National Rugby League Limited

[2023] FWCA 1076

[2023] FWCA 1076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

National Rugby League Limited

(AG2023/681)

NATIONAL RUGBY LEAGUE MATCH OFFICIALS AGREEMENT 2023 TO 2026

Sporting organisations
COMMISSIONER PLATT	ADELAIDE, 17 APRIL 2023

Application for approval of the National Rugby League Match Officials Agreement 2023 to 2026

1. An application has been made for approval of an enterprise agreement known as the National Rugby League Match Officials Agreement 2023 to 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the National Rugby League Limited T/A National Rugby League Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 23 March 2023.

1. On Friday, 31 March 2023 I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

1. The Applicant sought that the name of the Applicant be changed to the National Rugby League Limited.  I have exercised my powers under s.586 to amend the name of the Applicant.

1. The NERR distributed by the Applicant is defective in a number of respects:

·   The NERR was on the Applicant’s letterhead.

·   The NERR contained a statement that the NRL intended to bargain in good faith.

·   The NERR provided details of the first bargaining meeting.

·   The NERR added the names of two internal contact persons.

·   Any most importantly the NERR omitted material concerning the default bargaining representatives.

1. Of all of the errors, the most significant in effect is the failure to advise employees for the default bargaining representative arrangements.

1. Why the Applicant could not follow the simple instructions contained in the Fair Work Commission Website to print out and publish a correctly worded NERR is disappointing.  The NERR is required to be provided to employees unamended. Unfortunately, failure to meet this requirement is not uncommon. I trust that the NRL will facilitate the education of persons involved in bargaining to ensure such errors are not repeated in the future.

1. The Applicant has provided detailed submission as to why I should find the errors should be characterised as minor technical or procedural errors, and that the employees covered by the Agreement were not likely to be disadvantaged. Section 188(2) of the Act provides a mechanism for me to make such findings and find that genuine agreement exists despite the flawed approach.

1. The Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1] is the leading decision in relation to section 188(2) of the FW Act.

1. In summarising its position on section 188(2)(a), the Full Bench further noted at [117]:

'9. Some species of error are unlikely to be classified as ‘minor’, for example the deletion of the prescribed text of the NERR which deals with an employee’s right to appoint a bargaining representative and the role of the unions as the default bargaining representatives. But, again, it may depend on the circumstances (see paragraphs [77] -[78] above).' [emphasis added]

1. The NRL bargaining arrangements are unique. All but two of the employees nominated the Professional Rugby League Match Official Incorporated (PRLMO) to represent them. The PRLMO has represented the industrial interests of match officials in the NRL since approximately 2014.  It does not appear that any other industrial organisation is entitled and/or has exercised any capacity to represent the industrial interests of NRL Match Officials.

1. I received signed statements from the remaining two employees who chose not to be represented by the PRLMO. They have been employed by the NRL since January 2009. These employees appear well versed in the bargaining process and their rights to representation.  They are not members of any Union and represented themselves, a process they adopted in the previous bargaining round.

1. As a result of the unique circumstances in this matter I am prepared to accept that the error was a minor technical and/or procedural error. I am also satisfied that the various errors in the NERR have not resulted in a disadvantage.  I am satisfied that there has been a genuine agreement. 

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 February 2027.

COMMISSIONER

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

<AE519736  PR761069>