A single mother who was forced to work Christmas Day at a BHP coal mine and paid $500 for babysitting is among dozens of employees compensated after being unlawfully denied the right to refuse holiday shifts.
BHP Operations Services has been ordered to pay almost $100,000 in penalties and compensation after the Mining and Energy Union brought proceedings alleging the company breached the Fair Work Act by rostering employees to work on Christmas Day and Boxing Day in 2019.
Although all 85 employees at the Daunia Mine in Queensland had contracts stating they may be required to work on public holidays, BHP failed to give them the option to refuse on reasonable grounds.
The ruling followed a landmark Full Court judgment confirming that employers must seek employees’ consent before requiring them to work on public holidays, regardless of what their contracts say.
The decision does not give workers an automatic right to refuse to work on Christmas Day or Boxing Day, but it upholds their right to raise reasonable grounds for refusing.
Seven of the 85 employees submitted affidavits describing the emotional toll of missing time with their families over Christmas.
Stephen Toomey said his father had recently passed away, making it the family’s first Christmas without him. His mother had also suffered a fall in October 2019 and broke her pelvis, with Mr Toomey nursing her through both her injury and grief.
Federal Court Justice Darryl Rangiah said Mr Toomey told the court that when he informed his mother he had to work on Christmas Day, she was ‘shattered,’ leaving him wracked with guilt.
Dozens of workers at Daunia coal mine in Queensland have been compensated after BHP forced workers to work Christmas Day and Boxing Day
The 85 workers rostered to work over the holiday period had their names drawn out of a hat
‘He says he was, and remains, devastated to have missed the opportunity to spend her last Christmas together,’ Justice Rangiah said in his judgment.
In another case, single mother Susan McKean, who has children aged 11 and 15, was forced to find and pay someone $500 from her children’s drama class to care for them on Christmas Day.
‘Ms McKean found this demeaning and heartbreaking,’ Justice Rangiah said. ‘She found it devastating leaving her girls, who were distressed and asked her not to go.
‘Ms McKean felt as if she had failed her daughters and remains upset when she thinks about what happened.’
Ms McKean was awarded $1,700 for non-economic loss, $500 for childcare costs, and $200 in interest.
Justice Rangiah said the workers deserved compensation for ‘the loss of the opportunity to refuse to work on those days by raising reasonable grounds for refusal’.
The workers were compensated between $800 and $2,400 each.
Federal Court Justice Darryl Rangiah said one man was wracked with guilt after he was told he had to work over the Christmas period
MEU Queensland President Mitch Hughes said the financial compensation was an important acknowledgment of how poorly BHP Operations Services had treated its workers.
‘These workers were directed to work public holidays with no consultation or agreement,’ he said.
‘Their names were drawn out of a hat. Some had to find babysitters for children on Christmas Day or missed parents’ and relatives’ last Christmas celebrations.
‘While these amounts are small change to BHP, the bigger principle here is that Australian workers can raise reasonable grounds to refuse to work on public holidays.’
Mr Hughes said the judgment sent a clear message to all employers that they must comply with Australian workplace law and community expectations.
‘They can request workers to work public holidays – they can’t compel or command them to, and workers can refuse on reasonable grounds,’ he said.
‘Mining companies traditionally respected the right of workers to spend time with friends and family at important times of the year like Christmas, but this respect has been eroded by the pressure of 24-hour production.’
The workers were told two weeks before Christmas that if they had special circumstances for being rostered off, they could raise them for consideration.
Nine requests for leave on the basis of special circumstances were approved, while BHP rejected applications from employees who simply wanted Christmas Day and Boxing Day off to spend time with their families.
Under the Fair Work Act, an employer may request an employee to work on a public holiday, but the request must be reasonable. Employers cannot simply roster or direct employees to work without first making a genuine request.
Even if an employment contract states that an employee may be required to work on public holidays, the employer must still make a request and consider whether it is reasonable. Automatic rostering without consultation is unlawful.
Justice Rangiah said the 85 employees were deprived of the opportunity to raise reasonable grounds for refusing to work on Christmas Day and Boxing Day.
‘Traditionally in the coal mining industry, employees have been asked to volunteer, but have not been required, to work on Christmas Day and Boxing Day,’ he said.
‘It can also be accepted that Christmas Day and Boxing Day are traditionally regarded by the broader Australian community as days to be spent away from work, and to be spent with family.’
While Tuesday’s judgment relates to a breach of the National Employment Standards in the Fair Work Act, BHP has also been found to have breached the Black Coal Mining Industry Award in relation to public holidays and shift length.
BHP has appealed the Award judgment, and that matter is currently before the Federal Court.
