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There are certain jobs where working on public holidays may be necessary. Essential services such as police, fire and healthcare often require staff to work on public holidays. Many retail and hospitality employees will also work on public holidays. However, these workers are usually paid a higher ‘penalty rate’ as stipulated in their contract.

Employee rights

Australian employees that fall under the National Employment Standards have the right to be absent from work on a day or part-day that is a public holiday. Employees are protected from adverse action for reasonably refusing to work on a public holiday. 

However, many employers contravene this legislation and expect staff to work on public holidays often without applying a higher rate of pay.

BHP Case

Mining company BHP are currently challenging this year’s full federal court ruling which found they breached the Fair Work Act, through their in-house labour recruitment company Operation Services which required 85 employees at Daunia mine in central Queensland to work 12.5-hour shifts on Christmas Day and Boxing Day in 2019. BHP’s profit in 2022 came to approximately 33.1 billion U.S. dollars and yet these employees didn’t receive any additional remuneration for working those public holidays. 

Business implications of the ruling

This year’s landmark federal court ruling against BHP sets a precedent with wider implications for Australian businesses who have been rostering staff to work on public holidays. 

It is the first full-court interpretation of workers’ right to be absent on public holidays under the National Employment Standards. The ruling will override whatever is written into employees’ existing contracts and require that bosses ask workers if they wish to work public holidays before rostering them on.

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

BHP’s High Court challenge of the full court includes the submission that the ruling “will have a serious adverse effect on the ability of employers confidently to roster employees to work on public holidays”. 

BHP trying to maximise profits is one thing but there may be genuine cause for concern with regards to rostering essential workers.  As reported here in the AFR, ACCI workplace relations director Jessica Tinsley said the full court decision “has enormous implications for businesses that deliver essential services that the community needs seven days a week, 365 days a year. ACCI members across all sectors have reported to us that they’re very concerned about the additional layer of complexity this decision creates,” she said.