BHP ruling sets new precedent for public holiday rosters

With Easter around the corner, Australian Federal Court says employers must seek staff consent before rostering for public holidays

BHP ruling sets new precedent for public holiday rosters

In a landmark decision, the Federal Court of Australia has ruled that employers cannot mandate employees to work on public holidays without first seeking their consent
— even if their employment contracts or enterprise agreements stipulate they should.

The court found that BHP's Operations Services, an internal labour-hire unit, breached the Fair Work Act of 2009 by mandating miners to work on Christmas Day and Boxing Day, 2019. 

The court upheld the National Employment Standards (NES), which overrule any contract or award and require employers to make reasonable requests for staff work on public holidays. Justices Berna Collier, Elizabeth Raper and David Thomas ruled that a roster or contractual requirement alone did not constitute such a request. 

“The intended mischief the [NES] provision confronts is the inherent power imbalance that exists between employers and employees,” the court’s decision read. 

'By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable.” 

The case involved 85 employees who worked on Christmas Day and Boxing Day in 2019 at BHP-Mitsubishi Alliance's Daunia Mine in central Queensland. During proceedings, the court noted that workers did not receive extra pay for working those days. This lack of additional salary was essential to the court's decision, as the National Employment Standards require employers to compensate workers further for working on public holidays.

Enforcing changes to rostering

"Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee's refusal is unreasonable," the judgement read. 

This ruling underlines that employers cannot impose finalised holiday rosters on employees without their consent.

The court outlined that employers can still include public holidays in draft rosters if their workers understand they retain the right to refusal, on reasonable grounds, before final roster approval. Similarly, a contract can still contain a provision that employees may be asked to work on public holidays and may be mandated to attend if their refusal is unreasonable.

“The requirement that there be a ‘request’ rather than a unilateral command prompts the capacity for discussion, negotiation and a refusal,” the decision read.

The court clarified that their judgement applies to all workers required to work on public holidays, regardless of their employment status. This suggests that companies such as Uber, Deliveroo, and other platforms may also need to seek the consent of their workers before rostering them on to work on public holidays.

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