Requiring Employees to Work on a Public Holiday

Coles and Woolworths are set to have their underpayment bill increased with an announcement by class action firm Adero that it intends to amend the relevant statements of claim in the long-running store managers underpayment litigation to include a claim relating to a requirement to work on public holidays.

The announcement follows the recent penalty decision in Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372, wherein the Federal Court held that OS MCAP, a BHP subsidiary, breached s114 of the Fair Work Act 2009 (Cth) by requiring 85 black coal miners to work on Christmas Day and Boxing Day without first asking whether they wanted to work and then considering their personal circumstances.  

The Federal Court fined the mining giant $15,000 and ordered it to pay $83,700 to 85 workers at its Daunia Mine in Queensland after considering the company deprived them of spending time with their families and observing a key religious holiday, forced them to find babysitters and left their young children devastated.

Notably, the Court did not award any of the 85 miners amounts for economic loss, given their contractual annualised salaries were well above the Award and included appropriate set off clauses. Therefore the Court concluded the miners had been appropriately remunerated for the work performed on the public holidays. Instead, the Court ordered BHP pay the 85 miners between $800 - $1700 each in compensation for non-economic loss, together with a penalty of $15,000 payable to the Mining & Energy Union who brought the claim on the miners' behalf.

Whilst a relatively small penalty in this matter, Adero’s foreshadowed amendments to the Coles & Woolworths store managers proceeding could result in significant further compensation payments for the supermarket giants given the sheer scale of the impacted workers and time period involved in that proceeding (approximately 40,000 employees with an estimated $1 billion to be repaid already).

Key takeaways for employers:

1. When requiring employees to work on a public holiday, employers must first give the employee a genuine opportunity to accept or refuse. Simply stating in an employment contract “you may be required to work on a public holiday” is unlikely to be sufficient.

   
   

2. Employers may still then require employees to work on a public holiday if it is 'reasonable' to do so based on the following factors:

   
   

   1. the nature of an employer's business and the nature of the work performed by the employee;

      
      

   2. the employee's personal circumstances, including family responsibilities;

      
      

   3. whether the employee could reasonably expect that they will be asked to work on the public holiday;

      
      

   4. whether the employee is entitled to receive overtime payments, penalty rates or other compensation for work on the public holiday;

      
      

   5. the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

      
      

   6. the amount of notice in advance of the public holiday given;

      
      

   7. where an employee refuses to work on a public holiday--the amount of notice in advance of the public holiday given by the employee when refusing the request; and

      
      

   8.  any other relevant matter.

The full judgment in Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372 is available here: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca1372