There is no doubt that the six former Gloriavale women who sued their former religious community worked extremely hard under punishing conditions for years on end.
The women left Gloriavale and made a complaint to the Labour Inspector. The Labour Inspectorate investigated their complaints, it concluded that the women were not employees and that the Inspectorate had no power to take any action on the womens’ behalf.
While the case has raised a number of interesting legal issues, it is not surprising that the Chief Judge of the Employment Court has taken a contrary view and has declared that the women were employees during their working time there.
Gloriavale denied that the women were employees. They claimed that the womens’ work was conducted on a wholly voluntary basis as an expression of religious commitment to live in a communal setting based on shared values, guided by the King James Version of the Bible. They argued that a finding of an employment relationship would be incompatible with the true religious nature of the relationship between the women and Gloriavale.
The Chief Judge instead found that the women were taught from birth that they were to submit to male leadership in all aspects of their life and were primed to work in the community's domestic teams. The women carried out work from a young age, which incrementally increased as they got older. The women progressed to fulltime work preparing food, cooking, cleaning and doing the laundry for Gloriavale's 600 members as soon as they left the community school, around the age of 15.
In a typical week, the Chief Judge noted, the female workforce in the kitchen produced more than 11,000 meals, while laundry workers washed at least 17,000 items. "The evidence clearly established that the work required to produce these outcomes was unrelenting, grinding, hard, and physically and psychologically demanding". Chief Judge Inglis said "I have no difficulty concluding that, when working on the teams, the plaintiffs were not carrying out work for their individual families or some notional big family."
Gloriavale argued that the women were volunteers and a declaration that the women were employees would up-end its communal economy and violate its members' deeply-held religious beliefs. The Employment Relations Act excludes certain categories of worker from the definition of “employee”, including volunteers. In order to fall within the excluded category of volunteer a worker must have no expectation of reward for their work and receive no reward for their work.
The Chief Judge concluded that, in exchange for their work, the women expected to be rewarded for their work. They would be permitted to remain in the community with their family and friends. They would also expect to receive food, shelter, clothing, religious support and guidance; and would receive the promise of spiritual redemption (as against the threat of eternal damnation if they left). The Chief Judge said that it became apparent that the Gloriavale leaders' concern about a finding of employment status was less about incompatibility with religious belief and more about its’ financial capacity to pay for the work the women did.
The Chief Judge also did not accept that a finding that the women were employees would be incompatible with the community’s chosen way of life and/or their rights under the New Zealand Bill of Rights Act. She said freedom of religion is subject to our general laws, including employment law. On the evidence, the Chief Judge noted that some members of the community (including a number of males, teachers and midwives) received payment for their work and this did not appear to raise concerns of the sort that were said to arise if the women had been paid. Nor did the Chief Judge consider that ability to pay was a relevant factor in determining employment status.
Given the findings, the declaration that the women are employees raises the interesting issue of where to next. Obviously, there is the issue of minimum employment standards; minimum wages, statutory entitlements such as annual leave and sick leave and employment protection in the sense of personal grievances and/or discrimination issues such as unpaid workers under the Human Rights Act.
In responding to the judgment, Gloriavale quickly said that they believed the decision is wrong, and they intend to appeal. "The decision has significant and wide-ranging implications beyond just our community. This includes how New Zealand faith-based communities, iwi and whanau choose to live and structure their household responsibilities."
This judgment follows a similar ruling by the Chief Judge last year, in which she found three former Gloriavale men were employees from the age of six, working long hours on farms and in factories of the community. The law in relation to who may be an employee is being given a real shake out in our courts. The Court of Appeal has also recently granted Uber the right to appeal the Employment Court decision that four Uber drivers were employees and not contractors. Read more...