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 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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  • Bourbon, Top blog. We're lucky to have you here, mate. I'll be very interested in the progress of all this and where all the balls land. Apparently, regardless of the outcome, refs won't strike.

    Two things stood out for me with the National Rugby League Match Officials Agreement, signed a year ago in May 2019 and expiring in early 2023, are:

    1. There is no expressed mention that "two referees" must officiate in one match. Full time refs can be relegated as a ref or touch judge to the NRL's discretion.
    2. In part 7, the NRL can consult the refs "as soon as practicable after making the definite decision" that has "significant effect on" refs or their "regular roster". And as per the agreement that is what eventuated: the NRL consulted the refs "after" the decision. Not before, not during. Notwithstanding that, that part also allows for the FWC dispute resolution process that is occuring now.

    So, correct me if I'm wrond, but what aspect of the agreement has the NRL directly contravened ?

    The thing is: refs will be significantly impacted by this. I feel for them, despite all the attacks on them. Their earnings potential and career has been partially derailed. Assuming their base pay doesn't change from ($106,000-$212,486 in tiers one to five) under the EBA, it's their weekly match payments that will take a significant battering. Each week, or match that they are relegated to be a touch judge they lose around $1,500 for every match (say around $20,000 pa if they end up being a touchie half the time); $5,000 for every state of origin match; and $5,000 for the grand final; and $2,200 for every final match. Also, career wise being demoted to a touch judge status after many years of officiating as on-field referees is a bit of a kick in the guts. The other thing is with the focus of speeding up the game, from V'landys down, especially the war on the ruck, there will be increased pressure on the single ref to ensure this happens. So, to recap: refs will have more pressure to change the game, on less pay with reduced job satisfaction. It's not surprising they aren't singing Kumbaya with the rest of outraged fans, media and the mob.

    It's also unreasonable to assume the one-ref is the solution, alone: to speed up the ruck or stop the wrestle. Despite being assumed by fans and even V'landys to a degree with a dose of glory day romanticism. Remember: One-ref failed before. And the two-ref system was meant to fix that, but also failed to clean up the wrestle. As Damien Cook noted, he could get away with far more in the ruck in tests under one-ref than a regular two-ref game. So, rather than one-ref, it will be the rule changes - such as 'six again' - and other powers vested to refs and mandates from V'landys down that may end up the game changer. If at all. After all, many fans often admire the freer flowing State Of Origin matches, but also tend to conveniently downplay it being under two-refs. The thing is, the wrestle is almost inevitable in a professional combat sport and we can't bring back the past. It has helped teams win premierships from at least the mid 90s - including the 1996's premiers, Manly under Fulton, some 15 years before two-refs, onwards. Also, bodies are increasingly becoming bigger, faster and more powerful as are the collisions, momentum, and subsequent wrestle to control the ruck. Time will tell how successful V'landy's war on the wrestle and ruck is, but I hope the game doesn't turn into a touch footy game, regular score blowouts and an annihilated ruck - because of fans' fixation on solving the wrestle and ruck. I hope a balance is struck.

    Also, I question the supposed two million saved by a one-ref system. The regular match payment savings of full time refs comes to around $300,000 or so. How much more will they save culling casuals, a few extra massages, physio, plane plane tickets etc? Until I see specifics, I'm unconvinced by talk.

    I suspect V'landys' personally prefers one-ref (like many fans) and likes the idea of cost savings where he sees extra fat on the steak; and an opportunity to change the game for the better from his perspective. V'landy's has a hell of a job trying to juggle multiple balls and keep as many parties happy. If anyone can do, and change the game for the better, it's him, but it probably will be far from smooth sailing. Long live the game: one-ref or two!

    • From the sounds of it, they didn't even "consult" the PRLMO after the decision. They apparently told Del Vecchio 10 minutes before it was announced to the referees. That's hardly consulting in line with 28 (d) (i) (ii) and (iii).

      PVL spouted a $3m saving. The PRLMO said it's a $500K saving. Wading through the crap PVL has said, the refs sound like they've been more than fair. They've takent the same pay cut as the players and the full time refs even offered to take a further cut if it meant they retained the two referee system. They've also asked for PVL to supply any evidence that the one ref system will speed the ruck up. He hasn't. 

      • Yeah, Super. Fair enough. There's an argument the NRL could have been quicker on the uptake "after" the decision was made to invite refs in on a discussion, pursuant Part 7, 28 as you noted.

        The bottom line is: it's a saving. I could be around that 500K mark or a touch higher. I don't know. But, any saving is very attractive, a socially accepted necessity, in a post-COVID world of economic recovery. One-ref is also something the majority of fans are happy about; which helps with commercial traction, selling the game; reinforcing V'landys' grip on the wheel.

        But, the truth is: it won't be a one-ref system alone, that will speed up the ruck or win the war over the wrestle. That's BS. It's the rule changes, like six again and mandates from above and powers given to refs as to how the game is to refereed that will make the difference. We talk about State Of Origin's free flowing game, being what we want - well, that's a two-ref game. The one-ref failed, before.

        Unfortunately, the refs will probably need to take a few thankless, straight rights, flush on the chin. For the team. Let's see if V'landys' offers some kind of peace-deal sweetener to offset their losses, or just convinces them. The problem is any offset undermines the savings benefit and then becomes more about personal wants of V'landys and fans, driving the bus. 

        PS: If the refs are happy to take the pay cuts on match payments, and admit there's a saving for the game, what do they really want now? Better communication from above? More involvement in the decision-making process (not part of the agreement)?

        • I imagine they want to keep the two-ref system. They haven't said a word about their pay. In fact the PRLMO has said publicly they were prepared to take a cut that would save the NRL more money than the suggested move to the one referee system.

          So, if that's the case and the NRL rejected it, why is the NRL pursuing an arrangement that would save them less money? That doesn't seem like smart business. That seems like a pig headed commissioner trying to ram home a change with no economic or factual argument.

          • Personally, I'm not against the two-ref system. I think it has some advantages. There's a reason so many players, coaches, clubs and refs prefer it. They are the ones who produce, who play the game at ground zero and the ones that need to adapt to it, now. If the two-ref system had the same support in rules as the one-ref system, with the same savings (refs accepting cuts), why couldn't it produce a State Of Origin like free-flowing game ? If...

            But, the decision's above their pay grade. I'll give V'landys some respect on this one, and note his pedigree affords him some room to move. We'll see what happens...

            • I think there is a physcological reason that 2 refs don't work Hoe.....which basically means all refs are different to the extent that like marriages two doesn't always work.

              In essence your right of course, you can't argue with the commonsense of 2 being more efficient.....what you can argue with is the number of mistakes that one makes and multiply it.

              Again my personal view is that refs can't help but compete with each other, just like people on here!

              • A knock-on effect of removing the second-ref, is the reduced policing of the 10m (formerly done by the second ref); important if you want to have a less-defensive, more free-flowing game. It's possible we also may get increased inconsistency on its policing.

                We also may see some increased niggle and inconsistency in the ruck if the ref's focus is partially distracted when simultaneously policing the ruck (winning the war on the wrestle) and the 10 (formerly policed by the second ref).

                Maybe, the touchie's will need to step up to counter it? They'll need to figure it out asap.

                PS: Whatever happened to two heads are better than

                • not in Tasmania and Queensland their not....Lol

                  Your right, the touchies will become more accountable......I asume they will be connected with the ref via some sophisticated communication system....

                  • Maybe they could employ more Tasmanian and Queenslander refs, with eyes on the back of their heads. ;)

    • HOE they are two major points. V'Landys has at least come in and made some tough calls in very testing times. I will give him that. And well done. He also moved on TG, again well done.

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