Re Phillip Adamson and Others v New South Wales Rugby League Limited and Others [1991] FCA 425;

Re Phillip Adamson and Others v New South Wales Rugby League Limited and Others [1991] FCA 425; - FCA 1991 case summary — Zoe

[59]

"55. On 7 November, 1990 and on the first Wednesday of November of each

succeeding year the League shall circulate to each Club a list to

be known as the 'Internal Draft List'. Where necessary, pursuant

to the provisions of this Rule, the League shall also circulate to

each Club a further Internal Draft List on the first Wednesday of

each of the months from January to June of the year in which the

Competition is played.

56. (a) A player who has or will have attained at least sixteen (16)

years of age by 31 December prior to the commencement of the

Competition may make application to be placed upon an

Internal Draft List on the form prescribed by the League

from time to time provided that:

(i) he has previously played in the Competition or

in a major Premiership Competition conducted in

another country or in a senior Rugby League team

representing Australia or New South Wales or

Queensland;

(ii) he is not contracted to play for a Club in the

Competition and;

(iii) he is not contracted to play for any other club

or body affiliated with the League unless a

clearance is submitted to the League from such

Club or body granting or having the effect of

granting permission for the player to play in

the Competition for a specified period of the

Competition.

(b) The League shall include in each Internal Draft List the

names of all applicants received by the League prior to the

preparation of that List. The League shall not place the

name of a player upon an Internal Draft List if his

application does not comply with the requirements of the

preceding paragraph.

(c) A player shall be entitled to stipulate in his application

that no Club whose ground is situated more than one hundred

(100) kilometres in a direct line from the ground of the

Club with which the player last played in the Competition

shall be entitled to select him at the Internal Draft Meeting.

(d) The Internal Draft List shall be in a form prescribed by the

League from time to time.

(e) A player who participates in an Internal Draft and is not

selected at the Internal Draft Meeting shall:

(i) be entitled to negotiate and enter into a

contract with any Club on the terms and

conditions contained in his application to be

placed upon an Internal Draft List;

(ii) be entitled to make application to be placed

upon any subsequent Internal Draft List and

shall be entitled to vary the terms and

conditions which were inserted in any prior

application to be placed upon an Internal Draft List.

57. On 20 November, 1990 and on the third Tuesday of each month in

which the League circulates an Internal Draft List pursuant to

these Rules, the League shall conduct a meeting to be known as the

'Internal Draft Meeting'. At that meeting a representative of

each Club shall be entitled to attend and, subject to Rule 56(c),

to make selections of players from the Internal Draft List until

the total number of players with whom the Club has contracted

reaches fifty-seven (57), in the following manner:

(a) At the November Internal Draft Meeting each Club shall be

given the opportunity of selecting the players whose names

appear on the Internal Draft List one at a time in the

reverse order to the order in which the Clubs finished at

the completion of the preceding Competition.

(b) At subsequent Internal Draft Meetings held from January to

June of each year each Club shall be given the opportunity

of selecting players in the same order as in (a) above with

the exception that such order of selection shall continue

from where it concluded at the previous Internal Draft Meeting.

58. A Club shall not sign a contract with a player to play for the

Club unless such contract is in the standard form approved from

time to time by the League with such additional conditions as may

be agreed upon between the Club and the player."

[92]

34. The appellants do not dispute that the form of contract stipulated by the League pursuant to rule 58 is a contract of service, rather than a contract for services; that is, that the player is an employee rather than an independent contractor: cf. Commissioner of Taxation v Maddalena (1971) 45 ALJR 426. Nonetheless they contest the conclusion suggested on behalf of the respondents, presenting several alternative arguments. In the first place, they say that the rules must be read as a whole. It is true, say counsel for the appellants, that the rules contemplate only a contract of service between player and club, excluding the possibility of a contract between, say, the player's family company and a club pursuant to which the company promises to make the player available for stipulated duties, but without there being any contract directly between club and player. (Compare, for example, Building Workers' Industrial Union v Odco Pty Limited [1991] FCA 87; (1991) 99 ALR 735 and Hughes v Western Australian Cricket Association [1986] FCA 357; (1986) 19 FCR 10 at pp 40-41, where Toohey J found that the relevant contract, under which a professional cricketer was made available to a club, was a contract for services.) But counsel say that rule 58 has to be seen as merely part of the exclusionary provision, or term substantially limiting competition, which the rules impose. They submit that the whole subject must be considered as if there were no such rule; in which case, they say, it would immediately be seen that players' services might be provided otherwise than under a contract of service. At this point, counsel for the appellants draw attention to the incontestable facts that the opening words of the definition of "services" are wide enough to include the provision of benefits under a contract for services and that para.(a) of the definition expressly contemplates that benefits may be provided in a contract for or in relation to "the performance of work". The only relevant exclusion from the definition, say counsel, is benefits which amount to a "performance of work under a contract of service". Once it be accepted that relevant work may be performed under a contract for services, counsel say, it follows that the exclusion is not adequate totally to exclude those benefits which might, but for the improper provisions, be supplied to clubs.

[106]

47. From a policy viewpoint some people might think it unfortunate that s.45 does not apply to a case such as this. As I have pointed out, the internal draft rules undoubtedly have the purpose of restricting the supply of footballers' services (in the ordinary sense of that word) and the effect of substantially limiting competition in the market place for those services. Section 45 would apply, freeing up the market and facilitating competition, if there was a history of Rugby League footballers offering themselves to clubs pursuant to contracts for services, as distinct from contracts of service. It is difficult to see what policy purpose is achieved by leaving inviolate arrangements under which potential employers agree not to compete amongst themselves for the recruitment of employees who will work on a contract of service basis. Such a situation seems to be inconsistent with the general philosophy underlying Part IV of the Trade Practices Act. It certainly is not in the interests of employees. They find themselves, uniquely so far as the Act is concerned, having to suffer any collusion amongst those with whom they would negotiate. And it is not necessary to have that situation in order to avoid conflict between the Trade Practices Act on the one hand and the Industrial Relations Act 1988, and awards and agreements made thereunder, on the other. As I have pointed out, the latter provisions bear upon the terms of the employer-employee arrangement, the former upon any restrictive arrangement between prospective employers. It seems to me that the present position is anomalous. That anomaly may achieve particular importance if there is a movement towards "enterprise bargains" in the labour market, with increased reliance on contracts between employers and employees to regulate matters such as remuneration and employment conditions. In such a climate any agreement between prospective employers which restricts competition between them for prospective employees may be extremely prejudicial to employees.

At a glance

Court

Decision date

Before

Source

Judgment (276 paragraphs)

Re Phillip Adamson and Others v New South Wales Rugby League Limited and Others [1991] FCA 425; (1991) 13 Atpr 41-141; 103 ALR 319 (1991) 31 FCR 242 (1991) 38 IR 427 (6 September 1991)

Parties

Legislation Cited (8)

Cases Cited (24)