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High Court Decision – Public Holidays

Australian mining giant BHP Group Limited (BHP) sought special leave from the High Court of Australia (HCA) to overturn a recent Federal Court of Australia (FCAFC) decision. The decision BHP sought to overturn was made on 28 March 2023 in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (FCAFC Decision).

The FCAFC Decision was an appeal decision from the Federal Court of Australia (FCA) and related to the arrangements of BHP’s in-house labour hire provider (OS MCAP). The initial proceedings were commenced by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) on behalf of approximately 85 employees of OS MCAP, who were required to work on Christmas Day and Boxing Day.

In short, the FCAFC Decision was that employers are required to ask their staff if they wish to work public holidays before they roster them to do so. This has proved inconsistent with the understanding of many employers that previously had this type of roster in place and has had (and will continue to have) a significant impact on these employers.

The CFMEU claimed that the FCAFC Decision exposed flaws in the way BHP deducted leave on public holidays across its entire Australian workforce, leading to the company’s revelation that it has to backpay more than $400 million to almost 30,000 employees that had been underpaid since 2010.

In this regard, the FCAFC Decision, at paragraph [5] states that:

For the following reasons, this Court allows the appeal. In this Court’s view, a “request” within the meaning of s 114(2), connotes its ordinary meaning, an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday. 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.”

On November 21 2023, the HCA heard BHP’s special leave application and a decision was made to reject BHP’s bid to challenge a full Federal Court ruling clarifying when employees can reasonably refuse requests to work on public holidays.

In upholding the FCAFC Decision, Justices Berna Collier, David Thomas and Elizabeth Raper recounted that s114(2) permits an employer to request that an employee work on a public holiday, while s114(3) allows that a request can be refused if it is not reasonable or refusal is reasonable.

The matter will now return to Justice Rangiah to determine remedy and penalties.

Written By Michael Franzone – Associate Workplace Relations

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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