FWC extends scope of 'worker' in the anti-bullying jurisdiction

06 September 2019

The Fair Work Commission has allowed a request for legal representation by the respondent to a stop-bullying order application made by a charity foster carer.

The respondent has raised a jurisdictional objection on the basis that the carer is not a 'worker' for the purposes of the FW Act. The substantive decision will clarify the largely untested definition of ‘worker’ in the context of foster carers.

In issue

  • Whether a foster carer is considered a ‘worker’ in the anti-bullying jurisdiction context.

The background

Mr Benjamin Legge is a foster carer in the ACT under arrangements involving charity Barnardos Australia (Barnardos). Mr Legge has applied to the Fair Work Commission (Commission) under s 789FC of the FW Act seeking a stop-bullying order.

A central requirement for the application is that Mr Legge is a ‘worker’ within the meaning of s 789FC(2). Barnardos contended that Mr Legge is not an employee or a volunteer worker, as he does not perform work ‘for’ it.

This decision deals with the jurisdictional issue of whether Mr Legge is a worker for the purposes of his application for a stop-bullying order (jurisdictional issue).

In support of his position, Mr Legge contended that he is a ‘worker’ under the FW Act in the form of a volunteer, or alternatively, as a subcontractor or outworker. In terms of performing work ‘for’ Barnardos, Mr Legge relied on factors such as Barnardos being responsible for recruiting, training and supervising Mr Legge as well as requiring him to act in accordance with the Carer Handbook issued by Barnardos.

Mr Legge also pointed to the fact all of his dealings in terms of approval to act as a foster carer were with Barnardos and not with Director-General or relevant ACT Government Department, as contended by Barnardos.

In opposing the application, Barnardos posits that Mr Legge is not an employee, outworker or a volunteer worker as he does not perform work for Barnardos. The basis of this argument was that the involvement of Barnardos with Mr Legge arose out of the statutory context of the Children and Young Persons Act 2008 (ACT) (CYP Act) rather than a contractual context.

According to Barnardos it followed that the work performed by Mr Legge was the exercise of a statutory responsibility of the Director-General and that therefore he did not perform work for Barnardos.

The decision

The Commission ultimately concluded that Mr Legge was a ‘worker’ for present purposes. In making this finding, the Commission relied on, among other things, the fact that Barnardos was not merely acting as an agent or delegate for the Director-General given it had a level of responsibility over the approval and operational requirements in relation to Mr Legge’s performance of foster care work.

It also emerged during the course of proceedings that Mr Legge had entered into a Foster Care Agreement with Barnardos which provided further support for the finding that the work being performed was ‘for’ Barnardos.

The Commission was also influenced by the statutory intention to provide for a wide scope of coverage for the stop-bullying jurisdiction. However, the Commission noted that this finding should be confined to the circumstances of the relationship between Mr Legge and Barnardos and its connection with the CYP Act rather than amounting to a general principle that foster cares are workers.

Implications for you

The decision broadens the scope of the anti-bullying jurisdiction by extending the meaning of ‘worker’ to encompass foster care workers in certain circumstances.

Given the largely untested nature of this area, the broader interpretation of ‘worker’ could have far reaching implications on substantive decisions within the anti-bullying jurisdiction.

Benjamin Legge [2019] FWC 5456

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