The Employment Court has recently issued a judgment, Courage v Attorney General [2022] NZEmpC 77 which involved a claim by three former members of the Gloriavale Christian Community. The applicants argued that, from the age of six until their departure from the community, they were required to “work long hours, and under harsh conditions” in Gloriavale businesses. The applicants claimed that they were employees.
The work carried out by the applicants included collecting moss, farm work, and work in a honey factory. The applicants argued that, as a result of the control exercised by Gloriavale’s commercial enterprises, they were in an employment relationship with Gloriavale. By contrast, Gloriavale argued that the plaintiffs were not employees and they did not enter into any contract for services. Gloriavale argued that the work carried out was in the nature of chores, and subsequently work experience, and that they were simply contributing to the community voluntarily.
Whether a person is in an employment relationship depends on the “real nature” of the relationship. That means a Court will go beyond the contractual relationship (if any) between the parties and consider “all relevant matters, including any matters that indicate the intention of the parties.” That includes looking at the levels of integration and control exercised by the putative employer over the work, who is benefitting from the work, and the economic reality of the relationship. Chief Employment Court Judge, Judge Inglis, noted that:
“It will be apparent that I do not accept the Gloriavale defendants’ characterisation of work undertaking in this period of the plaintiffs’ lives as “chores” which might normally be required of a child by their caregiver … it was work as work is commonly understood. It was laborious, often dangerous, required physical exertion over extended periods of time and it was for commercial benefit… The Plaintiffs’ parents were not involved in any meaningful way in decisions about whether the work took place, how long it took place for, where it took place, or when their children would be required to work.”
The New Zealand economy is made up in no small part with family businesses: corner dairies, neighbourhood restaurants, and farms, to name a few. Many of us grew up spending holidays helping to man the front desk or till, or pulling on our Red-Bands to pitch in with milking or mucking out. The situation in Courage v Attorney General went well beyond that. Chief Judge Inglis found that the plaintiffs had been fully integrated into the business structure of the Gloriavale enterprises and the plaintiffs carried out work for reward; in this case food, shelter, and a continued place within the Gloriavale community.
There is a distinction between the work carried out by the applicants in Courage v Attorney General and the type of pitching-in many of us did during our summer holidays. However, characterising relationships – employment vs volunteering – can be a nuanced thing. The Court did not deal with children helping out in their family enterprises so it remains to be seen whether Courage v Attorney General would capture such a situation but it is important to approach any volunteering situation (family or not) with caution.
