A recent High Court of Australia decision has affirmed the right for employees to refuse working on public holidays. It found that BHP violated the National Employment Standards by forcing 85 workers to work on Christmas day and Boxing day. The mining giant was forced to pay them a collective $83,700 in addition to a $15,000 fine.
This decision affirmed that an employer can’t simply demand that you work on a public holiday. Rather, they can request that you do, and you have the right to refuse. Before we explore this case, let’s clarify the rights and employer obligations outlined in the National Employment Standards.
National Employment Standards: Your right to refuse work on a public holiday
The Fair Work Act 2009 provides Australian full-time, part-time and casual employees the right to be absent from work on a public holiday. This entitlement is one of the ten National Employment Standards, which apply to all employees in the national workplace relations system. Your employer has the right to request you to work, but this request and your potential refusal must be reasonable.
Section 114 of the Fair Work Act outlines this right contained within the National Employment Standards. For full-time and part-time employees who would normally have ordinary hours of work on that day, this absence is generally paid at their base rate of pay.
When can an employer ask you to work on a public holiday?
Under the National Employment Standards, an employer may request an employee to work on a public holiday, but this request must be reasonable. An employer must make a genuine request. They can’t simply roster or require you to work. The request must leave you with a genuine choice to accept or refuse, though that choice is subject to a test of reasonableness.
This process required of employers is one that the High Court of Australia clarified in the BHP case later in the article.
When can you refuse a request to work on a public holiday?
If your employer makes a request, you have the right to refuse if the request is not reasonable or your refusal is reasonable. If the employer’s request is reasonable and your refusal is unreasonable, the employer can ultimately require you to work..
The National Employment Standards, via section 114(4) of the Fair Work Act 2009, sets out factors that must be considered to determine whether an employer’s request was reasonable. Also, whether an employee’s refusal is reasonable. They include:
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- Operational needs: The nature of your employer’s workplace and the work you perform. For instance, essential services (like healthcare) are more likely to have a reasonable need for you to work. Also, if you’re a casual employee of a restaurant, for instance.
- Personal circumstances: Particularly any family or carer responsibilities. These responsibilities weigh heavily in favour of a reasonable refusal.
- Reasonable expectation: Could you reasonably expect your employer might request you work on the public holiday? This is common if you work in retail, hospitality or shift work.
- Compensation: Whether you are entitled to penalty rates, overtime payments or other compensation for working on the public holiday. Generous compensation may make the employer’s request more reasonable.
- Employment type: If you’re a full-time, part-time, casual or shift worker.
- Notice given: How much time prior to the public holiday your employer requested you to work.
High Court affirms workers’ right to refuse work on public holiday
The High Court of Australia clarified how employers must request public holiday work and employees’ right of refusal in the recent case Mining and Energy Union v OS MCAP MCAP Pty Ltd (No 3) [2025]. OS MCAP is BHP’s in-house labour hire company. It mainly employs mine workers for BHP’s operations, including for its Daunia Mine in central Queensland. The 85 OS MCAP employees involved in the High Court decision had signed a contract with the company that said they would not be paid special rates or allowances for working specific times. It also said that they may have to work on public holidays and that pay for those days had been factored into their salary.
In September 2019, OS MCAP informed two crews working at the Daunia Mine that all but eight employees would be required to work on Christmas Day and Boxing Day. It told them that they would not receive extra pay for doing so. OS MCAP subsequently received a volume of leave applications from staff for these specific dates. As the employer could only accommodate a limited number of absences, OS MCAP used a randomised selection process to choose which employees could take leave. This left 85 employees required to work on Christmas Day and Boxing Day.
Alleged contravention of the National Employment Standards
The Construction, Forestry, Maritime, Mining and Energy Union initiated proceedings against OS MCAP in the Federal Court of Australia. The union alleged that the company had contravened section 114 of the Fair Work Act 2009. This is a provision within the National Employment Standards. It argued that it had required 85 employees to work on the public holidays without first following the correct legal process. The initial application by the union was dismissed by the Federal Court. It then appealed the decision to the full Federal Court.
Federal Court ruled employees had right to refuse public holiday work
In 2023, the full Federal Court of Australia ruled that OS MCAP breached the National Employment Standards. This was because it had required the 85 employees to work a standard 12.5 hour shift on Christmas Day and Boxing Day in 2019. The primary legal issue hinged on the correct interpretation of the word “request” as it appears in section 114 of the Fair Work Act 2009. Section 114 provides employees with an “entitlement” to be absent from work on public holidays.
However, it also allows an employer to request an employee to work on a public holiday if the request is “reasonable.” The Federal Court noted that the employee has the right to refuse the request if reasonable.
Appeal argued it was reasonable to request public holiday work
OS MCAP and BHP appealed this decision with the High Court of Australia. It argued that a reasonable requirement issued to an employee to work on a public holiday was legally “synonymous” with a request. Their position was that their practice of rostering employees and stipulating the work requirement in employment contracts fulfilled the statutory obligation. They argued that this was particularly the case if the requirement was deemed reasonable in the context of the mining operation.
The Construction, Forestry, Maritime, Mining and Energy Union argued that OS MCAP had contravened section 114 because they did not “reasonably ask” the employees. The union maintained that OS MCAP had not asked the relevant employees to work on the public holidays. Rather, it had assumed those rostered were “required to do so” unless they applied for leave and their leave request was granted. The union’s core argument was that the Fair Work Act 2009 mandates a request, which must entail a choice for the employee.
High Court: Employers must request, not demand, public holiday work
In November 2023, the High Court of Australia rejected OS MCAP’s appeal, effectively upholding the previous ruling by the full Federal court that the company had breached the National Employment Standards. This ruling stated that a request to work on a public holiday must be “in the form of a question.” It therefore must afford the employee a choice to agree or refuse.
If they refuse, the employer must then assess if it is reasonable in the circumstances. Only if the employer’s initial request is reasonable and the employee’s refusal is not reasonable, may the employer then require the employee to work on the public holiday. The rejection of OS MCAP and BHP’s appeal by the High Court reaffirmed this interpretation.
Employer ordered to pay 85 employees up to $2,400 each
In November 2025, OS MCAP’s National Employment Standards breach was heard by the Federal Court of Australia to determine remedies and penalties. It dismissed the Construction, Forestry, Maritime, Mining and Energy Union’s argument for economic loss compensation. The court found that the employees’ annual salaries fully compensated them financially for working public holidays.
However, it found that the 85 employees had suffered non-economic loss. This was due to the “loss of the opportunity” to refuse to work on the public holidays by raising reasonable grounds for refusal. The court ordered OS MCAP to pay compensation to each of the 85 employees, ranging from $800 to $2,400 per employee.
Federal Court noted ‘heartbreaking’ effect of National Employment Standards breach
The highest compensation amount was awarded to a single mother. She had to spend Christmas day away from her two young daughters and pay $500 for a babysitter. The High Court said this was “demeaning and heartbreaking.” The total compensation ordered for the 85 employees was $83,700.
The court accepted that OS MCAP’s contraventions of the National Employment Standards stemmed from a “reasonable but mistaken” interpretation of them. Noting that the company had since changed its practices, he ordered a pecuniary penalty of $15,000, payable to the Mining and Energy Union.
National Employment Standards: Employer forced to pay over half a million for underpaying staff
In 2025, a Fair Work Ombudsman investigation into two Vietnamese restaurants uncovered significant breaches of the National Employment Standards. Specifically, the underpayment of 36 staff and other illegal actions. This formed the basis of the Federal Court of Australia case Fair Work Ombudsman v Mai [2025]. The breaches took place at Adelaide’s ‘Mr. Viet’ restaurant and an associated food stall run by Viet Quoc Mai and his wife and business partner Huong Le.
The court found that Mr. Mai had established a system to underpay his staff. This system involved paying employees a combination of a bank transfer and cash-in-hand payments. The cash component was often set at a flat rate of $15 per hour, which was well below the lawful minimum rates set by relevant awards.
The court noted that the total underpayments to individual workers ranged from $75 to over $58,000. The affected employees, who were engaged in roles such as kitchen attendance and customer service, were predominantly Vietnamese international students aged under 25. The systematic failure to pay correct wages included contraventions relating to minimum hourly rates, casual loading, overtime and failing to provide mandatory meal breaks.
Restaurateur used ‘calculated’ tactics to obscure underpayments
The Federal Court of Australia highlighted that Mr. Mai tried to obstruct the Fair Work Ombudsman’s investigation into the underpayments. He repeatedly created and kept false or misleading records and provided these documents to the Fair Work Ombudsman inspector on three occasions.
In one example, Mr. Mai gave one employee $10,000 under the pretence of back-paying wages. However, he then required the worker to withdraw the entire amount and repay it to him in cash. This was described as “calculated and dishonest” by the court. It said that Mr. Mai was prepared to act dishonestly “when he thinks it will be to his benefit.” The court noted that he was not deterred from such behaviour even after the Fair Work Ombudsman began its investigation.
Mr. Mai and Ms. Le were also found to have imposed unlawful deductions and unreasonable requirements on their staff. Mr. Mai established a “strike board system” to penalise employees for mistakes made on the job. The system required employees who accumulated six strikes to purchase food and beverages for Mr. Mai, Ms. Le or other colleagues.
In one instance, an employee was made to transfer over $50 to Ms. Le’s personal bank account for the purchase of bubble teas. Mr. Mai also made unauthorised deductions from employees’ pay for their mistakes. This included for allegedly charging a customer incorrectly and for failing to close a refrigerator door properly.
Owners forced to pay over half a million for National Employment Standards breaches
The Federal Court ruled that ordered Mr. Mai to pay $265,000 and Ms. Le to pay $130,000 in pecuniary penalties. Mr. Mai was also ordered to back-pay a total of $407,546, including interest and superannuation to 36 of his staff.
The Fair Work Ombudsman described the National Employment Standards contraventions as “disgraceful.” It particularly emphasised that it had a zero-tolerance attitude to Australian employers exploiting migrant workers. It said that the hefty penalties imposed in this case were a clear sign of that.
Read more: Exercise Your Workplace Rights
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