Court cases have established that religious ministers hold an “office” or have a “spiritual contract.” This has been extended to Uniting Church ministers in a recent Fair Work Commissison case. This means that normal protections for employees may not apply to ministers. But Assistant ministers, likely in their first or second job, are even more vulnerable, missing out on protection from bullying or unfair treatment at the hands of senior clergy. A legal opinion obtained by Uphold, a “union” for evangelical assistant clergy, suggests that if taken to the Fair Work Commission, they could win the right to be classified as employees with a complete set of rights.
Commenting on a report by the Sydney Anglican Standing Committee supporting that the traditional position of the assistant minister is not regarded as an employee, lawyer Michael Terceiro says, “In my opinion, the Standing Committee’s view is incorrect.”
Terciero draws on an article by Professor Neil Foster, who runs the authoritative Law and Religion Australia website. “Twenty-first century cases have shown that ministers of religion can be employees: it all depends on the facts. This means that the traditional placing of ministers of religion on a list in employment law textbooks of those offices that are not usually regarded as “employees” is now questionable. Ministers of religion are now in the same position as anyone else who wants to prove employment status: they need to point to a contract of employment and… it has been clear that the simple facts that they are “employed by God” or hold an ecclesiastical office would not on their own mean that they would not be found to be employees.”
Foster analyses the situation of ministers who are in charge of a local church or parish. We’ll call them “senior ministers”. In the case of Catholic, Anglican – and recently determined in the Hedley Fihaki case Uniting Church – these ministers are employed by religious bodies who are not incorporated.
Foster points out that the ministers in charge of a local church don’t have the typical employee attribute of being controlled in their day-to-day activities. But Terciero draws on a critical difference. Assistant ministers are controlled day-to-day by the person in charge of the local church, the senior minister. In Sydney Anglican circles, the senior minister hires assistant ministers.
If the Terciero opinion is correct assistant ministers would have access to FWC protections for unfair dismissal and bullying.
“I understand that many Assistant Ministers have had their employment terminated either for no stated reason or due to a claimed breakdown of relationship with the Senior Minister,” Terciero writes. “Neither of these reasons for terminating an employee’s employment are legitimate grounds for termination under the relevant employment legislation.”
Addressing the situation of Sydney Anglicans, the opinion suggests bullying behaviours could lead to prosecution under the NSW Work Health and Safety Act 2011. “It would be open to Assistant Ministers who could demonstrate a long-term pattern of bullying behaviour by a Senior Minister towards their employees at a particular workplace to make a formal complaint to WorkCover on the basis that the Senior Minister had breached their primary duty of care towards the employee/s.
“I also believe that members of the relevant Parish Council and Wardens may be vicariously liable for the Senior Minister’s conduct towards their employees if they failed to take adequate steps to prevent the conduct.”
In a separate piece, Professor Foster addressed the case of a Solomon Woldeyohannes, an assistant minister of an independent and incorporated church. The FWC found that he could claim unfair dismissal because he was an employee. Foster notes that because it was an independent church, it was easier for the FWC commissioner to find that Woldeyohannes was an employee. “Even given these differences, I have to say that [FWC Comissioner] Colman DP’s decision does not explore in any depth the possibility that Mr Woldeyohannes was an independent contractor rather than an employee. In this connection, it seems to have been relatively easier to characterise the relationship as one of employment where Mr Woldeyohannes was clearly under the authority of and had promised to ‘“’submit to the Zion Church, overseer Dr Beeftu, senior pastor Teklemariam and the evangelists, elders, ministers and the whole congregation.’”
A reader has pointed out to The Other Cheek that some employment legislation has specific carve-outs for religious ministers, allowing them to be included in the rules even though they are not regarded as employees.
These include the tax act: for example, this ruling by the ATO gives ministers exempt and non-reportable benefits under section 57 of the Fringe Benefits Tax Assessment Act 1986 (FBTAA). But this ATO guidance clarifies that those paying “religious practitioners” must withhold tax.
There are special rules for ministers of religion under social security law. As previously reported, Court cases have applied workers’ compensation to ministers of religion.
Where these rules capture ministers of religion for tax and matters like long service leave or superannuation, whether they are employees or not, they and the body paying them must obey the rules.