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An employer's failure to ask employees whether they wanted to work on public holidays was unlawful, a Federal Court full bench has ruled.

On Christmas Day and Boxing Day in 2019, approximately 85 production employees of OS MCAP Pty Ltd, BHP's in-house labour hire company, worked a standard 12.5-hour shift at BM Alliance Coal Operations' (BMA) Daunia Mine in central Queensland.

The CFMMEU subsequently claimed that in requiring the employees to work on a public holiday, OS breached one of the National Employment Standards, that being section 114 of the Fair Work Act.

Under that section, employees are entitled to be absent on a public holiday...