DECISION

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

Benjamin Legge
(AB2019/265)

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 also be a risk that the worker will continue to be bullied at work by the individual or group. Orders will not necessarily be limited or apply only to the employer of the worker who is bullied, but could also apply to others, such as co-workers and visitors to the workplace. Orders could be based on behaviour such as threats made outside the workplace, if the threats relate to work.

120. The power of the FWC to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume. The FWC cannot order reinstatement or the payment of compensation or a pecuniary amount.

121. Examples of the orders that the FWC may make include an order requiring:

•  the individual or group of individuals to stop the specified behaviour;

•  regular monitoring of behaviours by an employer;

•  compliance with an employer’s workplace bullying policy;

•  the provision of information and additional support and training to workers;

•  review of the employer’s workplace bullying policy.

122. New subsection 789FF(2) provides that, when considering the terms of the order, the FWC can take into account any factors that it considers relevant, but must have regard to the following (to the extent that the FWC is aware):

•  any final or interim outcomes of an investigation into the matter that is being undertaken by another person or body;

•  any procedures available to the worker to resolve grievances or disputes;

•  any final or interim outcomes arising from any procedures available to the worker for resolving grievances or disputes.

123. These factors may be used by the FWC to frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, and to ensure consistency with those actions.”

[8] Having regard to the provisions of the FW Act, there are, amongst other matters, two prerequisites to the making of substantive orders in matters of this kind.² Firstly, a finding that the applicant worker has been bullied at work by an individual or a group of individuals (who need not be workers themselves); and secondly, that there is a (future) risk that the applicant will continue to be bullied at work by the individual or group concerned.

[9] The Commission’s approach to a worker being “at work” was considered in Bowker and Others v DP World Melbourne Limited T/A DP World and Others 3 which stated:

“[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour.

[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.

[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.

[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).

[52] As noted in the Workplace Bullying Report, workplace bullying manifests itself in a diversity of circumstances and it is appropriate that we take a cautious approach to delineating the boundaries of what is meant by the words ‘at work’ in s.789FD(1)(a). It is preferable that the approach to this issue develop over time, on a case by case basis.

[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.”

[10] For completeness, I note that where a future risk of relevant workplace bullying is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any substantive orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act. 4

[11] Subject to the above, and the constraint that a substantive order cannot be made requiring payment of a pecuniary amount, 5 the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.

[12] Accordingly, the power of the Commission to grant an order is limited to preventing the applicant worker from being (further) bullied at work, and the focus is on enabling normal working relationships to resume in a mutually safe and productive manner.

[13] I turn now to the provisions of the FW Act expressly bearing upon the present matter. Section 789FC of the FW Act provides as follows:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[14] Section 789FD of the FW Act defines bullying conduct as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[15] I note that there is no suggestion that Barnardos Australia is not a constitutional corporation, and thereby, a constitutionally-covered business.

[16] As set out earlier, the term “worker” is defined in s.789FC of the FW Act as having the same meaning as in the Work Health and Safety Act 2011 (WHS Act). 6

[17] Section 7 of the WHS Act provides as follows:

“7 Meaning of worker

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e) an outworker; or

(f) an apprentice or trainee; or

(g) a student gaining work experience; or

(h) a volunteer; or

(i) a person of a prescribed class.

(2) For the purposes of this Act, the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979) is:

(a) a worker; and

(b) at work throughout the time when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and

(d) an employee of the Commonwealth.

(2A) For the purposes of this Act, a member of the Defence Force is:

(a) a worker; and

(b) at work throughout the time when the person is lawfully performing the functions of a member of the Defence Force, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and

(d) an employee of the Commonwealth.

(2B) For the purposes of this Act, a person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island) is:

(a) a worker; and

(b) at work throughout the time when the person is lawfully performing the functions of that office, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and

(d) an employee of the Commonwealth.

(2C) For the purposes of this Act, a person who constitutes, or is acting as the person constituting, a public authority is:

(a) a worker; and

(b) at work throughout the time when the person is lawfully performing the functions of that authority, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and

(d) an employee of the public authority.

(2D) For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a public authority is:

(a) a worker; and

(b) at work throughout the time when the person is lawfully performing the functions of the public authority, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and

(d) an employee of the public authority.

(2E) For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority is:

(a) a worker; and

(b) at work throughout the time when the person is lawfully performing the functions of the body, but not otherwise; and

(c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and

(d) an employee of the public authority.

(2F) The Minister may, by instrument in writing, declare that a person of a class specified in the declaration is, for the purposes of this Act:

(a) a worker; and

(b) at work throughout the time specified in the declaration; and

(c) carrying out work for a business or undertaking conducted by the Commonwealth, or a public authority specified in the declaration, when the person is performing functions of the kind specified in the declaration; and

(d) an employee of the Commonwealth, or a public authority specified in the declaration.

(2G) A declaration under subsection (2F) may only be made in relation to a class of persons if persons of that class engage in activities or perform acts:

(a) where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by the Commonwealth, or are employees of the Commonwealth:

(i) at the request or direction of the Commonwealth; or

(ii) for the benefit of the Commonwealth; or

(iii) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

(b) where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by a public authority specified in the declaration, or are employees of a public authority specified in the declaration:

(i) at the request or direction of the public authority; or

(ii) for the benefit of the public authority.

(2H) A declaration under subsection (2F) has effect according to its terms.

(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.”

[18] There is no relevant declaration impacting upon this matter and it is not suggested that Mr Legge otherwise falls within any of the categories set out in s.7(2) – (2H) or s.7(3) of the WHS Act. As a result, it is the terms of s.7(1) of the WHS Act that are to be applied in this matter.

[19] In general terms, the WHS Act provides that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including any of the following:

•  an employee;

•  a contractor or subcontractor;

•  an employee of a contractor or subcontractor;

•  an employee of a labour hire company who has been assigned to work in the person’s business or undertaking;

•  an outworker;

•  an apprentice or trainee;

•  a student gaining work experience; and

•  a volunteer—except a person volunteering with a wholly ‘volunteer association’, in effect, with no employees (see the later discussion on this point).

[20] Section 4 of the WHS Act includes the following definition of “volunteer”:

““volunteer” means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).”

[21] The term “outworker” is not defined in the WHS Act but is defined in s.12 of the FW Act as:

“outworker means:

(a) an employee who, for the purpose of the business of his or her employer, performs work at residential premises or at other premises that would not conventionally be regarded as being business premises; or

(b) an individual who, for the purpose of a contract for the provision of services, performs work:

(i) in the textile, clothing or footwear industry; and

(ii) at residential premises or at other premises that would not conventionally be regarded as being business premises.”

[22] Given that subclause (b) of the definition is not applicable here, Mr Legge will only be an outworker if he is an employee.

[23] Section 7 of the WHS Act was considered by the Full Bench in Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others 7 (Bibawi) in the following terms:

“[18] The definition of “worker” in s 7(1) of the WHS Act is very broad, in that as a person need only perform work “in any capacity for” the other person conducting the business or undertaking in order to satisfy the definition. The definition was expressly described as “broad” in the Explanatory Memorandum to the Fair Work Bill 2013 which added Pt 6-4B to the FW Act. The types of workers listed in paragraphs (a)-(i) of s 7(1) are taken to be included in the general definition in the chapeau to the provision, but do not operate to limit it. As to the interpretation and application of s 7(1), we agree with and adopt the following analysis of the provision in the decision of Vice President Watson in Balthazaar: 8

“[19] The definition of “worker” in s.7(1) of the WH and S Act contains two primary elements. First, the person must carry out work. Secondly, the work must be carried out for a person conducting a business or undertaking. There follows words of inclusion to emphasise that the work carried out for a person conducting a business or undertaking can be in any capacity whatsoever. The capacities extend beyond that of an employee. It can extend to persons performing work as an independent contractor under a contract for services. Indeed it is not necessary that there be any contract or any payment for the work. Volunteer work is included within the definition (subject to the exclusion of volunteers working together in a volunteer association: WH and S Act s.5).” 9

[24] I would add that the Vice President in Balthazaar also indicated that:

“[20] The nature of the definition of “worker” requires attention to the primary elements, rather than the inclusive categories that follow the core requirements of the definition. Given the nature of the arguments put by the parties in this case I propose to adopt such an approach.

[21] A carer in receipt of a payment under s.198 of the SS Act provides constant care for the care receiver. In my view such care constitutes “work” in the broad sense. Indeed there appears to be no limitation on the concept of work. Any unpaid domestic work would appear to fall within the definition. I am satisfied that in his capacity as a carer Mr Balthazaar carries out work.”

[25] In Bibawi, the Full Bench further illustrated the potential scope of relevant work by a volunteer and the meaning of a volunteer worker in the following terms:

“[20] The matters relied upon by the Commissioner to conclude that Mr Bibawi was not a worker within the meaning of s 7(1) of the WHS Act appear to us to be entirely extraneous to the statutory definition. That the work performed by Mr Bibawi was done as part of a program funded by the Government may factually be correct, but there is nothing in s 7(1) (or elsewhere) which would exclude Mr Bibawi from the definition for this reason. Likewise it may factually be accepted that Mr Bibawi’s performance of the work was intended to improve his well-being and mental health, but the definition does not require that the requisite work be performed for any particular purpose and, in respect of volunteer and unpaid work in particular, there may be a wide range of motivations and objectives attaching to the performance of such work. For example, a work experience student may perform work in a business or organisation for the purpose of satisfying a school curriculum requirement and gaining experience of a working environment, but the existence of that particular purpose would not operate to exclude the student from the “worker” definition in s 7(1). Insofar as the Commissioner regarded Mr Bibawi’s relationship with Stepping Stone as “outside the context of paid or unpaid work in the commonly understood sense”, it is not entirely apparent to us what was the common understanding being referred to or what it was about the relationship that the Commissioner considered took it outside the statutory definition. To the extent that the Commissioner may have regarded Mr Bibawi as having been in some sense a “client” of Stepping Stone, that does not alter that the fact that he performed work for Stepping Stone as a volunteer.”

[26] The concept of “a person conducting a business or undertaking” (PCBU) is provided by s.5 of the WHS Act in the following terms:

“(1)   For the purposes of this Act, a person conducts a business or undertaking:

(a) whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2)  A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)  A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.” (emphasis in original)

[27] The Work Health and Safety Regulations 2011 provide as follows:

“7(3) For subsection 5 (6) of the Act, an incorporated association may be taken not to be a person conducting a business or undertaking if the incorporated association consists of a group of volunteers working together for one or more community purposes where:

(a) the incorporated association, either alone or jointly with any other similar incorporated association, does not employ any person to carry out work for the incorporated association; and

(b) none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the incorporated association.”

[28] It is common ground that Barnardos Australia is a PCBU and is not a volunteer association as defined. 10

3. The positions advanced by the parties

3.1 Mr Legge

[29] Mr Legge contends that he is a worker within the meaning of s.7 of the WHS Act (and s.789FC of the FW Act) on the basis that he is performing work for Barnardos Australia. Mr Legge acknowledges that Foster Carers undertake the duties of a parent in many ways and, within the home environment, exercise some degree of autonomy around regular “parental” decisions. However, he contends that there are key differences between Foster Caring and parenting that are relevant to the present matter.

[30] In relation to performance of work, Mr Legge contends that there is no definition of “work” within the WHS Act however it has been defined 11 to include exertion directed to produce or accomplish something and also a productive and operative activity. Mr Legge also relies upon the following examples of his role as a Foster Carer as work, outside of the normal scope of the regular parenting of children:

•  Attendance at meetings with the case management team, review meetings and school-related meetings;

•  Reporting behaviours and disclosures, and children’s academic results to Barnardos Australia;

•  Seeking permission for medications and some forms of medical treatment;

•  Mandatory engagement with the Foster Care Agency and engagement with departmental specialists; and

•  Transportation of children to various activities including contact with birth parents.

[31] In terms of performing work for Barnardos Australia, Mr Legge relies upon the following features of the relationship:

•  Although Foster Carers may be approved by or on behalf of the Director-General (of the Community Services Directorate of the ACT Government), they are recruited, assessed, trained and supervised by Barnardos Australia.

•  Foster Carers are required to act in accordance with the Carer Handbook issued to them by Barnardos Australia and a failure to do so may result in what he described as a performance management process.

•  Foster Carers are also subject to annual reviews and other requirements beyond those provided by the Director-General.

•  The requirements extend to matters such as the obligation to communicate travel plans, the requirement to permit Barnardos Australia to see the children at all times, the obligation to seek approval for ear piercing (of the child), the requirement to follow daily care responsibilities including going to bed times, pocket money, clothing and the like.

•  Some of these, and other requirements such as a ban on smoking, are beyond those set by the Director-General, and are indicative of control being exercised by Barnardos Australia.

[32] Mr Legge also relies upon certain matters that he contends would ordinarily only be associated with Employer/Employee type arrangements, including:

•  Undertaking a lengthy application and assessment process including multiple personal interviews, house inspections and annual re-assessments;

•  Undertaking investigations such those in relation to ‘Reportable Conduct Matters’;

•  The ability to require a Foster Carer to allow entry to their home to conduct home visits, assessments or re-assessments and for investigative purposes;

•  The payment of an allowance per child and reimbursements which offset the costs of living and additional expenses and are payable as determined by Barnardos Australia out of a bundle of money given to them by the relevant ACT Government Department (Children and Young Persons Services – CYPS) to provide Foster Care services;

•  The requirements to report and/or seek permission to travel with the children, and

•  Barnardos Australia requires carers to not smoke and operate smoke free households, which can be likened to a smoke free workplace policy.

[33] In terms of the legislative context, Mr Legge contends that the obligation to operate within, and be accountable for, certain statutory requirements is not inconsistent with him being a worker. In particular he contends that:

“It is understood that Barnardos Australia facilitate foster care in the ACT on behalf of the ACT Government and that many of their functions such as undertaking assessments of foster carers, conducting home visits and undertaking Reportable Conduct investigations are all legislated requirements of them doing business. This however can be likened to a tradesman engaging a subcontractor to undertake work that they do not have capacity to complete; the subcontractor is able to complete the work with some autonomy but overall direction from the contractor who is working for the client.” 12

[34] Mr Legge further contends that in other jurisdictions, Foster Carers are treated in the same manner as employees for certain purposes and this was consistent with the notion that he was a worker. This included:

•  The New South Wales Government issues a certificate for Foster Carers work that may be presented to Centrelink to satisfy work requirements and exemptions; and

•  The Ombudsman Act 1974 (NSW) also supports this. Section 25a(1) of that Act defines an employee of an agency as “(b) any individual engaged by the agency to provide services to children (including in the capacity of a volunteer)”.

[35] Mr Legge referred to the Object to the FW Act in s.3 and summarised his position in the following terms:

“The second page you see after opening the Carers Handbook reads quite clearly “As a carer, you will work with many people to ensure the effective care of a child.” (attachment A) and this exactly how it is. As a foster carer, there is a definite working relationship with the care team; we are asked to do certain things, report certain things back and expected to behave in particular ways which are often at ends with how one would work with their own children.

… …

Throughout Australia, different agencies and different legislation makes reference to foster carers in different ways, there is one consistent point though and that is that all agencies make reference to valuing the work undertaken by carers. Without taking this for granted, it must be acknowledged that all of these agencies have a common goal of helping and improving the lives of children, which could not be achieved without foster carers and the foster carers could not operate effectively without the direction, guidance, financial assistance and support of the agency which creates a very symbiotic relationship seen only in workplace relationships. There is a mutual contract of trust and support which aims to meet that common goal.

The legislation in Australia is broad and as has been discussed in Bibawi v Stepping Stone Inc is this way to ensure that no one person or class of persons is omitted from the protections of WHS and Fair Work legislation, where the intent is quite simply to protect people from unfair and improper treatment.

As a foster carer, I sacrifice my time and energy to try and help children and others in need. I do this by working closely with a range of supports for the children I care for and while it is like parenting, it is far from parenting. I am reimbursed my expenses, offered training and expected to do as I’m asked by my case managers. There is no shadow of a doubt in my mind that this fits the definition of working, even if that is a positive thing; working together with a range of supports to create a better future for kids in care.” 13

[36] In final written submissions, Mr Legge emphasised that all of his dealings in terms of the approval to act as a Foster Carer were with Barnardos Australia and not with the Director-General or the CYPS. Mr Legge also contended that out of home care was a core business of Barnardos Australia and it would not operate at its current capacity without Foster Carers to perform the work. He described it as a “symbiotic” relationship.

[37] Given the absence of disputes associated with his factual assertions in the Applicant’s initial written submissions (as opposed to his views and submissions about the immediate issue), Mr Legge did not give evidence in this matter. However, Mr Legge provided a comprehensive statement with many attachments 14 to inform the Commission.

[38] In terms of some of the material provided by Mr Legge about Foster Carers operating under other State or Territory regimes, I have not found that to be of particular assistance in the present task; which is to consider whether he is a worker having regard to the circumstances relevant to his role as Foster Carer in connection with Barnardos Australia in the ACT.

3.2 Barnardos Australia

[39] Barnardos Australia contends that Mr Legge is not a worker of any description under the WHS Act, and this includes the notions of being an employee, outworker, subcontractor and volunteer worker. It does accept that Mr Legge performs work in his capacity as a Foster Carer but contends that any such work is not performed by him for Barnardos Australia.

[40] In relation to the suggestion that Mr Legge is an employee, Barnardos Australia contends that there is no evidence for the Commission to find the existence of a contract of employment between the immediate parties. In particular, there is no evidence to establish the following two elements necessary to form a contract; being:

•  an intention to create legal relations, and

•  consideration.

[41] As to the first element, Barnardos Australia contends that the words and conduct of the parties do not objectively show a mutual intention to enter into and maintain a contractual relationship. 15 Rather, the objective context of the work performed by Mr Legge as a Foster Carer, and Barnardos Australia’s involvement with Mr Legge, is properly understood as part of a statutory context under the Children and Young Persons Act 2008 (ACT) (the CYP Act) and not as a contractual context. Mr Legge was at all material times performing work as a Foster Carer under the authority of the Director-General who was exercising the power conferred on the Director-General under section 518(2) of the CYP Act.

[42] Further, Barnardos Australia contends that its involvement in the work performed by Mr Legge arose out of the agreement between it and the Government of the ACT; being an agreement titled “A Step Up For Our Kids - Continuum Of Care Contract Number 2015.25341.220” (the ACT Agreement) under which it was required to recruit, assess, train and support Foster Carers. In addition, the matters alleged by Mr Legge to be scrutiny by it are not the same as the exercise of control as an incident of an employment relationship by it over the Applicant’s work as a Foster Carer. 16 Rather, those matters, to the extent they are correctly identified, reflect the provision by Barnardos Australia of the services under the ACT Agreement which enable the Director-General to exercise his or her powers under the CYP Act over a Foster Carer. Furthermore, many of the other matters cited by Mr Legge reflect statutory duties on Barnardos Australia or the ACT Government, such as with respect to reportable conduct.

[43] As to the absence of consideration, Barnardos Australia contends that the evidence does not disclose that the parties exchanged promises to provide valuable consideration at any time, in support of a contract of employment. 17 Rather, in his capacity as a Foster Carer, Mr Legge does not make a promise to Barnardos Australia to perform work for the Respondent or for another person. Barnardos Australia does not promise to provide consideration in exchange for the work performed by Mr Legge. Accordingly, the element of consideration necessary for the formation of a contract of employment between the parties is lacking.

[44] In relation to whether Mr Legge was a volunteer worker, Barnardos Australia contends that Mr Legge did not, and does not, carry out work for it. The nature and purpose of the work carried out by Mr Legge as a Foster Carer arises out of the authority given by the Director-General under the CYP Act. That is, the authority for Mr Legge to undertake the daily care and long-term care responsibility of the children and young people concerned was provided by the Director-General and not by Barnardos Australia. The Director-General also did not delegate specific parental authority to either Mr Legge or Barnardos Australia and this was consistent with the fact that the work performed by Mr Legge was not for Barnardos Australia.

[45] Barnardos Australia contends that Mr Legge’s work as a Foster Carer is more closely akin to that of domestic work by a family member, and it was not the intention of the Legislature that work of this kind would lead to finding that the person involved was a worker so as to be covered by the stop-bullying jurisdiction of the Commission. 18 In the alternative, it is a relationship outside the context of paid or unpaid work in the commonly understood sense because there is no work relationship between the parties whereby Mr Legge promises to undertake work for Barnardos Australia, whether paid or unpaid.

[46] In summary, Barnardos Australia acknowledges that Foster Carers such as Mr Legge in the ACT perform valuable work, and do so on a voluntary basis. However, the fuller statutory context provided by the CYP Act makes it clear that Mr Legge performed, or performs, work which is the exercise of a statutory responsibility for the Director-General and there is no situation in the present matter where he performs work outside of that statutory responsibility. Accordingly, the voluntary work undertaken by the Applicant is not work carried out for the Respondent.

[47] Barnardos Australia provided a comprehensive witness statement 19 from Ms Elizabeth Cox, Executive Manager, Out of Home Care NSW/ACT. Ms Cox also provided some additional sworn evidence in response to questions from the Commission and was cross-examined by Mr Legge.

[48] Ms Cox’s oral evidence and the material accompanying her statement were generally of assistance to the Commission.

4. Consideration

4.1 The foster care arrangements in which Legge is involved

The practical context

[49] Mr Legge, along with his wife, have been approved Foster Carers for some time. In that role, they have undertaken the care of one or more foster children assigned to them by Barnardos Australia.

[50] Mr Legge’s approval as a Foster Carer was issued by Barnardos Australia under delegated authority provided by the Director-General. That approval followed an application to Barnardos Australia and the process included interviews, background checking, training and reviews of the Legge’s home; all conducted by Barnardos Australia.

[51] The Approved Foster Carer approval instrument issued by Barnardos Australia to Mr Legge contained the following conditions of approval:

“The above-named person:

1. is an appropriate person to care for children and young people as per section 514C of the Act and is able to provide this care in an environment that is safe and suitable for children and young people;

2. is registered under the ACT Working with Vulnerable People (Background Checking) Act 2011 at all times during this approval;

3. will notify the Director-General of the responsible person of an approved kinship and foster care organisation of any changes that may affect their suitability to provide care for a child or young person, noting that this must be done as soon as practicable and within seven (7) days. (Information that must be notified to the Director-General or responsible person of an approved kinship and foster care organisation is attached to this document);

4. understands that their status as an approved carer may be reviewed at any time if there are changes in their circumstances that affect their appropriateness to be a person to care for children and young people as per section 514C of the Act.

The decision of whether a person is an appropriate person to care for children and young people and be an approved carer is a reviewable decision. The decision may be made by the Director-General, Community Services Directorate, or their delegate. The delegate may be an ACT Government employee or the responsible person of an approved kinship and foster care organisation.” 20

[52] Along with approval issued on behalf of the Director-General, Barnardos Australia and the Legges entered into a Foster Care Agreement (FC Agreement) which was described as being “a working agreement for the provision of foster care services for children and young people placed with Foster Carer (sic)” 21

[53] The Legges have also had various dealings with the staff engaged by Barnardos Australia associated with their role as Foster Carers. This has included communications about various aspects of the arrangements set out in the comprehensive Carer Handbook.

[54] In addition to the requirements for approval on behalf of the Director-General, Barnardos Australia also places certain other requirements upon its Foster Carers, including Mr Legge, that impact upon whether the application for approval is granted and which also apply during any placement. This includes a total ban on cigarette smoking and other requirements based upon various health and welfare policy considerations.

[55] The initial approval to be a Foster Carer is for a period of 3 years and Barnardos Australia, under delegated authority, is also empowered to consider and determine a renewal of that approval.

[56] Barnardos Australia provides various services under the ACT Agreement. This includes the provision of some services in connection with Foster Care and the care of children under the guardianship of the ACT Government more generally. This includes that the Director-General will assign children to Barnardos Australia for care, and Barnardos Australia then decides the nature of the care that is to be provided (having regard to the circumstances of the child and any requirements provided by the Director-General and/or the ACT Agreement) including determining which Foster Carer is to be utilised if that form of care is appropriate.

[57] To be eligible for the placement, Mr Legge required a Care and Protection Services Specific Parental Authority (SPA) issued by the Director-General (or delegate - Barnardos Australia does not appear to be authorised to do so) in relation to each child or young person when placed with the Carer. The SPA authorises the Foster Carer to “exercise daily care and long term care responsibility for the Director-General as outlined the Core Directions ….”. 22 Those core directions are as follows:

“Core Directions of this Authority (the carer MUST consult with CYPS on all matters outside the scope of these directions).

1. The carer will exercise parental responsibility for the child or young person in accordance with any relevant care and protection order, care plan, case plan, Aboriginal or Torres Strait Islander cultural plan and any other direction provided by the Director-General or delegate.

2. The carer will ensure compliance with the following specific directions:

2.1 The immunisation of the child or young person is to be arranged by the carer in accordance with the National Immunisation Program Schedule (1 July 2013) unless there is a medical contraindication to this action and evidence of such contraindication has been sighted and approved by the Director-General or delegate.

2.2 Medical/dental treatment which does not require a general anaesthetic to be arranged for the child or young person by the carer as needed by the child or young person on the specific advice of a registered medical/dental practitioner, provided the cost of treatment is covered by Medicare.

2.3 The carer’s permission is NOT to be given for any cosmetic procedures (including circumcision and piercings of any kind - including ears) unless approved in writing upon individual application to the Director General or delegate.

2.4 The carer’s permission is NOT to be given for any treatment concerning or affecting the reproductive capacities or gender reassignment of the child or young person (except when a young person in consultation with her medical practitioner determines the appropriate use of oral contraceptives).

2.5 Education is to be arranged by the carer for the child or young person if of pre-school age until completion of Year 12 within a mainstream education environment (excluding home schooling) operating under the provisions of the Education Act 2004 or if not attending school, participating in training or employment.

2.6 The carer is to ensure that the child or young person does not travel overseas without the prior written approval of the Director-General. The carer may progress an application for an Australian passport on behalf of the child or young person in conjunction with the Director-General.

2.7 The carer must allow, at any reasonable time, a delegate of the Director-General (Care and Protection Services or Out of Home Care agency worker) entry to the premises the child resides in for the purpose of ensuring that the child is properly cared for.” 23 (emphasis in original)

The CYP Act

[58] The CYP Act provides much of the statutory context in which the Foster Care arrangements have operated. It is a comprehensive legislative scheme designed to provide for, and promote, the wellbeing, care and protection of children and young people in the ACT according to a series of objects 24 and principles.25

[59] Amongst the important concepts and definitions of the CYP Act that are relevant to this matter are the following:

“15 What is parental responsibility?

In this Act:

parental responsibility, for a child or young person, means all the duties, powers, responsibilities and authority parents have by law in relation to their children, including the following aspects of parental responsibility:

(a) daily care responsibility for the child or young person;

(b) long-term care responsibility for the child or young person.

(…)

19 Daily care responsibility for children and young people

(1) A person who has daily care responsibility for a child or young person has responsibility for, and may make decisions about, the child’s or young person’s daily care.

Examples—daily care responsibilities and decisions

1 where and with whom the child or young person lives

2 people with whom the child or young person may, or must not, have contact

3 arrangements for temporary care of the child or young person by someone else

4 everyday decisions, including, for example, about the personal appearance of the child or young person

5 daily care decisions about education, training and employment

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A person who has daily care responsibility for a child or young person may do any of the following:

(a) consent to a health care assessment of the child or young person’s physical or mental wellbeing and have access to the assessment report;

(b) on the advice of a health practitioner—consent to health care treatment, not including surgery (other than surgery mentioned in paragraph (c)), for the child or young person;

(c) on the advice of a dentist or dental therapist—consent to dental treatment, including minor dental surgery, for the child or young person.

(3) If the person makes a decision about the people with whom the child or young person may have contact, the person is also responsible for arrangements to give effect to the decision.

(4) This section does not limit the matters for which the person has responsibility to make decisions for the child or young person, but is subject to—

(a) a court order (under this Act or another law); and

Examples

1 A decision by a person who has daily care responsibility for a child about people with whom the child may or may not have contact is subject to a care and protection order that includes a contact provision about who may, or must not, have contact with the child.

2 A decision by a person who has daily care responsibility for a child or young person about where and with whom the child or young person lives is subject to a care and protection order that includes a residence provision.

3 The Childrens Court makes a care and protection order for a young person that includes a parental responsibility provision that a stated person who has daily care responsibility for the young person must exercise it in a stated way. The person’s exercise of daily care responsibility for the young person is subject to the order.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b) if there is a care plan in force for the child or young person—the care plan.

Note A care plan for a child or young person is a written plan of the director-general’s proposals for the care and protection of the child or young person (see s 455).

(5) To remove any doubt, this section does not affect any right of a child or young person to consent to their own health care treatment.

(6) …

(…)

508 Who is an out-of-home carer?

In this Act:

out-of-home carer, for a child or young person, means—

(a) a kinship carer for the child or young person; or

(b) a foster carer for the child or young person; or

(c) a residential care service for the child or young person.”

[60] The role of the Director-General is set out in s.22 as follows:

“22 Director-general’s functions

(1) The director-general has the following functions:

(a) providing, or assisting in providing, services directed to strengthening and supporting families in relation to the wellbeing, care and protection of their children and young people;

(b) supporting the community in preventing, or reducing, abuse and neglect of children and young people;

(c) providing, or assisting in providing, information to parents, kinship carers and foster carers, prospective kinship carers and foster carers, government agencies, non-government agencies and members of the community about the operation of this Act;

(d) providing, or assisting in providing, information to people who are required to report suspected abuse of children and young people to help them perform their legal obligation;

(e) providing, or assisting in providing, information to people who report suspected abuse or neglect of children and young people and encouraging those people to continue their involvement in matters arising from their report;

(f) exercising aspects of parental responsibility for children and young people;

(g) providing, or assisting in providing, information, services or assistance to children and young people who have left the director-general’s care;

(h) providing, or assisting in providing, services for young offenders, including by ensuring the provision of the care, support, rehabilitation and guidance necessary for them to become rehabilitated and reintegrated community members;

(i) working with other government agencies and community organisations, to coordinate and promote the care and protection of children and young people, including young offenders.

(2) The director-general has all the functions of an authorised person.

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).”

[61] The Director-General may also approve “suitable entities” such as organisations to provide approved care and protection and give instructions. 26 Sections 352B and 352C define the role of approved care and protection organisations in the following terms:

“352B Meaning of care and protection purpose

In this Act:

care and protection purpose, for an organisation—

(a) means any of the following purposes:

(i) to provide kinship and foster care services;

(ii) to provide residential care services;

(iii) another purpose prescribed by regulation as a care and protection purpose; but

(b) does not include a purpose prescribed by regulation to not be a care and protection purpose.

Note Organisations approved as suitable entities for the purpose of providing kinship and foster care services or residential care services are dealt with in ch 15. See especially s 502, definitions of approved kinship and foster care organisation and approved residential care organisation and pt 15.4 (Out-of-home carers).

352C Meaning of approved care and protection organisation

In this Act:

approved care and protection organisation means an organisation approved by the director-general under section 63 as a suitable entity for a care and protection purpose.

Note The purpose for which an organisation is approved must be recorded in the suitable entities register (see s 72 (2) (b)).”

[62] Barnardos Australia is an approved care and protection organisation.

[63] The Director-General may delegate various functions under the CYP Act. Relevant to this matter, the Director-General has delegated some specific functions to Barnardos Australia 27 as follows:

“Pursuant to the following sections of the Children and Young People Act 2008:

• 457A (Care plans- Director-General delegations);

• 501A (Annual Review Reports - Director-General delegations);

• 514G (Approved Carers - Director-General delegations);

• 529HA (Transition Plans - Director-General delegations);

• 863(5) (Care teams - sharing safety and well being information - Director-General delegations);” 28

[64] I observe that this includes the approval of Carers, Care Plans and Care teams but does not include the SPAs under s.518(2) of the CYP Act.

[65] There is a comprehensive regime in place for the regulation of approved care and protection organisations including ongoing assessments and monitoring, complaints mechanisms and interventions.

[66] There is also a comprehensive mandatory reporting scheme for child abuse and this applies to a range of individuals and organisations. 29

[67] Under s.503 the Director-General, where he/she has parental responsibility may place a child with an out-of-home carer and provide financial support and other measures. Further, where the Director-General has daily care responsibilities, the following may apply with respect to out-of-home care as set out in s.512 of the CYP Act as follows:

“512 Director-general must place child or young person with out-of-home carer

(1) If the director-general has daily care responsibility for a child or young person, the director-general must place the child or young person with an out-of-home carer.

(2) However, the director-general may place—

(a) a child or young person in a health facility if—

(i) a doctor states in writing that, in his or her opinion, it is necessary for the wellbeing of the child or young person for daily care to be provided to the child or young person in the health facility; and

(ii) the director-general is satisfied that—

(A) appropriate support is available to meet the needs of the child or young person while the child or young person is in the health facility; and

(B) those aspects of the care plan for the child or young person that can be followed while the child or young person is in the health facility will be followed; or

(b) a young person who is 16 years old or older in an independent living arrangement if the director-general is satisfied that—

(i) the arrangement is appropriate for the young person; and

(ii) the proposed accommodation and the support available to the young person best meets the young person’s needs; and

(iii) the arrangement is consistent with the young person’s care plan; or

(c) a child or young person with the parent or guardian of the child or young person if the director-general is satisfied it is appropriate.

(3) Subsections (1) and (2) are subject to any court order (under this Act or another law in force in the Territory) to the contrary.

(4) If the director-general is placing an Aboriginal or Torres Strait Islander child or young person with an out-of-home carer, the placement must be in accordance with section 513.

Note An authorised person may, at any reasonable time, enter premises where a child or young person is living if the director-general has placed the child or young person with an out-of-home carer under this section and the purpose of the entry is to ensure that the child or young person is being properly cared for (see s 815).”

[68] Under Division 15.4.1A of the CYP Act, the Director-General may approve individual carers. Mr Legge is an approved carer.

[69] Under Division 15.4.2 of the CYP Act, the Director-General may approve various kinds of placements including kinship carers, foster carers and residential care services. Section 518 of the CYP Act provides for Foster carer authority as follows:

“518 Foster carer—specific parental authority

(1) This section applies if the director-general has daily care responsibility or long-term care responsibility for a child or young person.

(2) The director-general may authorise (a specific parental authority), orally or in writing, a person to exercise the daily care or long-term care responsibility for the director-general (a foster carer).

(3) However, the director-general may authorise a person only if satisfied that the person—

(a) is an approved carer; and

(b) agrees to exercise the responsibility for the director-general.

Note 1 Approved carer—see s 514B.

Note 2 If a person’s approval as an approved carer expires, the authorisation as a foster carer under this section also ends (see s 514E (6)).

(4) The person must exercise the responsibility subject to any directions of the director-general.

(5) An authorisation under this section has effect only during a placement of the child or young person with the foster carer under section 512 (Director-general must place child or young person with out-of-home carer).

Note 1 Under the Legislation Act, s 180, power given by a law to make a decision includes power to reverse or change the decision. The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision.

Note 2 A decision under this section is a reviewable decision (see s 839).”

[70] Division 15.4.3 provides a comprehensive regime for information and items to be kept during the placement of a child and this applies to all individuals and organisations acting as care-entities.

[71] As part of the enforcement provisions of the CYP Act, an authorised person may at any reasonable time, enter the premises where a child is being cared for to ascertain whether proper care is being provided. 30

Agreement with the ACT

[72] The agreement between the ACT Government and Barnardos Australia provides the following policy background at clause 2.2 of Schedule 2:

“2.2 POLICY BACKGROUND

2.2. 1. Having regard to progressing the broad policy goals of A Step Up.for Our,: Kids (One Step Can Make a Lifetime of Difference), Out of Home Care Strategy 2015- 2020 the Organisation will deliver the Continuum of Care domain services.

2.2.2. The Strategy is emphatically child-focused. The Territory has committed to creating a therapeutic, trauma-informed care system. It will recast services; both government and non-government around the Child or Young Person’s needs and will require cultural change and changes to current practices to ensure the voice of the Child or Young Person is clearly heard.

2.2.3. The Organisation is to respond and adapt their Services and are expected to make a positive contribution to shaping the system over the period of the Agreement to meet the intent of the Strategy.

2.2.4. The Organisation is to work collaboratively with the Territory and other organisations funded under the Strategy.

2.2.5. The Continuum of Care Services requires the Organisation to provide a comprehensive Service for each Child and Young Person through to 18 years of age and support for Care Leavers/Young Adults up to 25 years of age.

2.2.6. The Organisation is required to step up and step down Services to Children and Young People as their needs vary over time.

2.2. 7. Continuum of Care incorporates short term and long term care arrangements for Children and Young People. This will include foster care placements for short term care arrangements and the provision of respite care

2.2.8. The Continuum of Care brings together all of the Service elements in the Strategy designed to support Children and Young People who cannot live with their Birth Families safely.

2.2.9. The Services largely focus on managing risks relating to Children and Young People’s safety and wellbeing in care placements including assessing the suitability of Carers and the availability of home and support Services matched to a Child’s or Young Person’s need within a continuum of care. The Organisation is tasked with finding permanent alternative families for Children and Young People and achieving better life outcomes for Children and Young People who remain in care long-term.”

[73] Out of home care is defined in clause 2.1 in the following terms:

“Out of Home Care (OOHC)

a) a care placement away from the family home which is provided for Children and Young People deemed to be in need of care and protection. OOHC placements are funded by the Commmuty Services Directorate;

b) is also a term used to refer to the collective system of OOHC that includes kinship care, foster care and residential care;”

[74] The services provided by Barnardos Australia under the ACT Agreement as set out in clause 2.4.1 in the following terms:

“2.4.1. The Organisation is to provide the following Continuum of Care Services:

(a) foster care;

(b) kinship care;

(c) therapeutic residential care;

(d) permanency Services; and

(e) support for Care Leavers up to 25 years of age.”

[75] Foster Carer is defined in clause 2.1 of the ACT Agreement in the following terms:

“Foster Carer/s or Carer is a person authorised by the Director General or entity with delegated responsibility to exercise the daily care or long-term care responsibility for a Child or Young Person;”

[76] Under clause 2.4 of the ACT Agreement, children are referred to Barnardos Australia which then places them with foster and/or kinship care (and residential care where appropriate) having regard to a series of placement principles. 31

[77] Under clause 2.4.37 of the ACT Agreement, Barnardos Australia is to support foster carers, kinship carers and residential care programs through three “functions”; namely, recruitment, assessment and training; emotional and practical support; and ensuring safety and quality. In relation to Foster Care the ACT Agreement provides:

“FOSTER CARE

2.4.48. When a placement for a Child/Children and Young Person’s relative (kinship care) is not possible, foster care is usually the most appropriate option for them.

2.4.49. The Organisation is required to recruit, assess, train and support Foster Carers with the necessary skills and attributes to care in their own home, for Children and/or Young People unrelated to them.

2.4.50. When a Child or Young Person cannot be restored to parents or kin and when a Child or Young Person receives a Long Term Order, the Organisation is to work with all stakeholders to secure permanency options that promote stability, including adoption and Enduring Parental Responsibility.”

[78] Item 12 of the Schedule 5 of the ACT agreement, Parental Responsibility, is treated in the following manner:

“Item 12.PARENTAL RESPONSIBILITY

12.1.1. As part of the reforms identified in A Step Up for Our Kids, Out of Home Care Services 2015-2020 Strategy, the Director-General may delegate Parental Responsibility to the Organisation after Long Term Orders have been formalised.

12.1.2. Parental Responsibility delegation will be at the discretion of the Director General.

12.1.3. The Organisation agrees to accept Parental Responsibility in accordance with the Director General’s delegation under the Act.

12.1.4. Both parties note that the transfer of case management responsibility is different to delegating a legislative status of Parental Responsibility.

12.1.5. The Organisation acknowledges that:

a. the Director General has the ultimate discretion, having regard to the Act, and a decision of the Director General on any maner concerning Parental Responsibility and the Child or Young Person prevails;

b. the Director General can intervene at any time, having regard to the safety and well being of the Child or Young Person, and can override any decision of the Organisation in relation to Parental Responsibility.

12.1.6. Any practice and policy of the Organisation will reflect any changes made to the Act during the Term of this Agreement.”

[79] The Commission was informed that the Director-General had not delegated parental responsibility to Barnardos Australia under this provision.

[80] Schedule 4 provides the funding amounts for the ACT Agreement and this includes a flat fee per placement of the child or young person and other fees, with Barnardos Australia being responsible for all costs incurred in the provision of the services to children and young people. 32

Foster Carers Agreement

[81] During the course of the proceedings, it emerged that Mr and Ms Legge entered into a Foster Care Agreement (FC Agreement) with Barnardos Australia. 33 The FC Agreement was signed in October 2017 and states the following as its philosophy of care:

“ACT Together is a consortium of agencies who are working together to provide all out of home care services across the Continuum of Care. The agencies under the consortium are Barnardos (Lead Agency), Ozchild, Australian Childhood Foundation, Relationship Australia and Premier Youthworks. Under ACT Together a child in foster care may be case managed by Barnardos or Ozchild. Your approval to care will be issued by Barnardos, who as the lead agency have the delegation to approve review and renew the approval of carers.

The principles of our program are that:

•  The best interest of the child or young person is paramount in all decision making.

•  Children and young people in foster care have a right to stable, attuned and high quality care to assist them to heal from their previous experiences of harm, and to enable best possible developmental outcomes.

•  Foster care is a service focused on the needs of children and young people and should ultimately result in securing a permanent plan for the child and young person, either to return home permanently or to reside with a permanent family.

ACT Together Foster Care considers carers to be crucial members of the Care Team, without whom it would not be possible to meet the needs of the children and young people who are referred to the program.” (emphasis in original)

[82] Under the FC Agreement, Barnardos Australia has agreed to undertake a number of functions including to:

•  Share information about the child and family background;

•  Have an allocated care worker for each child;

•  Maintain confidentiality;

•  Facilitate contact with birth parents;

•  Support the placement through the provision of ongoing carer training, case planning, assessment of needs and clinical support services for the children and young persons and the carer;

•  Make regular payments to the carer at the agreed rate and timely reimbursements for approved out of pocket expenses;

•  Have a case worker meet regularly all members of the foster care family;

•  Undertake, at a minimum, annual carer reviews; and

•  Provide respite care for foster carers with continuing payments where that respite does not exceed 7 days.

[83] Under the FC Agreement, the carers (Mr and Mrs Legge) agree to:

•  Respect confidentiality and share information only as appropriate;

•  Commit to the daily care responsibilities set out in Attachment A;

•  Work cooperatively as part of the child/young person’s care team and to accept clinical guidance;

•  Respect that legal parental responsibility lies with the Director-General (or is shared by the Director-General and birth parents);

•  Respect that Long-Term Care Responsibilities are delegated by the Director-General to the ACT Care and Protection Officers, and that carers seek permission for all decisions relating to Long-Term Care Responsibility;

•  Keep notes of important events, contact visits and unusual incidents for the child/young person’s case file;

•  Maintain, in consultation with the caseworker, contact with the child/young person’s school, including attending parent-teacher nights and other activities;

•  Facilitate the child/young person’s access to medical and dental treatments as appropriate, including use of the child/young person’s Medicare card for general medical appointments;

•  Discuss specialist treatments proposed for the child/young person with the caseworker, who can then seek treatment approval from Care and Protection Services; and

•  Maintain immunisation, health and dental records for the child/young person and provide such information to the caseworker.

[84] In terms of carer payments and related matters, the FC Agreement provides as follows:

“CARER PAYMENTS

Carers are paid an allowance by Barnardos that is intended to contribute to the costs involved in caring for a child/young person. It is intended to cover costs such as food, shelter, relevant household maintenance expenses, petrol and travel expenses, clothing, general medical needs, pocket money and recreation. Please refer to the Contingency guidelines in your Carer Handbook for further information. The allowance is payable only for the period of time when the child/young person is in your care.

All expenditure by carers to be claimed for reimbursement must be pre-approved and confirmed by the caseworker prior to purchase.

VOLUNTEER STATUS FOR TAXATION PURPOSES

According to the Australian Taxation Office, a foster carer is considered a volunteer for taxation purposes. The carer allowance is not taxed and is not considered taxable income.

As a volunteer, carers are not eligible for such conditions as sick leave, annual leave or superannuation.

It is recommended that carers seek independent financial advice regarding taxation matters as our program does not offer financial advice on this matter.”

[85] As to insurance, the FC Agreement provides as follows:

“INSURANCE

As volunteers, carers are covered under the ACT Together Public Liability Policy for injury to person or property and by the Carer Insurance held by Care and Protection Services. It is also recommended that carers have full property and household insurance for themselves. It is a requirement that any vehicle used to transport a child/young person in care is comprehensively insured.”

[86] The FC Agreement refers to an internal Appeal/Complaints process.

[87] Attachment A of the FC Agreement represents a guide to the different aspects of parental responsibility and what they mean for the Foster Carer. The daily care responsibilities that rest with the Foster Carer are stated as follows:

“The practical arrangements and decisions a person with daily care responsibility may make includes:

•  Bedtime arrangements

•  Pocket money

•  Meals

•  Hair-cuts (not changing the identity of the child)

•  Whether make-up is worn

•  Clothing

•  Babysitting

•  Short trips away providing that pre-existing contact arrangements are maintained

•  Routine visits to, and treatment [by] a health professional (not including surgery)

•  Routine visits to and treatments by a dentist, including minor surgery e.g. filling or extraction

•  Who a child or young person associates with and how, when and where they do it e.g. school friends

•  Providing school lunches and uniforms

•  Overseeing and supporting a child or young person’s day-to-day education progress

•  Giving consent for school excursions/camps

•  Permission to join and attend recreation activities

•  Monitoring and supporting the emotional development of the child or young person in care

•  Deciding an appropriate transport for a child or young person to and from school e.g. bus or car”

[88] Long-term care responsibilities rest with others who have the parental responsibility and are stated in Attachment A as follows:

“The responsibility for the long-term care of a child or young person will usually rest with Care and Protection Services and anyone else who may share this aspect of parental responsibility with the Director-General.

This may include decision on:

•  Managing the child or young person’s financial affairs or property

•  Religion

•  Cultural traditions

•  Deciding the child or young person’s type of schooling or employment

•  Consent to health care treatment that involves surgery

•  Arranging a passport for international transport

•  Body piercing (including ear piercing)

•  Immunisation”

The Carer Handbook

[89] Mr Legge was provided with a Carer Handbook by Barnardos Australia. The handbook is a joint publication of the ACT Government, ACT Together and Carers ACT. The handbook sets out detailed information and the context in which foster and kinship care is provided and states:

“The purpose of this handbook is to provide you with information to support you in your important role as a kinship or foster carer. It specifically relates to caring for a child who is involved with CYPS and/or ACT Together in the Australian Capital Territory (ACT).

By providing this information, we aim to help you be informed about your role and responsibilities in caring for a child, and where to go for help and support.

Specifically, this handbook will tell you about:

•  what to expect as a kinship or foster carer

•  how the out of home care system works in the ACT

•  caring for a child who has experienced trauma

•  different aspects of care – such as finance, decision-making, health, culture, education, relationships, transition and much, much more

•  working with CYPS and ACT Together case managers and staff

•  the importance of looking after yourself

•  the supports and services available to you and the child in your care to make life easier.”

[90] The handbook also outlines in some detail information about the expectations and requirements placed upon carers in relation to matters such as:

•  How to get started;

•  What is expected of a carer in terms of approvals and clearances to work with children, home safety, drugs and alcohol, dealing with poor behaviour, and various safety issues;

•  Caring for children and young persons with special or different needs;

•  Financial matters including the expenses that will, may or will not be paid for;

•  Decisions that can and can’t be made by carers;

•  Health and education matters; and

•  Legal issues.

4.2 Is Mr Legge a worker?

[91] I accept that Mr Legge is not an employee of Barnardos Australia, including as an outworker, and that he is not a subcontractor. Some of the necessary elements are not present. Further, the true nature of the relationship and the objective intention of the parties is that Mr Legge is to be a volunteer in his capacity as a Foster Carer.

[92] However, given that Barnardos Australia is a PCBU, Mr Legge will be a worker for present purposes if I am satisfied that he is performing work in any capacity for Barnardos Australia. The category of workers in s.7(1) of the WHS Act includes that of a volunteer, and in any event, is not an exhaustive list and the elements involved; being the performance of work and that the work is done for the PCBU, are the two operative considerations in this matter.

[93] There is no contest that Mr Legge performs work in his capacity as a Foster Carer. In Balthazaar, 34 the care of a relative in the applicant’s home was considered to be work. In this case, the activities in providing for the care of the children and young people concerned and the activities relied upon by Mr Legge as being distinct from traditional parenting activities are work for present purposes.

[94] I accept that much of the context for the arrangements between Barnardos Australia and Mr Legge are the result of the CYP Act. The care of children and young people is, for sound public policy reasons, a heavily regulated environment in which the ACT Government works with private sector providers and individuals to provide that care. This regulated environment applies to both the organisations and carers involved and must impact upon the manner and requirements of the arrangements that are applied. However the regulated environment also applies to how organisations engage with and manage those carers, including those that are engaged as employees, who are clearly workers undertaking work for them. Accordingly, it is necessary to consider the arrangements applying to Mr Legge as a Foster Carer to determine whether he is working for Barnardos Australia; rather than the fact that the care is heavily regulated with the Director-General retaining (in the circumstances evident here) the statutory role as the parent or co-parent and, in effect, the regulator.

[95] I accept that Mr Legge holds an authority to be a Foster Carer because he has been approved by, or more accurately on behalf of, the Director-General. It is also the case that under the CYP Act, the foster caring is being undertaken under the auspices of the Director-General who, as set out above, continues to retain the formal parental responsibility. This includes coverage under Carer Insurance held by CYPS and the Director-General setting the requirements contained in the SPA. However, when considered in context, there are a number of features of the relationship between Barnardos Australia and Mr Legge (and Ms Legge) and the associated arrangements which indicate that the work concerned is being performed for Barnardos Australia as the PCBU within the contemplation of s.7(1) of the WHS Act and the authorities canvassed earlier in this decision. These include:

•  Barnardos Australia is not merely acting as an agent or delegate for the Director-General, and it has established and applies some criteria for approval and operational requirements beyond those expressly required by the CYP Act. These are consistent with its responsibilities under the CYP Act and the ACT Agreement and appear to be entirely appropriate, but do provide some important additional context in which the work is performed.

•  The ACT Agreement means, amongst other matters, that Barnardos Australia is providing a service to the Director-General and this is not limited to only recruiting and supporting Foster Carers (and other Carers). It has obligations to place the children and young people allocated to it by the Director-General.

•  There is an agreement between Barnardos Australia and Mr Legge, which in practice is an essential part of Mr Legge being approved as a Foster Carer who is available to be assigned a child or young person for care by Barnardos Australia.

•  Mr Legge is covered by the public liability policy of Barnardos Australia (ACT Together).

•  The carer payments and reimbursements are made and approved by Barnardos Australia from its funding. 35

•  Barnardos Australia allocates the children or young people to Mr Legge following assignment to it by or on behalf of the Director-General and it determines, having regard to a range of factors including the placement principles, any directions and the circumstances of the child or young person, what form of care is to be offered and whether Mr Legge will be involved as the Foster Carer.

•  The allocation of the children or young people to Mr Legge as a Foster Carer is undertaken to meet its obligations under the CYP Act and the ACT Agreement and Mr Legge’s role in that regard is in practice to work along with the Case Managers and Barnardos Australia more generally to assist it to meet those obligations.

•  In that sense, although the children and young adults, the community and the Director-General, and Mr Legge (altruistically) all gain, Barnardos Australia is a significant beneficiary of the work undertaken by Mr Legge and importantly, it is through the relationship between Barnardos Australia and Mr Legge (established in part by the FC Agreement) that the work is performed. 36

[96] All of this is to be contrasted with the circumstances in Balthazaar as relied upon by Barnardos Australia where the Commission found, in effect, that Mr Balthazaar received a social security (carer) payment in accordance with the Social Security Act 1991 to assist him to care for his child who suffers from illness. The carer payment was an income support payment made fortnightly for people who are unable to support themselves due the demands of their caring role and there was no sense in which the care work was undertaken as a service for the relevant Department. Mr Balthazaar sought a payment to assist with his caring responsibilities and qualified for such under the legislation. 37

[97] The approach I have adopted is consistent with the evident statutory intention to provide for a wide scope of coverage for the stop-bullying jurisdiction and accords with the application of the laws as set out earlier in this decision, including the notion of an applicant worker being “at work” and the power to make Orders.

[98] Further, this outcome sits well with the nature of the WHS legislation where the definition is founded, and supports the view that Mr Legge should be considered to be a worker for present purposes. The concept that Barnardos Australia should owe the relevant WHS duties to Mr Legge and Mr Legge should owe the relevant WHS duties to Barnardos Australia (in each case with Mr Legge as a worker but not an employee) appears to sit comfortably with the nature and terms of the arrangements applying between them including the degree of control 38 and influence reasonably exercised by Barnardos Australia – both under delegated powers and in its own right.

5. Conclusions and further progress of the matter

[99] Having regard to all of the relevant circumstances of this matter, I consider that Mr Legge is performing work in his capacity as a volunteer for Barnardos Australia in its role as a PCBU. Accordingly, Mr Legge is a worker within the meaning of s.7(1) of the WHS Act and as result, is a worker for the purposes of s.789FC(2) of the FW Act. Given this finding, the application is properly before the Commission and I will 39 allocate the matter to a locally-based Member of the Commission to deal with the merits, either by way of conciliation or determination.

[100] In conclusion, I would emphasise that I have considered this issue only in the context of Mr Legge, and his relationship with Barnardos Australia under the auspices of the CYP Act and related arrangements and have not determined, as a matter of principle, whether Foster Carers are workers more generally. The statutory, contractual and practical circumstances of this case have been important and each case must be considered in its own jurisdictional context. The finding that Mr Legge is a worker for present purposes should not be confused with a finding that he is employed by Barnardos Australia or is anything other than a volunteer worker. I have also not determined whether there is any merit to the substantive application and consideration of that awaits the Commission.

COMMISSIONER

Appearances:

B Legge, the Applicant, on his own behalf, with support from R Legge.

C Fesel and A Barwick of WilliamsonBarwick (with permission), with P Hood and S Dolan, for Barnardos Australia.

Hearing details:

2019

Adelaide, Canberra and Sydney (by video link)

26 August.

Final written submissions:

Barnardos Australia – 28 August 2019.

Mr Legge – 30 August 2019.

Printed by authority of the Commonwealth Government Printer

<PR711626>

1 See GC [2015] FWC 6988 and Amie Mac v Bank of Queensland Limited and others [2015] FWC 744.

2 I leave aside the apparent capacity to make interim orders under s.589 of the FW Act.

 3   [2014] FWCFB 9227.

 4   See Churches and Ors v Jackson & Woods [2016] FWCFB 2367.

 5   See also South Eastern Sydney Local Health District v Lal [2019] FWCFB 1475.

 6   But does not include a member of the Defence Force.

 7   [2019] FWCFB 1314.

 8   [2014] FWC 2076.

 9   See also the Explanatory Memorandum to the Work Health and Safety Bill 2011 at 32 and 33.

 10   It engages employees as well as volunteers.

 11   Macquarie Dictionary.

 12   Mr Legge’s written submissions at 22.

 13   Mr Legge’s written submissions at 31, 34 to 36.

 14   Exhibit A1.

 15   Referring to Nield v Mathieson [2014] FCAFC 74 per Tracey, Bromberg & Mortimer JJ.

 16   Citing Stevens v. Brodribb Sawmilling 160 C.L.R. at p.24.

 17   Citing Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465.

 18   Citing Balthazaar.

 19   Exhibit R2.

 20   Annexure to the Supplementary submissions of Barnardos Australia, 28 August 2019.

 21   Exhibit R3.

 22   Annexure to Supplementary submissions of Barnardos Australia, 28 August 2019.

 23   Annexure to Supplementary submissions of Barnardos Australia, 28 August 2019.

 24   Section 7 of the CYP Act.

 25   Sections 8, 9 and 10 of the CYP Act.

 26   Section 23 of the CYP Act.

 27   In the form of a delegation to a responsible officer of ACT Together.

 28   Instrument of Delegation - N12017, as contained in the annexure to Supplementary submissions of Barnardos Australia, 28 August 2019.

 29   Division 11.1.2 of the CYP Act.

 30   Section 815 of the CYP Act.

 31   Clause 2.4.8 of the ACT Agreement.

 32   Item 1.1.5 of Schedule 4.

 33   As lead agency for ACT Together.

 34   At [21].

 35   These payments would appear to be consistent with the definition of a volunteer under s.4 of the WHS Act.

 36   See also Bibawi at [19] and [20].

 37   Balthazaar at [22] to [26].

 38   This control, whilst being short of the nature of control evident in an employment relationship, is significant and relevant to the assessment of whether Mr Legge is performing work in any capacity for Barnardos Australia.

 39   In my capacity as National Practice Leader.