vey of AFL Clubs conducted by the AFL in the wake of the Australian Crime Commission’s
Drugs in Sport
report (the ‘AFL October Statement’).
[1]
 4 According to the AFL October Statement: (a) at least 12 AFL clubs conducted sports supple
ments programs ‘with medium or high levels of supplement use’;
 (b)
each of those twelve programs ‘lacked a single point of accountability’;
 (c)
documentation by AFL Clubs of player supplement use was ‘inadequate’;
 (d) AFL Clubs
employed ‘an inappropriate definition of supplements’;
 (e) the selection processes of support personnel (in connection with the programs) was
‘flawed’; and
 (f) the AFL concluded that numerous changes were required to the manner in which AFL Clubs implemented supplements programs, in order to attain the standards of
‘best medical practice and responsible club management’.
 5 The survey findings caused the AFL to introduce new procedures to regulate supplements programs within A
FL Clubs which were announced in April 2014 (the “AFL April Statement”).
[2]
 These measures included: (a)
a ‘Prohibited List’ of supplements, which was intended to go ‘"above and beyond the WADA code’,
[3]
 
and ‘remove some of the grey areas for club
s in WADA's
prohibited list’.
[4]
 The list was brought into effect by the AFL in March 2014. It
‘widened the scope of the substances already banned by the World Anti
-Doping
[1]
 
‘Players sourcing supplements outside of club: AFL survey’, AFL, 15 October 2013 (source:
[2]
 
‘AFL ups ante in supplements fight, with new controls in place’, AFL, 2 April 2014 (source:
) (‘AFL April Statement’).
 
[3]
 AFL October Statement.
[4]
 AFL April Statement.
 
Agency (WADA)’ by including AOD 9604, specified peptides, a drug used to treat
Alzheimer's disease (Cerebrolysin), drugs that claim to stimulate testosterone and androgen production (Tribulus and prohormones) and the anti-aging drug TA65;
[5]
 (b) bans on players using compounding pharmacists, anti-aging clinics and practitioners, and overseas providers; (c) bans on any treatment involving use of a therapeutic good that is not listed or registered on the Australian Register of Therapeutic Goods, unless approved by the AFL.
[6]
 6 Supplements such as those now (but not before March 2014) on the AFL Prohibited Treatments List have raised widely publicised concerns about long term health effects, particularly when the supplements have not been subject to approval for human therapeutic use. 7 In the circumstances, the conduct of supplements programs under the AFL regulations as they applied during the 2013 and prior seasons, potentially exposed players to risks to health and safety. Those risks arose and/or were exacerbated by inadequate record-keeping, sourcing, staffing, and central accountability and oversight. 8 The matters at paragraph 4 implicate potentially all of the AFL Clubs in the League. These including all of the Victorian AFL Clubs, each of which is an employer subject to the Act. 9 Alternatively, even if all of the matters at paragraph 4 were confined to the 12 AFL Clubs
conducting supplements programs ‘with medium or high levels of supplement use’, by
elimination, at least four of those Clubs were Victorian AFL Clubs subject to the Act. 10 In addition, it is known that: (a) the Melbourne Football Club employed the services of sport scientist Stephen Dank; and (b) the Geelong Football Club employed the services of fitness consultant Ian Robinson, both of whom subsequently became principal actors in the supplements program
established at the Essendon Football Club (‘EFC’).
 11 The EFC is already the subject of investigation by the Authority. No investigation or prosecution of any of the other AFL Clubs has been announced. 12 In the circumstances, potentially all
 –
 and no fewer than three
 –
 of the other Victorian AFL
Clubs (the ‘Relevant Clubs’ listed in Schedule A) have, on the premises set out above,
committed breaches of the Act.
[5]
 AFL April Statement.
[6]
 
13 In particular, in the conduct of their supplements programs during the 2013 and/or previous League seasons, the breaches include (without limitation): (a) failure adequately to monitor the health of employees of the employer, in breach of section 22(1)(a); (b) failure adequately to keep information and records relating to the health and safety of employees of the employer, in breach of section 22(2)(a); and (c) failure adequately to provide and maintain for employees a working environment that is safe and without risks to health, in breach of section 21(1). 14
The names of the Victorian AFL Clubs among the 12 participating in programs ‘with medium or high levels of supplement use’ are ascertainable from records held by the AFL or from
records held at the workplaces of the Relevant Clubs. 15 Records relating to the survey conducted by the AFL into supplements use, and in possession of the AFL and each of the Applicable Clubs, may hold additional material relevant to an investigation and/or prosecution by the Authority. 16 Although the AFL has chosen not to take any further action against any of the Relevant Clubs, the AFL is neither charged with nor competent to pursue matters under the Act, and in any event faces commercial conflicts of interest that make it an unreliable entity to do so. 14 In addition to the public interest of upholding the provisions of the Act, a proper investigation and prosecution presents the opportunity to identify the need for and to implement measures to monitor and secure the future health and safety of affected employees at the Relevant Clubs.
17 June 2014

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