Application for declaration of employment status – Employment Relations Act 2000 – s 6(1)(c) exception for volunteer – plaintiffs expected to be and were rewarded for their work – plaintiffs not volunteers – “real nature” test – control and integration – high level of direction and control in work – real nature of relationship is one of employment – declaration of employment status – employment status not incompatible with freedom of religion
Pilgrim & Ors v Attorney-General & Ors  NZEmpC 105 per Chief Judge Inglis.
Gloriavale is a Christian community set in an isolated location on the West Coast of the South Island, with limited contact with the outside world. There are approximately 82 families and 600 individuals living at the community.
The community is led by an “overseeing shepherd”, who is assisted by a group of leaders. They are known collectively as the shepherds and servants. Each shepherd and servant is selected by the overseeing shepherd.
Like many of their parents, plaintiffs Serenity Pilgrim, Pearl Valor, Rose Standtrue, Virginia Courage, Anna Courage and Crystal Loyal were born and raised in Gloriavale. From a young age, each of them worked in the community, which eventually progressed to full-time work around the age of 15. They cooked, cleaned, washed, and prepared food, all of which went unpaid. Each plaintiff was assigned to a team. As they were born female, the women were not given a choice about whether or not they worked on the teams.
The plaintiffs eventually left Gloriavale and complained to a Labour Inspector, who concluded they were not employees. The plaintiffs then sought a declaration of employment status from the court for the time they were working on the teams.
The defendants, Gloriavale, denied the plaintiffs were employees, claiming their work was voluntary as an expression of religious commitment.
Applicable principles: Employment relationship – employment status – voluntary work – receipt of reward and benefits – real nature of employment relationship – control and integration.
Held: All six plaintiffs were employees while working on the teams during their time at the Gloriavale Christian Community.
Section 6(1)(c) of the Employment Relations Act 2000 allows for volunteers to be excluded from the definition of employees, provided the work has no expectation of reward and no reward was received for their work.
In exchange for their work, the plaintiffs were permitted to remain in the community and continue to lead a life they were familiar with. Further, the plaintiffs would receive food, shelter, clothing and religious support and guidance. As such, Chief Judge Inglis found the plaintiffs did expect to be rewarded for their work and they did receive these rewards in exchange for their work.
Chief Judge Inglis then turned to consider whether the plaintiffs were employees while working on the teams.
The Chief Judge noted the case did not fall squarely within the traditional indicia for the test of control, integration and economic reality. However, adopting a flexible approach and undertaking a broad contextual inquiry to ascertain the real nature of the relationship between the parties was important. To do this, it was deemed necessary to have regard to all relevant factors.
The way the relationship operated in practice was that the plaintiffs worked under the strict direction and control of the overseeing shepherd and were subordinate to him.
The work was structured and tightly managed. The plaintiffs worked strictly as required, for long hours and years on end. The nature of the work was described as akin to working in a large-scale hostel, which would otherwise be paid for.
Also relevant was the context in which the plaintiffs’ work was carried out. They were born into the community and “imbued from birth with well-accepted norms as to their place in the community and the work they would be expected to do as they grew up”, the court said.
Chief Judge Inglis found that objectively, the plaintiff’s work pointed toward the real nature of the relationship being one of employment. As such, they were granted a declaration of employment status.
This status opens up a suite of entitlements to a worker, including minimum rights to meal breaks, holidays, sick leave, minimum pay, and the ability to join a union and bargain collectively.
Chief Judge Inglis concluded that classifying the plaintiffs as employees did not infringe upon the rights to freedom of religion and the right to manifest religion under the New Zealand Bill of Rights Act 1990.
From the evidence given by Gloriavale’s leaders, the concern about a finding of employment status was less about incompatibility with religious beliefs, and more about their capacity to pay for the work the women did on the teams, the court observed. “In any event, it is notable that the evidence before the Court of the Community’s finances, including its extensive acquisition of additional property, does not sit well with a claimed lack of capacity to pay.”
Jamie Dierick is a law clerk working for an Auckland criminal defence barrister.