Mining and Energy Union v OS MCAP Pty Ltd (No 3)

Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372 is a Federal Court remedies and penalty decision about public holiday work under the Fair Work Act 2009 (Cth). It is not an intellectual property or trade mark case. The court was dealing with what should happen after the Full Court had already found that OS unlawfully required certain employees to work on Christmas Day and Boxing Day 2019.

The decision is commercially important because the employer was not found to have underpaid the employees in the ordinary sense. The judgment records that remuneration exceeded the relevant award amount and that no economic loss was demonstrated. Even so, the court awarded compensation for non-economic loss and imposed a civil penalty. For employers, that is a strong reminder that public holiday compliance is not just about rates of pay. It is also about whether the business used the right process and language when asking employees to work.

OS provided services at the Daunia Mine near Moranbah in central Queensland. Its employees operated mobile mining machinery to excavate and move earth. The mine operated every day of the year, so OS had a practical need to staff public holidays. The employees relevant to the case worked under standard form contracts that said their annual salary covered all hours required to be worked and satisfied the Black Coal Mining Award 2010, including loadings and penalties. The contracts also said employees might be required to work on public holidays and that payment for that expectation had been incorporated into their remuneration.

That contractual setting mattered, but it did not decide the case. The contracts did not specify what portion of salary was for public holiday work. The parties agreed the employees were paid above the award for their roster, even assuming they might work up to 10 public holidays in a year. The court also noted that working as many as 10 public holidays was quite unlikely because the employees worked seven days on and seven days off.

In June 2019, OS informed B Crew and D Crew that all but six employees from each crew would be required to work on Christmas Day and Boxing Day. In September 2019, that was adjusted so that eight employees from each crew would not be required to work. Then, on 13 and 14 December 2019, employees were told that if they had special circumstances they could raise them for consideration. Some requests for leave were approved. But OS rejected applications from employees who said only that they wanted those days off to spend time with their families.

The agreed facts recorded that many of the employees who worked on Christmas Day and Boxing Day would have preferred the opportunity to spend those days with their families. Of the 168 employees in the two crews, 35 were absent without leave, 25 were permitted to take leave, and 85 worked on the public holidays in accordance with OS's requirement. Those 85 employees did not receive any additional remuneration for working on those days.

The union sued, alleging contraventions of ss 44 and 114 of the Fair Work Act. Rangiah J initially dismissed the claim in 2022. The union appealed, and in 2023 the Full Court allowed the appeal, declared that OS had contravened the Act by requiring production employees to work on those public holidays, and sent the matter back to the primary judge to decide remedy and penalty. This 2025 judgment is that later step.

Because this was a remedies judgment, the court was not re-deciding the main liability question from scratch. The Full Court had already held that OS contravened s 114 of the Fair Work Act, and therefore s 44, by requiring the 85 employees to work on Christmas Day and Boxing Day 2019. Rangiah J's task in this decision was to determine what relief and penalty should follow from those contraventions.

Even so, the judgment is useful because it reproduces important parts of the Full Court's reasoning about how s 114 works. The quoted passages explain that the provision is aimed at the inherent power imbalance between employers and employees. According to the Full Court, the requirement that there be a request rather than a unilateral command is intended to prompt discussion, negotiation and the possibility of refusal. The employee's choice is not unlimited, because the Act also asks whether the employer's request is reasonable and whether the employee's refusal is reasonable. But the legislation still requires the process to begin as a request, not as a command dressed up as a roster.

The Full Court passages quoted in this judgment also make two practical points that matter to employers. First, an employer can ultimately require employees to work on public holidays where the employer has satisfied the obligations imposed by ss 114(2) and (3), namely making a request, ensuring the request is reasonable, and dealing with whether a refusal is reasonable. Secondly, an employer can have a roster that includes public holidays, provided employees understand that the allocation is a request, or that the roster is in draft pending acceptance or refusal, or that the request is made before the roster is finalised.

That is why the distinction between a request and a requirement is so important. The case was not decided simply by asking whether the mine needed to operate on Christmas Day and Boxing Day. It turned on whether OS used the statutory process that the Act requires before public holiday work can lawfully become compulsory.

Rangiah J ordered OS to pay compensation to each person named in the schedule attached to the orders, within 28 days. The schedule lists individual amounts for affected employees. The amounts ranged from $800 to $2,400. The court also ordered OS to pay a pecuniary penalty of $15,000 within 28 days, payable to the union.

The catchwords and orders reveal several points that are especially useful for business readers. First, the court treated the employees as having been unlawfully required to work on public holidays without being given the opportunity to reasonably refuse. Secondly, the court accepted that remuneration exceeded the amount payable under the relevant award and that no economic loss had been demonstrated. Even so, compensation for non-economic loss was awarded. That means compensation exposure can arise from the loss of the statutory right and the personal impact of being required to work, not only from a shortfall in wages.

Thirdly, the catchwords record that the course of conduct principle was applied and that the contravention was the result of a genuine and reasonable mistake. That is relevant to understanding the penalty outcome. The penalty was real, but not at the highest end. The judgment therefore shows that a business can avoid deliberate wrongdoing and still face orders for compensation and penalty if its public holiday process is legally defective.

This case is a warning against relying on three common assumptions. The first is that if the business must stay open, the employer can simply direct staff to work. The second is that if contracts say public holiday work is built into salary, the legal risk disappears. The third is that if employees are paid above award rates, there can be no meaningful claim. On the published judgment, all three assumptions are unsafe.

The better reading is that public holiday compliance has at least four moving parts. One is contract drafting. A contract can foreshadow that employees may be asked to work on public holidays and may be required where the statutory conditions are met. But the contract should support the Act's process, not try to replace it. Another is roster design. A roster can include public holidays, but the communication around it must leave room for the employee to accept or refuse in the way the Act contemplates. A third is manager conduct. If supervisors speak in terms of requirement first and exceptions later, the business may be undermining the request process. The fourth is records. If there is later a dispute, the business will want clear evidence of what was asked, when it was asked, what options employees were given, and how any refusals were assessed.

The facts also show the employee relations dimension. OS accepted that many employees who worked on Christmas Day and Boxing Day would have preferred the opportunity to spend those days with their families. Public holidays, especially Christmas, often involve strong personal and family considerations. Even where a business has legitimate operational needs, the way it handles requests can affect morale, retention and the likelihood of union or employee claims.

This decision is likely to be most relevant to businesses with continuous operations or customer-facing holiday trading, including mining, healthcare, transport, logistics, hospitality, retail, security and maintenance. If your business uses annualised salaries, all-inclusive rates or standard form contracts, this case is a prompt to check whether your documents and practices line up with the Fair Work Act rather than assuming salary packaging solves the issue.

The quoted Full Court reasoning gives practical guidance on how businesses should structure documents and communications. A contract may say that employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal is unreasonable. That kind of clause is different from wording that suggests the employer can simply compel attendance whenever it chooses. The contract should leave room for the statutory process to operate.

Rosters also need careful handling. The judgment indicates that an employer can have a roster including public holidays, but employees should understand either that the roster is in draft and they are being asked whether they accept or refuse the allocation, or that a request is made before the roster is finalised. In practice, that means businesses should think about timing, wording and escalation. If the roster is circulated as final and non-negotiable, the business may have already moved from request to requirement.

Manager scripts matter too. A message such as, "you are required to work unless management approves special circumstances" may create a different legal impression from, "you are rostered for these public holidays and we are requesting that you work them; if you wish to refuse, please let us know your reasons so they can be considered under our process". The exact lawful wording for a business will depend on its circumstances, but the case shows that tone and structure are not cosmetic. They go to whether the Act's process has been respected.

Finally, payroll should not be treated as the whole answer. OS's employees were paid above award levels and the court still made compensation and penalty orders. Businesses should therefore treat public holiday compliance as a combined legal, HR and operations issue rather than a pure payroll issue.

The judgment was delivered on 11 November 2025 by Rangiah J in the Federal Court of Australia. The hearing on remedy and penalty took place on 15 April 2025. The case followed an earlier 2022 trial judgment dismissing the claim and a 2023 Full Court appeal allowing the union's appeal and remitting the matter for determination of remedy and penalty.

This page focuses on the 2025 remedies decision and the facts and reasoning expressly recorded there. For a complete understanding of the liability analysis under s 114, readers should also consider the earlier Full Court decision referred to in the judgment.