Full Court Sleighs BHP’s In-House Labour Hire Company Over Christmas Roster
BHP’s in-house labour hire company is facing penalties after requiring production employees to work across the Christmas holidays in 2019. This was found to be a breach of NES obligations under s114 of the Fair Work Act 2009 in a recent Federal Court decision.
The premise of the National Employment Standards protecting public holidays is that any request to work a public holiday must be reasonable and any refusal by an employee must also be reasonable. When considering what had occurred in this case, the Federal Court found that the company had “unreasonably required” its employees to work a standard shift on December 25 and 26.
The Court viewed that a ‘request’ should be interpreted in its ordinary meaning: an employer must ask employees in the form of a question, leaving the employee with a choice as to whether they will agree or refuse to work on the public holiday. The key issue was that the labour hire company never made a request of its employees asking them whether they would be willing to work on public holidays. Rather, it operated with the assumption that those employees rostered to work on those days would work, unless they applied for leave and it was granted.
Making room for discussion and negotiation around working on a public holiday was a pivotal motivation of the provision. The Court found that employers may require employees to work on a public holiday if it is reasonable, but the request to employees to work a public holiday must promote the ability for a discussion and a refusal in order to comply with section 114.
- Employers should be mindful to make employees aware that they may decline to work on a public holiday should they wish to.
- Having a policy or provision around working on public holidays and the process for accepting or declining to work on a public holiday to ensure employees are aware they may reasonably refuse the request is essential.
- If you need further advice on how to address working on a public holiday the team at IRIQ Law is here to help.