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

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

CoreStaff WA Pty Ltd was the prospective employer for the grader operator position sought by Mr Selsmark. Mr Selsmark was a 'prospective employee' at the relevant time. Mr Selsmark was refused employment because of his age, which was found to be a substantial and operative reason for the refusal. Thus, CoreStaff contravened s 351(1) of the Fair Work Act 2009 (Cth) by taking adverse action against a prospective employee for the prohibited reason of age.

Jurisdiction
Australia
Judgment Date
26 June 2020
Procedural Posture
Hearing on Liability Under the Fair Work Act 2009 (cth) / Liability Determined, Penalty and Relief Programming Deferred; Application for Declarations and Pecuniary Relief Pending
Outcome
Liability found against CoreStaff WA Pty Ltd for contravention of s 351(1) of the FW Act; parties directed to file and serve proposed orders and timetable for penalty/relief programming; matter listed for further case management.
Legal Topics
['adverse Action' 'discrimination—age' 'employment Recruitment—labour Hire' 'fair Work Act S 351' 'workplace Protections']
['industrial Law' 'employment Law' 'anti Discrimination Law'] ['adverse Action' 'discrimination—age' 'employment Recruitment—labour Hire' 'fair Work Act S 351' 'workplace Protections']

Case Brief

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Procedural Posture

Hearing on Liability Under the Fair Work Act 2009 (cth) / Liability Determined, Penalty and Relief Programming Deferred; Application for Declarations and Pecuniary Relief Pending

Legal Issues

  1. 1 ['Whether Mr Selsmark was a prospective employee of CoreStaff' 'Whether there was a vacancy for employment with CoreStaff' 'Whether CoreStaff refused to employ Mr Selsmark' 'Whether age was a substantial and operative reason for refusal to employ Mr Selsmark—contravention of s 351(1) of the Fair Work Act 2009 (Cth)']

Ratio Decidendi

CoreStaff WA Pty Ltd was the prospective employer for the grader operator position sought by Mr Selsmark. Mr Selsmark was a 'prospective employee' at the relevant time. Mr Selsmark was refused employment because of his age, which was found to be a substantial and operative reason for the refusal. Thus, CoreStaff contravened s 351(1) of the Fair Work Act 2009 (Cth) by taking adverse action against a prospective employee for the prohibited reason of age.

Court Disposition

Liability found against CoreStaff WA Pty Ltd for contravention of s 351(1) of the FW Act; parties directed to file and serve proposed orders and timetable for penalty/relief programming; matter listed for further case management.

Orders

  • ['By 3 July 2020 the applicant to file and serve proposed orders and programming timetable.' 'By 10 July 2020 the respondents to file and serve proposed orders and programming timetable.' 'Matter to be listed after 10 July 2020 for further orders and case management hearing.']