01 SepPlanned industrial action on September 7

Posted on 01 Sep 2022

Planned industrial action on September 7 – what committees and employers need to know

The United Workers Union (Union), which represents early childhood educators is undertaking planned strike action on September 7, in response to pay and conditions in the sector.

As the intended industrial action is not explicitly linked to enterprise bargaining negotiations it is likely to be considered unprotected. This article is an update on the article published on 4 August 2022.

Can employers pay staff during periods of industrial action?


When the 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.

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 I 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 proposed 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 my employees apply for leave on that day?

Yes. Employees can apply for paid annual leave in accordance with your Leave Policy or industrial instrument (i.e., VECTEA or Professional Community Standard). 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 under the Long Service Leave Act 2018 (Vic) or an applicable industrial instrument that provides for long service leave.

What is ELAA doing about wages and conditions?

ELAA is passionate about the early childhood education and care workforce. Our advocacy includes a focus on achieving better wages and conditions for staff in order to attract and retain a high-quality workforce.

Links for further information and reading:

Any questions

Please contact Member Solutions for any queries or phone (03) 9489 3500 (Press 2) during 10 am – 3 pm, Monday to Friday

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