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Responsibilities of employers during 7 September industrial action
Freya Lucas
Sep 06, 2022
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The United Workers Union (UWU) will undertake planned strike action on 7 September in response to pay and conditions in the sector with many providers expected to support the participation of their educators in the day of action.
The piece below explores key considerations for employers in relation to the event with respect to treatment of employees who participate with and without the consent of employers.Given that the intended industrial action is not explicitly linked to enterprise bargaining negotiations it is likely to be considered unprotected.
When action is unprotected, employers must deduct a minimum of four hours from the employee’s pay for that day — regardless of how long the action went for.
In the event that an employee has taken the day as annual or personal leave, usual annual or personal leave rules apply.
For example, if the employee was on strike for one hour, their employer must deduct four hours from the employee’s pay. If the period of unprotected industrial action exceeds four hours a day, then there can be no payment for the total duration of the industrial action that day.
Importantly, it is a contravention of the Fair Work Act 2009 (Cth) for employers to pay their employees for going on strike or industrial action that is not a partial work ban. Employers may be subject to legal action or civil remedy penalties for failing to withhold pay from employees engaged in industrial activity.
What do employers need to do?
Before employees take industrial action, three days' written notice should be given to the employer by the union.
Employers are encouraged to advise their staff (i.e., with a general memo or email) that if they intend to participate, then they will not receive payment for four hours on the day. However, employees cannot be obliged to disclose to their employer if they are a member of a union.
It is recommended that committees and employers develop plans to minimise the disruption to families; this may include timely communications and alternative staffing arrangements.
Can an employer stop staff from striking?
Employees cannot be discriminated against or prevented at the individual workplace level for going on strike or taking industrial action (including by the employer taking or indicating disciplinary action).
The Fair Work Act prohibits an employer from taking adverse action against an individual because that person takes part in, or proposes to take part in industrial activity.
It is the role of the Fair Work Commission to prevent or cease unprotected industrial action upon application.
Can employees apply for leave on that day?
Yes. Employees can apply for paid annual leave in accordance with each service’s Leave Policy or industrial instrument. For personal/carer’s leave, employees may be asked to provide supporting evidence as required under their award/agreement (or as per the notice and evidence requirements in Section 107 of the Fair Work Act).
Long service leave may be applied for if the employee is eligible or an applicable industrial instrument that provides for long service leave.
Links for further information and reading:
- Fair Work Ombudsman – industrial action.
- Fact sheet – industrial action.
- Fair Work Commission – payments relating to industrial action.
This information was circulated by the Early Learning Association Australia (ELAA). Find the original here.
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