Fair Work Commission tells minister Hedley Fihaki – you are not an employee, but Uniting Church could have sacked you even if you were

Hedley Fihaki

Anglican ministers and Catholic Priests have NOT been historically regarded as “employees” of their churches. Now Uniting Church ministers have been found to fall into the same group – people who have a “spiritual covenant” or hold “office” in a church but are not employees. Former UCA minister Hedley Fihaki has led his church members from the Mooloolaba Christian Church, a Uniting Church congregation, to a new home as Faith Church in the Anglican breakaway Diocese of the Southern Cross but he launched an unfair dismissal case in the Fair Work Commission (FWC) as he left the UCA. His ministerial orders were removed, and his local church was dissolved. He has now lost his FWC case, leaving an interesting precedent behind.

The Decision from the FWC outlines at length the primary reason for Fihaki losing the unfair dismissal case – not being an employee – but adds that his “publicly departed from and significantly recanted the teachings of the UCA in his statements to the media” meant the denomination could dismiss him anyway.

The main part of the 35-page FWC decision goes through the reasons why Fihaki was not an employee of the Uniting Church. Lawyers for the respondent, the Queensland Synod of the UCA, succeeded in their argument that the “Applicant [Fihaki] held a covenantal and spiritual position as a Minister of the Word, rather than an employment relationship with the Church, and therefore is not eligible as a person protected from unfair dismissal.”

Fihaki, who represented himself, argued that his “letter of call” amounted to an employment contract. The letter of call set out a stipend, superannuation, provision of accommodation, sickness benefit and leave. But it also stated it was not an employment contract.

The synod’s lawyers pointed to that line and another quote,”‘A call to a placement gives effect to the perceived will of God as expressed by a decision of a council or councils of the Church and by the response of the Minister concerned. It is an invitation into a covenant between God, the congregation and the Minister.

The relationship, in practical terms, was complicated. Fihaki’s pay was taxable and came from the Uniting Church Property trust trading as the Queensland Synod of the UCA. (In the UCA, Synod means a state branch.) He was paid at an hourly rate of $28.32 plus superannuation, and the Queensland Synod was identified on his payslips as his “employer.” The Queensland Synod had identified him as an employee to receive jobkeeper during Covid.

But after analysing cases from the Methodists and Catholics in the United Kingdom and the ‘Knowles’ NSW case of an Anglican priest in Bathurst diocese, the FWC concentrated on ‘Ermogenous,’ a Greek Orthodox case in SA that went to the High Court and fitted the Fihaki case most exactly.

There were two issues: “Indicia” (indications) of the relationship and the place of unincorporated associations. The use of “employer” was not sufficient to create a legal contract. In ‘Ermogenous’ “The intention to create a legal contract could not be presumed”. Whether a contract of employment had been created depended on an assessment of the particular circumstances of the church organisation.

Here the structure, or possibly lack of structure, of the UCA came into play. The UCA lawyers set out that the UCA has two arms, a series of incorporated associations and the property trust entity, which has employees – but they are the people employed in the Synod office.

The FWC accepted that local churches (called congregations in the UCA) and other committees are “unincorporated associations and as such unable to enter into contracts.”

Fihaki’s “Letter of Call was issued by the Church, not the Property Trust.” And “The Property Trust has standing to engage in the commercial matters and as such performs the function of paying the stipend to Ministers, but there is no other evidence of any contract between those parties.”

The Property Trust made payments on behalf of a series of incorporated associations.

A Press release from then treasurer Josh Frydenburg removed the Jobkeeper argument – “Changes will allow JobKeeper Payments to be made to religious institutions in respect of religious practitioners (with the exception of those that are students only), recognising that many religious practitioners are not ‘employees’ of their religious institutions”.

The second leg of the case, if the UCA had been Fihaki’s employer, turned on whether his dismissal was harsh or unreasonable. The Other Cheek covered the Fihaki case from Fihaki’s point of view, his list of charges with a response from the UCA Queensland leader Andrew Gunton.

Fihaki was head of the Assembly of Confessing Congregations (ACC), the most outspoken of several evangelical networks in the UCA. The ACC was critical of the UCA’s move towards progressive Christianity, including same-sex marriage. The FWC summary of public statements by Fihaki leading to complaints to UCA councils is not contested. The ACC is in the process of winding itself up.

Fihaki points out – responding to the Courier Mail account of the case, that “Fact: 310 complaints against me from the UCA. Not one from the congregation. All from the hierarchy.”

The FWC summary says, “On this basis, multiple complaints were made by his congregation (his putative employer) to the UCA Synod Committees regarding this and 23 breaches of the UCA Code of Ethics and Ministry Practice were made out.”

The timeline above this comment does not mention complaints from Mooloolaba but includes a record of complaints from the Sunnybank church council. Sunnybank is the second of two churches dissolved by Presbyteries (regional committees) of the UCA in similar circumstances.

If Fihaki is right, and this part of his account has not been publically contradicted before, the FWC may have their facts wrong.

But on the more substantive matter, the FWC has endorsed the view of the Uniting Church that Fihaki “publicly departed from and significantly recanted the teachings of the UCA in his statements to the media” and that this was grounds for dismissal.


This case extends the status of ministers serving churches in “offices” or in a “spiritual covenant”, creating a precedent for any unincorporated local churches. This will include most Baptists, many Presbyterians, as well as Anglicans, Orthodox and Catholics. Junior or assistant ministers, youth workers and office staff are also particularly affected. The absence of an employment mechanism limits their rights to respond if they are mistreated or dismissed.

I remember an instance of an Anglican parish council on Sydney’s north Shore trying to draw up an employment contract for their minister. They wanted the standard rules of business to apply; they wanted to act as a board. But the status of minister means that the local church can not do this.

Churches that own their property, such as Pentecostals, independent Baptists, some of the Fellowship of Independent Evangelical Churches or the Westminister Presbyterians in WA, may fall outside this ruling as they are clearly able to enter into legal contracts; they did that when they bought a building.

The Fihaki case has implications within the UCA. This case can be taken as justifying the dismissal of Fihaki – procedurally. The FWC is not trying to work out if the doctrinal stance of the UCA is Biblical. That would breach freedom of religion, surely.

But the grounds of the Fihaki dismissal were accepted by the FWC, which amounts to publically disagreeing – in strong terms – with the denomination’s decision to have same-sex marriage. But the Fihaki case establishes that only non-public dissent over same-sex marriage is allowable in the UCA. But going to the media with dissent from the church’s stance, at least repeatedly, is fraught.

On the other hand, the ACC had condemned the UCA as “apostate”. As ACC leader the late Max Champion described it in his inaugural sermon, there had been anger at the use of that word since the ACC was founded in 2006. However, the FWC is an odd venue to determine whether divergent views can co-exist in a church.

Hedley Fihaki has moved on from the UCA. The FWC decision won’t affect him much, but the continuing legal status of churches as bodies that hire people without establishing employment contracts means that limbo – the place where Catholics used to teach existed as a grey zone between Heaven and Hell – still exists for church employees.


  1. There is another confusion here. Religious Practitioners are treated as employees for tax purposes, including PAYG and FBT.

    But it now seems from this FWC determination, that unincorporated bodies (such as many UCA and Anglican and even Presbyterian local churches) cannot sustain an employee relationship at all.

    Thus what the ATO considers and what the FWC considers is now very confusing to say the least.

    • It might be confusing, but the FWC is clear that to set up an employment contract more is needed, a legal entity that one contracts with for starters. I am surprised that the tradition of a minister holding an “office” continues, but it seems to be well-established in law.

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