BHP to pay union for failure to ask workforce about Christmas work

Operational Services (OS), a recruitment arm of the BHP group, was ordered to pay 85 of its workers “non-economic” compensation in addition to a civil penalty of $15,000.

Early last week (11 November), Federal Court Justice Darryl Rangiah ordered OS to pay a total of $98,700 to affected employers and the Mining and Energy Union (MEU) for contraventions of the Fair Work Act 2009 (FWA).

The court ruled this contravention, “the loss of the opportunity to refuse to work on those days by raising reasonable grounds for refusal” for 85 employees who performed work at the Daunia mine on 25 and 26 December 2019.

Individual compensation

The court ordered that OS pay these 85 employees amounts that varied, ranging from $800 to $2,400 each, following “non-economic losses”, which Justice Rangiah said caused these employees to suffer “shock, distress, hurt or humiliation” as a result of having to work on Christmas and Boxing Day.

Seven of these workers submitted affidavits in the proceeding, with some saying they felt “heartbroken” and “devastated” when told they could not spend Christmas with their families in 2019. Among these workers, one was forced to fork out $500 for childcare, while another missed a final Christmas with his mother before she passed away shortly after.

‘Deterrent’ penalty

In addition, the court also ordered OS to pay a penalty to the MEU for the alleged contravention of civil remedy provision section 44, by contravention of section 114 in the FWA – for failure to grant its employees the “entitlement to be absent from employment on public holidays”.

Initially, the union sought that OS pay a penalty of 70–90 per cent of $63,000 (the maximum penalty), which amounted to $44,100 and $56,700. It argued that since OS is a significant employer within the BHP group, a large penalty was required as an adequate deterrent. However, OS countered with a proposed $12,600 penalty – 20 per cent of the maximum amount.

Justice Rangiah stated that it seemed “most unlikely” that OS would commit a similar contravention again, and hence ruled that OS pay the union a $15,000 penalty as a “deterrent”, in addition to a total of $83,700 in compensation to its 85 employees.

Further, Justice Rangiah found that although OS had “contested the proceeding to the end”, it had provided a belated apology to its employees and had since changed its procedures, providing employees the opportunity to refuse to work if requested to work on a public holiday.

Mitch Hughes, Queensland president at MEU, said: “While these amounts are small change to BHP, the bigger principle here is that Australian workers can raise reasonable grounds to refuse to work on public holidays … This judgment is a message to all employers in the coal industry and beyond that they must comply with Australian workplace law and community expectations.”

The case: Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372.