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!
You need to be a member of 1Eyed Eel to add comments!
Replies
Ok
So if you practised industrial law then you must be right. I certainly haven't.
The commission / court then will rule in the referees favour at the end of the week.
Hope your not wrong mate.
I thought the touchies were moved on due to no more work available nothing to do with industrial action., all legal leaving the referees no leg to stand on, So I still dont see how the referees win, but ok, if you say so.
I suspect the Commission will rule in favour of the refs, if they stand firm, however I'm very much hoping it all gets resolved on the steps of the Fair Work Commission (as these things often do). Nobody wants to see strike action and I don't want to see PVL having to back down because I think the proposed changes will make the game an even better spectacle.
No worries mate , I sort of want the ruling now, to either back my opinion and take on it or knock me back in line. :)
You may well be right Blue Eel because all I know about this matter is what I've heard and read in the media but, generally speaking (as I was when I penned this blog) when reading the EBA, it does appear that the refs have the legal right to take this action and are not disqualified from doing so for the reasons you outlined.
Also, and I think this is highly unlikely, the FWC might choose to use the relaxed interpretation of section 524 (Stand Down provisions) of the Fair Work Act to justify a temporary change to the match officials employment conditions due to the extraordinary nature of the COVID pandemic. They did amend a number of modern awards with temporary measures that watered down employee rights to allow employers to better cope with the pandemic but those amendments were made in agreement with unions and industry bodies alike.
To unilaterally amend an EBA without agreement from all parties would be unprecedented.
Either way, and for complete transparency, I will upload a summary of tomorrow's decision once it is available.
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.
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?
-
2
-
3
-
4
-
5
-
6
of 9 Next