21 November 2015

By email

M/s C Amies
Chief Executive Officer
Victorian WorkSafe Authority
GPO Box 4306 Melbourne Victoria 3001
Dear M/s Amies
RE: My Complaint against the AFL
1.

I have been told by the Victorian Ombudsmans office that because I wasnt a victim of
the AFLs failed duty of care to the Essendon players, the Victorian OH&S Act implied
that the WorkSafe Authority could treat me like dirt. Much to my great
disappointment, the VWA hasnt treated me very well from day one.

2.

In August and September 2013, I contacted VWA on a number of occasions to

ascertain the procedure to lodge a complaint against the AFL for irrefutable breaches
of the OH&S Act. I was given the run-around and told I couldnt lodge a complaint.
Inter alia, I was told that ASADA was investigating the matter and that there was no
need for VWA to do so.

3.

To my knowledge, ASADA was trying to determine whether any Essendon players had
taken a banned substance. That investigation had nothing to do with whether the AFL
commissioners and the Essendon board, in their capacity as joint employers of the
Essendon players, had fulfilled their responsibilities under the OH&S Act.

4.

In September 2014, I read that as a result of an anonymous complaint, the VWA had
decided to conduct an investigation into alleged breaches of the OH&S Act by the
Essendon Football Club. As I believed that the AFL commission was at least equally
responsible for OH&S breaches at Essendon as the Essendon board, I made another
attempt to lodge a complaint against the AFL.

5.

My team of experts believed we were on a certainty because the most senior AFL
executives not only admitted that the AFL had a duty of care to the Essendon players,
but they told the media that they had failed to meet their responsibilities. To
paraphrase, the AFL admitted that they believed that the Essendon players had been
taking dangerous, life threatening, banned substances for over 12 months, and yet did
nothing to stop them. I dont know about you but if I saw a stranger about to jump off
the cliff at Sydneys renowned suicide spot, the Gap, Id feel I had a moral and legal
obligation to try and persuade that person not to jump. It seems that your staff
believes that the AFL had no obligation to even ascertain whether Essendon was
complying with clause 7.4 of the AFLs Anti-Doping rules or whether it was complying
with its OH&S responsibilities. Just one visit by the AFL to Essendon would have
established that with Essendons non-existent OH&S systems, the players were playing
Russian roulette while wearing suicide vests.

6.

I lodged my complaint against the AFL on 11 September 2014. On 24 October 2014, a

mere 43 days later, Brendan Johnson (Team Leader Health and Safety Investigations)
acknowledged receipt of my complaint. Inter alia, he said: As part of this investigation
a member from my team will need to meet with you to take a signed witness
statement from you referencing your original complaint as well is any evidence which
you may be able to provide which may be of assistance. Could you please provide me
with your full contact details and your availability of the next two weeks so that
arrangements can be made for the taking of a signed witness statement from you?

7.

I dont know about you Ms Amies but my team interpreted that a face-to-face meeting
and a signed witness statement was a non-negotiable requirement for a complaint to
be treated seriously.

8.

I emailed Brendan Johnson on 27 October 2014 and inter alia said: My situation is
slightly complicated. As you can see from my address your team members wont be
able to pop in [because I live 2000kms away]. Mind you they are welcome to do so
and I can even provide accommodation. To complicate the situation, I have basically
been housebound for 10 years. Perhaps, for starters, I could talk to one of your team
over the phone or over skype. Once I know what you require I could do an affidavit [as
an alternative to a face-to-face meeting]. I am well enough to go the local court at
Tweed Heads. Obviously, we need to talk first.

9.

Two investigators phoned on 9 December 2014 (not 4 December as previously stated)

and we spoke for about half an hour. During that conversation I opined that despite
the AFL commission and the Essendon Board being joint employers, the AFL
commission was more responsible because it became aware of the potential danger
on 19 October 2011, whereas the Essendon board became aware of a potential
danger no earlier than mid-January 2012. I even pointed out that the AFL was told on
19 October 2011 that Essendons Dr Bruce Reid was being marginalised and that in my
view the AFL should have conducted an immediate audit of Essendons procedures
and record keeping.

10.

To my surprise, one of the investigators said words to the effect that he believed the
AFL had a duty to follow up Brett Clothiers warning on 5 August 2011 to James Hird
not to use peptides. Both mens arguments influenced my subsequent comments to
the media that the saga could have been stopped on or shortly after 5 August 2011 if
the AFL had fulfilled its duty of care. Our discussion was cut short quite abruptly and I
was told that they would ring the following week to continue the interview.

11.

I lost some confidence in the investigation team when they asked me for Mark
Thompsons mobile phone number and his email address. Silly me thought Essendon
could have provided such information. Given the subsequent delay in contacting
Essendon, I should have given VWA an AFL Record, GPS and Melbourne phone book.

12.

To my great disappointment, the investigators never phoned as promised. Although I

have sent VWA a number of submissions, I feel I was denied my right to put my case,
particularly as I was told it had to be a face-to-face interview. My disappointment
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turned to resignation that a fix was on when I learned that no Essendon player or
coach had been interviewed by February 2015.
13.

About six months ago, Mark Thompson phoned to say that although he was unaware
of any Essendon player being interviewed, he had been told by VWA that a report had
been given to the VWA legal team. He was under the impression a decision would be
announced in the near future.

14.

On 9 November 2015, I was horrified to read in the Melbourne newspapers that the
VWA would not be laying charges against the AFL on the disingenuous grounds that
there was insufficient evidence to secure a conviction. I was horrified for a number of
reasons:
i.

The media was notified before me. The VWA letter to me was dated Friday 6
November 2015 but it was emailed to me, not posted, on Monday afternoon 9
November 2015. At the very least it should have been emailed to me on Friday 6
November 2015. However, I suspect the AFL was told of the decision before 6
November 2015. Therefore, I believe I should have been notified the same time
as the AFL.

ii.

The decision stinks. In my world when someone implies that they are guilty, it is
pretty easy for even a prosecutor handling his/her first case to secure a
conviction. As the AFL chief executive Andrew Demetriou was on the record as

The duty of care to players is a fundamental

responsibility of the AFL commission and all AFL
clubs [my emphasis] the VWA had an unlosable case on its hands unless Fine

stating:

Cotton/Bold Personality was being sent out for another run.

iii.

If the AFLs guilty plea were not enough reason to lay charges surely the AFLs
failure to fulfil its obligations under Clause 12 of the AFL/Essendon Player
Agreement ensured charges were laid? Clause 12 states: The parties to this
contract (AFL/Essendon/the player) shall use their best endeavours, in relation to
any matter or thing directly within their control, to bring about compliance with
all the provisions of this Contract. The AFL commission had the same obligations
as the Essendon board and it did nothing. It failed miserably. If Essendon is guilty
so is the AFL.

iv.

The VWAs general counsel, wrote to me on 13 November 2015. Inter-alia, she

said: Pursuant to section 131(2)(b) of the Occupational Health and Safety Act
2004 (OHS Act), WorkSafe is obliged to inform you of its decision not to
prosecute Australian Football League (AFL). You were informed of the decision by
letter dated 9 (sic) November 2015. As previously advised, WorkSafe considers
there to be insufficient evidence to establish that the AFL has committed any
offences against the OHS Act.

v.

I know that VWA has treated me like a fool since my first approach in August
2013, but the organisation has pushed it too far this time. I cant believe VWA
thought I was so stupid that I wouldnt check the Act. You can imagine my
shock/horror when I discovered that the general counsel inadvertently forgot to
complete the sentence of 131(2)(b). Your general counsel omitted the words

or give reasons why a prosecution will not be brought [my

emphasis].
vi.

My nephew, who is a solicitor practising in NSW, advised me that the

reason/excuse given to me by general counsel for not charging the AFL does not
meet VWAs obligations as set out in 131(2)(b). He has promised to supply me
with a truck load of case law to prove that the VWA didnt give me adequate
reasons as to why it decided not to charge the AFL. I shall furnish examples next
week.

vii.

Although I believed that if the AFL had fulfilled its obligations to the Essendon
players, Essendon FC would not have been in the dock. Nevertheless, I took a
passing interest in VWAs decision to fine the club $305,000 and not to charge
any individuals. I had to check the calendar to see whether it was 1 April.

viii.

To my knowledge, 269 people died in Victorian workplace accidents between

2002 and 2013. The average fine was $170,000. Those figures suggest that the
$305,000 fine imposed on Essendon is extremely excessive.

ix.

But lets not quibble about a couple of hundred thousand. The evidence suggests
you only have to say boo and mention a telephone number and Essendon will
write a cheque. More importantly to me, it is incomprehensible that with your
team of experts you were incapable of pointing the finger at anybody despite
charging Essendon with breaching sections 21(1) and 21(2)(a) of the Act. For your
edification those two clauses deal with the duties of employers to employees.
The Essendon board and the AFL commission were the employers. We all know
why they werent charged but dont you think you had an obligation to the public
to explain why?

x.

In deciding not to charge any individual you certainly made it look as though the
AFL was running a Kangaroo Court in 2013. Although the ASADA/AFL
investigators had no human resource/OH&S expertise (they didnt even know
what a matrix organisation structure was) they were able to create a case that
enabled the AFL to laughingly claim that James Hird was mainly responsible for
the breaches. Yet, your team of experts was unable to apportion blame to
anyone despite charging the club for failing to fulfil its obligations as
employers.

M/s Amies, although the investigation took an inordinate (unacceptable) amount of time
the decision not to charge the AFL suggests it wasnt a credible investigation. If the Victorian
Governor M/s Dessau, former ACTU leader Bill Kelty, AFL Chairman Mike Fitzpatrick, former
AFL chief executive Andrew Demetriou, the majority of the AFL commissioners, former
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Essendon chairman David Evans, former Essendon chief executive Ian Robson, the majority
of the 2012-2013 Essendon board and Stephen Dank werent interviewed then the
investigation should be deemed a Mickey Mouse investigation.
Would you please give me a list of names of every person interviewed and the dates of their
interviews?
Last Monday, the AFL boasted that the matter is over. M/s Amies, the matter is not over by
a long shot, and the AFL metaphorically speaking is no longer the only one in the cross hairs.
Yours sincerely

Bruce Francis