Woolworths and Coles are potentially facing compensation payouts amounting to hundreds of millions of dollars following a significant court ruling. The ruling challenges the practice of automatically rostering employees to work on public holidays without first seeking their consent. Law firm Adero has announced plans to incorporate this public holiday claim into its ongoing underpayment case against the supermarket giants, which could have substantial financial implications.
In September 2023, a Federal Court ruling estimated that Woolworths’ backpay liabilities could reach as high as $530 million. Coles has projected its total obligations at around $300 million, although legal experts suggest that the final figures may exceed these estimates. The new public holiday claims could further inflate these amounts significantly if the court permits the amendment.
This legal move follows a precedent-setting case involving BHP, where the mining giant was ordered to pay $83,700 in compensation to 85 workers for failing to ask them if they were willing to work on Christmas and Boxing Day. The ruling asserted that under the Fair Work Act, employers must seek employee consent before scheduling work on public holidays, providing them the opportunity to decline for valid reasons.
Rory Markham, principal at Adero, highlighted that managers at Woolworths and Coles, who are salaried and absorb penalty rates, typically lack the flexibility to opt-out of working during public holidays. He stated, “What’s normal is supermarkets prioritise salaried managers to work public holidays due to the cost of engaging additional staff on those days.”
If the court approves Adero’s amendment to include public holiday claims, it would allow the firm and its 40,000 group members to leverage the existing class action’s limitation period, dating back to 2013. This could mean that public holiday claims may cover the past decade, creating a substantial financial risk for both supermarket chains.
Markham also pointed out that the individual compensation amounts from the BHP case might serve as a benchmark for evaluating non-economic loss in similar cases, including claims for unreasonable overtime. “The decisive factor in the judgment was the motivation for profit, not business necessity,” he noted. He emphasized that while retailers could have hired additional staff for public holidays, they chose not to, which raises questions about their practices.
A case management hearing for this matter is scheduled for Monday. The specifics of how Adero plans to legally amend the existing case remain unclear. A spokesperson for Woolworths confirmed receipt of correspondence from Adero Law but stated that they have not yet received a formal claim. “If a claim is lodged, we will respond in line with the court process,” the spokesperson added. Coles chose not to comment on the situation.
Josh Cullinan, secretary of the Retail and Fast Food Workers Union, indicated that the recent BHP compensation orders have renewed their focus on similar issues. He remarked, “This makes it commercially viable to sue these employers. It opens the space for any employers that are requiring and rostering workers on public holidays to be held liable.”
Cullinan noted that many employees may not fully understand their rights regarding public holidays, saying, “Workers don’t understand at all that there is this notion of having a public holiday off or that the employer has to request it.”
In light of these developments, Bernie Smith, vice president of the Shop Distributive and Allied Employees Association, cautioned employers to be aware of their obligations ahead of the Christmas holidays. He affirmed, “It is timely to remind employers that workers cannot just be rostered on to work on these special days. Workers have rights to time off.”
As legal proceedings advance, the outcome could reshape employer-employee dynamics in the retail sector, particularly regarding public holiday work scheduling and employee compensation rights.
