Public holiday bombshell for Aussie workers
Bosses across Australia have been put on notice after a landmark ruling against one of the nation’s biggest companies.
A mining worker was left “devastated” after being forced to work the final Christmas he would spend with his mother due to an unlawful rostering call, a court has heard.
Resources giant BHP was this week ordered to pay almost $100,000 for rostering staff on to work Christmas Day in 2019 without asking them first, in a case that could set a precedent for other workplaces.
On Tuesday, the Federal Court fined the company’s operations services arm – OS – $15,000 and ruled it must pay $83,700 to 85 workers at its Daunia Mine in Queensland.
All but eight workers were told in June 2019 they were “required” to work on Christmas and Boxing Day of that year, a move the court found contravened the Fair Work Act (FWA).
The company accepted the cases of nine workers who put forward “special circumstances” as to why they could not work but rejected other leave requests.
One of the affected employees told the court he missed the last Christmas with his mother who died in March 2020.
It was also to be the first Christmas since the death of the man’s father, and his grieving mother was “shattered” by the news that he could not attend.
“He says he was, and remains, devastated to have missed the opportunity to spend her last Christmas together,” Justice Darryl Rangiah said.
“He continues to feel guilt and a deep sadness.”
A single mother was also forced to find a sitter for her two “distressed” daughters, aged 11 and 15, after she was required to work that holiday.
“She found it devastating leaving her girls … and remains upset when she thinks about what happened,” Justice Rangiah said.
Other colleagues also spoke about the religious and family importance of Christmas and that they struggled with having no choice but to miss out on the time with loved ones.
Among them was a father who said “his daughter’s devastated face when he told her he was required to work and could not spend Christmas with her is seared on his mind”.
Justice Rangiah awarded seven workers who have specific evidence of how working that day impacted them between $1400 and $2400 each.
For the remaining 78 staffers involved in the case brought by the Mining and Energy Union (MEU), he ordered BHP pay them $800 to $1100 each.
MEU Queensland president Mitch Hughes said the compensation was fitting for “workers (who) were directed to work public holidays with no consultation or agreement”.
“Their names were drawn out of a hat,” he said.
“Some had to find babysitters for children on Christmas Day or missed parents’ and relatives’ last Christmas celebrations.
“While these amounts are small change to BHP, the bigger principle here is that Australian workers can raise reasonable grounds to refuse to work on public holidays.
Mr Hughes said the judgment sent a clear message to all employers that they must comply with Australian workplace law and community expectations.
“They can request workers to work public holidays – they can’t compel or command them to and workers can refuse on reasonable grounds,” he said.
Employment and industrial lawyer Tim McDonald told Yahoo Finance the ruling was “a signal” to companies about needing to respect the circumstances of their staff.
“It sends a signal to employers that they can’t take these public holidays lightly,” he said. “They’ve got to respect the rights of employees who want to be able to enjoy these times.
“(S)ince the Fair Work Act came in, there’s been a right of refusal on reasonable grounds in relation to work on public holidays.
“But not many cases have come forward. I think BHP is about the only one where this has sort of been challenged.”
In making his judgment, Justice Rangiah found the contravention of the specific provision of the FWA “arose from a genuine and reasonable but mistaken construction of that provision”.
He wrote that OS had made it clear to its workers “before they accepted their employment that they would be required to work on public holidays” and paid them accordingly.
But its decision not to request its workforce to work on Christmas was crucial to the court’s findings.
“I infer that if OS had made a request, instead of imposing a requirement, each of the 85 employees would have sought to raise reasonable grounds for refusing to work,” he wrote in his judgment.
“I find, on the balance of probabilities, that by OS’ imposition of a requirement, the 85 employees were deprived of the opportunity to raise reasonable grounds for refusing to work on Christmas Day and Boxing Day.
“I find there was damage or detriment to the employees by the deprivation of that opportunity.”
In a statement, BHP said: “Mining operates around the clock, every day of the year, to provide the materials the world needs. This includes on public holidays.
“We will continue to comply with the court’s decision relating to public holiday rosters.”
Originally published as Public holiday bombshell for Aussie workers
