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Northern Mining & NSW Energy

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Western Australia

Win: the boss can’t force you to work public holidays

March 29, 2023

A major legal win by our union means bosses will need to give workers a choice before rostering them on to work public holidays including Easter and Anzac Day.

Our Union challenged BHP’s insistence that Operations Services workers at Daunia mine work Christmas and Boxing Day as a regular part of their roster in 2019.

We successfully appealed an original decision by the Federal Court that OS could require employees to work on public holidays, with the Full Court of the Federal Court this week ruling that requiring work on public holidays breached the National Employment Standards. Instead, the Full Court found that an employer can request that an employee works on a public holiday, and that that request is the start of a discussion with the employee about whether they will agree or refuse to work the public holiday.

In this case, OS production workers at Daunia had been provided with employment contracts to say they ‘may be required to work on public holidays’. Many employees who then applied for leave at Christmas were denied, with OS stipulating that just six people per crew could be away. The workers able to take leave were chosen by a lucky dip, where names were picked out of a hat in front of a crew meeting, with those workers unable to take leave at Christmas again for two years.

This week’s decision means OS faces penalties for breaching the Fair Work Act. However, the impact of the decision extends far beyond OS to the broader coal mining industry and beyond.

“This is a fantastic win for workers that restores genuine choice over working on public holidays,” said Mining and Energy Union General President Tony Maher.

“It is common practice for employers in the mining industry to require employees to work on public holidays when they fall during their roster hours.

“This practice has been found to contravene the National Employment Standards and employers will need to adapt and provide workers with a genuine choice that allows them the right to refuse.

“The right for workers to spend time with friends and family at important times of the year was traditionally respected by mining companies, however this has been eroded under pressure for non-stop production.

“It is commonly labour hire workers – like BHP’s Operations Services workers – who are forced to work on public holidays without any choice or incentive provided.

“As a result of this decision, mining companies and all employers will need to be more respectful of employees’ rights to enjoy public holidays and come up with ways to provide choice.”

The Full Court reaffirmed that under the National Employment Standards employees are entitled to paid absence from work on public holidays, with the Judges noting that the inherent power imbalance between employers and employees could ordinarily prevent people from asking for time off.

“By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable.

“The requirement that there be a ‘request’ rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal.”

The decision may mean that rosters covering public holidays have to be presented in draft form for discussion before workers can be rostered on to work public holidays.

We expect mining companies to change their practices regarding public holiday rostering over time as a result of this decision. While the nature of these changes becomes clearer, the MEU will work with members regarding the circumstances at their workplace and whether they may have reasonable grounds to refuse to work on public holidays.

BHP’s Operations Services labour hire company OS MCAP has 28 days to appeal the decision.

Australian Financial Review, 30 March 2023

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