Bui Nguyen v Vietnamese Evangelical Church in Australia Melbourne Incorporated

[2020] FWC 5074

[2020] FWC 5074

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.789GV - Application to deal with a dispute under Part 6-4C

Bui Nguyen
v
Vietnamese Evangelical Church in Australia Melbourne Incorporated
(C2020/6722)

COMMISSIONER BISSETT MELBOURNE, 21 SEPTEMBER 2020

Application to deal with a dispute.

[1] Bui Thanh Tuan (Tommy) Nguyen is a Pastor in the Vietnamese Evangelical Church of Australia (VECA) Melbourne. He is referred to in this decision as Pastor Tommy.

[2] On 31 August 2020 Pastor Tommy was given a “Notice of intention to give a JobKeeper enabling stand down direction” (Notice of intention). The stand down was to come into effect on Friday 4 September 2020. That Notice of intention was signed by Mr Ve Nguyen “On behalf of the deacon Committee”. The Notice of intention invited Pastor Tommy for any feedback on the intent to stand him down.

[3] Pastor Tommy provided a response to the Notice of intention in which he said:

According to the VECA National Executive Committee and VECA Melbourne Church, you are not the current church committee secretary. For this reason, I do not accept your authority over my employment.

…

From the beginning of COVID-19 pandemic, despite being in lockdown, I have been working to serve the needs of our children, youth and young adults. This is a critical time to be available for our young people and assist them through a difficult and unprecedented period during the COVID-19 lockdown, I am:

1. preparing Bible Studies;

2. performing Sermons;

3. preparing and updating online program materials

4. providing prayer and pastoral care support through phone calls, social media, online face to face platforms;

5. providing online children, youth and young adults programs and Sunday services.

…

In light of these reasons, I do not believe there is any legitimate reason for me to be stood down from the valuable work I perform for the Church in our local community.

[4] On 4 September 2020 Pastor Tommy received a “JobKeeper enabling stand down direction” (the Direction). That Direction said, in part:

At the outset, we note your statement that the Vietnamese Evangelical Church in Australia - Melbourne Incorporated Ltd (Melbourne Church) has no authority to issue a JobKeeper enabling stand down direction to you.

This is not correct. As you are aware, you are employed by Melbourne Church and your employment contract dated 1 August 2017 reflects this. As your employer, Melbourne Church has authority to issue you with lawful and reasonable directions in relation to your employment.

…

We note from your letter dated 3 September 2020 that you have alleged that you are undertaking a number of functions on behalf of the church including preparing bible studies, performing sermons, preparing and updating online program materials, providing prayer and pastoral care support and providing online programs. This is not correct. Since 20 August after receiving your email (dated 20/08/2020 11:30PM) informing us about your unilateral decision to have stopped to participate in the church ZOOM including organising worship and preaching, you have not been assigned any tasks or duties in relation to your role of Youth Pastor and you have not been required to participate in or deliver online church services, bible studies or other church activities.

…

Unfortunately, the reality is that:

1. Melbourne Church’s operations has been materially and negatively impacted by the COVID-19 pandemic and the Government initiatives to slow the transmission of COVID-19; and

2. There have been changes to Melbourne Church’s activities attributable to these events which mean that you cannot be usefully employed during this period.

Accordingly, pursuant to section 789GDC of the Fair Work Act 2009 (Cth), you are directed not to attend work from Friday (4 September 2020) until further notice (Stand Down Period).

This direction will continue until:

1. It is withdrawn or revoked by Melbourne Church;

2. It is replaced by a new JobKeeper enabling direction given by Melbourne Church; or

3. 28 September 2020.

To be clear, as stated above you are directed not to perform any activities related to Melbourne Church or to hold yourself out as acting on behalf of Melbourne Church during your Stand Down Period.

[5] The Direction was signed by Mr Ve Nguyen “On behalf of the Church Committee”.

[6] On 2 September 2020 Pastor Tommy made an application for the Commission to deal with a dispute pursuant to s.789GV of the Fair Work Act 2009 (FW Act). Section 789GV of the FW Act enables the Commission to deal with a dispute about the operation of Part 6-4C – Coronavirus economic response of the FW Act.

[7] Section 789GDC of the FW Act is in relation to a jobkeeper enabling stand down. It states:

789GDC Jobkeeper enabling stand down

(1) If:

(a) after the commencement of this section, an employer of an employee gave the employee a direction (the jobkeeper enabling stand down direction) to:

(i) not work on a day or days on which the employee would usually work; or

(ii) work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or

(iii) work a reduced number of hours (compared with the employee’s ordinary hours of work);

during a period (the jobkeeper enabling stand down period); and

(b) when the jobkeeper enabling stand down direction was given, the employer qualified for the jobkeeper scheme; and

(c) the employee cannot be usefully employed for the employee’s normal days or hours during the jobkeeper enabling stand down period because of changes to business attributable to:

(i) the COVID-19 pandemic; or

(ii) government initiatives to slow the transmission of COVID-19; and

(d) the implementation of the jobkeeper enabling stand down direction is safe, having regard to (without limitation) the nature and spread of COVID-19; and

(e) the employer becomes entitled to one or more jobkeeper payments for the employee:

(i) for a period that consists of or includes the jobkeeper enabling stand down period; or

(ii) for periods that, when considered together, consist of or include the jobkeeper enabling stand down period;

the jobkeeper enabling stand down direction is authorised by this section.

(2) If the jobkeeper enabling stand down direction applies to the employee, then, during the jobkeeper enabling stand down period, the employer is still required to comply with:

(a) Section 789GD (which deals with satisfying the wage condition); and

(b) the minimum payment guarantee (see section 789GDA); and

(c) the hourly rate of pay guarantee (see section 789GDB);

but is not otherwise required to make payments to the employee in respect of the jobkeeper enabling stand down period.

(3) The jobkeeper enabling stand down direction does not apply to the employee during a period when the employee:

(a) is taking paid or unpaid leave that is authorised by the employer; or

(b) is otherwise authorised to be absent from the employee’s employment.

Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the jobkeeper enabling stand down direction would otherwise apply to the employee.

(4) For the purposes of subparagraph (1)(a)(iii), the reduced number of hours may be nil.

(5) This section has effect despite a designated employment provision.

[8] Whilst the application of Pastor Tommy was made prior to the Direction actually being given this has not been raised as a jurisdictional barrier to me dealing with the dispute. In any event the dispute was notified following the Notice of intention which is said to be the consultation notice required under s.789GM of the FW Act. To that extent the application was made after the Notice of intention in relation to consultation was given and the dispute raised following that. That dispute has evolved to include the Direction.

DECISION

[9] I heard the application on 11 and 12 September 2020. At the conclusion of the hearing I issued my decision and order that the jobkeeper enabling direction be set aside. I indicated that I would issue reasons for my decision.

[10] These are the reasons for decision.

BACKGROUND

[11] In notifying his dispute Pastor Tommy named the Respondent as “Vietnamese Evangelical Church in Australia Melbourne Incorporated” and named the contact person as “Tran Van Hung”. The resolution the Applicant sought as stated in his application is that:

If the expired members of the Church Committee led by Ve Nguyen have no grounds to impose JobKeeper stand down, I ask that they would stop harassing me.

[12] To the extent that it is validly given, Pastor Tommy sought that the Direction be set aside.

[13] At the first conciliation conference in relation to the dispute it became evident that the body that gave the direction was not present (as it had not been named or a contact person for it had not been nominated on the application before the Commission). A further conciliation was held with the attendance of the body that had provided the Direction present.

[14] To put the dispute in context it is necessary to understand an internal dispute within the Vietnamese Evangelical Church Melbourne (VECA Melbourne or the Melbourne Church).

[15] VECA is made up of 10 local churches from around Australia. This includes the Melbourne Church, VECA Springvale, VECA South Australia and so on. VECA has a Constitution, most recently amended at the national conference in December 2016 (2017 Constitution 1). VECA has a National Executive Committee (NEC)which has the controlling power of all activities of the Local Churches in Australia.2

[16] Each Church elects its own Church Committee. The Church Committee is responsible for conducting the affairs of the Church between Annual General Meetings (AGM).

[17] Whilst ultimate power is vested in the AGM, the Church Committee is responsible for managing the Church’s affairs between AGMs. 3 The annual general meeting is to be held on a Sunday in July of each year4 and the term of a committee member is one or two years.5

The 2018 election

[18] In 2018 VECA Melbourne held its AGM. It elected a Church Committee consisting of 10 Deacons. Mr Ve Nguyen was the elected Secretary (the 2018 Church Committee). There was no election of a new Church Committee at the 2019 AGM as the 2018 elections were for a 2-year period. 6

The 2020 disputes

[19] It appears that around June or July 2020 some disquiet became evident in the Melbourne Church in relation to the process for selecting a new Senior Pastor for the Melbourne Church. Issues in relation to the capacity for members of the church to speak arose. It should be noted that, by this time, COVID-19 restrictions were in place effecting church gatherings. For this reason the Melbourne Church was meeting by Zoom video conferencing through an endorsed Zoom channel. The limitation on speaking was instigated by control of the “mute” function on the meeting participants.

[20] Some complaints were made to the National Executive Committee (NEC) about the issues in the Melbourne Church.

[21] The Melbourne Church did not hold an AGM in July 2020 but the 2018 Church Committee continued to manage the affairs of the church including the disputed process in relation to the selection of the Senior Pastor.

[22] On 16 August 2020 the VECA NEC met. It considered “Letters from a majority of members of the VECA Melbourne Church [which] request permission from the VECA NEC to use a new Zoom online meeting room so that the Church members can freely worship the Lord, have fellowship and contribute to discussions on the running of the Church” and that “In the current situation of VECA Melbourne Church, the term of office of the Senior Pastor and the Church Committee has expired.” 7

[23] As a result of these matters the VECA NEC decided:

In order to address the current issues for the running of VECA Melbourne Church, the VECA NEC approve the request of members of VECA Melbourne Church to open a new Zoom online meeting room, and commission the Pastors currently serving at VECA Melbourne Church to facilitate this new online meeting room. 8

[24] On 20 August 2020 Pastor Tommy sent an email to Mr Ve Nguyen and advised that he would not be participating in the Zoom video conference ID 845 945 1045 (the previous Zoom meeting channel) and this would include organising worship and preaching for the coming Sunday.

[25] The effect of the decision of the NEC was that the Church Committee elected in 2018 was no longer recognised by VECA.

[26] On 23 August 2020 an Extraordinary General Meeting (EGM) of the Melbourne Church was held and a new Church Committee elected (the 2020 Church Committee). The 2020 Church Committee was formally recognised by the VECA NEC on 23 August 2020. 9

[27] The 2018 Church Committee does not recognise the validity of the decisions or the authority of the VECA NEC. Between 25 and 28 August 2020 the 2018 Committee along with members of the Melbourne Church met and voted “to be independent of VECA Inc.,” and determined that the Melbourne Church would no longer be bound by instructions from VECA but would retain the name of the Vietnamese Evangelical Church in Melbourne, the current buildings and address etc. 10

[28] On 31 August 2020 the 2018 Church Committee served on Pastor Tommy the Notice of intention and on 3 September 2020 issued the Direction to him that he was stood down.

[29] By his email of 20 August 2020 it can be inferred Pastor Tommy acknowledged the decision of the VECA NEC and that he no longer recognised the validity of the 2018 Committee.

[30] Prior to the restrictions brought about by COVID-19 Pastor Tommy, as pastor for Children, Youth and Young Adults, was involved in a variety of programmes providing support and spiritual guidance to those members of the Melbourne Church.

[31] By his contract of employment, the duties and responsibilities of Pastor Tommy include:

1. Preaching to the Congregation, Young Adults and Youths as rostered by the Senior Pastor;

2. Leading the worship ministry of the Church;

3. Teaching and organising Bible study classes for young adults and youths;

4. Organising young adults, youths and children ministry weekly activities:

5. Teaching youths Baptism classes,

6. Providing counselling and pastoral care for the youths and young adults;

7. Supporting the spiritual growth of the young members;

8. Other duties and responsibilities as the company may require in1he future;

9. The employee is directly accountable to the senior pastor for his ministerial work;

10. The employee is required to consult with and obtain the approval of the senior pastor for direction and operation of his ministry prior to creating a new ministry, inviting guest speakers, projects with other churches and organisations outside the company;

11. The employee is responsible to give the senior pastor periodical reports and to· attend performance appraisal meetings as required by the senior pastor. 11

[32] Pastor Tommy said that since COVID-19, despite being in lockdown, he had been working “to serve the needs of our children, youth and young adults.” He said that he considered this a critical time to be “available for our young people and assist them through a difficult and unprecedented period”.

[33] Pastor Tommy said that during the lockdown, he was:

1. preparing Bible Studies;

2. performing Sermons;

3. preparing and updating online program materials;

4. providing prayer and pastoral care support through phone calls, social media, online face to face platforms; and

5. providing online children, youth and young adults programs and Sunday services.

[34] In addition Pastor Tommy had been responsible for the delivery of at least 2 “care packages” to those to whom he was ministering. 12

Evidence

[35] Much of the evidence given in the proceedings was in relation to the validity of the actions of the VECA NEC, the authority of the VECA NEC over the Melbourne Church and who had authority in relation to the affairs of the Melbourne Church – the 2018 Church Committee or the 2020 Church Committee.

[36] As I indicated during the hearing it is not my role, and the Commission did not have jurisdiction, to determine the internal dispute of the Church. That is a matter for another place. Further, any views I might express as to that dispute were views based on the material before me and would not be binding on a court of competent jurisdiction in resolving the internal dispute. For this reason I do not intend to recite in detail the evidence given on that matter unless it is strictly relevant to the matter at hand.

[37] Pastor Phillip Chiem is the Pastor of the Springvale Church and is the Youth and Young Adults representative to the VECA NEC. He gave evidence that he was aware that Pastor Tommy was involved in looking after the spiritual wellbeing of children, youth and young adults during the current lockdown and COVID-19 pandemic in Melbourne. He said that he would consider it a loss for those being guided by Pastor Tommy if he was not doing his job.

[38] Mr Nathan Vu is a member of the Melbourne Church. He gave evidence of the range of activities Pastor Tommy was involved in prior to COVID-19 including arranging and conducting bible study classes for various age groups, meetings of youth groups and so on.

[39] Mr Nathan Vu said that whilst the various time slots for the different classes and meetings has not changed since the lockdown, the content and the way the groups are conducted has changed. He also said that the preaching/sermons delivered by Pastor Tommy had not changed over the March – July period.

[40] Mr Nathan Vu said he considered the stand down of Pastor Tommy to be reasonable. He said that there had been a “palpable change” in the meetings conducted by Pastor Tommy and their content and he thought that how Pastor Tommy conducted these meetings took less time although Mr Vu said that he does not attend all of the bible classes or meetings conducted by Pastor Tommy.

[41] Mr Nathan Vu said that now Pastor Tommy was stood down others would step in to do the work Pastor Tommy had been doing.

[42] Mr Thanh Pham gave evidence that Pastor Tommy had been paid until the end of August when the bank account of the Melbourne Church was frozen. He agreed that $12,000 – a 10% tithe – had been paid to VECA in mid-2020.

[43] Mr Nhan Pham is a member of the 2018 Church Committee. He gave evidence that Pastor Tommy’s contract was signed pre COVID-19 and now, with the lockdown, there were a range of activities that he was not required to perform. He said that the decision maker in relation to the activities that were or were not required to be undertaken was the Church Committee. He said the Church Committee is voted on by the Melbourne Church as a whole and therefore has the power to make decisions of the Church.

[44] Mr Nhan Pham also said that Pastor Tommy had ceased Bible study classes and he only taught children on Sundays. He said that Pastor Tommy was not asked to undertake bible studies classes and the other things he was doing during the lockdown.

[45] Mr Nhan Pham agreed that all Pastors had been paid to the end of the August and that VECA Melbourne had paid $12,000 to VECA.

[46] Ms Dzung Huyunh gave evidence of some changes in the work of the church. She said, for example, that funerals were no longer conducted and hospital and home visits could no longer be undertaken. She said that the visits had been replaced by Zoom meetings or telephone calls.

[47] Ms Dzung Huyunh said that with COVID-19 restrictions there were no activities for Pastor Tommy to undertake and that the Pastors only teach once per month. Further, she gave evidence that the Melbourne Church has difficulties with finances because of a reduction in donations.

[48] The Commission received a petition signed by over 100 members of the Melbourne Church. That petition states, in part:

In the present lockdown, Pastor Bui Thanh Tuan Nguyen’s role as an employed Pastor has become incredibly significant for our church. His role to support our entire community spiritually and emotionally is critical for the wellbeing of our church in this time of isolation.

Furthermore, his administrative responsibilities are crucial for the running of the church.

If Pastor Bui Thanh Tuan Nguyen were to be stood down, there would be no one able to step in and fulfil his duties (please see attached list of duties that can be verified). Given the relationship that Pastor Bui Thanh Tuan Nguyen has built for the last 10 years, it will be detrimental to our community cohesion.

Since the beginning of the pandemic, Pastor Bui Thanh Tuan Nguyen has been instrumental in setting up zoom meetings and forums for teaching and encouragement of the church fellowship in general.

As members of VECA Melbourne, we would appreciate that you take our views into consideration when making the decision.

[49] Letters in support of Pastor Tommy were also received from 13 families.

[50] A further petition supporting the 2018 Church Committee and its actions to postpone the 2020 AGM until later in 2020 was also received signed by over 100 members of the Melbourne Church.

Submissions

[51] Mr Mark Mai, for the Applicant, submitted that the decision to issue a jobkeeper enabled stand down direction to Pastor Tommy was unreasonable because:

•  his work with families affected by COVID-19 was vital;

•  the dispute in the Melbourne Church made his work more important because of the strain caused by the split;

•  the 2018 Church Committee had no authority to issue the Notice of intention or the Direction and the Notice of intention and Direction are therefore invalid;

•  the Notice of intention and Direction were, in any event, not signed by a majority of the 2018 Committee;

•  the decision to issue the Notice of intention and the Direction were only made after the split in the Melbourne Church;

•  there is no sound financial basis as to why Pastor Tommy cannot be paid.

[52] Mr Mark Mai also said that Pastor Tommy could be usefully employed on a full-time basis as:

•  his role cannot be petitioned into 1 or 2 days per week;

•  the work done includes teaching others so that they can also assist members of the Melbourne Church.

[53] Mr Mark Mai also said that 2020 Church Committee is the legitimate employer and that it has the funds necessary to continue to pay Pastor Tommy and, in any event, the 2020 Church Committee did not (and does not) seek to stand down Pastor Tommy.

[54] Mr Ve Nguyen, for the Respondent (the 2018 Church Committee), submitted that the Direction was not given lightly. He said that the 2018 Church Committee had sought to engage with Pastor Tommy on how his work and ministry might be undertaken within the confines of the jobkeeper payment but he would not engage with the 2018 Church Committee. For this reason the 2018 Church Committee needed to make a decision on how to proceed. It received advice and properly issued the Notice of intention and then, following the consultation period, the Direction. Further, he said that the 2018 Church Committee is the relevant employer and it has the authority of the Melbourne Church to take the decision it has.

[55] Mr Ve Nguyen said that the dispute was being used by Pastor Tommy as a vehicle to seek a legal declaration as to the validity of the 2018 Church Committee, that this was an improper purpose and the application should be refused for this reason.

[56] Mr Ve Nguyen said that the Direction was reasonable in all of the circumstances and recognised the difficult financial position of the Melbourne Church.

CONSIDERATION

[57] There is no disagreement that the Melbourne Church qualified for the jobkeeper scheme.

[58] If it is the case that the 2018 Church Committee can no longer validly manage the affairs of the Melbourne Church because its term has expired in accordance with the constitution of VECA then that 2018 Committee cannot have validly issued the jobkeeper stand down direction to the Applicant. For this reason alone the Direction could not be reasonable in all of the circumstances as it could not have been lawfully given (s.789GK of FW Act).

[59] If it is that the 2018 Church Committee still validly represents Melbourne Church I am satisfied that the direction was not reasonable in all of the circumstances as it appears, on the basis of the evidence before me, to be enmeshed in the dispute within the Melbourne Church as to who constitutes the legitimate Church Committee.

[60] There is a dispute within the Melbourne Church. This dispute has split the Melbourne Church congregation and impacted on families within the Melbourne Church who are apparently divided as to which Church Committee they support and hence which Zoom meeting channel they attend for worship. Pastor Tommy has indicated he does not acknowledge the 2018 Church Committee. It is in the midst of this dispute that the 2018 Church Committee has issued the Notice of intention and the Direction. Objectively viewed it is difficult to dissociate one action from the other. I am not satisfied that the Direction was given without it being tainted by Pastor Tommy’s obvious indication that he considered the 2018 Church Committee to no longer be the valid Church Committee but rather stood with the 2020 Church Committee – or at least the new Zoom meeting channel for worship.

[61] In these circumstances I do not consider that the Direction was reasonable in all of the circumstances (s.789GK of FW Act).

[62] Further, the evidence before me does not support a conclusion that Pastor Tommy cannot be usefully employed (s.789GDC(1)(c)).

[63] I do not accept the evidence of Ms Dzung Huyunh that there was no work for Pastor Tommy to do. As she herself acknowledged, while hospital and home visits were no longer occurring that work is now being done remotely by phone or by Zoom. That aspect of the church’s work had not stopped, it was just being done differently. The same is true of the work of Pastor Tommy.

[64] I am satisfied that tending to the needs of the children, youth and young people, preparing and delivering bible study classes and sermons has not stopped at VECA Melbourne – it is just being done differently. Witnesses gave evidence of how the new Senior Pastor, recently appointed (and from which the dispute seems to stem), whilst unable to travel to Australia from the US where he is currently based, is supporting VECA Melbourne by giving sermons remotely. To the extent that Pastor Tommy is required, as part of his duties, to give sermons, he too can give those remotely. There is no mention that the Senior Pastor is doing any other work such as bible study classes, youth groups and such like as is performed by pastor Tommy.

[65] I accept the evidence of Mr Nathan Vu that the activities for children, youth and young people continue, although he may not be satisfied with the content of those activities, and that others have stepped in to do the work with the Direction having been given to Pastor Tommy.

[66] It may be, as Mr Nahn Pham said, COVID-19 means the church does not meet more than once a week (and presumably it met more often than that beforehand). It does not automatically flow from this that the pastoral work is no longer required or that new ways of delivering care and support are not available. As was acknowledged, Pastor Tommy has been instrumental in the delivery of care packages during the lockdown and meetings of young members of VECA Melbourne continue via Zoom or other remote means.

[67] For these reasons I am not satisfied that Pastor Tommy cannot be usefully employed. For this reason the jobkeeper enabling direction given to Pastor Tommy is not authorised by s.789GDC of the FW Act.

[68] The 2018 Committee did propose that the Direction be modified so that Pastor Tommy be directed to work 3 days per week until 28 September 2020. For the reasons above as to why I do not consider the existing Direction to be reasonable in the all of the circumstances, I do not consider the modified proposal reasonable in all of the circumstances.

[69] To the extent that submissions were made as to whether a majority of the 2018 Church Committee supported the Notice of intention or the Direction, it is not necessary that I resolve that question in order to determine the application before me.

[70] As indicated in the hearing I do not make any decision as to the proper Church Committee for VECA Melbourne. That is a dispute for another place and jurisdiction.

[71] For these reasons, and in accordance with s.789GV of the FW Act, I ordered that the jobkeeper enabling direction given to Bui Thanh Tuan Nguyen be set aside.

COMMISSIONER

Appearances:

B. Nguyen on his own behalf

M. Mai for the Applicant

V. Nguyen for the Respondent

V. Pho for the Respondent

H. Lee for the Respondent

Hearing details:

11 and 12 September.
Melbourne by video link.
2020.

Printed by authority of the Commonwealth Government Printer

<PR722970>

 1   Exhibit A1, Appendix A.

 2   Exhibit A1 Appendix A, Ch 3, R 1.

 3 Exhibit A1, Appendix A, Ch 2 R 4 art 1.

 4   Ibid.

 5   Exhibit A1, Appendix A, Ch 2, R 8, art 2.

 6   Exhibit R1, Appendix 5.

 7   Exhibit A1, Appendix C.

 8   Ibid.

 9   Exhibit A1, Appendix F.

 10   Exhibit A1, Appendix B.

 11   Exhibit R1, Appendix 6.

 12   See evidence of Mr Nathan Vu.