BHP workers have been compensated thousands of dollars for the distress caused by the holiday mandate. (Source: BHP)
Mining giant BHP has copped a hefty slap on the wrist for forcing workers at a Queensland mine to work over the Christmas holiday period. The company has been handed nearly $100,000 worth of penalties for its conduct, which has been described as a landmark ruling and a warning to employers about how they approach public holidays.
A Federal Court on Tuesday found the mining giant did not give its employees an adequate chance to refuse working on Christmas Day and Boxing Day. Instead it randomly rostered them on, forcing them to miss special time with their families and miss observing important religious holidays.
Employment and industrial law lawyer Tim McDonald said while a balance needs to be struck between the needs of employers in certain industries and their workers, the ruling is “a signal” to companies about needing to respect the circumstances of their staff.
“It sends a signal to employers that they can’t take these public holidays lightly. They’ve got to respect the rights of employees who want to be able to enjoy these times,” he told Yahoo Finance.
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The mining company has been ordered to compensate the aggrieved workers to the tune of $83,700, meaning the 85 impacted workers, employed by BHP’s Operations Services labour hire arm, will each receive between $800 and $2,400.
While most received the lower amount, a handful of workers who provided evidence of their immense distress, including one worker who missed the final Christmas with his mother, were compensated at a higher rate.
BHP has also been ordered to pay a further $15,000 to the Mining and Energy Union (MEU).
In handing down his judgment, Justice Darryl Rangiah said the mine workers were “deprived of the opportunity to raise reasonable grounds for refusing to work on Christmas Day and Boxing Day”.
“If the … employees were requested to work on Christmas Day and Boxing Day, there was a substantial chance they could have demonstrated that it was reasonable to refuse to work,” he said.
The penalties levied on BHP are the first since a previous ruling that under the Fair Work Act employers must not be automatically rostered on for public holidays without asking.
“There’s always been this right, since the Fair Work Act came in, there’s been a right of refusal on reasonable grounds in relation to work on public holidays,” McDonald, from McCabes Lawyers, told Yahoo Finance.
“But not many cases have come forward. I think BHP is about the only one where this has sort of been challenged.”
The precedent applies to a number of sectors which work over public holidays such as hospitality, health and logistics, which in some cases can be “problematic” for businesses, McDonald noted.
In sectors of the economy that continually operate, he said this “is not a green light” for workers to simply refuse to work without establishing reasonable grounds for doing so.
“It could be, for example, there’s some significant family event, or they’re strongly religious, and they want to observe that, and the employer definitely needs to take that into account. I think that’s the message from the court in this case.”
BHP has been forced to compensate the workers in the landmark decision. (Source: AAP) · AAPIMAGE
While the mining union had pushed for a larger penalty stemming from the 2019 incident, the judge opted for a lower penalty of about 25 per cent of the maximum, noting the contrition of BHP.
MEU Queensland President Mitch Hughes said the judgment still sends “a message” to big companies about appropriate rostering demands.
“These workers were directed to work public holidays with no consultation or agreement. 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,” he said.
“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.
“This judgment is a message to all employers in the coal industry and beyond 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.”
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