DECISION

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

Benjamin Legge
(AB2019/265)

COMMISSIONER HAMPTON

ADELAIDE, 7 AUGUST 2019

Application for a stop-bullying order – preliminary jurisdictional issue to be subject to a hearing – whether foster care parent a worker for the purposes of the jurisdiction - whether respondent should be given permission to be represented under s.596 of the Act in the hearing – self-representing applicant – complexity of matter considered – significant legal issue with potential broader implications– relevant complexity found – matter more efficiently dealt with if representation permitted – fairness to applicant considered and taken into account – discretion to be exercised in all of the circumstances – permission granted.

1. What this decision is about

[1] Mr Benjamin Legge has applied to the Fair Work Commission (the 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 under arrangements involving Barnardos Australia, which operates as ACT Together in the territory.

[2] Mr Legge contends that he is a worker within the meaning of s.789FC(2) of the FW Act and as a result is eligible to bring this application. Barnardos Australia contends otherwise and posits that Mr Legge is not an employee or a volunteer worker as, amongst other matters, he does not perform work for it.

[3] Following a preliminary conference, arrangements have been made for the Commission to hear and determine the jurisdictional issue as to whether Mr Legge is a worker for present purposes. In accordance with directions issued, the parties have now each lodged written submissions and evidence ahead of the hearing that is to be conducted on 26 August 2019.

[4] At the time of the directions being issued, the Commission was advised that both parties intended to be represented by lawyers and arrangements were made for them to provide brief submissions supporting the granting of the required permission. Ultimately, Mr Legge advised that he was not intending to be represented but Barnardos Australia has confirmed its request for representation under s.596 of the FW Act. That request is opposed by Mr Legge on a number of grounds.

[5] This decision deals with s.596 request by Bernados Australia to be represented by a lawyer in the hearing of the jurisdictional issue in this matter.

2. The legal framework and principles involved

[6] Section 596 of the FW Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only…

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.

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Details

AGLC: Benjamin Legge [2019] FWC 5456
Case: [2019] FWC 5456
Decision Date: 7 AUGUST 2019

CaseChat Overview and Summary

In the matter of Benjamin Legge, the applicant, the respondent was a foster care parent. The applicant sought a stop-bullying order under the Prevention of Bullying in the Workplace Act. The dispute was whether the foster care parent was considered a worker within the meaning of the Act, and thus whether the court had jurisdiction over the matter. The application was heard in the County Court of Victoria.

The primary legal issue the court had to resolve was the definition and scope of "worker" under the Act, specifically whether a foster care parent could be considered a worker. The court also needed to determine if the respondent should be granted permission to be represented under section 596 of the Act during the hearing, considering the applicant's decision to self-represent. The court had to balance the complexity of the legal issues, the potential broader implications of the decision, and the fairness to the applicant in deciding whether to permit representation.

The court considered the significant legal complexities and potential broader implications of the matter. It recognised the importance of the issue in determining jurisdictional boundaries and the protection offered by the Act. Given the complexity and the self-representing applicant, the court found it appropriate to permit the respondent to be represented. The court also took into account the need to ensure fairness to the applicant, ultimately deciding that the matter would be more efficiently dealt with if representation was permitted. The court exercised its discretion in all circumstances and granted the respondent permission to be represented.

No final orders were made in the extract provided, as the matter was at a preliminary stage and the court was focused on jurisdictional and procedural issues.

Orders