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A labour hire company and prospective host company have been found to have contravened the Fair Work Act 2009 (Cth) (FW Act) by discriminating against a job applicant due to age-related assumptions about the employee’s ability to work in hot conditions.
- This decision is a reminder that determinations about whether to offer employment should be made on the basis of objective criteria and an applicant’s skills and experience, rather than assumptions about how protected attributes may impact a prospective employee’s ability to perform the inherent requirements of a role.
- The decision is also a reminder that parties in labour hire arrangements should ensure that decisions relating to employment are made independently, without undue pressure or influence from the other.
Peter Selsmark applied for employment with a labour-hire company, CoreStaff WA Pty Ltd (CoreStaff), which was seeking to employ a grader operator to perform work for Gumala Enterprises Pty Ltd (Gumala), a company providing civil construction and mining-related services to clients in the Pilbara region of Western Australia.
Mr Selsmark was an experienced grader operator, held all required tickets, but was 70 years old when he applied for the position. CoreStaff initially viewed Mr Selsmark as a suitable candidate for the position, based on his resume and qualifications, and submitted his information to Gumala for consideration. However, Gumala indicated that it had concerns about Mr Selsmark performing work at its sites due to his age and the long hours and hot environment he would be required to work in. As a result, CoreStaff did not offer the position to Mr Selsmark. Mr Selsmark was informed by CoreStaff that his age was the reason he was not successful in his application.
The Australian Building and Construction Commission commenced adverse action proceedings against CoreStaff and Gumala alleging that they had taken adverse action against Mr Selsmark, in the form of discrimination on the basis of his age. CoreStaff denied liability for the adverse action, including on the basis that the decision to refuse employment to Mr Selsmark was ultimately made by Gumala and CoreStaff was simply giving effect to a direction from Gumala.
The Federal Court determined that the substantial and operative reason for CoreStaff’s decision not to hire Mr Selsmark was because of age-related assumptions made by a CoreStaff employee regarding Mr Selsmark’s ability to work in a hot environment. Gumala had not exerted any commercial pressure on CoreStaff to make the decision and CoreStaff independently determined that it would not employ Mr Selsmark. CoreStaff was ordered to pay a pecuniary penalty of $20,000.
Gumala admitted that it had advised, encouraged or incited CoreStaff to take adverse action, in breach of the FW Act. As a result, it was ordered to pay pecuniary penalties of $9,000.