Bosses can't force staff to work on public holidays, court finds

Employers could land in hot water if they make their staff work on public holidays without giving them the option to take it off.

Three judges found BHP contravened the Fair Work Act by requiring employees to work on a public holiday as part of their regular roster.

The employees did not receive any additional remuneration for working those days.

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

Mining and Energy Union president Tony Maher lauded the decision as “a fantastic win for workers that restores genuine choice over working on public holidays”.

Maher said it was common practice for employers in the mining industry to require employees to work on public holidays when they fall during their roster hours.

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“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,” he said.

“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 ruling argued “an employer is only ever able to demand of its employees what is lawful and reasonable regardless of what a roster or contract say”.

The union said 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.

“Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable,” the judgment says.

The decision can still be appealed by BHP within 28 days.