How ‘almost entirely unknown’ work rule is set to trigger a tidal wave of compensation payouts for Aussie workers. And it’s all because bosses simply rostered them on

Unions say a landmark court decision has opened the door to a wave of compensation payouts to workers who are rostered on to work public holidays by bosses who don’t ask first.  

Earlier this week, Federal Court Justice Darryl Rangiah ruled mining giant BHP Operations Services breached workplace laws when it automatically rostered 85 workers on Christmas and Boxing Day without asking for their consent.   

The judgment sends a warning to employers that they cannot compel staff to work public holiday shifts without giving them a genuine chance to refuse. 

Although all 85 employees at BHP’s 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 according to the Mining and Energy Union.

The ruling is the first of its kind following a judgment in 2023 confirming employers must seek employees’ consent before requiring them to work on public holidays, regardless of what their contracts say. 

The requirement applies to all sectors of the economy, from fast food and retail to logistics and health.

However Retail and Fast Food Workers Union secretary Josh Cullinan said in the sector it is ‘almost entirely unknown’ workers must be asked before being rostered to work public holidays.

‘This is a blatant breach of the National Employment Standards but this kind of treatment of low paid workers in retail and fast food is endemic,’ he said.

‘Even since the first decision, little has changed. Employers still just roster workers on and bemoan anyone suggesting they not work a public holiday.’

Mr Cullinan said while some employees want to work public holidays for the penalty rates there were ‘huge’ numbers of workers who never get the choice. 

He said the decision now makes it commercially viable to sue those employers who don’t ask first.

‘The significant difference this week is the compensation payable for the breach of the right to be consulted over working on the public holiday,’ he said.

‘We are now looking at how we can help hundreds of thousands of workers across retail and fast food access compensation for the failure of employers to consult with them about working public holidays before rostering them.’

Mr Cullinan said employers were put on notice four years ago of their obligation to not just roster workers for public holidays, however, retail and fast food employers continued to flout that obligation.

‘It should come as no surprise when they find themselves the subject of member led class actions to recover compensation for their conduct,’ he said.

Websters Lawyers senior associate Daniel Gluche said the BHP case highlights the complex balancing act between respecting employees’ personal needs and meeting the operational requirements of an employer. 

He said what constituted ‘reasonable’ was nuanced but in the case involving mine workers the court found family responsibilities for caring for sick or elderly relatives were acknowledged as a valid reason for refusal.

‘However, the case also highlights the complexity when employees cite wanting to spend time with family, as this could apply to almost every employee on a public holiday – especially on Christmas Day,’ he said.

‘From the perspective of essential operations, such as healthcare, emergency response, or industries that rely on round-the-clock staffing, the question of whether an employee can reasonably refuse to work on a public holiday becomes even more nuanced.

‘Ultimately, fairness is about considering all the circumstances – personal and operational – and finding a way to make it work for both the employee and employer,’ he said.

In the case of the BHP coal mine workers, 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.

Mr Toomey told the court that when he told his mother he had to work on Christmas Day, she was ‘shattered,’ leaving him wracked with guilt. His mother died a few months later. 

In another case, single mother Susan McKean, who had children aged 11 and 15 at the time, was forced to 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.’

MEU Queensland president Mitch Hughes said the affected workers were directed to work public holidays after their names were drawn out of a hat.

‘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,’ he said.

Mr Gluche said given the widespread observance of Christmas Day in Australia, coupled with the sheer number of people taking the day off, significantly amplified its impact on workplaces.

‘However, this does not mean that other cultural or religious holidays should not be afforded similar significance,’ he said.

‘In a multicultural country like Australia, where diverse communities including Aboriginal and Torres Strait Islander peoples celebrate a range of meaningful traditions, there is a growing recognition that these days deserve equal acknowledgment.’   

Coles and Woolworths could feel the heat from the ‘ask first’ Christmas ruling. Law firm Adero has confirmed it plans to add the public holiday claim to its existing underpayment action against the supermarket giants. It will amend its Federal Court statement of claim in the next few months. 

That move could mean compensation payouts worth hundreds of millions of dollars are added to the supermarkets’ backpay bill, which is already estimated to exceed $1billion after a court ruled they underpaid thousands of salaried managers for years.

Adero law principal Rory Markham said he expected this BHP decision to have consequences across a broad range of industries. However, the case for damages may be stronger in the retail sector because many of those workers carry significant carer or family responsibilities.

‘This judgment makes it clear, the National Employment Standards aren’t aspirational guidelines. They are serious legal obligations that carry a serious financial bite,’ he said.

‘What was really decisive about the judgment is the motivation for profit, not for business necessity, and we expect the individual compensation amounts in the BHP decision to serve as a common yardstick for non-economic loss per day in other cases.’

In the case of managers at Coles and Woolworths, Mr Markham said many were routinely required to work on public holidays without any consideration of their personal circumstances. 

‘In fact, we understand that many retailers prioritise salaried managers to working on public holidays due to cost of engaging casual or part-time staff on those days,’ he said.