Bosses have to ask employees if they want to work on holidays and can’t automatically schedule them after a groundbreaking lawsuit in Australia
- Employees should be asked to be on holiday schedules
- Court says request to work must be ‘reasonable’
- Case brought by union against BHP contractor
Bosses should ask employees if they want to work on holidays before scheduling them.
This applies to all workplaces and takes precedence over anything written into existing contracts or agreements following a groundbreaking lawsuit.
The Federal Court of Australia found that a company within mining giant BHP was in breach of the Fair Work Act by forcing miners to work on Christmas Day and Boxing Day.
The case was won on an appeal brought against BHP labor provider OS MCAP by the Construction, Forestry, Maritime, Mining and Energy Union, representing workers at the Daunia mine, near Moranbah in central Queensland .
The case involved 85 employees who had to work on Christmas Day and Boxing Day in 2019 without extra compensation.
Pointing to the power imbalance between employers and employees, the three judges said bosses can only reasonably ask, not command, someone to work, under the Fair Work Act that governs all Australian workplaces.
In a ruling that could have widespread application to those who work shifts, a court has ruled that employers must ask staff if they can be scheduled for public holidays (stock image pictured)
“The intended calamity facing the (Fair Work Act) provision is the inherent power imbalance that exists between employers and employees,” the decision read.
Because of this imbalance, employees will often feel compelled, and fail to understand, that they have the ability to refuse a request that is unreasonable or where their own refusal is reasonable.
“The requirement that there must be a ‘request’ rather than a unilateral order encourages the capacity for discussion, negotiation and refusal.”
In making the ruling on Thursday, Judges Berna Collier, David Thomas and Elizabeth Raper stated that Fair Work national labor standards take precedence over contracts, compensation or company agreements.
According to this precedent, automatic scheduling does not count as a “reasonable request” and could result in civil penalties for employers who fail to ask employees if they want to work on holidays.
The Federal Court’s ruling could apply to many all-hour industries, such as the hospitality industry (stock image pictured)
Tony Maher, president of the mining and energy union, told the Australian financial statement said the decision has major implications for mining and many other shift-working occupations.
“The right of workers to spend time with friends and family at key times of the year has traditionally been respected by mining companies,” he said.
However, this has eroded under pressure for non-stop production.
“It is common for mining employers to require employees to work on public holidays that fall outside their schedule.
“This practice violates the NES and employers will have to adapt and give employees a real choice that gives them the right to refuse.”
Meanwhile, Australian Industry Group CEO Innes Willox said the need to issue requests for employees to be rostered on public holidays could trip up many employers.
“The case demonstrates the unworkable complexity of our industrial relations system,” he said.
“It’s an example of our employment relations laws leading to errors being made by even Australia’s largest employers, and even courts, when determining exactly what is required by our employment laws.”