Case name
Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd & Anor
Known as
CoreStaff
Commonwealth Courts Portal reference and link

WAD217/2019

Applicant
Australian Building and Construction Commissioner
Respondent(s)
  • CoreStaff WA Pty Ltd
  • Gumala Enterprises Pty Ltd
Date filed
State/Territory
WA
Breach(es) found
Discrimination
Status
Finalised
Date finalised
Link to liability judgment

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893

Link to penalty judgment

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149

Summary of court decision

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.

Total Penalties
Respondent Amount
CoreStaff WA Pty Ltd $20,000
Gumala Enterprises Pty Ltd $9,000
Total $29,000

 

Historical content

24 Sep 2021 - WA labour hire company and contractor penalised $29,000 for age discrimination

26 Jun 2020 - ABCC successful in age discrimination case