The Refs Dispute

At peril of boring all of you with legalese, the pending arbitration in the Fair Work Commission regarding the referees' dispute is not only fascinating for industrial lawyers, but may have very wide ranging implications within industry at large.

I have not availed myself of a copy of the Referees' Enterprise Bargaining Agreement (for those that are interested, it is available here https://www.fwc.gov.au/documents/documents/agreements/fwa/ae503608.pdf) but, speaking generally, the Fair Work Commission does not have the power to 'rewrite' an industrial instrument such as a mutually agreed enterprise agreement 'on the fly'.

To provide some context, the Australian automotive industry was effectively torpedoed when the Australian Manufacturing Workers Union (AWMU) negotiated an economically unsound agreement such that the parent companies (Toyota Japan, Ford America and General Motors) pulled the pin on local manufacturing. At that point, the AMWU, terrified that some 15,000 of its members would lose their jobs, approached the Federal Court before his Honour, Justice Bromberg, and pleaded that the Court 'rewrite' the enterprise agreement such that it would be less burdonsome on the parent companies and they would continue maunfacture in Australia.

His Honour found that the Fair Work Act did not provide him sufficient power to take such remedial action and the result was the closure of Australian automotive manufacture.

What we now find is that the ARLC is in dispute with the referees' union over a unilateral amendment to their enterprise agreement to vary NRL match conditions from two referees to one. Peter V'Landys and the ARLC have been in negotiation with the union to come to agreement over a variation but, at this point, no agreement has been reached and, as such, the parties will appear before the Fair Work Commission on Thursday to argue their respective points.

This is interesting on a number of levels. Firstly, the Commission, by law, should arrive at the conclusion that they do not have the power to compel the unilateral variation to the enterprise bargaining agreement and so the referees should win. However, the Commission has shown, by way of amendments to a tranche of Modern Awards that they are prepared to be 'agile' whilst in the shade of the COVID pandemic. 

If they agree to amend the referees' enterprise agreement, Rugby League should resume as programmed on 28 May 2020, but, if it does not agree, the ARLC will likely have few options other than to backtrack and revert to the two referee system. At that point, if the ARLC sack the referees who don't wish to officiate an NRL game solely, they will be in breach of the General Protections Provisions, having taken adverse action against employees' who exercised their workplace right to take lawful industrial action. That legal liability alone will cost the NRL well more than the proposed $2M savings in reducing the games to the supervision of one referee. 

Here's where it gets really interesting. If the Fair Work Commission do vary the enterprise agreement, it opens up a massive Pandora's Box. It effectively grants every employer in this country to argue that it can contravene any industrial instrument to which it is bound by way of the changed landscape due to COVID.

This is a very interesting case of 'watch this space'. No matter the outcome, it will have ramifications that reach beyong the four walls of Rugby League!

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  • I'm in the medical devices industry and Covid has seen scores of businesses reduce staff wages and conditions by some 20-50% because of Covid. Despite each employee having a valid contract which stipulates full time employment and wages based there on. No provisions for force majeure or to change employment status at the employer's discretion. 
    A few friends have contacted Fair Work and were advised that there wasn't  anything they could do. It was all uncharted  territory. 
    I'm  betting the Commission will shrug their shoulders, mention Covid 19 and the NRL will be free to do what they want. It's the Wild West currently in HR land. 

    • Mutt, what you say is entirely correct with respect to contracts of employment. Practically no employment contracts I've ever seen have force majeure clauses contained therein - they tend to reside in contracts for the independent supply of goods or services.

      However, the Office of the Fair Work Ombudsman has made it clear that any stand down directions or JobKeeper enabling directions must be compliant with modern awards (where they apply) or relevant industrial instruments (such as enterprise agreements).

      By way of a working example (possibly one you're familiar within your industry and profession), if you're a professional salesperson who works under a contract, you're likely not covered under a modern award (unless you travel and potentially fall under the Commercial Sales Award). Unless you work for a major organisation, you're probably not covered by an enterprise agreement either. So, in such a case, your contract of employment is the only instrument upon which you can rely and through the joint agencies of the Fair Work Ombudsman and the Federal Government, the Fair Work Act has been relaxed for those who serve purely under contract.

      That is not the case for employees covered under modern awards or enterprise agreements. To alleviate some employer stress, the Fair Work Commission ammended a tranche of modern awards, operating until around late July this year, to temporarily relax conditions under modern awards, but, those relaxations do not apply to anybody covered under an enterprise agreement. 

      There has been some recent decision making with respect to EA covered employees, for example, the Federal Court's decision to allow QANTAS to stop paying sick leave to stood down workers, but, the Court did so based on section 524 of the Fair Work Act and the modern award, not the enterprise agreement.

      The refs do not fall under a modern award - their employment is governed by their contracts of employment and the enterprise agreement alone. Up to this point, they have complete protection and coverage of their respective enterprise agreement and it cannot be unilaterally varied - unless the Fair Work Commission make an extrajudicial ruling - which I do not suspect they will do.

      However, I do agree with you re HR staff at the moment though (the only time I will ever feel sorry for them!). The rules are changing on a daily basis and the specific rights of the employer and employee are somewhat of a moveable feast at present. 

      • I am naive to this discussion and compliment you guys on setting this out the way you have.

        As a novice at industrial relations it seems to me that no one is losing their jobs amongst the 22 refs involved specifically in the two ref system. 

        Surely (please dont call me Shirley) the NRL has a right to employ them in the capacity of a field official by having them in the guise of a linesman or put another way the 2nd Ref does officiate, just he is based on the sideline and is given a flag and loses his whistle.

        I know this old idiot (me) is missing all the legal points but is not what I said commonsense (there's that word again).

        What am I missing????

        • Poppa , the fact that linesman do not get paid as much as on field refs ? NRL are trying to save money here after all . Also the fact that some on field refs might not appreciate running down the sideline ( including not being a decision maker ) ? 

          • I think one referee is an excuse to bring in a system that makes the game more attractive. Saving money is a by product.

             

  • I read the applicable clauses in the PRLMO EBA and it basically said that the NRL has to notify them of any material changes to the employment conditions of its members. IMO, and I'm not a lawyer, the NRL has landed itself in this absolutely avoidable position in some hair brained bid to try and strong arm the referees.

    I have no idea why some people are saying PVL is some brilliant tactician because as far as I can see, this whole situation can only lead to him having to back down. The 22 full time refs remain employed and they are advocating on behalf of their part time colleagues. The NSW and QLD Cup refs have reportedly joined the PRLMO and will not fill the void if the referees strike. The NRL cannot restart without having the refs onside and willing to take the field. The NFL and NBA in the past have attempted to bully their referees and on both occasions the sporting bodies have had to back down when they realised the professional referees are miles ahead of their pro-am counterparts.

    • Super, does the EBA specify what counts as a material change? Layman's terms says 2 to 1 main ref is a material change but legal contracts are anything but layman's terms. The NRL might be arguing that the 6 again rule and the 2-1 change are both rules within the purview of the NRL to alter, in effect neutralizing the material change provision by equating the reduction of on field refs with changes in playing conditions. 

      Either way, it's hard to say it's not a blunder to have the refs so offside. I was not impressed to hear V'Landy's say the refs are selfish. Imagine a big mining company or a major tech company publicly blaming employees opposing the scrapping of their EBA as selfish. It wreaks of profits over people. All of the Fox footy shows had considered the proposed rule changes as rushed and unnecessary in the first place. Regardless of whether the ideas are good or bad ideas, it was a total blunder to attack worker conditions and job security in the present conditions. Of course major employers are circling the wagons right now, saying now is not the time to ask for wage security; as if they had valued wage security any time in the last generation!

      • So it states two things:

        If the NRL:
        (i) has made a definite decision to introduce a major change that is likely to have a
        significant effect on Match Officials; or
        (ii) proposes to introduce a change to a Match Official's regular roster or ordinary hours of
        work.

        So I'd say this has a "significant effect" and it is a change to the match officials regular roster or ordinary hours of work.

      • All of the Fox footy shows had considered the proposed rule changes as rushed and unnecessary in the first place."

        Apart from Ikin and Kent, every commentater including Rabbit Warren (9) and most of the Fox team are in favour of the one ref rule..... sounds like you were watching the ABC Daz..... also Ben Fordham had a phone in and the support was overwhelmingly in favour as is the majority on this site. I think you need to be on the "right" side for this one Daz.....notwithstanding what the fcukwits in the court decision say and who knows by the sound of it!

        Commonsense will NOT prevail by the sound of it! "God help the referees.... because Gough won't!

        Just think how much money we could save if Peter Vlandys could be the benevolent dictator of the whole world....we could get rid of the Greens, the new left and just be left with the "old people wisdom".

        Good news for you Daz you will be looking after reading, writing and arithmetic in playschool where you cannot influence the impressionable minds you currently alter.... Lol

        PS You sound's like your a nice empathetic person who will love working with children under 6....one day we will even let you coach a junior footy team....under supervision. We wouldn't wont to spoil their chances of winning.

        • Gee, Poppa, I wonder what you think "rushed and uneccesary" means? In favour of or not was not my point. Most commentators pointed out that most such rules get trialled and announcerd further in advance they a few weeks.

          Now because the refs of your comment was drivel I'll just ask if you're off your meds lately? Seriously, are you OK?

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