VERSE TWO OF THE LESSON
In Verse one published last Monday Peter noted the one page submission by the Church of Scientology to the Fair Work Review Panel seeking exemption for church “volunteers” from the Fair Work Act, and declaimed on the first two of five general principles. Now we continue with Verse Two of the Lesson…
Third, if there is found to be an intention to enter into legal relations in a situation of a person performing personal services for another, and a contract is found to exist, then it is usually going to be found to be a contract of employment.
Fourth, over the years the idea that a minister of religion is presumed to be employed by god and not in an earthly employment relationship has steadily changed; the critical case in this regard being Ermogenous v the Greek Orthodox Community of SA Inc (2002) 209 CLR 95, where the High Court ruled quite emphatically that there was no presumption that a minister of religion was not an employee – it depends on all the circumstances of each individual case.
Fifth, churches and entities related to churches have to be extremely careful now in relation to church “workers” who they might think of as being “volunteers”. Just because people wish to do work as part of a spiritual commitment does not mean that automatically they are NOT employees. In fact I would say that with such persons there is a real prospect in many cases that what might look like a “volunteer” is really an employee.
Church entities generally speaking would have no trouble with the precepts of the Fair Work Act, with its aims inter alia of fostering fairness in the workplace and prescribing wages and conditions that are a fair safety net for employees. Whether those precepts should not be applicable to particular “workers” in a church setting because of their faith-based commitment is potentially controversial. While every case must turn on its own facts there needs to be a strong basis established before anyone should regard a “church worker” as not an employee, and particularly relevant factors are:
- Is the worker a member of an established religious order and recognised by the order as being part of its community? (if yes, indicates volunteer);
- Does the worker get paid for the actual work that he or she does? (as distinct from getting a regular “stipend” – ie a payment unrelated to work but simply to meet basic human needs) (if yes, indicates employment);
- Does the worker get paid leave of absence from work? (if yes, indicates employment);
- Is there a written document specifying obligations of work such as work to be performed or hours worked? (if yes, indicates employment);
- Is there an obligation to attend for work, with sanctions for disobedience? (if yes, indicates employment);
- Is the work being performed work for a church itself or for a legal entity? (such as a company limited by guarantee or an incorporated association controlled by a church) (if the former indicates volunteer, if the latter maybe employee);
- Is the work being done work that is not in essence “religious”? – ie working in a church-run nursing home, a church school (maybe employment).
All the factors will have to be weighed up in every case. But I would have to say that the Church of Scientology is unlikely to get a recommendation on this point from the Panel which would satisfy them. The law is not simple but the issue is not simple; courts strive to strike the right balance and that has to depend on each case, as the High Court so rightly decided in Ermogenous.