A Federal Court judge and Santa have made a memorable legal ruling that employers can’t be expected to work on public holidays!

There might be problems if you want coffee, bread, petrol, roadside assistance, a nurse or a doctor in emergency on Christmas Day. And you can blame a Federal Court judge and Santa Claus. This thinking follows a memorable legal ruling against BHP that said the miner should never have rostered workers on Christmas Day.

It meant the big miner copped fines and a compensation cost amounting to $100,000 per worker! And there were 85 employees who received compo of $83,700 each from the Federal Court, which looks like the best Christmas gift these Queenslanders have ever received.

The ‘crime’ BHP apparently committed was that it failed to consult with the workers at the Danuia coal mine in Queensland when they were rostered to work on Christmas Day in 2019. While that meant it took the legal system six years to work this remedy out, for the workers, it clearly is better late than never.

Justice Daryl Rangiah said there was an “inherent power imbalance” between employers and employees, which should not surprise anyone with common sense. He argues that the law says bosses must make “a request rather than a unilateral command to prompt the capacity for discussion, negotiation and a refusal” between the two parties.

The SMH’s Elias Visontay reported: “While an employee can refuse requests to work public holidays, Rangiah found the 85 BHP employees had been ‘deprived of the opportunity to raise reasonable grounds for refusing to work’ on Christmas Day and Boxing Day.”

The case before the court revealed a number of individuals who had legitimate reasons for not wanting to work on Christmas Day, for example a single mother who left her two children with a carer that cost her $500.

Visontay reminds us that bosses have been put on notice lately that they don’t have the power they thought they did when they gave their employees jobs.

Recently, Westpac learnt they could not order a staff member who had been working at home for some time to go back to the office. Meanwhile Coles and Woolies lost a court battle over incorrect pay linked to inaccurate records of rosters, overtime and other entitlements. This case potentially might mean the companies could face a backpay amount that could be as high as $780 million.

And in August, Qantas copped a record workplace $90 million fine for illegally sacking 1,800 workers when Covid lockdowns were introduced.

Lawyers now are telling employers that the rules of the game have changed.

Clancy King at law firm Clifford Chance told the SMH: “This decision means employers cannot simply expect employees to work on a public holiday or treat that as a part of an ordinary working pattern.”

This is a warning to all employers that if you want a staff member to work on a public holiday, you better ask rather than tell them that they’re working.

Sally McManus, secretary of the Australian Council of Trade Unions, cheered the decision and underlines the importance of negotiation and Santa in the workplace.

“Even if it’s not religiously significant to you, there’s still Santa Claus, and an expectation of downtime you will never get back with your family,” she told the SMH.

Going forward, ‘bah humbug’ bosses who demand workers work over Christmas and any other public holidays will find they could end up on the wrong side of the law. This is good news for employees but bad news for bosses and anyone wanting a coffee early on a Christmas Day. By the way, some workers in 24/7 industries such as healthcare and public transport have roster arrangements that mean they work undesirable public holiday shifts that would fall outside this ruling.