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 like your last paragraph Hoe as it is a fair summary and emphasises what many do not seem to understand i.e perfection in anything is rarely seen, the word "betterment" is more appropriate and the real winner/loser will be by how much or how little.

      We have to be very careful that we have a real leader in Vlandys and because of his style every positive and negative will be seen to be his responsibility..... this initial assumption is correct but it then has to be managed on a differential level by the CEO and his staff...... Vlandys as the Chairman is stamping his mark but he is not an executive chairman or ceo, everyone needs to understand this as the process progresses. i.e if the 6 again doesn't work it is not necessarily because Vlandys was wrong as much how enthusiastically  the refs, players and coaches adopt the principles!

      Rugby Union was a game I once loved nearly as much as League but it was ruined by stifling rules and beaurecratic officialdom at every level......lets not fall for the traps that has basically ruined that game!

      • Yeah, gents. I do admire and respect V'landys as well; he's that strong leader the game needs. He also has the pedigree and carries a big stick.

         

  • Great insights, thanks Bourbon Man, a very good read. Probably the most interesting blog I have seen here and it's not even Parramatta related!

  • I'm a lawyer but I know embarrassingly little about employment law. It's always struck me as a minefield of rights and pseudo rights that I don't want to go anywhere near. I'll defer to better knowledge on this one but at the very least I think Vlandys has gone about this in a very heavy handed manner and could possibly have been a bit more collaborative in his approach. On Vlandys to be honest he strikes me as being (mildly) on the autism spectrum when you see him on TV. That's not a dig by the way the most brilliant professionals I work with are also on the spectrum I reckon. It's just that sometimes empathy doesn't list high on their character strengths. Usually that works for them but not always. 

    • That's it exactly Michael. He's a head kicker, something that Rugby League has sorely lacked & desperately needed basically since John Quayle. JQ was often accused of the same lack of empathy by many people in the game, but the game was never better run than it was under JQ, with Arko's collaborative style counterbalancing him perfectly. They don't care whose feathers they ruffle so long as they get the job done.

      Now you might say that PVL lacks that counterbalancing influence, and that would be fair, but right now the game needs PVL off the leash, the game needs a dictator who doesn't care if he pisses off Nick Politis or Des Hasler or Super or anybody else for that matter.

      The game needs someone to drag the game through this period and into the 21st century, kicking and screaming if need be. Once the game is stabilised and normalcy is returned, then yes he will need that counterbalancing influence, and no doubt he will see to it that the game gets it, but not right now.

      The game needs Peter V'Landys now more than at any other stage in its history.

  • Does the EBA specifically say TWO referees are to be used in every FG match?

    Does the EBA give a specific timeline for notification of any proposed, or otherwise changes the NRL want to impliment?

    I have had my fair share of HR and even at the best of times there are more traps than escape hatches for employers.

    I will site one case I was involved in, Employee was stealing from employer. Employer set up CCTV to record employees actions. Employee was recorded THREE times stealing. Employer called Police and had employee criminally charged and gave summary dismissal notice. Employee went to Commission and won Unfair dismissal claim. This is the short version.

    Now I am at a loss to reconcile how any agreement/contract can be altered on the fly simply because the employer fonds it burdensome on his business.

    Businesses have used Redundancy quite successfully to downsize employee numbers, (Your position no longer exists) was this an option the NRL might have considered.

    One thing I can tell you for certain is awards, EBAs and contractactual conditions change constanly and you really need to be on top of your game to keep pace at times.

    Disclaimer: I have been out of the corporate world for some considerable time and may be wide of the mark in some of my comments.

    {EDIT} just saw HOE's comments on the two questions I asked.

  • What everyone seems to agree on:

    - one or two refs? Meh, we don't want League to be Union so one is fine to try

    - 6 again rule? Anything to stop Storm wrestle shit

    - PVL charged in and could have consulted the refs Union better? Yeah, would have been better to have consulted the workforce 

    - collective bargaining agreements are sacrosanct? Shit, turns out the lawyers respect them. Maybe there is hope for lawyers yet?

    - Best outcome: parties settle before the commission hears the dispute. Worst outcome: a collective bargaining g agreement gets tossed out (bad precedent for workers rights)

    • Mostly. It's resolved now, so it's all good. Bourbon's a top guy, and lawyer, so you can expect he cares...

      I don't think the EBA was as much in the ref's favour - in terms of the one-ref change and the knock-on effects with their match payments - as has been made out. Not in its expressed written form, at least. Where did the NRL breach it, really? Maybe, just in the speed of consulting the refs "after" the decision (Part 7). That's hardly a major breach (and the refs went to the FWC quickly not giving the NRL a chance to consult). If anything, the EBA should have been more watertight for the refs for them to push their case.

      Also, professional ruck wrestling started years before the Storm existed and was well established under a one-ref system (ironically) for decades. At the very least from the mid 90s, with Manly's 1996 premiership winning team under Fulton, where ironically Ponissi was working. The Storm just mastered it consistently better than anyone else from about 2001. Now, everyone does it. I see it as inevitable. The danger in trying to destroy the ruck and physicality which inevitably causes the wrestle, is you get touch footy and blow outs more often, potentially. Time will tell how the"six again" works under one-ref. It's worth a shot, as you say.

      • Nice Post HOE, in terms of the legality of decision about the ref I'm no expert. I had no idea Ponissi worked under Fulton and your right the wrestle existed prior to the storm but they managed to take it to whole new level. The NRL dropped ball id say since 2010 in not addressing the wrestle, allowing current coaches on rules committees can anyone see the insanity and the conflict of interest? Refs should have a seat on the table when discussing rules but not the ones currently officiating - why not invite Bill Haragan easily one the best and get his opinion? I guess politics runs deep in the NRL.I think its time to clearly state the roles and responsibilities of all stackholders and keep things simple! No fancy modern ideas.. Refs are meant to ref, coaches to coach not be allowed to seat on rules committees. I love the idea of 1 ref and 6 to go call, the challenge will always be getting the balance right in attack and defence. The game essence must rediscovered and anyone that's says the game has evolved and has never been better is taking shit. The game must find a away to allow for more fatigue, so called elite athletes interchanged after 20 minutes?? Over officiating doesn't equal a better game its the opposite. Peter V'landys has shaken the game the fans will enjoy the ride its time for players and coaches to adapt. 

        • Well put Mick.....spoken like an old league fan......did you turn 60 3 monthss ago or is it just the transfer of wisdom the older guys are turning on for you.

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