BHP to pay $100,000 following Christmas Day ruling

BHP has been ordered to pay $100,000 after forcing 85 Queensland miners to work on Christmas Day, with some missing their final festive season with dying relatives.

Eighty-five Daunia Mine workers will receive $800 to $2400 each.

BHP’s in-house labour company has been ordered to pay almost $100,000 in penalties and compensation for unreasonably requiring 85 Queensland coalmine workers to work on Christmas Day and Boxing Day.

The Federal Court ordered BHP’s Operation Services to pay a $15,000 penalty and $83,700 in compensation to the Daunia Mine workers, who will receive $800 to $2400 each.

The ruling followed a landmark full court judgment that employers are required to seek the consent of employees before requiring them to work on public holidays, regardless of what their employment contract says.

The decision does not give workers a blanket right to refuse to work Christmas Day or Boxing Day but upholds their right to raise reasonable grounds to refuse to work on public holidays.

Mining and Energy Union Queensland president Mitch Hughes said the workers 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.”

Seven of the 85 employees provided affidavits explaining why they had wanted to spend Christmas Day in 2019 with their families and the emotional impact of not being able to do so.

Stephen Toomey said his father had recently passed away and that Christmas Day was to be his family’s first Christmas without his father. His mother, meanwhile, had a fall in about October 2019, breaking her pelvis.

Mr Toomey had cared for her, nursing her through her injury and assisting her to recover from grief. When he told his mother OS required him to work on Christmas Day, he said she was “shattered”.

He said he was wracked with guilt for many months leading up to that Christmas, knowing he would not spend this special day with his family and, in particular, his elderly mother.

She passed away in March 2020.

“He says he was, and remains, devastated to have missed the opportunity to spend her last Christmas together,” Federal Court Justice Darryl Rangiah said in his judgment.

“He continues to feel guilt and a deep sadness. He feels resentment towards OS for depriving him of the opportunity to spend his last Christmas with his mother.”

Another worker, Susan McKean, is a single mother and the sole breadwinner for her two daughters, aged 11 and 15 in late 2019. She had no family to assist her in caring for her children on Christmas Day, and was compelled to find someone from her children’s drama class to care for her children, and pay that person $500.

“Ms McKean found this demeaning and heartbreaking,” Justice Rangiah said.

“She found it devastating, leaving her girls, who were distressed and asked her not to go. Ms McKean felt as if she had failed her daughters and remains upset when she thinks about what happened.”

The court awarded Ms McKean $1700 for non-economic loss, while OS accepted she should also be awarded $500 for the cost of childcare, plus $200 in interest.

A third worker, Stephen Mulry, detailed being upset about not being able to spend Christmas with his 11-year-old daughter.

“He felt like he had let her down as a father,” Justice Rangiah said. “Mr Mulry states that 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.”

Mr Hughes said the court judgment was a message to all employers in the coal industry and beyond 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.

“Mining companies traditionally respected the right of workers to spend time with friends and family at important times of the year, like Christmas, but this respect has been eroded by the pressure of 24-hour production.”

A BHP spokesman said the company “will continue to comply with the court’s decision relating to public holiday rosters”.

“Mining operates around the clock, every day of the year, to provide the materials the world needs. This includes on public holidays,” the spokesman said.

The mine was sold to Whitehaven last year.