Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd

The applicant, the Australian Building and Construction Commissioner, filed a case against CoreStaff WA Pty Ltd, a recruitment company, regarding an alleged contravention of the Fair Work Act 2009 (Cth). The dispute arose when CoreStaff refused the application for employment of a 70-year-old applicant for a position as a grader operator on an assignment in the Pilbara region of Western Australia. The client expressed concerns about the applicant's age, which led to CoreStaff rejecting the application. The Commissioner argued that CoreStaff's decision contravened section 351(1) of the Fair Work Act, which prohibits adverse action for reasons of age. The Federal Court was tasked with determining whether CoreStaff was the prospective employer and whether age was a substantial and operative factor in the decision-maker's reasons.

The court examined the nature of the employment arrangement between CoreStaff and the client, Gumala. The evidence showed that CoreStaff intended to become the applicant's employer, responsible for their health and safety. The contract terms provided that the applicant would be employed by CoreStaff as a casual on-hire employee to perform work for CoreStaff's clients. The court also considered the email exchange between CoreStaff and Gumala, in which Gumala expressed concerns about the applicant's age. The court found that age was a substantial and operative factor in CoreStaff's decision to reject the applicant, despite the decision-maker's independent assessment.

Based on the evidence, the court ruled that CoreStaff had contravened section 351(1) of the Fair Work Act by refusing the applicant's job application due to their age. The court determined that CoreStaff was the prospective employer, and the decision to reject the applicant was influenced by the applicant's age. The court ordered the applicant and respondents to file and serve proposed orders consistent with these reasons for judgment and a timetable for programming the balance of the matter to hearing. The matter was to be listed on a date after 10 July 2020 for the making of orders and a case management hearing as required.