Do Call Agreements and Volunteer Working Arrangements Automatically Prevent Employment Status Being Confirmed in Religious Settings?
Historically, church ministers have often been provided with call agreements, rather than employment agreements. Similarly, many churches rely on the use of volunteers on a day-to-day basis to work in a variety of different areas and either use a formal volunteer agreement or have verbal agreements with the individuals concerned. However, while many consider that a historic legal precedent exists that ensures persons in such roles will be automatically recognised as religious volunteers and therefore cannot legally be recognised as employees, the mere existence of a call or volunteer agreement between a church and an individual will not necessarily preclude an individual or group from arguing or even establishing that they should be legally protected by employment law.
More recently, it has become clear in New Zealand that the Courts are seriously willing to consider whether ministers and volunteers in certain situations could be recognised as employees.
For example, in the 2022 case of Courage v Attorney-General Sued (On Behalf of the Ministry of Business, Innovation and Employment, Labour Inspectorate) the Employment Court found that while the religious context of a relationship is relevant, it is not determinative, and a presumption against the existence of an employment relationship does not exist in relation to religious individuals carrying out the duties of the Church. In another recent case from 2017, Below v The Salvation Army New Zealand Trust, the Employment Court, in the context of a religious volunteer working relationship stated there was no presumption operating in New Zealand to restrict classes of workers from employment protection.
In both cases mentioned above, the Employment Court made it clear that automatic legal protection for religious institutions does not exist when it comes to assessing the nature of a working relationships with ministers and volunteers. Rather, the Courts will first look at the true nature of the relationship and subsequently apply a number of legal tests to determine whether the workers are actually employees. For example, the Courts will consider:
- the amount of control exercised an employee (the greater the control exercised over an individual, the more likely that person is an employee);
- whether the worker is “part and parcel” or fundamental to the organisation;
- in the event a worker was paid, how the worker was paid and the reason/intention behind payment; and
- other relevant factors relating to assisting the court to understand the true nature of the working relationship.
Consequently, while call and volunteer working agreements can be utilised by churches, we suggest that at a minimum, organisations who use such agreements, ensure they are aware of the relevant legal risks, including the possibility of their workers being recognised as employees, and consider getting advice on how the relationship will actually operate in practice and whether that will be more consistent with an employment relationship or not.