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Recently, there has been intense focus in the media on two of Australia’s top sporting codes and their negotiations for new pay deals. The threats of strikes and boycotts highlight why it is important to have and maintain good communication between the parties in the collective bargaining process.

Cricket

Cricket Australia (CA) and the Australian Cricketers’ Association (ACA) are party to a Memorandum of Understanding (MOU) for international and domestic players, which is due to expire at the end of June 2017. The contents of the MOU (which have more or less remained the same since the first agreement in 1997) provide that players receive a share of all revenue generated.

CA has proposed a different player payment model, arguing that this new model will increase player payments whilst also providing for investment in grassroots domestic cricket. The ACA has refused to accept CA’s player pay proposal and put forward its own proposal based on the current revenue share model, threatening a boycott of the Ashes series.

While the parties are far apart in what exactly the new collective agreement will look like, the dispute is now largely being played out in the media. The CA Chief Executive advised the media that the model proposed by the ACA was ‘untenable’ and did not address the lack of funding for grassroots cricket and for female players.

CA has also refused an invitation from the ACA to mediate the matter. In their view, the ACA has not made any efforts to negotiate or discuss problems with the revenue share model. Meanwhile, the ACA has criticised CA for refusing an invitation to mediate the dispute and, in a media release, stated that to do so was a “clear lack of common sense”. The ACA has also questioned CA’s claims about the funding of grassroots cricket.

As the parties get more deeply entrenched in their positions, the ACA has sought the assistance of Greg Combet, former Secretary of the Australian Council of Trade Unions (ACTU). In another move indicating that the dispute will not be over soon and to strengthen their position, the ACA has established the company “The Cricketers’ Brand” to manage cricketers’ intellectual property rights, including player images, names, player interviews, appearances and sponsorship.

Rugby League

Miscommunication has also threatened negotiations of the new collective bargaining agreement (CBA) between the National Rugby League (NRL) and the Rugby League Players Association (RLPA).

The RLPA has taken issue with a memorandum from the NRL issued to Clubs (which was leaked to the media), accusing the NRL of being misleading and misrepresenting their proposal for the 2018 to 2022 CBA. The NRL memorandum stated that the proposal from the RLPA was unaffordable and did not have regard to the interests of the game.

The RLPA issued its own email in response to the NRL’s claims with players also speaking out about the NRL’s handling of negotiations. The RLPA has indicated that it would be prepared to boycott the Rugby League World Cup at the end of the year.

Good faith bargaining

Under the Fair Work Act 2009 (Cth) (FW Act), employers and employees can negotiate terms and conditions of employment in an enterprise agreement. The FW Act sets out a framework to assist the parties to bargain and negotiate known as “good faith bargaining”. Section 228 of the FW Act provides that the good faith bargaining requirements include:

• attending, and participating in, meetings at reasonable times;
• disclosing relevant information in a timely manner;
• responding to proposals made by the other party for the agreement in a timely manner;
• giving genuine consideration to proposals and giving reasons for responses to those proposals;
• not engaging in conduct that is unpredictable or unfair conduct that undermines freedom of association or collective bargaining; and
• recognising and bargaining with the other bargaining representatives for the agreement.

The above disputes in the cricket and rugby league sporting codes serve as a reminder of the good faith bargaining process. It also highlights the impact of poor communication. Poor communication can often escalate issues unnecessarily, particularly when either or both parties use the media in an attempt to obtain leverage over and/or to pressure the other party.

Parties must make every effort to be clear about their respective positions and the details of any proposal and ensure their communication is clear and honest.

While collective bargaining by its nature pits the interests of employees against the interests of employers, ultimately all parties are interested in the ongoing success and profitability of the enterprise. This is particularly true in a highly competitive sporting environment where working together to achieve the best possible outcome for the game will result in benefits for both sides.