WA labour hire company and contractor penalised $29,000 for age discrimination

Australian Building and Construction Commission

The Federal Court has today penalised West Australian labour hire company, CoreStaff WA Pty Ltd, $20,000 and a WA based contractor, Gumala Enterprises Pty Ltd, $9,000.

CoreStaff and Gumala Enterprises were found to have discriminated against a worker when they refused to hire a qualified 70 year old grader because of his age.

The Court ordered 50 per cent of the penalties, totalling $14,500, be paid to the affected worker who was denied the opportunity to work.

In October 2018, the worker submitted an application for a grader operator role in the Pilbara to CoreStaff, which provides labour hire and permanent recruitment services to clients across a range of industry sectors.

The application was forwarded by a CoreStaff area manager to Gumala Enterprises, which provides civil construction, transport and mining related services to clients in the Pilbara region.

On 25 October 2018, a Gumala Enterprises human resources advisor emailed the CoreStaff area manager stating:

I have some feedback on the grader ops.

… we had his details already, he applied directly with us. He has all the tickets we are looking for however [his] age is a concern – 70 years old.

The CoreStaff area manager replied:

Wow didn’t know that however I would have found out eventually… yes will certainly keep looking.

Later that day, the CoreStaff area manager emailed the worker stating:

Sorry … no joy with the role at Gumala due to your age mate.

CoreStaff’s liability was determined by the Federal Court in June 2020 after a contested hearing.

In today’s penalty decision, the Court said:

The discrimination against [the worker] was clear – the only roadblock to his continued consideration for employment was his age. Conscious recognition was given to his age by both Gumala … and by CoreStaff … and that factor was then relied upon to deny his opportunity of employment.

The Court went on to say about the conduct of CoreStaff:

Of concern is the fact that although CoreStaff knew of [the area manager’s] conduct, … at no time has CoreStaff apologised to [the worker] for that conduct.

In determining the penalty to be imposed on CoreStaff, the Court held:

The absence of any indication of remorse on the part of CoreStaff is disappointing. I would have accorded a discount had there been a genuine indication of insight and remorse.

I note that CoreStaff, by the nature of its business, is in the position to disabuse its clients of any misunderstanding as to discriminatory conduct in employment and so to reduce the prospect of such conduct occurring. It is to be hoped that it will be attuned to this potential in the future.

The Court said about the conduct of Gumala Enterprises:

Although I accept that Gumala is acutely aware of issues of racial and other discrimination, it is not immune to error, as the case of [the worker] reveals. No organisation, regardless of its beneficial purpose and role in the community, is entitled to complacency when it comes to discrimination in the employment environment.

I also accept that there was considerable cooperation on the part of Gumala … The importance of concessions should not be underestimated. They indicate insight into behaviour. … Gumala admitted liability at an early stage.

[Gumala’s Chief Executive Officer] also expressed concern and contrition in relation to [the worker’s] treatment and apologised to [him] through his affidavit. … I give Gumala’s cooperation and concessions considerable weight by way of mitigation.

ABCC Commissioner, Stephen McBurney, said:

The Fair Work Act 2009 makes it clear that it is unlawful for any employer to take adverse action against an employee or prospective employee because of their age.

This is an important outcome for three reasons:

    1. The age discrimination in this case was overt and serious. The evidence surrounding the conduct has been put before the Federal Court and orders made to impose penalties.
    2. The Court accepted my submission that 50% of the penalties imposed in this case be payable to the victim. The Court determined that he was an innocent party in the circumstances and the target of the discrimination.
    3. I need to acknowledge the cooperation of Gumala throughout the process. In contrast, CoreStaff exercised their legal right to contest liability. The contrasting penalties imposed by the Court result from the absence of contrition, remorse or acceptance of responsibility by CoreStaff.

The ABCC stands ready to investigate any instances of workplace discrimination in the building and construction industry. We will ensure victims are protected and where possible compensated for adverse action or discrimination of this nature.

Employers and employees can visit our website or call us on 1800 003 338 for free advice and assistance about their rights and obligations in the workplace. A free interpreter service is available on 13 14 50.

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