Fr Andrea Bellia v Assisi Centre Inc

[2010] FWA 2904

[2010] FWA 2904

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Fr Andrea Bellia
v
Assisi Centre Inc
(U2010/5284)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 1 JUNE 2010

Jurisdiction hearing – whether or not Father Bellia was an employee – The Melkite Catholic Eparchy - Assisi Centre an Old Aged Persons Home – nature of the relationship and work.

[1] On 14 January 2010, Father Andrea Bellia lodged an application under section 394 of the Fair Work Act 2009 (‘the Act’) on the ground that the termination of his employment was unfair.

[2] Conciliation on 8 February 2010 was unsuccessful.

[3] The Assisi Centre Inc (‘Assisi’), the alleged employer, filed a jurisdictional objection which was heard on 26 March 2010. In summary, Assisi submitted that there was no employment relationship between Father Bellia and Assisi. Because of the provisions of the Act, including ss.382(a) and 386(1), an applicant under s.394 must be an employee.

[4] Mr Mark Rinaldi of counsel represented the Assisi Centre Inc, and Ms Frances O’Brien SC together with Mr Jonathan Kirkwood of counsel represented Father Bellia.

[5] Evidence was given by:

Mr Peter Staples

Mr Enrico Belli

Father Andrea Bellia

[6] Father Bellia says he was employed by the Assisi Centre Inc on 27 February 2007, and dismissed on 5 January 2010.

[7] The Assisi Centre is an Italian-Australian community service organisation which provides residential care for approximately 120 aged residents. It arranges for mass and other sacraments to be performed in the Latin (Roman) Rite for those residents who are Roman Catholic. Assisi submitted that Father Bellia’s services were provided through an arrangement with the Melkite Catholic Eparchy, and that he was not an employee.

The Employment Relationship

[8] The vexed issue of how to determine whether or not an employment relationship is in existence has been considered in a number of High Court decisions, which are conveniently summarised in a decision of a Full Bench of the Australian Industrial Relations Commission in Abdalla v Viewdaze Pty Ltd t/as Malta Travel 1. The authorities require that the characteristics of the relationship between Father Bellia and Assisi be examined, such as the nature of the work and manner in which work was performed, although the matter turns ultimately on the totality of the relationship, and individual factors are not necessarily determinative by themselves. I deal with these issues in turn.

[9] I also note that this matter concerns the Melkite church. It is well established that an employment relationship can exist regarding the provision of services of a religious or priestly nature. In Ermogenous v. Greek Orthodox Community of SA Inc 2, the High Court considered a matter in which the Archbishop of the autocephelous Greek Orthodox Church in Australia resigned and sued the association for unpaid annual leave and long service leave. Gaudron, McHugh, Hayne and Callinan JJ said in a joint judgement at 110 that:

‘First, although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies:

‘Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustenation fund and to occupy his manse.’ (Emphasis added)

Secondly, the ‘essentially spiritual’ character of the relationship may take on a different character when one of the parties to the arrangement (the putative employer) is not itself a spiritual body but is, as Staughton LJ said in Coker, ‘a school, or a duke, or an airport authority’, or, we would add, an incorporated body having the characteristics of the present respondent. To say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister’s spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment’.

The Nature of the Work and the Manner in Which Work is Performed

[10] In this case it is not in dispute that Father Bellia performed duties of a ‘pastoral’ nature at Assisi. Mr.Staples said that these pastoral duties included visiting the sick, listening to residents and their families and providing emotional support, organising or conducting funerals, and supporting families while they are grieving 3. Assisi was not a religious organisation but was a community organisation4, if the evidence of the President of Assisi, Mr.Belli, is accepted. Father Bellia’s pastoral duties at Assisi commenced before he was ordained as a priest5.

[11] Overall, while Father Bellia was a priest, and performed some priestly duties, these were combined with a considerable amount of pastoral work which could be performed by persons who were not ordained, and in any event, Assisi was not a religious institution. Some of the priestly duties were and could be conducted by those who were not ordained. Assisi was a community organisation which performed old aged care duties towards people with a particular religious orientation, who were Roman Catholic. The nature of the work suggests that Father Bellia was not engaged in providing services of purely a religious nature, but was predominantly of a non-religious or pastoral nature.

[12] Father Bellia was engaged in various types of pastoral care with Assisi, and there is little sign of any activity by Father Bellia outside the organisation of old aged care provided by Assisi. He was clearly engaged in providing services to Assisi, as part of the organisation which was Assisi, rather than for example providing an independent business service not part of the organisational structure of Assisi.

The Terms of the Contract

[13] On 27 October 2005, and 27 February 2007, Enrico Belli, President of Assisi, wrote to Archbishop Darwish setting out arrangements with respect to Father Bellia, then Deacon Andrea Bellia, and his family 6. This included that Father Bellia would receive a house on the property with all utilities paid by Assisi, a $30,000 income paid fortnightly, a suitable vehicle fully maintained except for running expenses such as fuel and oil, and full private health cover with Medibank Private, funded by Assisi.

[14] I have had regard to the full terms of the letters, which include the following descriptions by Enrico Belli of the arrangement as:

‘details of an agreement between Assisi Centre Inc and the Melkite Eparchy for the provision of amenities and facilities to accommodate Deacon Andrea Bellia and his family whilst he provides pastoral care for the residents of our Aged Care Facility.

With regards to the temporal arrangements we confirm ...’ [letter of 27 October 2005]

‘We reiterate our appreciation to the Melkie Eparchy and you personally for assisting us in providing pastoral care for our residents.’ [letter of 27 October 2005]

‘If you agree we are prepared to offer Fr Bellia the following entitlements whilst he remains in charge of Pastoral Care for residents of the Assisi Centre ....

As you are aware, we are most grateful for the privilege of having Fr Bellia providing pastoral care for our residents and we trust you will find the foregoing terms and conditions we propose are acceptable.’ [letter of 27 February 2007]

[15] On 7 March 2007 Isaam John Darwish, Archbishop of the Melkite Catholic Eparchy of Australia and New Zealand, wrote back in the following terms:

‘I also thank you for your letter of proposal for Fr.Andrea Bellia’s position with Assisi Centre, to remain serving and provide Pastoral Care for the residence. (sic)

I am very happy to accept your proposal and terms of entitlements offering to him and his family, and hope that the residence (sic) in Assisi Centre also happy with Fr.Andrea’s services.’ 7

[16] There was further correspondence, which I have had regard to. The correspondence confirms the nature of Father Bellia’s duties as ‘pastoral care’ at an old aged person’s home. The fact that the correspondence is between Assisi and the Archbishop does not mean that there was no employment relationship between Assisi and Father Bellia. As Father Bellia said:

‘The terms of my employment were negotiated by Archbishop Darwish on my behalf with my permission. The terms of my remuneration in regard to my employment were recorded in letters dated December 2005 and 27 February 2007 from Enrico Belli to Archbishop Darwish.’ 8

[17] I found Father Bellia to be a convincing witness, and I accept his description of the role of Archbishop Darwish. That role is not inconsistent with Father Bellia’s membership of the Melkite church, and spiritual relationship with that church and its leader. This evidence is also consistent with Father Bellia’s conduct after commencing with Assisi, and before the cessation of his services, which included his requests to Assisi to formalise the relationship regarding tax and superannuation. 9

[18] In my view the terms of the correspondence, and circumstances surrounding that correspondence, are consistent with an employment relationship being established between Assisi and Father Bellia.

Assisi Control over Father Bellia

[19] There were few instances in which the Melkite Eparchy directed Father Bellia in relation to his work while he was at Assisi. Assisi could only point to three instances, these being the initial correspondence regarding the provision of services by Father Bellia in which the Archbishop was directly involved, Father Bellia’s attendance at a Melkite retreat in Sydney for five days, and a direction by the Melkite Archbishop that Father Bellia go to Adelaide 10. With the possible exception of the first, none of these are strictly speaking actually directions by the Melkite Eparchy as to how he performed work at Assisi. The first is a negotiation about the commencement of services to be provided by Father Bellia, which is discussed above. At most they involved some sort of establishment of the nature of Father Bellia’s duties by stating that these services were ‘pastoral care’11. The second and third instances relate to absences from work.

[20] Mr.Staples, the Executive Manager, said that Father Bellia told him he had been directed by the Melkite Archbishop to go to Adelaide, and ‘asked should he take leave’ 12. In giving evidence, Mr.Staples refused to concede that Father Bellia asked for annual leave in January 200813, although his witness statement said something different and had only 17 days previously been filed with the tribunal. His evidence was unsatisfactory and unconvincing on this point. He said that no leave was actually taken14. However, Father Bellia was told not to worry about his annual leave, and he was paid for the period he was away15. As Father Bellia explained, if such directions were refused he might have to resign from his employment with Assisi16. This is by no means surprising, and does not require a conclusion that there was no employment relationship between Assisi and Father Bellia.

[21] While there are no or not many instances of Melkite day to day directions of Father Bellia’s work at Assisi, there are many instances of Assisi directions, including Father Bellia attending Board meetings, administering mass and sacraments at regular times, Mr.Staples asking Father Bellia to change his pastoral program on one occasion, asking him on several occasions to conduct translations for Assisi, asking him to supply photographs and personal information about residents for the Assisi newsletter, asking him to announce the passing away of a resident, requiring him to enter details of his resident visits and giving of sacraments into the Assisi computer system, and notifying him of times he was required to attend at events, and Assisi being notified when Father Bellia was late 17. Father Bellia was by no means autonomous of Assisi in his work, nor under the day to day control and direction of the Melkite Eparchy. If anything, he was under the day to day direction and control of Assisi.

Right to Suspend or Dismiss

[22] By letter of 6 January 2010, Enrico Belli, President of Assisi, wrote to the Archbishop Darwish stating amongst other things that it is ‘deemed in the best interests of all concerned that the post of Chaplain be vacated with immediate effect’. It does appear that Mr.Belli considered that he had the right and ability to immediately terminate the arrangement with Father Bellia 18, although the letter does also refer to the Melkite Church requiring a formal and practical process to be implemented by the Church.

Deduction of Income Tax and Similar Deductions and Entitlements

[23] Assisi paid Father Bellia a stipend, and it was a regular periodic payment, not a payment based on individual services. It also provided him with fee accommodation and utilities, as well as a mobile phone, motor vehicle and health insurance, and PAYG tax instalments were deducted by Assisi 19. These are consistent with and to some extent provide support for the submission that Father Bellia was an employee of Assisi20. By themselves they are by no means determinative. The question of annual leave possibly counts against the submission that there was an employment relationship. There is no record of annual leave being granted and the taking of leave being required.

Did Father Bellia Work for Others, or Run His Own Business?

[24] Father Bellia worked almost exclusively for Assisi. There is no record of any real work elsewhere, although he attended a Melkite retreat. Nor did Father Bellia have a separate place of work, or hold himself out as providing services outside Assisi, nor did he appear to delegate his work to others or be entitled to do so. He was responsible himself for performing the work of pastoral care 21. Nor was he in any sense ‘running his own business’22. This again counts to some extent in favour of the applicant’s submissions.

Conclusion

[25] I have had regard to all the evidence and submissions before me. Having regard to the totality of the relationship, I find that Father Bellia was an employee of Assisi. I dismiss the jurisdictional objection made by Assisi.

[26] Father Bellia has made an application for costs, which Assisi submits has been made prematurely and is outside jurisdiction. This appears to be the case. Sections 402 and 611 enable a cost application to be made within 14 days of a determination or discontinuation, and the application was made before that period. I invite Father Bellia to provide me with a written submission on the jurisdictional issue within seven (7) days of this decision. I invite Assisi to respond within seven (7) days. I will, if possible, deal with the jurisdictional argument on the papers if the application is not withdrawn.

[27] Following determination of the costs issue, the matter will be listed for arbitration.

[28] In my respectful view, however, it may be appropriate for the parties to examine again the possibility of settling the matter between them. If requested a conciliator will be made available to assist the parties.

DEPUTY PRESIDENT

Appearances:

Mr Mark Rinaldi of Counsel for the Assisi Centre Inc

Ms Frances O’Brien SC and Jonathan Kirkwood of Counsel for Father Andrea Bellia

Hearing details:

Melbourne

2010

26 March

Final written submissions:

9 April 2010 from the Assisi Centre Inc.

16 April 2010 from Father Andrea Bellia

21 April 2010 in reply from Assisi Centre Inc

 1   PR927971, Australian Industrial Relations Commission, 14 May 2003, Lawler VP, Hamilton DP, Bacon C

 2 (2002) 209 CLR 95

 3   PN298, 299-302, 304, 311-312, 305, 243, 310

 4   PN94, 101

 5   PN475, Exhibit B3, Witness Statement of Andrea Belli, corrections.

 6   Exhibit A1, witness statement of Enrico Belli, attachments EB1 and EB2

 7   Exhibit A1, witness statement of Enrico Belli, attachment EB3

 8   Exhibit B2, witness statement of Andrea Bellia, paragraph 17.

 9   Exhibit B2, witness statement of Andrea Bellia, paragraph 20

 10   Final written submissions of Assisi, paragraph 5

 11   Exhibit A1, attachments EB-1, EB-2, Eb-3, Letters from Enrico Belli, dated 27 October 2005, 27 February 2007, letter from Archbishop Darwish 7 March 2007

 12   Exhibit A4, witness statement of Peter Staples, paragraph 11

 13   PN335; 346

 14   PN343-344

 15   PN347, 349, 350, 351, 352

 16   PN646, 647, 649, 650

 17   Exhibit A2, witness statement of Enrico Belli, paragraphs 4-5; Exhibit A3, witness statement of Peter Staples, paragraphs 4, 5, 8; PN234-237, 280, 323, 333, 334, 268, 272, 276, 277, 278, 245, 246, 249, 250, 252, 314, 315, 318, 319, 320.

 18   Stevens and another v Brodribb Sawmilling Company Proprietary Limited,(1986) 160 CLR 16 at 36, 13 February 1986, Mason, Wilson, Brennan, Deane, Dawson JJ per Wilson and Dawson JJ

 19   Respondent’s Outline of Submissions on Jurisdiction Hearing, 9 March 2010, paragraph 19

 20   Stevens and another v Brodribb Sawmilling Company Proprietary Limited, (1986) 160 CLR 16, 13 February 1986, Mason, Wilson, Brennan, Deane, Dawson JJ per Mason J at 24.

 21   Stevens and another v Brodribb Sawmilling Company Proprietary Limited, (1986) 160 CLR 16, 13 February 1986, Mason, Wilson, Brennan, Deane, Dawson JJ per Wilson and Dawson JJ at 37.

 22   Abdalla v Viewdaze Pty Ltd t/as Malta Travel, PR927971 at pn 34, 14 May 2003, Lawler VP, Hamilton DP, Bacon C). See also Hollis v Vabu Pty Limited, (2001) 207 CLR 21, 9 August 2001, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ; Marshall v Whittaker’s Building Supply Company, (1931) 109 CLR 210 at 217, 7 August 1963, Kitto, Taylor, Menzies, Windeyer, Owen JJ per Windeyer J.

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