Australian workers have been reminded that being placed on a roster does not automatically mean they can be compelled to work on a public holiday, following a legal dispute involving mining giant BHP.
Under Australia’s National Employment Standards, employees are entitled to be absent on a public holiday. An employer may ask them to work, but the request must be reasonable and workers may refuse if their refusal is also reasonable.
Public holiday work must be requested, not imposed
The issue came under scrutiny after 85 workers at BHP’s Daunia coal mine in central Queensland were required to work on Christmas Day and Boxing Day in 2019.
The employees, who worked for BHP’s contractor Operation Services, were told that only a limited number could take leave. Workers permitted to be absent were selected at random, while the remainder were expected to work their usual shifts without being asked whether they agreed.
The Federal Court found that the company had breached the Fair Work Act by imposing the work rather than making a request that employees could properly consider. The case established that rostering someone on for a public holiday does not, by itself, remove their right to refuse.
Operation Services was later ordered to pay A$84,000 to the affected miners in relation to the dispute.
The Fair Work Ombudsman says employers must consider factors including the nature of the workplace, the employee’s personal circumstances, whether they could reasonably have expected to work on the holiday, the notice given and any additional payment or penalty rate available.
There are exceptions for businesses that need to operate continuously, including hospitals, transport services and mining operations. However, an employer can only require an employee to work after making a reasonable request and where any refusal would be unreasonable.
The rules apply to most employees covered by Australia’s national workplace relations system, although awards, enterprise agreements and individual employment arrangements may provide additional rights or payment for public holiday work.
