BHP OS Public Holiday Class Action

Statement of claim (23/12/2025)

Originating Application (23/12/2025)

Orders of Kennett J (13/3/2026)

Orders of Kennett J (5/6/2026)

Respondent’s Defence (22/5/26)

Respondent’s Interlocutory Application (22/5/2026)

Orders of Kennett J including opt out notice and communication (18/8/2026)

Opt Out – Form 21

This class action is brought by Mr Hooper and Mr Sharkie, on their own behalf and on behalf of all persons who are “class members” as defined in the proceeding. You can see whether you are a class member by considering Question 5 of the Opt Out notice, but we also set it out below in our FAQ.

Mr Hooper and Mr Sharkie allege that from 23 December 2019 to 31 March 2023 the Respondents (OS MCAP and OS ACPM) contravened section 114 of the Fair Work Act by requiring employees to work on public holidays without making a reasonable request or informing them of their right to refuse such work if the refusal was reasonable.

Mr Hooper and Mr Sharkie allege that, because of these contraventions, class members have suffered loss and damage, including the loss of their entitlement to be absent on public holidays, the loss of the opportunity to refuse work on reasonable grounds, and out-of-pocket expenses such as childcare costs incurred because they were required to work.

The Mining and Energy Union is the litigation funder of the class action. The applicants have entered into a litigation funding agreement with the Mining and Energy Union.

A class action is an action that is brought by a person (an ‘applicant’) on his or her own behalf and on behalf of a class of people (known as ‘class members’) against another person (a ‘respondent’) where the applicant and the class members have similar claims against the respondent.

Gregory Hooper and James Sharkie are the applicants in these proceedings, and they are bringing the class action. The Mining and Energy Union is funding the action under an agreement with Mr Hooper and Mr Sharkie.

There are no out-of-pocket costs for taking part in the class action.

You will not have to pay anything if the class action is unsuccessful.

The Mining and Energy Union is funding the class action subject to a funding agreement with Mr Hooper and Mr Sharkie. Question 6 & 7 of the Opt Out notice also provide further information.

You are a class member if you:

• were employed by either of the Respondents (OS MCAP Pty Ltd or OS ACPM Pty Ltd) at any time between 23 December 2019 and 31 March 2023 (Employment Period);
  • during the Employment Period:
    • worked for either of the Respondents on a public holiday;
    • were required by either of the Respondents to work on each public holiday you worked; and
    • worked a continuous shift roster or as a FIFO employee;
  • were at all material times working in or in connection with:
    • the mining industry, as defined in clause 4.2 of the Mining Industry Award 2020; or
    • the black coal mining industry, as defined in clause 4.2 of the Black Coal Mining Industry Award 2020.

This summary is provided for general information only. You should read the opt-out notice carefully. If you are unsure whether you are a group member, you may make an enquiry using the contact details on this website or seek independent legal advice.

No. If you are a class member and you wish to remain in the class action there is nothing you need to do at this time.

Unless you opt out, you will remain a class member and you will be bound by any settlement or judgment of the class action. That includes any determination by the Full Court of the Federal Court of Australia or the High Court of Australia on the application brought by the Respondents (in respect of whether section 114 of the Fair Work Act is capable of being contravened).

If the class action is successful you may be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicants and class members, although you may have to satisfy certain conditions before your entitlement arises. If the action is unsuccessful or is not as successful as you might have wished, you will not be able to pursue the same claims and may not be able to pursue related claims against the Respondents in other legal proceedings.

An opt out notice is a court-approved notice sent to people who may be affected by a class action. It explains the case and gives them an opportunity to choose whether they want to remain part of the class action. You should read the opt-out notice in full before making any decision.

If you opt out you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the Respondents, provided that you issue Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against the Respondents, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.

If you wish to opt out of the class action you must do so by completing an “Opt Out Notice” in Form 21 of the Courts approved form, then returning to the registrar of the Federal Court of Australia at the address or email address (nswreg@fedcourt.gov.au) on the form. Important: the Notice must reach the Registrar by no later than 4pm on 30 October 2026, otherwise it will not be effective.

A copy of the Opt Out form is in the Key Documents section.

Your opt out form must reach the Registrar by no later than 4pm 30 October 2026

The Federal Court has ordered that the Court approved opt-out notice be provided to persons who may be class members. You should read the opt-out notice carefully. If you have questions, you may use the dedicated class action enquiry address listed on this website.

The criteria for being a class member is set out in the opt-out notice under the heading “Are you a class member?”. You should read that section of the opt-out notice carefully.

Whether you are a class member depends on whether you meet the criteria set out in the opt-out notice. Current employment status is not, by itself, determinative. You should read the opt-out notice carefully.

Membership of the Mining and Energy Union is not the test for whether you are a class member. The relevant criteria are set out in the opt-out notice. You should read the opt-out notice carefully.

The proceeding was commenced on 23 December 2025. The applicants allege contraventions during the period 23 December 2019 to 31 March 2023. The opt-out notice explains the claim period and the matters alleged in the proceeding.

No findings have been made. The Respondents have filed a defence which you can find in the relevant documents section. The Respondents intend to argue that section 114 of the Fair Work Act is not capable of being contravened and have asked the Full Court of the Federal Court of Australia to determine that issue. In a previous application brought by the MEU, in CFMMEU v OS MCAP Pty Ltd (No 2) [2023] FCAFC 51, the Full Court held that section 114 of the Fair Work Act had been contravened. The hearing is set for 9 November 2026.

AEN Legal represents the applicants. The Principal of AEN Legal is Aron Neilson who is an accredited specialist in Employment and Industrial Law with the Law Society of New South Wales. AEN are an experienced industrial law firm with a proven track record of representing workers against high-profile and well-resourced employers.

The MEU is acting as the funder of the class action consistent with a litigation funding agreement entered into with the applicants.

Before making an enquiry, please read the Court-approved opt-out notice carefully. The Mining and Energy Union is providing an enquiry service as the funder of the class action. Enquiries may be sent to classaction@meu.org.au, or you may seek your own legal advice. Enquiries to this email address must be limited to this class action only.