FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    By 3 July 2020 the applicant file and serve proposed orders consistent with these reasons for judgment and a timetable for programming the balance of the matter to hearing.

2.    By 10 July 2020 the respondents file and serve proposed orders consistent with these reasons for judgment and a timetable for programming the balance of the matter to hearing.

3.    The matter be listed on a date after 10 July 2020 for the making of orders and a case management hearing as required.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The Australian Building and Construction Commissioner brings these proceedings under s 539 of the Fair Work Act 2009 (Cth) (FW Act) against CoreStaff WA Pty Ltd and Gumala Enterprises Pty Ltd relating to alleged adverse action against a prospective employee by way of discrimination on the basis of age.

2    CoreStaff, as its name suggests, provides labour hire and permanent recruitment services to clients across a range of industry sectors.

3    Gumala provides civil construction, transport and mining-related services to clients in, relevantly, the Pilbara region of Western Australia.

4    In October 2018 CoreStaff conveyed to Gumala an application it received from Mr Peter Selsmark for a position as a grader operator. Had Mr Selsmark been successful in his application, he would have been employed by CoreStaff, and his services would have been made available to Gumala. It is alleged that CoreStaff refused to employ Mr Selsmark because he was 70 years of age and so contravened s 351 of the FW Act. It is alleged that Gumala advised, encouraged or incited CoreStaff in its conduct.

5    This is a hearing on liability. Gumala has made admissions as to liability and has consented to certain orders being made. It did not participate in the hearing. The question of penalty has been deferred pending the outcome of the liability hearing with respect to CoreStaff. The Commissioner seeks declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) and pecuniary relief under s 546 of the FW Act.

Statutory context

6    The provisions relevant to this case are contained in Part 3-1 of the FW Act. That Part deals with general workplace protections and the responsibilities of employers, employees and organisations.

7    Section 336 sets out the objects of Part 3-1:

(1)    The objects of this Part are as follows:

(a)    to protect workplace rights;

(b)    to protect freedom of association by ensuring that persons are:

(i)    free to become, or not become, members of industrial associations; and

(ii)    free to be represented, or not represented, by industrial associations; and

(iii)    free to participate, or not participate, in lawful industrial activities;

   (c)    to provide protection from workplace discrimination;

(d)    to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

(2)    The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).

8    Section 335 of the FW Act provides that both employee and employer have their ordinary meaning in Part 3-1.

9    Section 351 provides:

Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; or

(c)    if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - taken:

(i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

10    'Adverse action' is defined in s 342(1) of the FW Act. Item 2 is relied upon for the Commissioner's case:

Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

11    Section 360 provides that a person takes action for a particular reason if the reasons for that action include that reason.

12    Section 361 is a reverse onus provision. It provides that where it is alleged that a person took or is taking action for a particular reason or intent, and where that reason or intent would constitute a contravention of Part 3-1, it is presumed that the action was or is being taken for that reason or intent, unless the person proves otherwise. Section 361 does not remove the need for an applicant to establish the objective facts which form the basis of the respondent's conduct: Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [119] (Jessup J, Allsop CJ and White J agreeing). The rationale for the s 361 presumption is that the reason for taking action is a matter that lies peculiarly within the knowledge of the person taking the action: Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [148], citing, amongst other authorities, General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241.

13    The claim against Gumala relies upon s 362 which relevantly provides:

Advising, encouraging, inciting or coercing action

(1)    If:

(a)    for a particular reason (the first person's reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)    the action, if taken by the second person for the first person's reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2)    Subsection (1) does not limit section 550.

Summary of issues

14    Despite the relatively confined factual circumstances, the Commissioner and CoreStaff disagree about a number of interrelated matters that fall within the following overarching issues:

(1)    whether Mr Selsmark was a prospective employee of CoreStaff;

(2)    the relevance of a vacancy to the question of whether there is a refusal to employ;

(3)    whether CoreStaff refused to employ Mr Selsmark; and

(4)    if so, whether Mr Selsmark's age was a substantial and operative reason for the refusal to employ.

The witnesses

15    The applicant relied on the affidavit evidence of Mr Martin Howard, a senior investigator employed by the Commissioner, and the affidavit evidence of Mr Selsmark.

16    Mr Howard states that in October 2018 he was referred a complaint that Mr Selsmark had been refused employment on the basis of age, and commenced an investigation on behalf of the Commissioner. In the course of the investigation he received copies of various email communications between Gumala, CoreStaff and Mr Selsmark. He also received a copy of the terms and conditions said to apply as between CoreStaff and Gumala, and a copy of the offer of employment that Mr Ingram said would have been provided to Mr Selsmark had he been the successful candidate for the role of grader operator.

17    The substance of Mr Selsmark's evidence is referred to in the outline of events set out below.

18    CoreStaff relied on an affidavit of its general manager, Mr Mark Seigel, who gave evidence as to the general manner in which the CoreStaff business operates. He was not personally involved in the relevant events.

19    CoreStaff also called Mr Ingram to give evidence. His evidence in chief primarily comprised a record of an interview that was conducted between Mr Howard and Mr Pretsel on behalf of the Commission and Mr Ingram in December 2018 (Interview). He was cross-examined and was an entirely credible witness.

The evidence

The various events

20    From about April 2018 Mr Ingram was employed as CoreStaff's area manager for the Pilbara region of Western Australia. Gumala became a client of CoreStaff after Mr Ingram took up his position. At some point Gumala appointed a new human resources adviser, Ms Nikki Maltese, and Mr Ingram made contact with her and introduced himself as the area manager for the Pilbara, offering to assist her in any way going forward.

21    On 21 September 2018 Gumala placed an advertisement on SEEK for 'All Round Plant Operators'. The only relevance of this advertisement is that it indicates that at some point Gumala sought directly to recruit plant operators.

22    On 28 September 2018 Gumala and CoreStaff entered into a written agreement entitled 'Credit Application' (Credit Agreement). I will say more about the Credit Agreement below.

23    On 22 October 2018 Mr Ingram emailed Ms Maltese, stating:

Hi Nikki,

Don't forget to send me a brief email on the grader operator role, so I can pass on to the Perth team as well.

Rough hourly rates as well please you're looking at paying.

24    Ms Maltese replied to Mr Ingram's email the same day, stating:

3/1 roster initially shared accom plus $40 meal allowance in Tom price but will move over on Phil creek yandi in a few months on 2/1

$44

Day shift only

25    Mr Ingram said in the Interview that he contacted the Perth office of CoreStaff to see if they had any grader operators available, but they indicated they had nobody available and suggested he advertise on SEEK. He created and put an advertisement on SEEK in relation to 'this particular position' and more generally.

26    Mr Selsmark's evidence is that on 22 October 2018 he saw a position advertised on SEEK by CoreStaff for a dozer and grader operator with Gumala. I infer he saw the advertisement that was placed by Mr Ingram. Mr Selsmark recalled that, based on the advertisement, Gumala was seeking an experienced grader operator to work on Shire of Ashburton roads. He replied to the advertisement on the same day. He also received an email via SEEK from Mr Ingram that day which stated as follows:

Currently looking for an experienced Grader operator, for a 3/1 role initially before going on to a 2/1 roster.

Shared accommodation available.

$44/hour + super + $40/day meal allowance.

Dayshift only, on-going work.

If interested please call Terry or email your updated Resume ASAP.

27    As a result Mr Selsmark called Mr Ingram on the mobile phone number that Mr Ingram had provided in the email and asked about the position. He recalls that Mr Ingram asked him to send a copy of his resume and qualifications.

28    Shortly afterwards, Mr Ingram emailed Ms Maltese as follows:

Looks like I have a guy ready to go … hopefully have his Resume through this afternoon

29    Mr Selsmark then emailed Mr Ingram regarding his current weight:

I currently weigh 126KG is this a problem with weight criteria in the mining industry.

30    A few minutes later Mr Selsmark emailed Mr Ingram copies of his resume and documents recording his qualifications.

31    Mr Ingram said in the Interview that he read through Mr Selsmark's resume and thought 'he could be okay for the job'. He considered the application on paper was acceptable.

32    Mr Ingram then emailed Ms Maltese, stating:

Hi Nikki,

I currently have 2 x candidates that are interested in the role.

Peter Selsmark - available for immediate start, ticketed, lives in Perth - said he weighs 126kg as some sites have weight limits for machinery operators?

[name - redacted] - current contract finishes up this Wednesday; lives in Karratha, ticketed

Let me know your thoughts.

33    Ms Maltese forwarded Mr Ingram's email to Mr Michael Lynch, Operations Manager of Gumala, and Mr Thomas Machein, Project Manager for the Phil's Creek, Landbridge Phase 2 Operation of Gumala stating:

Michael / Thomas

Some resumes that have come through - please review

34    The following day (23 October 2018) Mr Ingram emailed Ms Maltese, stating:

Hi Nikki,

Sorry to bother you; any feedback on the Resume's I sent yesterday for the above, or do I need to keep looking?

35    Ms Maltese replied to Mr Ingram's email:

Hi Terry,

Not as yet - I am waiting to hear back

36    On 24 October 2018 Mr Ingram replied to Ms Maltese's email:

Any news on this yet Nikki?

37    On 25 October 2018 at 9.15 am Ms Maltese replied to Mr Ingram's email:

Hi Terry,

I have some feedback on the grader ops.

Peter we had his details already, he applied directly with us. He has all the tickets we are looking for however he [sic] age is a concern - 70 years old.

The other guy is a no.

If you find a grader operator with 16M exp, then they would be more desirable.

Thank you

38    Two minutes later Mr Ingram replied to Ms Maltese's email:

Wow didn't know that however I would have found out eventually.. yes will certainly keep looking.

39    At around 9.34 am on 25 October 2018 Mr Ingram emailed Mr Selsmark, stating:

Sorry Peter, no joy with the role at Gumala due to your age mate.

Clearly this email responding to Mr Selsmark is significant and to distinguish it from other emails of the same date I will refer to it as the Response Email.

40    Later that day and on the following day, Mr Ingram emailed Ms Maltese details of other candidates for the grader operator position.

41    The above evidence is relatively uncontentious. However it is necessary to consider certain aspects of the evidence in more detail.

Mr Ingram - further evidence

42    As to the nature of the arrangement that Mr Ingram negotiated with Gumala, his evidence at the hearing was that CoreStaff would become Mr Selsmark's employer. Mr Ingram's evidence was as follows:

Now, as I understand it, you understood as at that date, as at 25 October, that Corestaff would because Mr Selsmark's employer?---Yes. I was of the understanding, that is correct, yes. Because it was a - from memory, it was a short term contract for a couple of months and they were hoping to win another contract near Yandi or somewhere, from memory, and if that happened, then the contract would be extended. But as far as I'm led to believe, it would have been through Corestaff, correct.

And so you, therefore, understood that Corestaff would ultimately be responsible for Mr Selsmark's health and safety, given it was going to be their - his employer?---Yes. Correct.

43    As part of his investigation, Mr Howard asked Mr Ingram to provide 'a copy of the contract of employment that would have been offered to Mr Selsmark should his application with you to undertake work for Gumala been successful'. In response, Mr Ingram provided 'the offer of employment that could have been provided to Peter Selsmark if he had passed the pre-employment medical, drug screen and police clearance'. Those contract terms expressly provide that the person is employed by CoreStaff as a casual on-hire employee to perform work for CoreStaff's clients on assignment; that the client is Gumala; and that the role is as a grader operator. The person would be paid by CoreStaff an 'assignment flat rate' under the CoreStaff Construction Industry Enterprise Agreement 2015 (and that rate is specified).

44    During the Interview, Mr Ingram was asked about the Response Email and his reasons for sending it. The relevant part of the transcript of the Interview reads as follows:

MR HOWARD: And you did send it?

MR INGRAM: It has got my name on it, so yes.

MR HOWARD: If I could just jump in again, then. So on the email - I will give your copy back so you know what I'm talking about - so on 25 October, which is the one there, it says, 'Hi Terry,' - this is from Nikki Maltese, the HR advisor - 'I have some feedback on the grader ops, Peter. We had his details already. He applied directly with us' - which is what you have told us in your […] - 'He has all the tickets we are looking for, however he age [sic] is a concern - 70 years old. The other guy is a no.' So once you have received that email, did you ever phone up Niki and have a conversation about what she had put in there?

MR INGRAM: No.

MR HOWARD: So that was the only response you got from Gumala in relation to Peter?

MR INGRAM: Correct.

MR HOWARD: So on reading that email, what was your understanding of what she was telling you?

MR INGRAM: How would you say it? See, the way I looked at that - and this has gone over in my head a million times, don't get me wrong, since I have got this email from David the other day, this letter - my concern personally, and this is the way I have read this to be, is yes it is his age. I would be concerned myself - and I am probably not allowed to say this but I am speaking from the heart and it is truthful - I would be concerned about employing somebody working 12 hours a day in the Pilbara, 45 degree heat every day. It knocks me around and I am less than 60. So having somebody that is 70, it has got to knock them around a lot more than me. That would be my concern. It has got nothing to do with age.

…

… I made it a point that going forward back into recruitment I would be upfront and I would tell somebody - if somebody applied for a job, and successful or not successful I would at least do them the courtesy of getting back to them and telling them otherwise, okay? … I know what it was like when I was out of work for 12 or 18 months. I would go and apply for a job, you would never hear anything. I would have an interview, I would never hear anything back, and it used to hurt, you know. So anyway, that is what I thought, I will make it a point.

So that is exactly what I done. … I done the right thing. I got back to Peter. I made a judgement myself based on the email I got from Gumala, and again I know I shouldn't have said it, but once something is said verbally or in writing you can't take it back.

And there was no intent to be disrespectful or discriminative or whatever you want to call it in any way, shape or form to Peter. It was just giving the guy some feedback about, 'Sorry, mate, you have missed out on the role and' - to this day I have got no idea because I know you're not allowed, you can't - I have said 'because of your age.' …

Again, no intent whatsoever to be disrespectful to Peter in any way, shape or form. I was giving the guy some feedback and for some stupid reason I put down the three-letter word.

…

MR HOWARD: Sorry, just getting back to this, though. If you hadn't had that sentence from Gumala, would you have put him forward?

MR INGRAM: I couldn't see any reason why not. At the end of the day, like I said, I don't care about someone's age.

45    Mr Ingram also gave evidence during the hearing relating to his response to Mr Selsmark as follows:

And so, as I understand your evidence, that you told Peter he didn't get the job [because] of his age because you wanted - - -?---Because of his age.

- - - to be honest with him?---Yes. Yes. That's correct. Yes. And, look, I know that's the mistake. As I've said, during the meeting with the ABCC that day, I meant no disrespect to Peter or, you know, to be in a discriminative fashion, way or anything. My understanding was or - how would you say it. My opinion was, when I seen it, he was 70. The first thing I thought of was - how would you say it - I think I might have mentioned it anyway, 'Think of it as your dad or your granddad going 40 to work in the middle of the Pilbara where it's sort of a 45 to 50-degree day and - I mean, I was - I was living and working up there in Newman it gets very, very hot and it's very unpleasant and, I mean, it used to knock me around. I mean, I'm only - you know, I'm 57. So I was 55, 56 then. So, you know, someone of - who would have been 70, in my opinion, I was, you know, I shouldn't have made the call, but I made the call based on I was looking after his health more than anything. Nothing to do with his age.

…

And so, as I understand it, yes, when you received the email from Ms Maltise, it made you pause and think about all the things you've just described to her Honour about your concern for him, if he did do that job, given his age?---Look, you know, you know, like I said, I didn't know that he had actually applied directly with the client anyway and when I found out that he was 70 it was, like, wow, you know, it's going to be difficult for someone, you know, in those - in those harsh conditions …

…

And that's why you then wrote to him and told him that because you were concerned for him?---Yes, I was. And, look - and, again, it was no disrespect to Peter. I mean, I had no problems trying to find him another position elsewhere, you know.

46    In re-examination Mr Ingram said as follows:

In response to Ms Raper's question, you said you didn't know that Mr Selsmark had applied directly anyway?---That's correct.

What significance does the fact that you didn't know he had applied directly have for you?---If I had have known that he had already applied directly or had his resume then I - there would be no point in me sending through - his resume through again because he - they already have it.

And what - so what does 'no point' mean to you?---Well, if they've already - if they already have his resume, then why do they need a second copy for me?

47    Mr Ingram was also questioned by CoreStaff's counsel during the hearing about the meaning of his email to Ms Maltese of 25 October 2019 (in which he said, 'Wow didn't know that however I would have found out eventually'). Mr Ingram was asked what it was to which he was referring. He answered:

Well, first, I didn't know that he had actually sent an application directly through to the client. I wasn't aware of that. He didn't mention that when I had the conversation with Peter. And, secondly, I didn't know that he was 70 years old.

48    During the Interview Mr Ingram was also asked about the process of obtaining feedback from a client once resumes are provided. He referred to the process of moving forward to interviews or phone calls once he provides a number of resumes and receives feedback. He said:

Oh yeah, like I said, I am just doing my job in providing resumes to the client. The client will come back to me and say, 'We want to go to the next level,' or 'They haven't got the experience,' or 'They haven't got this,' or 'They haven't got that,' and that is it. That is gospel.

49    Mr Ingram was then asked about the actual process with Mr Selsmark:

MR PRETSEL: But in your thinking in relation to Peter's suitability for the job, what was that? After you have looked at his resume and had regard …

MR INGRAM: Well, again, you know, you can look at the piece of paper, the resume if you want to call it that, and on paper he looked like he would be able to do the job, okay? You also get resumes that come forward, they could be the Prime Minister of Australia but they are useless. It is a fudged-up resume, if you want to call it that. So at the end of the day it is the client's decision after they have spoken to the prospective employee about, 'This is what is going to happen,' and they're going to ask them questions about the machinery and whatever they're going to do. That is their side of it. My side is to provide a resume, give them all the information I possibly can, and then it is up to the client to make a decision thereafter.

MR PRETSEL: And if they had made a decision in relation to Peter, what would that have looked like? Would they have conducted a further interview? Can you step through what that would look like? You have already got somebody who is working for you at the moment …

Mr Seigel's evidence about CoreStaff's business

50    Mr Seigel explained that CoreStaff provides labour hire and permanent recruitment services to clients.

51    The permanent recruitment services include the process of recruiting staff for direct employment with a client, whereas under the labour hire model, staff are recruited at the request of the client, and directly employed and paid by CoreStaff for the duration of the client engagement. An agreed hourly rate or daily rate for the person's time is charged to the client.

52    Mr Seigel said that the usual process for both labour hire and permanent recruitment with a new client starts with a credit application. According to Mr Seigel's evidence, the process then continues as follows:

(1)    once the credit application is in place, the client provides the details of the job: for example, the position, experience and qualifications, pay rate, roster and hours, and details of any required pre-employment medical and drug and alcohol testing;

(2)    the CoreStaff database is searched for any candidates that match the client's criteria and if required an advertisement is placed, for example on SEEK and other job boards;

(3)    once a suitable candidate is identified there is an initial telephone discussion between the candidate and the CoreStaff consultant. The particulars of the job would be discussed with the candidate as well as their availability, general experience and qualifications;

(4)    if the CoreStaff consultant determines that the candidate is suitable for the position, their resume would be put forward to the client. At this point, CoreStaff seeks feedback from the client as to whether the candidate is of interest to them and whether that particular candidate has already applied directly to the client;

(5)    if the client is interested in the candidate and the candidate has not applied directly to the client, CoreStaff completes the recruitment process with the candidate (including for example an interview, reference checks, pre-employment medical and drug and alcohol testing);

(6)    if a candidate is successful for a labour hire position with a client they are then offered employment with CoreStaff for the duration of the engagement with the client;

(7)    the client has the option after a set period of time (usually three months) to employ the person directly; and

(8)    in the case of a permanent recruitment position the client will hire the successful candidate directly.

53    Mr Seigel also said that CoreStaff will only offer a candidate employment for a labour hire position if there is a position with a client and the client has approved the individual. He said that CoreStaff does not maintain a pool of employees to provide labour hire to clients and does not employ an employee unless there is a position/vacancy with a client. Mr Seigel said that the role with Gumala was the 'first and only grader operator role that Mr Ingram recruited for during his employment with CoreStaff'.

The Credit Agreement

54    The Credit Agreement has terms to the following effect:

(1)    the Customer (in this case, Gumala) may request Services from CoreStaff (cl 2);

(2)    'Services' is defined broadly as all goods and services supplied by CoreStaff to the Customer (cl 1);

(3)    a new agreement is formed each time the Customer requests Services from CoreStaff (cl 2);

(4)    the terms and conditions of that new agreement comprise the Specific Terms and the terms and conditions of the Credit Agreement (cl 2);

(5)    'Specific Terms' may comprise an email or telephone request or separate services agreement or contract (cl 1);

(6)    'Contract Employee' is defined as an employee of CoreStaff who provides Services to the Customer (cl 1);

(7)    CoreStaff has obligations to receive copies of qualifications of a Contract Employee and favourable references, must interview the Contract Employee and assess their medical and fitness capabilities and is responsible for payment of wages and superannuation in relation to the Contract Employee (cl 4);

(8)    the Customer must ensure all Contract Employees attend inductions and familiarisation prior to carrying out any Services (cl 6);

(9)    the Customer indemnifies CoreStaff against claims, actions and proceedings caused or contributed to by Gumala (cl 7);

(10)    the Service Fee is set out in the Specific Terms but in any event there is a minimum service period and fee based on a period of four hours (cl 10);

(11)    all Contract Employees are to provide timesheets and CoreStaff issues invoices based on such timesheets (cl 11); and

(12)    the Customer may make an offer of employment to a Contract Employee (either temporary or permanent) and if it does so, fees are payable. Making such offer within three months of the Contract Employee being introduced by CoreStaff or placed comprises a breach of the Credit Agreement and a Placement Fee is payable. Permanent placement also incurs a Permanent Placement Fee (cl 14).

Mr Ingram acting within authority

55    CoreStaff admits that Mr Ingram was acting within the scope of his apparent authority in engaging in the relevant conduct. It follows that Mr Ingram's conduct and state of mind in relation to that conduct are taken to be CoreStaff's pursuant to s 793 of the FW Act.

Was CoreStaff the prospective employer?

56    An issue that arose at the hearing although not apparent on the pleadings was CoreStaff's suggestion that the grader operator role was only with Gumala and there was no role with CoreStaff. This suggestion invites an initial assessment of the evidence as to the party that was intended to be the employer.

57    I consider it is clear that the parties proceeded on the basis that any employment contract with Mr Selsmark would be with CoreStaff as employer. A number of matters support this.

58    First, the pleaded case is to that effect. The Commissioner pleaded that there was an agreement between Gumala and CoreStaff to the effect that CoreStaff would seek to refer a candidate for the Gumala grading work to Gumala. The successful candidate for the position set out in Ms Maltese's email of 22 October 2018 would have been engaged by CoreStaff; would have been an employee of CoreStaff; and would have been assigned to perform the grading work requested by Gumala. So much was admitted by CoreStaff.

59    I note that in its submissions CoreStaff emphasises the use of the words 'seek to refer' (as against perhaps 'seek to recruit') in the statement of claim and also contends that the expression 'successful candidate' is ambiguous. For reasons explained more fully below, I do not consider that in using the word 'refer' in its pleading the Commissioner sought to limit the task that it asserts was to be undertaken by CoreStaff. Rather, it was referring to part of what was clearly understood by the parties to be a process to be undertaken under a recruitment agreement for labour hire. For example, Mr Seigel referred to Mr Ingram's task as one of recruitment (see [53] above). Further, I do not accept that the expression 'successful candidate' has any relevant ambiguity. It is plainly a reference to an applicant who receives an offer of employment. CoreStaff took no issue with the use of that term during the pleading process, admitting the assertion and seeking no particulars.

60    Second, Mr Ingram's evidence both in the Interview and under cross-examination was consistently to the effect that CoreStaff was to be the employer. This is apparent from Mr Ingram's evidence set out at [42]-[43] above; his reference to a short term contract (consistent with the labour hire model); his evidence that his understanding was that CoreStaff would be Mr Selsmark's employer; that CoreStaff would be responsible for assessing Mr Selsmark's health and safety; that he thought about the question of Mr Selsmark's health and suitability for the position; and that he provided a draft contract to the Commissioner that recorded that CoreStaff would have been the employer and that the person employed would provide work for CoreStaff's clients on assignment.

61    Third, the communications from Gumala that were in evidence are consistent with that position and there is no inconsistent evidence from Gumala. CoreStaff did not seek to call any witnesses from Gumala.

62    Fourth, a finding that the intended employer was CoreStaff is consistent with Mr Seigel's explanation that if a candidate is successful for a labour hire position with a client, they are then offered employment with CoreStaff for the duration of the engagement with the client, but in the case of a permanent recruitment position the client will hire the successful candidate directly.

63    I note that CoreStaff submitted that there was lack of contractual detail around matters such as payment by Gumala to CoreStaff which supported an inference that there was no agreement that covered the stage of formal recruitment of an applicant. Mr Ingram did not address in his evidence any detail about the terms of payment and nor was he asked about it. There was evidence that Mr Ingram had spoken to Ms Maltese (see [20] above) and had been seeking to retain Gumala as a client. Having regard to those matters, I would not infer that CoreStaff and Gumala did not have any agreement (formal or informal) in place as to the terms of payment for CoreStaff's services.

64    I am satisfied that CoreStaff was the prospective employer for the above reasons. That finding is supported by consideration of the question dealt with next as to whether Mr Selsmark was a prospective employee. Unsurprisingly, those questions overlap. I note that s 351 refers to an 'employer' rather than a 'prospective employer'. Nothing turns on this. 'Employer' in the context of s 351 and s 342 (Item 2) clearly includes a 'prospective employer': Shizas v Commissioner of Police [2017] FCA 61 at [68]-[73].

Was Mr Selsmark a 'prospective employee' of CoreStaff?

65    'Prospective employee' is not a defined term.

66    The Commissioner submits that it is readily apparent that Mr Selsmark was a prospective employee of CoreStaff, having regard to the context in this case. CoreStaff pleads a general denial that Mr Selsmark was a prospective employee but says 'further' that Mr Selsmark was not a prospective employee because he would have needed to complete satisfactorily a pre-employment medical to ascertain his ability to carry out the inherent requirements of the role.

67    CoreStaff also makes a generalised submission that absent a vacancy, there was no role for Mr Selsmark. The question of whether or not there was a vacancy may properly be considered as part of the consideration of whether there has been a refusal to employ, as explained by North J in Australian Meat Industry Employee's Union v Belandra Pty Ltd [2003] FCA 910 at [49]. I will return to this question and the issue of refusal to employ in more detail below, but address here the limited number of authorities referring to a 'prospective employee'. Those authorities support a broad and common sense approach to its meaning.

68    For example, in Australian Workers' Union v CBI Constructors Pty Ltd [2016] FCA 745 the employer (WGPSN) provided its employees to clients that included Esso. Esso was planning a shutdown of its plant in Longford and needed a workforce to return to work early after Christmas and assist with the preparation for shutdown. The WGPSN representative, Mr Mackin, spoke to the relevant union representative, Mr Sharp, about securing willing workers. In that context Mr Sharp referred to Mr Lee as a potential candidate. Mr Lee was someone who over the years had represented and advanced the claims and interests of the union in his dealings with Esso. Mr Mackin understood that because of Mr Lee's prior union activities, Mr Lee was not someone acceptable to Esso and Mr Mackin refused to employ him. WGPSN argued (amongst other things) that there was no crystallised vacancy for Mr Lee because the shutdown was only a planned operation and there remained some need for cooperation from the union in order for it to proceed. That argument was rejected by Jessup J. His Honour considered that although there may not have been a specific position which could be described as vacant, where the employment is prospective and it was apparent that there may be opportunities for employment although the work had not yet commenced, then Mr Lee was a prospective employee (at [37]-[42]).

69    In Shizas v Commissioner of Police Katzmann J accepted that a candidate who had been selected for employment subject to conditions, including medical and security checks, was a prospective employee notwithstanding that the checks and review process had not been completed at the time of the refusal of employment (see [39], [60], [74]-[77]). So much is consistent with the reasoning of Moore J in Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117, where his Honour considered that there might be a refusal to employ within the meaning of the legislation even where the refusal occurs before the employer has ascertained whether the person applying for the job, who is victimised for a prescribed reason, is qualified or equipped to do the job (at 119).

70    The objective facts referred to above in support of the finding that CoreStaff was the prospective employer also establish that Mr Selsmark was a prospective employee. In particular, CoreStaff advertised for a grader operator; Mr Selsmark had communications with Mr Ingram and provided a copy of documents relevant to his suitability for the position; CoreStaff considered his application and formed a view about it; and had Mr Selsmark's application been accepted he would have been an employee of CoreStaff. That there were conditions attached to any final offer of employment (such as a medical check or other third party sign off) does not detract from Mr Selsmark's status as a prospective employee at the time Mr Ingram sent the Response Email (applying Shizas v Commissioner of Police). For completeness, I note that CoreStaff does not rely on s 351(2).

71    Therefore, and returning to the text of s 351(1), I find that CoreStaff was an employer and Mr Selsmark was a prospective employee of CoreStaff.

Was there a refusal to employ?

CoreStaff's position - no vacancy so no refusal

72    CoreStaff relies on the decision of Moore J in Fraser v Fletcher Construction as authority for the view that there must be an actual vacancy before there can be any relevant refusal to employ.

73    CoreStaff pleads that it did not refuse to employ Mr Selsmark as it did not have an actual vacancy for a grader operator. It states in its particulars that it would not have employed Mr Selsmark or any other candidate unless there was an actual position with a client; that Gumala refused to engage Mr Selsmark; and that CoreStaff did not place any grader operators with Gumala. Alternatively, it pleads that if it did refuse to employ Mr Selsmark, then the substantial and operative reason for the refusal was because there was no available vacancy with any client.

74    The pleading appears to proceed on the basis that until Gumala approves a candidate, CoreStaff is not a prospective employer and CoreStaff has no vacancy for that person.

75    CoreStaff submits that its only obligation having received the email from Ms Maltese was to refer potential candidates to Gumala and that it undertook that task, and as a person was not identified by Gumala as 'successful', CoreStaff had no vacancy and no need to employ anyone.

76    CoreStaff also relies on evidence attached to Mr Howard's affidavit by way of a letter from Gumala to the Commissioner that disclosed that during September 2018 and October 2018 Gumala was recruiting for 24 'all rounder' operators and that it received applications direct and also received resumes from various labour hire companies. It relies on such evidence to support an argument that it was open to Gumala to contract directly with Mr Selsmark and that CoreStaff did not have any exclusive right to employ Mr Selsmark.

Authorities on the approach to the vacancy question

77    Determining whether there is a vacancy for a job might appear simple, but as was observed by Flick J in Stephens v Australian Postal Corporation [2014] FCA 732, there is an infinite variety of factual circumstances in which the issue may arise for determination (at [22]).

78    There are general statements to the effect that there can be no refusal to employ where there is no vacancy, and as noted, CoreStaff relies in particular upon Fraser v Fletcher Construction.

79    In Fraser v Fletcher Construction two workers (Mr Gallagher and Mr Arnold) had previously been employed on projects for Fletcher Construction. They were both elected union delegates and had been involved in proceedings with Fletcher Construction whilst employed by it. Fletcher Construction proposed to undertake a new project and looked to engage a workforce for it, completing that task by February 1996. In April 1996 Fletcher Construction refused to employ Mr Gallagher and Mr Arnold on the new project. It was contended that Fletcher Construction refused to employ them for a proscribed reason being, relevantly, their prior union activities. It was conceded by the prosecution that there was no evidence of further positions being available in April 1996. In upholding a no case submission, Moore J considered whether there could be a 'refusal to employ' in those circumstances, observing (at 119):

It is necessary to consider the expression 'refuse to employ' in context. Its immediate context is one in which two aspects of an employer's conduct are identified in the prefatory words in s 334(2) [of the Industrial Relations Act 1988 (Cth) - now relevantly s 342(1)(Item 2)]. The expression 'refuse to employ' identifies the first. The remainder of the prefatory words identify the second. They concern conduct where an offer is made to employ a person on discriminatory terms. It is relatively clear, in my opinion, that the second aspect concerns conduct where an employer intends to employ someone, the person is offered employment and the employer does so on discriminatory terms. It concerns actual and not theoretical employment. That is, employment by an employer to perform work for the employer albeit on discriminatory terms or conditions. Thus the companion words to the expression 'refuse to employ' concern actual employment and they constitute a fairly compelling pointer of the subject matter Parliament intended to address in s 334(2). They indicate that the expression 'refuse to employ' deals with the same subject matter, that is, actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. I refer to situations where employment might arise to allow for circumstances where a vacant position exists and a refusal to employ arises before the employer has ascertained whether the person applying for the job or position, who is victimised for a prescribed reason, is qualified or equipped to do the job.

80    Justice Moore concluded that, in those circumstances, in the absence of evidence that a position or vacancy existed in late April 1996, the prosecutor had failed to establish, even on a prima facie basis, a refusal to employ (at 121).

81    In Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 Wilcox J observed:

[50]    A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy …

82    However, where the question of vacancy sits in the assessment of liability was explained somewhat differently by North J in Australia Meat Industry Employees' Union v Belandra. His Honour was concerned with the construction of s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) which provided that an employer must not 'for a prohibited reason … refuse to employ another person'. His Honour said:

[49]    There are at least two available constructions of the expression 'refuse to employ' as used in s 298K(1)(d) in relation to vacancies. On one approach, it can be said that there is no refusal to do something if that result cannot be achieved. A person cannot refuse to do that which cannot be done. If there is no vacancy, then there can be no refusal to employ. The respondents argued for this approach (the former construction). Alternatively, it can be said that even if an outcome is not available, the decision not to provide it is nonetheless a refusal to provide the outcome. That is, whether the outcome can be achieved should be considered separately from whether there was a decision not to achieve the outcome. Thus, there can still be a refusal to employ even if there is found to be no available vacancy (the latter construction).

83    His Honour preferred the latter approach.

84    In Stephens v Australian Postal Corporation Flick J considered this line of authority, observing as follows:

[21]    Lurking behind the phrase 'refusal to employ' are questions as to whether the phrase means:

•    a refusal to employ a person to a position which is in fact vacant - in which case, it may be the prospective employee who has the onus of proving that a position is vacant; or

•    a failure to employ a person upon an application being made, whether or not a position has been advertised as being vacant and (perhaps) even where there is known to be no vacant position - in which case, s 361 would transfer the onus to the employer to explain the reason why the application was unsuccessful.

Even on such a simple approach to the analysis of the phrase, a further variant may be:

•    if a position was once vacant, but is no longer vacant, the reason why a vacancy no longer exists - in which case, the onus may be upon the employer to explain why the vacancy no longer exists.

The decisions of Moore J in Fraser, supra and that of Wilcox J in BHP, supra, would support the first analysis; the decision of North J in Belandra, supra, would support the second and third analysis. Each of these variants is but a variant upon the one theme.

[22]    Given the infinite variety of factual circumstances in which the issue may arise for determination, it is considered prudent to confine attention to the facts of relevance in the present appeal.

85    In Stephens v Australian Postal Corporation it was not necessary for Flick J to decide which of the two approaches might apply because it was clear on the facts that the applicant had established to the requisite standard that there was no vacancy.

86    I also repeat what has been said above as to conditions of employment: a vacancy where there are conditions to be met prior to employment is still a vacancy (see [66]-[70] above).

87    In the present case the Commissioner contends that the correct approach is first to consider whether there has been a refusal to employ, with the question of whether or not there was a vacancy arising in the context of the reason for such refusal, a matter on which it contends CoreStaff bears the onus having regard to s 361. However, for the following reasons I consider that in any event it is established that CoreStaff had a vacancy. I reject CoreStaff's argument that it did not refuse to employ Mr Selsmark as it did not have an actual vacancy for a grader operator.

There was a vacancy in this case

88    CoreStaff's argument that there was no vacancy is based on an artificial demarcation between the limited task of referring applications to a client and the broader recruitment process clearly envisaged and understood by Mr Ingram. I do not accept its argument or that there was no vacancy in this case having regard to six reasons.

89    First, as I have identified above, in my view there is no question that it was the intention of the parties that CoreStaff would employ a person to perform the grader operator role on assignment to Gumala. There was a vacancy for that role. To the extent CoreStaff purported to maintain an argument that Gumala was to be the employer (a submission that was made from time to time during the hearing), it is inconsistent with the evidence, as already addressed.

90    Second, although it may be possible to view the recruitment process as involving various stages - such as identifying potential candidates through advertising or otherwise, referral of applications to the client for feedback, approval by the client, consideration by CoreStaff and employment by CoreStaff - it is artificial to treat those stages as subject to separate agreements. All form part of the one recruitment agreement. Mr Ingram's evidence is consistent with this understanding of the agreement between the parties and there is nothing in the evidence assessed above that establishes a contrary position.

91    Third, the position propounded by CoreStaff permits a construct: it endorses a purported nomination and deferral by parties as to when obligations as an employer might be engaged. It permits a party to decide that an applicant is to be refused employment for a prohibited reason whilst denying that it is a prospective employer, having decided by private arrangement that a recruitment company (or other third party) will be the employer. It provides for a selection process (and a rejection process) without the safeguards (and obligations) of s 351 of the FW Act. This potential for a construct is avoided once it is properly understood that the process of identifying candidates and referring them to Gumala is undertaken by CoreStaff as a prospective employer, regardless of whether the vacancy is in fact filled by a suitable candidate.

92    Fourth, and having particular regard to the potential for a construct or contrivance, the arrangement between CoreStaff and Gumala is to be viewed in the context of the objects of Part 3-1 of the FW Act as set out in s 336. The provisions of Part 3-1 are for the benefit of employees and are protective and remedial in nature. They should be interpreted in a way that achieves the FW Act's beneficial purposes: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [35]; and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150 at [180]-[181]. Protection from discrimination is a feature of the FW Act and the consideration of when and whether there is a prospective employer with a vacancy proceeds in that context. The segmented approach to recruitment propounded by CoreStaff is not consistent with the objects of the FW Act.

93    Fifth, the vacancy did not evaporate when Mr Selsmark was refused employment. The vacancy for the role remained and further resumes were submitted by Mr Ingram.

94    Sixth, it is not to the point that CoreStaff did not have exclusivity and that other labour hire companies could have potentially employed Mr Selsmark, or that Gumala might have separately considered a direct hire of Mr Selsmark. That potential does not alter the fact that, because of its arrangement with Gumala, CoreStaff had a vacancy for a grader operation at the relevant time.

There was a refusal to employ

95    In the circumstances it follows that there was a vacancy with CoreStaff and a refusal to employ Mr Selsmark. The refusal is clear from the Response Email. The Commissioner has met the obligation to establish the objective facts which form the basis of the contention that there was a vacancy that CoreStaff was looking to fill for a grader operator to be placed on a labour hire assignment and that it refused to employ Mr Selsmark because of his age. I am satisfied of those matters to the requisite standard.

96    Consideration now turns to the question of CoreStaff's case as to why it refused to employ Mr Selsmark.

What was the reason for the refusal to employ?

97    Section 351 requires a causal link between the adverse action and the identified ground of discrimination, in this case being age. An employer must not take adverse action because of age.

98    In establishing the causal link, a court's task is to identify the actual reason or reasons for the adverse action. The manner in which this task might be undertaken was explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (French CJ and Crennan J) as follows:

[44]    There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression 'because' in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken?'.

[45]    This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

(Citations omitted)

99    In Barclay at [104] Gummow and Hayne JJ considered that the proper enquiry is whether the relevant conduct comprised 'a substantial and operative' reason or reasons for the relevant action. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 at [85] Gageler J described the enquiry as being into the 'operative and immediate' reason or reasons.

100    In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 the Full Court (citing in particular, Barclay) held:

[100]    The orthodox approach to dealing with allegations of adverse action said to be engaged in 'because' of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above (at [14]), s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is 'a substantial and operative factor' in the respondents' reasons for taking the adverse action.

(Citations omitted)

101    Barclay concerned s 340(1) and s 346 of the FW Act, which address adverse action in respect of workplace rights. The same principles apply with respect to s 351. Relevantly, the prohibitions in Part 3-1 against an employer taking adverse action against an employee whether in s 340, s 346 (in respect of industrial activity), s 351 (in respect of discrimination) or s 352 (in respect of dismissal for illness and injury) are enlivened if the employer takes the particular adverse action 'because' a fact or circumstance prevails or has occurred. For a recent discussion of s 361 in the context of s 351, see Rumble v The Partnership trading as HWL Ebsworth Lawyers [2020] FCAFC 37 at [29]-[39].

102    CoreStaff seeks to displace the presumption that CoreStaff refused to employ Mr Selsmark because of his age and pleads that the substantial reason for the refusal was because there was 'no available vacancy with any client'. Based on the pleading, that purported reason is in effect a repeat of the 'segmentation' contention with respect to Gumala (the Commissioner has not pursued a case based on employment with any other prospective client).

103    That contention must be viewed in light of Mr Ingram's clear and direct evidence as to why he refused to employ Mr Selsmark. Mr Ingram did not refer to distinctions between referrals or recruitment or suggest that he considered there was no vacancy at the time he sent the Response Email. He was frank and open about his decision-making, as revealed by the extracts from both the Interview and his cross-examination set out above. Contrary inferences about the reason for refusal are not available on the facts that would persuade me to question or disbelieve Mr Ingram. Mr Ingram gave direct evidence that he thought about Mr Selsmark's age; that he thought about the risks of a man of Mr Selsmark's age working in the adverse conditions of the Pilbara; and that he did not employ Mr Selsmark because of his age. Mr Ingram gave that explanation directly to Mr Selsmark. He wanted Mr Selsmark to know the reason he was not successful and he told Mr Selsmark the reason. Mr Ingram did not shy away from those facts and took responsibility for them.

104    It was also contended by CoreStaff that whatever Mr Ingram thought about Gumala's position on age was not to the point because '[Mr Ingram is] not in a position to employ because there's no vacancy'. I have already explained why I reject the argument that CoreStaff was not a prospective employer. Mr Ingram's thinking remains central.

105    There was a suggestion on behalf of CoreStaff during the hearing that the reason that CoreStaff did not employ Mr Selsmark was that it did not employ persons who had already applied directly to a client. Mr Seigel had given evidence as to CoreStaff's usual practices (see [52(4)] and [52(5)] above), but Mr Seigel was not involved in the events of this case. Mr Ingram's evidence on this point did not rise to the point of establishing that any such policy led him to preclude consideration of Mr Selsmark or that it was a substantial or operative reason for the refusal. Whilst there was some evidence that Mr Ingram had not realised that Mr Selsmark had previously applied to Gumala for a position, Mr Ingram did not suggest this was a matter to which he gave any great significance when he considered and sent the Response Email. He said he would not have provided the resume again had he known. The fact that he independently considered Mr Selsmark's age tells against any policy based on prior direct applications playing any particular role in Mr Ingram's decision. Had such a policy been a substantial or operative reason for the refusal, it is unlikely that Mr Ingram would have given the thought and attention to the issue of age that he clearly did and unlikely that he would have responded to Mr Selsmark in the terms of the Response Email.

106    There remains to be considered an argument that appeared to arise on the written submissions and during the hearing. That argument was put variously as the Commissioner seeking to 'shoot the messenger' and that the legislation is aimed at an entity such as Gumala that has 'control' of a decision. The contention appeared to be to the effect that CoreStaff's refusal to employ was not for a proscribed reason but because it was giving effect to a direction from Gumala that it would not work with Mr Selsmark. Any such reason was not properly disclosed by CoreStaff's pleading as a substantial and operative reason for the refusal to employ (the pleaded case being the refusal was 'because there was no available vacancy with any client').

107    Regardless, that argument does not assist CoreStaff on the facts of this case.

108    In CBI Constructors Jessup J considered a line of cases that addressed the question of what might be described generally as indirect influence.

109    In Australian Workers' Union v John Holland Pty Ltd [2001] FCA 93 Mr McGee, a newly appointed employee, was a member of the Australian Workers' Union. The CFMEU objected to his employment and that led to a chain of events including a halt of work on four sites. The Court found that the reason for Mr McGee's dismissal was not that he was member of the AWU but because of the disruption caused to the employer. The Court stated that just because the CFMEU objected to Mr McGee's status as a union member did not mean that the employer held that view, and it remained necessary to determine the employer's reasons for the adverse action (at [49]).

110    In Shannon v Transfield Worley [2001] FCA 527; (2001) 113 FCR 53 the Court considered an application to amend a pleading. The applicant (the former employee) sought to amend his statement of claim to argue that the first respondent (the employer) terminated his employment on the instruction of the second respondent, and that the second respondent's reasons should be attributed to the first respondent. It was alleged that the second respondent wanted the employee dismissed because of his union membership. There was no other basis for attributing to the first respondent the prohibited reasons, and so much was accepted by the applicant. The Court refused the amendment, stating that it was not reasonably arguable that a reason for refusal can mean a reason which is not held by the employer (at [49]).

111    The facts considered in CBI Constructors have been summarised above at [68]. It was found by Jessup J that part of Mr Mackin's reasons in refusing to employ Mr Lee was that his employment would not be satisfactory to Esso. The question was whether the fact that Mr Mackin's thinking related to the presumed concerns of Esso, rather than to those of WGPSN, took the case out of the realm of s 346 (at [55]). It was held by Jessup J that it did not, and that the provision is concerned with why the decision was made and so focuses attention on the decision-maker. The Court distinguished circumstances where the third party might direct or instruct the employer to take a particular course, and that course is taken because of that direction, from circumstances where the employer, exercising independent thought about the matter, chooses to refuse employment. In CBI Constructors it was found that although Mr Mackin wanted to align his action with what he thought Esso wanted, the decision was still his own and was for a proscribed reason.

112    Consistently with those authorities it is necessary to focus on the conduct of Mr Ingram. The evidence does not establish that Mr Ingram refused to employ Mr Selsmark because Gumala directed him not to do so. It does not establish that he refused to employ Mr Selsmark because of any commercial compulsion or duress from Gumala. I accept that he was influenced in his conduct by Gumala's email of 25 October 2018 in which Gumala said it had concerns about Mr Selsmark's age. The evidence did not rise to Gumala informing Mr Ingram of a categorical refusal on its part to utilise Mr Selsmark (in contrast to Gumala's categorical 'no' response in the same email as to the 'other guy') but Gumala clearly and expressly disclosed concerns based on his age. But Mr Ingram did not refuse to employ Mr Selsmark because of Gumala's expressed opinion, and nor did he claim to have done so. The email led to Mr Ingram considering the position. If Mr Ingram had simply adopted Gumala's position, and so had proceeded on the basis that there was no purpose or merit in further discussions with Gumala about the matter, there would have been no need for him to have done anything further except proceed to refuse employment. That is not what happened. Having found out about Mr Selsmark's age, Mr Ingram then separately and independently considered age as a reason for refusing to employ Mr Selsmark. He gave considerable and detailed evidence as to his thought processes: he held personal concerns about Mr Selsmark's age; he, a man in his fifties, found the environment tough in the Pilbara and was 'knocked around' by it; that it gets very, very hot and unpleasant; that he held personal concerns about somebody working 12 hours a day in the Pilbara in 45 degree heat; that he thought about it as 'your dad or grandad' working in those conditions; that he made his own judgement on the matter having received the email from Gumala.

113    I accept that Mr Ingram may have assumed from the 25 October 2018 email that Gumala had previously declined to employ Mr Selsmark directly for a position because of his age. I accept that Mr Ingram understood that Gumala continued to have concerns about employing him because of his age, but Mr Ingram did not simply adopt Gumala's position in order to align himself with its view. He in fact questioned that position by considering the matter independently. He then expressly told Mr Selsmark that the reason for him being unsuccessful in his application - and it was the only reason given - was his age. I find that Mr Selsmark's age was a substantial and operative reason for Mr Ingram (and so CoreStaff) refusing Mr Selsmark employment. It follows that CoreStaff has failed to displace the presumption that the adverse action was taken for a proscribed reason.

114    In coming to this view I have taken into account Mr Selsmark's statement in the Interview that generally what the client says about a person's suitability for a job after considering resumes and further relevant information is 'gospel'. However, when Mr Selsmark was then asked by the Interviewer about the particular process involved in the case of Mr Selsmark, he did not assert that he refused to employ Mr Selsmark because of Gumala's position. Rather, he gave the explanation as to his own assessment of the position, as already discussed. So although Gumala raised the question of age and said that it had a concern about it, Mr Ingram still assessed that concern and formed an independent view.

Objections

115    The Commissioner objected to the admissibility of certain paragraphs of the affidavit of Mr Seigel. The majority of the objections were properly considered and conceded by counsel for CoreStaff. There remained objections to only three subparagraphs of the affidavit, [39(d)], [39(e)] and [39(g)], to determine. The objections were made on the basis of relevance and hearsay. The evidence to which objection was taken did not play any part in my reasons. However, for the benefit of the parties I can indicate that I do not consider the evidence at [39(d)], [39(e)] or [39(g)] is relevant to the case as pleaded and I would uphold the relevance objection: the Commissioner did not run a case that relied on an argument that CoreStaff maintained a pool of employees. Further, as to the purported reliance by CoreStaff on the business records exception to the hearsay rule (s 69 of the Evidence Act 1995 (Cth)), there was no admissible evidence to establish the foundation elements required for reliance on that exception. It was not enough for Mr Seigel to say that he understood certain matters from his investigations and a review of CoreStaff's business records, without any identification or consideration of matters such as the nature of the records to which he had regard, the author's role and position in the company and whether the author was likely to have personal knowledge of relevant matters. The hearsay objection insofar as it was made with respect to [39(d)], [39(e)] and [39(g)] of Mr Seigel's affidavit is accordingly also upheld.

Determination

116    It follows from these reasons that on 25 October 2018 CoreStaff took adverse action against Mr Selsmark within the meaning of Item 2(a) of s 342(1) of the FW Act because of his age and therefore contravened s 351(1) of the FW Act. It seems to me that a declaration in those terms is sufficiently clear. However, as I did not hear from the parties specifically on that issue, I will invite the parties to provide proposed orders consistent with these reasons for judgment and that include provision for the programming of a hearing concerning penalty and other relief.

Associate:

Dated:    26 June 2020