The New South Wales government is examining whether Tony Burke may have improperly influenced the Fair Work Commission when he wrote a letter to its president signalling a change to laws covering the termination of enterprise agreements.
Burke, the federal workplace relations minister, last week wrote to the commission explaining Labor wanted termination rules to be “fit for purpose and fair”, including limiting employers’ power to threaten to cut pay.
The letter came at the height of the NSW train dispute as the Liberal premier, Dominic Perrottet, said if workers did not vote on a new pay deal, the state government would apply to cancel the existing agreement.
The letter led the NSW industrial relations minister, Damien Tudehope, to blast Burke for intervening in the dispute with the rail unions. He accused Labor of “pressuring” the Fair Work Commission ahead of a hearing between the two parties.
“The brazen intervention of Labor into the Fair Work Commission to support the rail unions and their political campaign of rolling strikes is a disgrace,” Tudehope said on Sunday.
“Tony Burke’s ‘wink and a nod’ letter to the Fair Work Commission president is all about pressuring the commission to kick the rail dispute as far down the road as possible so he can legislate to give the unions even more power.”
The NSW government and the unions are to meet before the commission on Tuesday, as the latter seeks to force the Coalition back to the bargaining table after Perrottet threatened to seek to terminate their enterprise agreement after months of industrial strife.
Tudehope said Burke’s letter had sent a message to the head of the Rail, Tram and Bus Union, Alex Claassens, to “keep up the strikes, Labor has your back”.
The Guardian understands the NSW government was sufficiently vexed by the intervention that it is now examining whether Burke’s letter could constitute improper influence under the Fair Work Act.
Under the act, it is an offence to use language “intended to improperly influence another person” when that person is a member of the commission.
The federal Coalition also accused Labor of interfering with the commission on Sunday.
Michaelia Cash, the opposition’s workplace relations minister, said Burke’s letter was “one of the most concerning things I’ve seen in the first 100 days of the Albanese government”.
“For a minister in the government to write to the independent Fair Work Commission and seek to influence them in how they make decisions – that should deeply concern all Australians,” she told Sky News.
Cash said the tribunal “interprets the law as it stands” not as Labor wanted it to be. She accused the government of preempting the Senate, which may not agree to its IR reforms.
But Burke has dismissed the criticisms, saying it would have been “irresponsible” for him not to alert the commission of potential changes to the act. He said he “made no reference in that letter to any particular dispute”.
“There are a large number of issues relevant to the Fair Work Commission that were outcomes of the jobs and skills summit. Of course I notified the commission of those outcomes – it would have been irresponsible to do anything less,” he said.
Burke pointed out he had previously stated in interviews that “in any pay negotiation it was unreasonable to threaten significant cuts to people’s pay by cancelling agreements”.
The skills minister, Brendan O’Connor, told ABC’s Insiders program on Sunday the government was “foreshadowing our intent” because “we know there may well be employers that may seek to terminate agreements before the legislation”.
O’Connor noted Labor had argued it needed to fix termination rules during the recent dispute between tugboat workers and Svitzer Towage. He said the government’s proposal was “not to do with” the NSW train dispute.
O’Connor also revealed on Sunday that changes to encourage pensioners to work – announced at the jobs and skills summit – will apply to disability support recipients and that a five-year training deal with the states will require $3.7bn of commonwealth spending.
At the summit, the Albanese government pledged to remove “unnecessary limitations” on bargaining for pay deals with multiple employers, a policy aimed at boosting coverage of pay deals and rates of pay in small businesses and female-dominated industries.
Cash argued unions were the “big winners” from the two-day “talkfest”, which demonstrated “the Labor party are paying their paymasters in full”.
The Australian Industry Group’s chief executive, Innes Willox, said a “clear red line for industry is the potential for unions to engage in industrial action in pursuit of multiparty bargaining claims”.
“This has the potential to shut down key parts of our economy in the pursuit of claims,” he said after the summit. “Such a possibility has deeply alarmed industry and must be ruled out.”
On Sunday, O’Connor refused to rule out that multi-employer bargaining would be accompanied by a right to strike and said rules for whether it could be compulsory must be “discussed”.
Under Labor’s proposal, businesses that already strike separate pay deals with their workforce will be able to continue to do so.
O’Connor told ABC TV the government wanted to see more agreement making because the number of workers covered by pay deals has halved in the past decade.
“So what we’ve had effectively is no bargaining happening in workplaces across all sectors of the economy and that’s led to the fact that even when we have a tight labour market, we don’t see wages rising.”
O’Connor also noted the role of the Fair Work Commission to arbitrate disputes, which he said was a “very important mechanism in any form of multi-employer bargaining” that would act as a “constraint” on industrial action.
O’Connor said the pay floor for temporary skilled migrants must be raised to ensure a boost to migration is “not about bringing people in to displace local workers”.
Unions have asked for the floor to be raised to median full-time earnings, $90,000 a year, but O’Connor declined to endorse a particular figure on Sunday.
O’Connor noted that there are skills shortages in some low-paid sectors, such as aged care, so the pay floor was a “complex issue” that may need to differentiate by sector.
