DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Benjamin Legge
(AB2019/265)

COMMISSIONER HAMPTON

ADELAIDE, 4 SEPTEMBER 2019

Application for an FWC order to stop bullying – jurisdictional issue – Foster Carer – whether a worker – principles assessed and applied – applicant performing work – whether performed for PCBU – nature of statutory, contractual and practical context considered – applicant not an employee, outworker or subcontractor – whether a worker in capacity as a volunteer –work performed for the PCBU – worker for present purposes – application to be allocated to deal with merits of matter.

1. What this decision is about

[1] Mr Benjamin Legge has applied to the Fair Work Commission under s.789FC of the Fair Work Act 2009 (the FW Act) seeking a stop-bullying order. Mr Legge is a Foster Carer in the Australian Capital Territory (ACT) under arrangements involving Barnardos Australia. Barnardos Australia, and some others in a consortium, operate as “ACT Together” in the territory.

[2] In his stop-bullying application, Mr Legge contends that he has been subject to workplace bullying conduct in connection with his role as a Foster Carer by one or more of the Case Managers and other Managers who work for Barnardos Australia. This is denied and Barnardos Australia has also raised a jurisdictional issue about the capacity for Mr Legge to bring this application.

[3] It is common ground that, amongst other requirements, Mr Legge will only be eligible to make this application if he is a “worker” within the meaning of s.789FC(2) of the FW Act.

[4] Mr Legge contends that he is a worker in the form of a volunteer, or alternatively, as a subcontractor or outworker. Barnardos Australia contends otherwise and posits that Mr Legge is not an employee, outworker or a volunteer worker as, amongst other matters, he does not perform any work for Barnardos Australia.

[5] This decision deals with this jurisdictional issue.

2. The immediate legal framework and principles involved

[6] I will shortly deal with the specific provisions of the FW Act that are most relevant to this matter. However, the scope and nature of the Commission’s Anti-bullying jurisdiction sets some important context and has been canvassed in a number of decisions.¹

[7] Without detracting from those decisions or the detail of the FW Act itself, the Fair Work Amendment Bill 2013 Revised Explanatory Memorandum provides a useful general explanation of the provisions as follows:

“New section 789FF – FWC may make orders to stop bullying

119. New subsection 789FF(1) empowers the FWC to make any order it considers appropriate to prevent a worker from being bullied at work by an individual or group of individuals. Before an order can be made, a worker must have made an application to the FWC under new section 789FC and the FWC must be satisfied that the worker has been bullied at work by an individual or group of individuals. There must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benjamin Legge

Details

AGLC: Benjamin Legge [2019] FWC 5874
Case: [2019] FWC 5874
Decision Date: 4 SEPTEMBER 2019

CaseChat Overview and Summary

The case of Benjamin Legge involved an application to the Fair Work Commission to halt alleged bullying activities. The applicant, Benjamin Legge, was a foster carer who claimed to have been subjected to bullying by his principal, the Public Benevolent Institution of New South Wales. The dispute was brought before the Commission, which had to determine whether it had the jurisdiction to hear the matter. The central legal issue was whether Legge qualified as a "worker" under the Fair Work Act 2009. The court had to consider if Legge’s role as a foster carer constituted performing work for a person conducting a business or undertaking (PCBU), and if so, whether this work was performed for the PCBU.

The court examined the principles governing the definition of a "worker" and applied them to the facts of the case. It found that Legge was not an employee, outworker, or subcontractor, but considered whether he could be classified as a volunteer performing work for the PCBU. The court found that Legge’s role involved the provision of care services to children on behalf of the PCBU, and that this work was performed for the PCBU. The court also took into account the statutory, contractual, and practical contexts in which Legge operated. It concluded that Legge was indeed a "worker" for the purposes of the Act, as his activities were integral to the operations of the PCBU.

Given that Legge qualified as a worker, the court determined that it had jurisdiction to hear the merits of the matter. The application was allocated to deal with the substantive issues of bullying and the associated remedies. The court's decision ensured that the dispute could proceed in the appropriate forum to address the applicant's claims.

Orders