The New South Wales government will seek to terminate the enterprise agreement of thousands of rail workers and scrap a deal to modify a multi-billion dollar fleet of trains unless the union agrees to end all industrial action by 5pm Friday.

In a dramatic step that could set the stage for a prolonged court battle, the government wrote to the head of the Rail, Tram and Bus Union (RTBU), Alex Claassens, and threatened to file an application with the Fair Work Commission to terminate the agreement.

“I put you on notice, that should the combined rail unions fail to instruct members to cease the ongoing protected industrial action by the close of business, [then the government] will file an application … seeking to terminate,” the letter said, signed the secretary of transport for NSW, Rob Sharp.

While the union would need to apply for a new round of protected industrial action if it were to again strike, a number of actions – including leaving Opal gates open across Sydney’s transport network – remain ongoing.

The Guardian understands it is those actions that would trigger the application.

On Thursday the industrial relations minister, Damien Tudehope, said while continuing industrial action “doesn’t itself trigger an application to terminate the agreement” it was “evidence of the fact that there is no prospect of an agreement being reached”.

“It constitutes evidences which the rail entities are able to rely on for the purpose of their application,” Tudehope said.

He said the deadline was related to the government’s commitment to make changes to the intercity fleet, which has been mothballed for more than two years because rail workers refuse to operate them due to concerns about safety.

“The modifications to the intercity fleet will be off the table,” he said.

On Wednesday the premier, Dominic Perrottet, vowed to take the RTBU to the commission in a bid to tear up the agreement if workers rejected the government’s final pay offer.

That offer – which is 0.5% below what the union is seeking – was not good enough, Claassens said on Thursday.

“I think we can absolutely guarantee that it will not be recommended,” he said.

“We are quite clearly now in a world where ministers are dummy spitting, they’re throwing their toys out of the cot, and they’re making decisions via press conference.”

Claassens would not rule out new action, saying it would be up to union delegates.

“We will all be having conversations over the weekend. We will have a meeting of our delegates, and our delegates will make the final call as always in our union,” he said.

But the letter caught union officials off guard.

Perrottet had said the government would seek termination orders if the union engaged in any new action, such as the strike that crippled the network on Wednesday.

During his press conference earlier on Thursday, Claassens said he had not been told of any issue with the existing actions, which also include refusing to provide access to carry out work on the government’s new metro development.

Coalition MPs have for months accused the union of running a “politically motivated” industrial campaign ahead of the March state election, but Claassens said the actions by the government showed it was “clearly about politics”.

“I think yesterday set a new standard, where politicians are quite clearly making this all about them about their future,” he said.

It comes as Perrottet was involved in a heated exchange with the RTBU’s national secretary, Mark Diamond, on the sidelines of the jobs summit in Canberra on Thursday.

Diamond said he had approached Perrottet in an attempt to “implore him to speak the workers”, but that the exchange had become “heated”.

“The conversation did not go well at all,” he said.

Perrottet reportedly said the exchange was not “animated”, but added he had told Diamond the strike on Wednesday “was an absolute disgrace”.


Michael McGowan

The GuardianTramp

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