Forced to work public holidays? Check again

Last week, Mining and Energy Union (MEU) members at a coal mine in Queensland won a landmark court case against their employer.

The Full Federal Court ruling found that BHP broke the law by forcing the mineworkers to work on Christmas and Boxing Day, instead of asking them.

The case may only be about 85 workers, but the precedent ruling sends two clear messages to every worker across the country:

Employers must comply with Australian workplace law and union power is how we hold them accountable!

No consultation or agreement

In 2019, 85 workers at Daunia coal mine were ‘selected’ to be required to work on Christmas Day and Boxing Day (by drawing their names out of a hat).

The MEU filed a court case against BHP for breaching the Fair Work Act, which says that employers have to request workers to work on a public holiday, not command.

The case was originally dismissed, but the union successfully appealed the decision. In the final ruling, the judge noted the “inherent power imbalance” between employers and employees, and said the law requires there be a “request, rather than a unilateral command, to prompt the capacity for discussion, negotiation and a refusal”. The judge also gave merit to MEU’s argument that BHP’s motivation for having the employees work on Christmas was “purely for the purpose of profit”.

The outcome means that BHP has been ordered to pay a fine, as well as thousands of dollars in compensation to the affected workers.

This decision confirms that some employers who thought they could dictate working on Christmas Day, actually can’t. Employers must request, not require, public holiday work. You can’t just be rostered on to work public holidays and expected to do it.”

Sally McManus
ACTU Secretary

A precedent ruling for all workers

This outcome reaffirms a basic workplace right that many workers don’t know exists: the right to refuse to work on public holidays (if you have reasonable grounds).

Under the National Employment Standards*, if your employer wants you to work a public holiday, they have to request you to work on that day, not command (this is what the MEU’s win clarified).

So, if you’re being told rather than asked to work on a public holiday, this may be a breach of the Fair Work Act.

If you are being asked, you have the right to say no, but you need reasonable grounds, which includes (but is not limited to) things like family or caring responsibilities, religious or cultural reasons or wanting to spend the public holiday with loved ones.

If your employer asks you to work a public holiday and you refuse, they can only require you to work if your refusal isn’t reasonable in the circumstances, taking into consideration things like:

• the nature of your work and whether the business normally operates on public holidays
• your personal circumstances, including family or caring responsibilities
• whether you’re casual, full-time or part-time
• how much notice you were given
• and whether you’re being compensated appropriately (penalty rates, etc)

So, if you’ve clearly raised reasonable grounds, your employer can’t just override that. They’d need to show that your refusal was unreasonable in the context of the job and your workplace’s needs.

What counts as “reasonable” isn’t a guaranteed win for anyone, it’s a balancing test. Your reasons matter, but so do the real operational needs of the workplace. If there’s a dispute, the Fair Work Commission decide what’s reasonable in the circumstances.

*The NES applies to most workers in Australia (even when you’re covered by an Agreement or an Award), but it’s just the baseline – so if you are covered by an Award or Agreement, it may also include clearer or stronger rules around public holidays.

The first place to turn, the last people to give up

Good employers will already know that having genuine consultation with their workforce (on everything, not just public holidays) leads to better workplaces.

But not all do – so if you’re ever unsure about your employer’s request (or command!) for you to work on a public holiday, talk to your delegate or your union before responding.

And if you’re not a member? Now’s the time to join, before you have a dispute. The law provides basic protection, but the best protection of all is joining a union.