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

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

Penalties for discrimination under s 351(1) of the Fair Work Act 2009 (Cth) must reflect both general and specific deterrence. CoreStaff, as a recruitment company, was found to have overtly discriminated based on age without malevolence but also without remorse, justifying a penalty of $20,000. Gumala also contravened by encouraging the action but admitted liability, expressed contrition, and implemented policy changes, warranting a lower penalty of $9,000. Both penalties are to be paid equally to the victim and the Commonwealth pursuant to s 546(3) of the Fair Work Act 2009 (Cth).

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: CoreStaff WA Pty Ltd; Second Respondent: Gumala Enterprises Pty Ltd
Jurisdiction
Australia
Judgment Date
24 September 2021
Procedural Posture
Civil / Penalty Hearing Following Liability Finding
Outcome
Pecuniary penalties imposed on both respondents for contravention of s 351(1) of the Fair Work Act 2009 (Cth).
Legal Topics
Adverse Action, Age Discrimination, Penalties, Labour Hire Industry, Fair Work Act 2009 (cth) S 351
Industrial Law Employment Law Adverse Action Age Discrimination Penalties Labour Hire Industry Fair Work Act 2009 (cth) S 351

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Parties

Australian Building and Construction Commissioner

Applicant

CoreStaff WA Pty Ltd

First Respondent

Gumala Enterprises Pty Ltd

Second Respondent

Procedural Posture

Civil / Penalty Hearing Following Liability Finding

Legal Issues

  1. 1 What penalties should be imposed for contraventions of s 351(1) of the Fair Work Act 2009 (Cth) involving adverse action due to age discrimination?
  2. 2 Should part of the pecuniary penalty be paid to the victim of discrimination?

Ratio Decidendi

Penalties for discrimination under s 351(1) of the Fair Work Act 2009 (Cth) must reflect both general and specific deterrence. CoreStaff, as a recruitment company, was found to have overtly discriminated based on age without malevolence but also without remorse, justifying a penalty of $20,000. Gumala also contravened by encouraging the action but admitted liability, expressed contrition, and implemented policy changes, warranting a lower penalty of $9,000. Both penalties are to be paid equally to the victim and the Commonwealth pursuant to s 546(3) of the Fair Work Act 2009 (Cth).

Court Disposition

Pecuniary penalties imposed on both respondents for contravention of s 351(1) of the Fair Work Act 2009 (Cth).

Orders

  • CoreStaff WA Pty Ltd to pay $20,000 penalty, half to Peter Selsmark and half to the Commonwealth.
  • Gumala Enterprises Pty Ltd to pay $9,000 penalty, half to Peter Selsmark and half to the Commonwealth.