Australia: God's Work or Fair Work?

In trying to keep generally up to speed with the various submissions that are being made to the eminent Panel charged with reviewing the Fair Work Act 2009 (Cth) ("the FW Act") I noticed that the Church of Scientology has put in a one page submission (which is a lot more inviting to read than others, such as AiGroup, which goes for 180 odd pages).

The submission essentially says that the Church takes no issue with the concept of a "fair day's work for a fair day's pay" but that the FW Act and other industrial laws should not be applied to people who do work as volunteers, particularly those who do so for a church as part of their commitment to its mission.

Of course this issue is a bit "raw" for the Church as last year it was investigated by the Fair Work Ombudsman in relation to whether some of those person who worked for it as "volunteers" were truly employees who were not paid statutory and/or award entitlements.

They are not the first Church to have to face investigation or suit over such matters, and probably will not be the last... I do not make any judgment or want to make any comment about the situation in the Church of Scientology, nor should anyone else who does not know all the facts.

But as I have acted for very many "not for profit" agencies, including church entities throughout my professional career I do believe I can make some general observations about what I have found to be a vexing aspect of employment law.

First, one of the signal features of Australian employment law is a strong judicial attitude that says "parties cannot agree to call a thing something it is not, and expect everyone else to accept their agreement, if in reality the thing is something else".

The usual example is that parties cannot agree that the worker is a "contractor", not an employee, when the reality of the relationship is that of employer/employee.

So too with volunteers – a not for profit agency and a person performing work for it cannot agree that the worker is a "volunteer" when as a matter of legal analysis the person is an employee.

Well, they can agree of course but if the agreement comes before a court their agreement will be irrelevant if the court finds on the evidence that the "volunteer" was really an employee.

Second, whenever this issue arises in a particular case the first question is NOT is the volunteer really an employee.

The first question is: did the parties intend to enter into legal relations?

Or to put it more directly – did the parties intend, from what they said and what they did, and whatever they wrote down, that their agreement would be legally enforceable (ie that courts could enforce its terms). If they did not then that is the end of the matter (generally speaking).

If they did, then that means that they may have made a contract (ie offer, acceptance, consideration and clear enough terms for a court to enforce So, whether they have made a contract is the second question.

If the first two questions are answered yes, then we get to the critical question of what type of contract is it – is it employment or is it something else?

Third, if there is found to be an intention to enter into legal relations in a situation of a person performing personal services for another, and a contract is found to exist, then it is usually going to be found to be a contract of employment.

Fourth, over the years the idea that a minister of religion is presumed to be employed by God and not in an earthly employment relationship has steadily changed.

The critical case in this regard being Ermogenous v the Greek Orthodox Community of SA Inc (2002) 209 CLR 95, where the High Court ruled quite emphatically that there was no presumption that a minister of religion was not an employee – it depends on all the circumstances of each individual case.

Fifth, churches and entities related to churches have to be extremely careful now in relation to church "workers" who they might think of as being "volunteers".

Just because people wish to do work as part of a spiritual commitment does not mean that automatically they are NOT employees. In fact I would say that with such persons there is a real prospect in many cases that what might look like a "volunteer" is really an employee.

Church entities generally speaking would have no trouble with the precepts of the Fair Work Act, with its aims inter alia of fostering fairness in the workplace and prescribing wages and conditions that are a fair safety net for employees. Whether those precepts should not be applicable to particular "workers" in a church setting because of their faith based commitment is potentially controversial.

While every case must turn on its own facts there needs to be a strong basis established before anyone should regard a "church worker" as not an employee, and particularly relevant factors are:

  • Is the worker a member of an established religious order and recognised by the order as being part of its community? (if yes, indicates volunteer);
  • Does the worker get paid for the actual work that he or she does? (as distinct from getting a regular "stipend" -- ie a payment unrelated to work but simply to meet basic human needs) (if yes then indicates employment);
  • Does the worker get paid leave of absence from work? (if yes indicates employment);
  • Is there a written document specifying obligations of work such as work to be performed or hours worked (if yes indicates employment);
  • Is there an obligation to attend for work, with sanctions for disobedience? (if yes then indicates employment);
  • Is the work being performed work for a church itself or for a legal entity? (such as a company limited by guarantee or an incorporated association) controlled by a church (if the former indicates volunteer, if the latter maybe employee);
  • Is the work being done work that is not in essence "religious"? – ie working in a church run nursing home a church school ( maybe employment).

All the factors will have to be weighed up in every case.

But I would have to say that the Church of Scientology is unlikely to get a recommendation on this point from the Panel which would satisfy them.

  • The law is not simple but the issue is not simple;
  • courts strive to strike the right balance and that has to depend on each case, as the High Court so rightly decided in Ermogenous.8 March 2012

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.