Alex Claassens has gotten used to winning. In his 12th year as the state secretary of the powerful Rail, Tram and Bus Union, he seemed to have outmanoeuvred the New South Wales government at every turn in a hostile and protracted industrial dispute that has caused chaos on Sydney’s train network.
It happened in February, when the government hastily shut down the state’s rail network.
The transport minister, David Elliott, tried to blame the union for “hijacking the city” with “terrorist-like activity”, only for it to emerge he had gone to bed before rail authorities had decided to close the network themselves.
It happened again in July, when the premier, Dominic Perrottet, declared “enough is enough” and decided to drag the RTBU before the Fair Work Commission, only for it to side with the union and label the state’s claims about the economic impact of the strikes “inexplicable”.
But now, the fight has taken on a new dimension.
This week Perrottet pressed the nuclear button, threatening to seek to tear up the enterprise agreement covering rail workers. He also promised to scrap a commitment to modify the multibillion-dollar intercity train fleet unless the union ceased all industrial action and agreed to vote for what he said would be a final offer on pay and conditions.
It was a stunning intervention, with risks for both sides.
For the union, a successful termination could see its 13,000 members lose hard-won conditions, as well as changes to the intercity fleet that it insists are necessary for safety.
For the government, a loss at the commission would mark yet another embarrassing defeat, this time after a potentially long court fight, just months from the March state election.
Then there’s the intervention of the federal minister for employment and workplace relations, Tony Burke, who wrote to the president of the commission on Friday noting his plans to restrict employers from using the very powers the NSW Coalition wants to use against the union.
He was “concerned by the practice of some employers threatening to terminate agreements as a bargaining tactic”, Bourke wrote.
The letter didn’t mention the NSW dispute, but Joellen Riley Munton, a labour law professor at the University of Technology Sydney, said the commission would be aware of the context it was operating in.
“I think they would do their jobs, as they are supposed to do, but there would be a nervousness about making an ill-considered, quick decision,” Riley Munton said.
“Remember we’ve got the premier of NSW standing up saying, ‘We’re going to rip up this agreement’. Well not withstanding that he’s the premier, he doesn’t actually have the power to shred the agreement.”
While the government has focused on industrial strife, the decision to terminate would rest on whether the enterprise agreement is fit for purpose.
“The RTBU obviously has no interest in letting that happen, so it would be a contested application and I suspect the commission would want to hear the fullest evidence of why it is [that] the agreement is no longer a fit instrument to govern the employees,” Riley Munton said.
Employers’ use of the power to terminate agreements has become more common since a 2015 decision involving rail operator Aurizon, which experts say watered down the test.
Shae McCrystal, a professor of labour law at the University of Sydney, said since that decision the commission has often sided with employers.
“If NSW Trains brings an application to terminate the agreement, mostly the case law shows us that most go in the employers’ favour,” she said.
On Friday the combined rail unions announced they won’t stop protected action – including minor measures, such as leaving Opal gates open across Sydney’s transport network – despite the government threatening to launch a termination bid if they had not ceased by 5pm.
Instead, the union launched its own case seeking to force both parties back to the bargaining table as well as attempting to gag Perrottet and his ministers from commenting on the negotiations for 14 days.
“They’re unusual orders, we accept, but the idea is for there to be a bit of clear air and that some of the collateral skirmishing happening in the media and in public be paused at least for 14 days to allow the parties to focus on the substance and avoid distraction,” the union’s barrister, Oshie Fagir, told the commission.
That case will be heard on Tuesday. While the government indicated it will oppose all of the union’s proposals, it was forced to delay the deadline.
“No further action will be taken by the rail entities before the current matter is heard by the FWC,” the state’s employee relations minister, Damien Tudehope, said after Friday’s hearing.
“The NSW government has always negotiated in good faith and made countless concessions to the unions throughout bargaining. In return, the government simply expects an end to the strikes.
“It is apparent that this application to the FWC is a delaying tactic by rail unions that are adamant on blocking a vote of employees and on dragging out these negotiations so that they can continue their political campaign of disruptive strikes.”
The question now is what a win looks like. With commuters fed up by the disruptions, Claassens and his workers find themselves increasingly on the losing side of a public relations war.
As Claassens himself said this week, he’s getting used to being “public enemy number one”, while raising concerns about threats and abuse suffered by rail workers.
Government insiders said they had no choice but to escalate the issue – believing the union was determined to continue industrial action in the lead-up to the election – and have no intention of meeting demands for a pay increase of 0.5% above the public sector wage cap.
For that reason, even if they lose in court, they may feel that they will win in the eyes of voters who just want a resolution.
On Friday, Claassens insisted he was not interested in the PR war. The fight, he has been at pains to say, has been over safety.
“This has never been about public relations for us,” he said. “This has been a very, very simple fight. The messages of support that I am getting from the travelling public, the people who actually use the system, have been absolutely unbelievable the last couple of days. I think people get the reason why we’re doing this.”