Mining union funds class action against BHP over alleged public holiday breaches affecting thousands
BHP is facing a class action that could deliver millions of dollars in compensation to thousands of mineworkers allegedly required to work on public holidays in breach of the National Employment Standards (NES).
The Mining and Energy Union (MEU), which is funding the legal action, says workers employed by BHP's labour hire subsidiary Operations Services (OS) were unlawfully rostered on Christmas Day and Boxing Day at Daunia mine in Central Queensland in 2019.
The case turned on the meaning of section 114 of the Fair Work Act, which protects employees' right not to be required to work on a public holiday while permitting employers to make a reasonable request.
The class action, run by AEN Legal on behalf of lead plaintiffs Gregory Hooper and James Sharkie, could cover up to 7,000 workers employed by OS Production and Maintenance between December 2019 and March 2023.
This is the first class action to be filed following the Daunia ruling, which last year resulted in BHP being hit with almost $100,000 in fines and compensation orders, The Australian Financial Review reported.
That case covered just 85 workers automatically rostered for Christmas at Daunia, compared to the thousands potentially covered by the class action.
The union's position
MEU General President Grahame Kelly said BHP had been caught breaking the law.
"BHP put production ahead of OS workers' rights and now it has been caught out," Kelly said in a statement. "At Daunia mine, BHP allocated Christmas and Boxing Day shifts for Operations Services workers by literally pulling names out of a hat."
Workers across BHP's national Operations Services footprint were affected during the relevant period, spanning Queensland coal mines, Pilbara iron ore operations, South Australian copper mines and the Mt Arthur coal mine in New South Wales. Eligible workers will be automatically included in the class action and given the opportunity to opt out.
Kelly said the union may also pursue further class actions on behalf of other cohorts of mineworkers unlawfully required to work public holidays.
"Giving up Christmas, Easter and other public holidays should only happen after a genuine request and real consultation with workers — not only because a company wants to keep production rolling," he said.
"This class action is about holding BHP accountable and ensuring workers are compensated when their rights are ignored."
BHP's defence
In its defence, BHP argues it operates its mines 24 hours a day, 365 days a year, and that workers should expect to work public holidays, according to the AFR.
The news outlet reported that the company contends its job offers, policy communications, payments and roster notifications together constituted the required request under the Fair Work Act.
According to BHP's defence filed in May, workers were also paid an additional $700 per shift for working over the Christmas period, a factor the company argues could offset any damages awarded.
BHP is further contesting the matter at a higher level, challenging whether section 114 of the Fair Work Act is even capable of being breached. The Full Court of the Federal Court is set to hear that question on 9 November 2026.
