An ACT foster carer has been deemed a worker by the Fair Work Commission paving the way for a stop-bullying order against Barnardos case managers to proceed.
Foster carer Benjamin Legge will be allowed to have a stop-bullying order heard by the Fair Work Commission after Commissioner Peter Hampton determined being a foster carer meant he was a volunteer worker for Barnardos.
Commission documents said Mr Legge contends he was subject to workplace bullying conduct by one or more of the case managers and other managers who work for Barnardos Australia.
Barnardos, the lead agency in the ACT Together consortium delivering foster care and out of home care to children in Canberra, denies the claims.
In order to have the bullying claims heard by the Fair Work Commission, Mr Hampton first had to decide if Mr Legge was deemed a Barnardos worker under the legislation and therefore eligible to make the application.
A 35-page decision handed down on Wednesday by the Fair Work Commission showed Barnardos tried to argue the man was not considered a worker.
"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," the documents said.
"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."
Barnardos said that foster carers like Mr Legge performed valuable work on a voluntary basis, but did not provide work for Barnardos.
But the decision said Barnardos is a "significant beneficiary" of the work undertaken by Mr Legge.
"The allocation of children or young people to Mr Legge as a foster carer is undertaken to meet its obligations under the Child and Young People 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," the decision read.
"The concept that Barnardos Australia should owe the relevant work health and safety duties to Mr Legge and Mr Legge should owe the relevant work health and safety 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 and influence reasonably exercised by Barnardos Australia - both under delegated powers and in its own right."
The commissioner Mr Hampton found Mr Legge was performing work in his capacity as a volunteer for Barnardos. Mr Hampton said he had considered the issue only in the context of Mr Legge's case, and had not determined whether foster carers were workers more generally.
"Each case must be considered in its own jurisdictional context," Mr Hampton said.
Documents said Mr Legge and his partner had been a foster carers since 2017.