Blacklisting Labour-hire Employees may be a Form of Discrimination in the Workplace

Three employees who were members of a union brought a case alleging that they were working as maintenance workers at a steel rolling plant, but they filed grievance complaints over conditions at work and so the labour hire company that employed them “blacklisted” them.

One casual rigger was hired and began employment on 5 September 2016. He was the leader of an informal cell which was an “industrial association”. On 5 June 2017, the casual rigger informed the labour hire company that if the grievances he had raised were not acted upon, he would resign.

On 8 June 2017, the casual rigger resigned from employment and after his resignation, the labour hire company manager emailed the host employer to say that the labour hire company will no longer use the services of the casual rigger. The company then forwarded the email chain to another contractor urging the contractor not to employ the maintenance worker. 

The casual rigger obtained copies of the email chain and his union helped him file a claim at the Victorian Civil and Administrative Tribunal. The union claimed that the email and the action by the labour hire company discriminated against the casual rigger because it excluded him from future employment because of the grievance complaints he had filed. When the host employer forwarded the email and urged another contractor not to hire the casual rigger, this was also discriminatory.

Both the labour hire company and the host employer sought the striking out of the application, but this was declined. VCAT declined to strike out the application and set the application for reception of evidence.

The issue in this controversy is whether the labour hire company and the host employer committed acts of discrimination in the workplace when it forwarded “do not hire” emails after the employee had already resigned. Thus, the legal issue is whether the protection against discrimination in s 21(1)(b) of the Equal Opportunity Act 2010 applies to a contract worker who had already resigned.

The intent of the law was to protect the status as a union member and activities as union members by penalizing employers for discriminating against workers who engage in union-related activities. Since he had resigned before the alleged acts of discrimination were committed, then the law no longer protects the casual rigger because he himself severed the employment relationship.

However, the Equal Opportunity Act 2010 protects against “refusal to employ” workers. By sending the email and urging other potential employers not to employ the casual rigger, they have in fact refused to employ him even when a vacancy exists in their workplace. This is an example of direct discrimination in the workplace which occurs if the employer treats or proposes to treat a person unfavourably because that person possesses a legally protected attribute.