Australian employers are on notice following a class action lawsuit seeking millions in compensation against mining giant BHP, stemming from a 2023 ruling on public holiday work. The precedent-setting ruling requires employers to ask workers if they are willing to work on public holidays, irrespective of individual contracts or agreements.
BHP was the first company found to have violated this ruling, resulting in $100,000 in fines last year. That initial case involved 85 workers rostered to work on Christmas Day at the Daunia mine in Queensland. The current class action, backed by the Mining and Energy Union, has the potential to include up to 7,000 mineworkers employed by BHP's labor hire subsidiary, Operations Services (OS).
This legal action could establish a significant precedent for Australian businesses regarding the application of public holiday rules and measures to prevent costly litigation. Grahame Kelly, General President of the Mining and Energy Union, stated that BHP prioritized production over the rights of OS workers. He described instances at the Daunia mine where shifts for OS workers on Christmas and Boxing Day were assigned by randomly drawing names, which the Federal Court deemed an unreasonable request as required by law.
Eligible workers for the class action may include those employed by Operations Services Production or Maintenance between December 2019 and March 2023 who were required to work on a public holiday during that period. BHP employed OS workers at coal mines in Queensland, iron ore operations in the Pilbara, copper mines in South Australia, and the Mt Arthur coal mine in New South Wales during this timeframe.
"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," Kelly said. The union indicated that eligible workers will be notified and given an opportunity to opt out of the class action. BHP has contested the court's interpretation of the law and is scheduled to present its arguments to the Full Court on November 9.
In its defense, filed in May, BHP argued that its mines operate 24 hours a day, and employees should expect to work on public holidays. The company also contended that employee contracts included provisions for working on these days, which were factored into their wages. BHP further claimed that communications via policy, payments, and roster notifications constituted a request and questioned the feasibility of employees taking those days off, especially during swing shifts. The company noted that workers received an additional $700 per shift, on top of their annual salary and allowances, for working these shifts.
Following the 2023 Federal Court ruling, unions alerted employers in sectors such as aviation, hospitality, logistics, and resources, cautioning them against automatically scheduling employees for public holidays. Some mining companies have since revised their systems, though other employers may still face penalties, as liability for civil penalties can extend back six years.