Employers rostering staff over Xmas holidays put on notice

3 months ago 23

Employers have been warned that they must “request, not require” staff to work on public holidays over the end-of-year break following a landmark legal ruling that bosses cannot forcibly roster workers on to days such as Christmas.

Last week, the Federal Court ordered BHP to pay almost $100,000 – $15,000 in fines and $83,700 in compensation to 85 workers – after it found the mining giant had failed to consult them before rostering them on to work Christmas Day at its Daunia coal mine in Queensland in 2019.

Justice Darryl Rangiah noted in his ruling 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”.

Workers can’t be forced to spend Christmas in the office, a court ruling has found.

While an employee can refuse requests to work public holidays, Rangiah found the 85 BHP employees had been “deprived of the opportunity to raise reasonable grounds for refusing to work” on Christmas Day and Boxing Day.

BHP knocked back requests from workers who wanted to spend Christmas with their families for various reasons. One wanted to spend the holiday with his ill mother, after his father had died earlier that year. The family was religious and traditionally attended church together.

He was made to work regardless, and his mother died a short time later. “He continues to feel guilt and a deep sadness” and has begun drinking to help come to terms with the situation, evidence provided in court said.

‘This decision means employers cannot simply expect employees to work on a public holiday or treat that as a part of an ordinary working pattern.’

Lawyer Clancy King

Other workers included a single mother, who had to leave her 11- and 15-year-old daughters on Christmas Day and in a desperate move was forced to pay someone from her girls’ drama class $500 to look after them. Other workers described emotional scenes when they had to leave their spouses and kids to work on the holiday.

The national employment standards, under which the Mining and Energy Union’s case against BHP was made, apply to all workers regardless of collective agreements, except for some state and government employees.

The interpretation of the law in favour of workers comes weeks after another high-profile decision, in which the Fair Work Commission forced Westpac to agree to a staff member’s request to work from home in an ongoing manner while her kids are at school. Meanwhile, the Federal Court has recently ruled against Qantas, Woolworths and Coles in landmark employment and wages cases.

Clancy King, employment partner at law firm Clifford Chance, said the court’s decision in the BHP case was ultimately “not surprising given recent decisions prioritising employee flexibility and reinforcing employers’ obligations to genuinely engage with their workforce”.

“We are continuing to see significant Federal Court decisions that fundamentally reshape common, long-standing practices and find significant contraventions of employment laws,” she said.

The BHP decision sets a precedent, King said. “This decision means employers cannot simply expect employees to work on a public holiday or treat that as a part of an ordinary working pattern,” she said.

King said employers across all sectors – not just in mining – operating on public holidays “cannot ignore this decision” as they prepare for the coming holiday period.

“When preparing a roster, employers need to think about why the request to work on a public holiday is reasonable, how they will ensure employees are aware they can refuse to work that day, and how they will address any disputes or situations where they may need to direct staff to work,” King said.

ACTU Secretary Sally McManus welcomed the decision, saying the “decision confirms that some employers who thought they could dictate working on Xmas Day actually can’t”.

Sally McManus, secretary of the Australian Council of Trade Unions, welcomed the decision for reaffirming that regardless of what an employer may have put in a contract about public holiday work, national employment standards still apply.

“This decision confirms that some employers who thought they could dictate working on Xmas Day actually can’t,” McManus said.

“Employers must request, not require, public holiday work. You can’t just be rostered on to work public holidays and expected to do it.”

McManus said the decision highlighted a variety of reasonable grounds for refusing a shift on a public holiday, even if it’s not for religious workers hoping to observe Christmas Day.

McManus noted that some workers in 24/7 industries such as the healthcare system and public transport have well established roster arrangements, and acknowledged that workers would always be needed for undesirable public holiday shifts.

But she urged workers to be across their rights ahead of the coming summer holidays and said that unions would be issuing information to workers ahead of Christmas and Boxing Day.

The BHP decision “strengthens” the messaging, McManus said.

“Even if it’s not religiously significant to you, there’s still Santa Claus, and an expectation of downtime you will never get back with your family.”

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