As you’d probably be aware the Big Steps campaign, run by the union representing Australia's early childhood educators, is urging its members and non members to support a  “walk off" on today (Wednesday, 5 September 2018).

The planned walk off follows the Fair Work Commission's dismissal of their equal remuneration campaign, in which United Voice and the Australian Education Union (AEU)  had put forward that the award rate for early childhood educators should increase by 35% (or $364,000 per annum in additional wage costs for a service employing 20 educators).

It's important to note that unless employees and members of the Australian Childcare Alliance (ACA) NSW are engaged in bargaining for an enterprise agreement and a protected action ballot order is in place, the planned walk off ("the Stoppage") will be deemed as unprotected industrial action and therefore unlawful.

Whilst it remains unclear how many centres will be affected or how many early childhood educators will participate in the walk off, we're encouraging our members to be prepared for this planned activity and the possible repercussions which could affect your services and your families.

We have provided answers to some frequently asked questions from ACA NSW members about the planned walk off below.

FREQUENTLY ASKED QUESTIONS

1. Can I stop an employee joining in the Stoppage (ie. the walk off)?
Yes. If you wish to do so, you should contact ACA NSW on 1300 556 330 or nsw@childcarealliance.org.au who will be able to help to take steps to stop your employees from participating in the Stoppage.

The steps will involve explaining to employees that simply participating is unlawful. If employees indicate that they remain committed to participating in the Stoppage, an employer or group of employers may make an application to the Fair Work Commission seeking an order to stop the employees from doing this.

2. If my employees participate in the Stoppage without my authorisation, what happens to their pay?
As the Stoppage may take place at varying times, the Stoppage will affect different centres in different ways depending on your centre’s business hours and your employees’ hours of work.

Where an employee participates in unlawful industrial action like the Stoppage, an employer has an obligation to withhold pay from employees who participated.

Employers are legally prohibited from making a payment to participating employees for the period of the Stoppage.

If the total duration of the Stoppage is:

• at least 4 hours - the employer must not pay the participating employee for the duration of the Stoppage; OR
   
• less than 4 hours - 4 hours wages must be withheld from the pay of the employee who participated in the Stoppage.

Where an employer fails to withhold these amounts, they will be in breach of the law themselves. You should continue to pay those employees who do not participate in the Stoppage as normal.

3. If I want to authorise my employees’ participation in the Stoppage, am I allowed to?
Yes, you are allowed to authorise your employees to participate in the Stoppage. However, any authorisation that you give to your employees must be given before the Stoppage occurs.

If you decide to authorise your employees to participate in the Stoppage, keep a clear paper trail of who has been authorised to participate in the Stoppage and the agreed duration of their participation.

4. If I want to shut down my centre on Wednesday 5 September (the Stoppage day), is that allowed?
Some centres may consider shutting their business on the day of the Stoppage, to avoid any potential impact of the Stoppage on their business. Any decision to do this will need to be made very carefully.

If shutting your centre means that employees are prevented from working (either because they are not participating in the Stoppage or because the duration of the Stoppage is not for an entire day), as an employer you may also be found to have engaged in unprotected industrial action by ‘locking out’ employees from working.
Furthermore, shutting your centre may require you to pay employees for the day anyway. You must also notify your state government’s Department of Education that you will not be operating licenced hours. 

5. Where can I get help?
If you have any questions about any aspect of this advice please contact ACA NSW on 1300 556 330 or nsw@childcarealliance.org.au for further advice.