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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Replies
You have handled this very well BM, even though I emotionally support BE your expertise is beyond dispute....
the proactive decision which we all want has a dependance on the Covid circumstantial aspects and in this case I see that flawed, as it is done for the benefit of the game and not to suit any provisions of the virus inconveniences?
This is a mess in that the process is so illogical, lets hope that the refs association look at the greater good....... as an aside I thought the refs may actually prefer to have the one ref situation as I often see some resentment from the premier official when the pocket slows downs the rythm of the game to accede to some pedantic need to explain his/her presence.
I definately see a auditor type mentality in all referreeing which to explain is that rather than look to find errors for the sake of it, look for the things that have the effect of effecting the business efficiency (think game flow in RL terms).
I once practised as an auditor in the banking industry and it initially is a real struggle not assert yourself for the sake of finding errors, rather than judgmentally looking at their importance of same for the greater good i.e a warning on the run. Police officers and beaurecrats in general have the same probem.
The best referrees have always been the ones that let the little things go and the words "play on" should be inscribed in every refs brain. When they say play on they aknowledging an error that they have decided was not important enough to stop the game.....the six again scenario becomes a form of this!
I see the NRL media are reporting via Hooper now that the Commission will be forced to decide after talks stalled between the parties. If the referees are right the NRL will have to back down and two referees will control the games as normal if the commission rules in favour of the NRL there will be 1 referee controling the game with two referees running sidelines with expanded roles.
Im not sure which outcome is better for our game.
Now that the NRL have effectively won and we will have the 1 referee model. I don't understand why the referees sought out the commission in the first place.
secondly - it's going to get interesting to see if the 1 referee model works for our game. I do wonder if the referees will be fit enough to allow the fast pace game that we are after.
Fitness won't be a problem BE, refs these days are professionals just like the players
Our game will be so much better if we can reduce the wrestle and speed it up. Love watching the big men wear each other down and dominate and the little blokes put a show on with their skill.
Thx for finding that info, Bourbon Man. So it looks like the NRL can certainly ask a ref who normally refs in the field to ref on the sideline?
So that would say the Ref Union ca not oppose a shift to single ref on the grounds shifting refs to the sideline is a material change?
Bourbon Man, could refs be paid but not officiate? Mid say to a back down?
There's one area the Refs don't have a leg to stand on and that's public support, we the consumers have overwhelmingly voted for 1 Ref and if that means we want 1 Ref the League has every right to change it, just like in there was a lot of support on here for the ARU being able to terminate Isreal Folou because of negative publicity and potential loss of revenue. By the same reasoning Vlandys has every right to make the change
That's very true Steve. The refs are doing themselves absolutely no favours by threatening the resumption of the competition and the thousands of jobs that depend on the resumption!
True, Bourbon Man. It's a public relations nightmare. Still, do we want to be saying that workers protecting their rights can be sacrificial lambs if enough in the public don't care about them?! That's a slippery slope to a corporatist state!
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