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High Court Upholds Public Holiday Decision

Greg Arnold

28 Nov 2023

BHP appeal to High Court unsuccessful

Earlier this year we reported on the outcome of a Federal Court case where it was held that a BHP labour supplier had breached the NES obligations under s114 of the Fair Work Act by unreasonably requiring up to 85 production employees to work across Christmas holidays in 2019. It held that employers must ask their employees whether or not they wish to work on a public holiday, rather than just rostering them.

This matter was then appealed by BHP to the High Court, and last week the High Court upheld the Federal Court decision.

This now means that employers, regardless of size and the industry they work in, must consult with employees prior to rostering them to work on a public holiday and not simply automatically roster them to work on a public holiday.

However, it will depend on a number of factors, including the industry that you are engaged in, as to whether or not a request to work on a public holiday is a reasonable request, and an employee’s refusal to work on a public holiday is considered reasonable or not.

With the Christmas/New Year holidays approaching, the outcome of this matter is now even more important. Should you have questions in relation to this case and what it means for you, please do not hesitate to contact us at Effective Workplace Solutions.

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