BHP faces 7,000-worker class action over holiday shifts

An Australian mining union is funding a class action against two BHP (LSE, NYSE, ASX: BHP) subsidiaries that could cover as many as 7,000 workers, alleging employees were unlawfully required to work public holidays without being properly asked or given a chance to refuse.

BHP’s Operations Services subsidiaries OS MCAP and OS ACPM deny breaching Australia’s Fair Work Act. In their defence, the companies argue employment offers, an employee handbook, salaries incorporating compensation for expected holiday work and advance rosters amounted, individually or together, to reasonable requests to work. They also say the lead plaintiffs didn’t refuse those requests.

The Mining and Energy Union said Thursday the case follows its earlier Federal Court victory over Christmas and Boxing Day rostering at BHP’s Daunia mine, where Operations Services workers were later awarded compensation.

The dispute builds on a six-year legal fight over BHP’s public-holiday rostering. In 2023, the Full Federal Court ruled that OS MCAP breached national employment standards by requiring about 85 Daunia employees to work Christmas Day and Boxing Day in 2019 without first making a genuine request that left them with a choice to refuse.

Holiday rights

The current case was filed in December by former Operations Services employees Gregory Hooper and James Sharkie against OS MCAP, which provides production services, and OS ACPM, which provides maintenance services.

It covers workers employed by either company between Dec. 23, 2019 and March 31, 2023 who worked public holidays on continuous-shift rosters or fly-in, fly-out arrangements. The Federal Court notice confirms the MEU is funding the action.

The plaintiffs allege the companies didn’t make reasonable requests to work the holidays or inform employees that they could refuse on reasonable grounds. They are seeking compensation for losses that could include being deprived of the opportunity to take the holiday and expenses such as childcare costs.

BHP’s subsidiaries dispute that characterization. Their defence says workers knew before taking the jobs that they could be rostered on public holidays, were compensated for that expectation in their salaries and received rosters in advance. Operations Services also says its mining customers required it to provide services around the clock throughout the year.

Under Australia’s National Employment Standards, employees have a right to be absent on public holidays. Employers can ask them to work if the request is reasonable, while employees may refuse if the request is unreasonable or they have reasonable grounds for doing so. Operational requirements, personal circumstances, pay and advance notice are among the factors considered.

Asking vs requiring

The distinction between asking and requiring employees to work was central to the Daunia case. The Full Court found in March 2023 that merely rostering employees didn’t satisfy the requirement to make a request because workers must be given an opportunity to accept or refuse.

In November last year, the Federal Court ordered OS MCAP to pay a combined $83,700 in compensation to the 85 workers and a $15,000 penalty to the union. The compensation reflected non-economic losses from being deprived of the opportunity to refuse holiday work.

The new case goes further. Its statement of claim covers production and maintenance employees across BHP’s Operations Services business rather than only the Daunia workers involved in the original litigation.

The lawsuit comes as BHP faces union pressure elsewhere in Australia. The miner has been locked in wage negotiations with unions at its Port Hedland iron ore operations in Western Australia, where workers have staged the first major industrial action at the operations in more than two decades.

The class action also raises a broader legal question. BHP’s subsidiaries argue that section 114 of the Fair Work Act, which establishes public-holiday rights, isn’t itself capable of being contravened. The Federal Court has referred that issue to the Full Court for determination.