Steven Threadgill v Corporation of the Synod of the Diocese of Brisbane

[2014] FWC 6277

[2014] FWC 6277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Threadgill
v
Corporation of the Synod of the Diocese of Brisbane
(U2014/3841)

COMMISSIONER BOOTH BRISBANE, 10 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection - not in an employment relationship

[1] This is an application for unfair dismissal relief brought by Rev Stephen Threadgill against the Corporation of the Synod of the Diocese of Brisbane (Corporation). The corporation is statutory corporation created under s. 3 of the Anglican Church of Australia Act 1895 (Qld).

[2] The remedy sought by the Applicant in his Form F2 (Unfair Dismissal Application) is: “Continuation and support for my priestly ministry which has currently been withdrawn. This would enable me to continue sacramental and pastoral ministry … concurrently with other secular posts.”

[3] The Respondent appears to accept the application is for unfair dismissal remedy however it objects to the Commission’s jurisdiction claiming the Anglican Church is not in an employment relationship with Rev Threadgill. This decision concerns that objection.

[4] The Corporation provided the Commission detailed submissions and submissions in reply, a short affidavit of Mr Read, formerly General Manager of the Brisbane synod, and a lengthy affidavit of Bishop Smith detailing the history, governance and constitution of the church, the appointment and functions of Anglican clergy and exhibiting various relevant documents including the archbishop’s licence, and canvassing many of the church canons. 1 Rev Threadgill made submissions in reply and filed two affidavits.

[5] The parties agreed to the jurisdictional question being dealt with on the papers. For reasons stated below, I uphold the jurisdictional objection.

The Applicant

[6] Rev Threadgill was ordained in England in 2009. He visited Australia in 2011 as part of his training, including two weeks in the Bundaberg Parish.

[7] Shortly after his return to England, the Bundaberg rector asked Rev Threadgill if he was interested in a post in his parish. On 24 June 2011, the archbishop of Brisbane, Dr Aspinall, formally offered a position as assistant priest at Bundaberg, subject to Rev Threadgill obtaining the necessary visa and a ‘blue card’, and outlining his expectations of clergy in the diocese. Rev Threadgill moved to Australia. He was licensed by the archbishop on18 September. On 19 December, the day he received an appropriate visa, he took up the post. He received a stipend, rent-free accommodation, a fully serviced car, mobile phone, superannuation, leave entitlements and the benefit of church-funded insurances. He submits he was an employee of the Corporation, relying on the documents he produces as evidence.

[8] On 9 December 2013, Rev Threadgill was summoned to a meeting in Brisbane. The circumstances leading to and flowing from the meeting in Brisbane are not relevant to this decision.

[9] Rev Threadgill says Bishop Holland dismissed him from employment during that meeting, and that Dr Aspinall confirmed the dismissal in a letter three days later, responding to Rev Threadgill’s own communication with the archbishop dated 10 December. If he did not voluntarily cease his ministry, he says Bishop Holland threatened to commence procedures leading to the withdrawal of his licence.

The Respondent

[10] The statutory corporation created under s. 3 of the Anglican Church of Australia Act 1895 (Qld) deals with matters including the constitution, 2 holding and dealing with interests in property,3 and manner and form requirements for canon law.4 The Act does not govern ordination, appointment or placement of clergy.

[11] The application misnamed the corporation, but the Respondent takes no issue. I correct the name accordingly. The Corporation clearly has power to enter into contracts of employment. 5 It is probable the Corporation employs no-one in a clerical capacity,6 but the difficult question7 of who is the correct Respondent is not for present consideration.

[12] The Respondent argues that Rev Threadgill was not employed by the Corporation and not in any case an employee for s. 382 of the Fair Work Act 2009 (Act).

Consideration

[13] The Act protects a person from unfair dismissal only if the person is an employee 8 of a “national system employer”.9 That is, the applicant for relief must be in an employment relationship with the respondent. For unfair dismissal protection, “employee and employer have their ordinary meanings”.10 The task here is to ascertain whether Rev Threadgill was in an employment relationship with his church. The question is not whether Rev Threadgill was an employee as opposed to an independent contractor,11 but whether the relationship is of a different character altogether.

[14] In Ermogenous v Greek Orthodox Community of SA Inc 12 a bishop who lost office claimed sums for outstanding leave entitlements. An industrial magistrate held for the bishop as he was engaged under a contract of employment with the incorporated association. An appeal to the Full Court of the South Australian Supreme Court succeeded. The bishop’s appeal to the High Court was successful. The decision reflected on presumptions about intention to create contractual relations, noting that the question is an objective one in each case. On the facts of that case, the respondent was not a “church”; was concerned with more than religious affairs; its members were not all observers of the particular faith; and there was a clear history of employment of clergy within particular Greek Orthodox communities. Ermogenous is to that extent distinguishable.

[15] Kirby J in a separate concurring judgement said:

[66] …Courts here, as elsewhere, will be hesitant to enforce purely spiritual and theological rules. But they will not hesitate to enforce, as arrangements intended to have contractual or other binding force, rules of a proprietorial character concerned with proprietoral rights…
[74]… There is therefore no presumption that contracts between religious or associated bodies and ministers of religion, of their nature, are not intended to be legally enforceable. At least where the contracts concern proprietary and economic entitlements, of the kind which in this case Archbishop Ermogenous sought to enforce (and certainly where they are not intertwined with questions of religious doctrine that a court would not feel competent to resolve according to legal norms) there is no inhibition either of a legal or discretionary character that would prevent enforcement of such claims when they are otherwise proved to give rise to legal rights and duties.

[16] As to presumptions, none are made here. Rev Threadgill’s case is approached on its own facts and in the context of the church in which he is minister.

[17] In this Commission, in Bellia v Assisi Centre Inc, 13 it was held that a priest who sought unfair dismissal relief was in fact in an employment relationship with the Respondent incorporated association, an accredited aged care facility. The priest undertook both priestly duties and pastoral duties that might be performed by a layperson. The relationship was in its totality one of employment under a contract with the association.14 That decision is in my view consistent with Ermogenous.

[18] In Knowles v The Anglican Property Trust, Diocese of Bathurst 15 the New South Wales Industrial Commission found it had no jurisdiction to determine Rev Knowles’ application for unfair dismissal relief.16 Wright J explored the authorities in detail and concluded as follows, first referring to an early period of ministry:

The materials clearly show that the relationship was a religious one; to paraphrase the words of Priestley JA in Scandrett, a consensual compact to which the parties were bound by their shared faith based on spiritual and religious ideas - not based on a common law contract.

[19] Of a later period, His Honour said:

… when one considers the exchange of correspondence on 18 and 19 April 1995, and accepting that the language of contract is apparently used, it is nevertheless also the language of pastoral and parish responsibility in relation to discussions between the Bishop and the applicant concerning a renewal or extension of his licence. I do not accept that this conduct can be considered to be conduct leading to the formation of a contract or conduct with the intention of concluding arrangements which were intended to be enforceable at law. This conclusion not only derives from the object of the arrangements (the obtaining of a non-contractual licence specifically in the context of the normal approach of the church in granting licences to the clergy), but is also to be seen in terms of a difference of view between the Bishop and the applicant as to the appropriateness of the clergy undertaking lengthy chaplaincy appointments.
… [The] authorities acknowledge that a priest may enter into a contract of employment with a secular employer, but they distinguish between that possibility and the relationships by which a priest discharges priestly functions.

[20] I respectfully adopt His Honour’s reasoning as applicable to this case.

[21] Rev Threadgill was an assistant priest in the Bundaberg parish, licensed as such by the archbishop, 17 a member of the clergy.18

[22] In support of his application he submits that church officials used the language of employment for the purposes of his visa application; 19 his stipend20 was taxable; his other benefits were akin to those of an employee. None of these mean he was an employee.21 The principle is encapsulated in the following:  

It does not follow that a religious practitioner who comes within the meaning of ‘employee’ in subsection 221A(1) of the [Income Tax Assessment Act] is an employee at common law. That question must be determined in accordance with common law principles: for example, see Davies v. Presbyterian Church of Wales [1986] 1 WLR 323.  22

[23] Rev Threadgill’s role was one within the church proper, primarily or entirely religious in character, as affirmed by the relief sought. His post was under the archbishop’s licence, 23 which (subject to the canons) is discretionary.24 His case is materially different in those respects from Ermogenous and Bellia but cannot be materially distinguished from Knowles.

[24] Rev Threadgill’s office was under the canon law not the common law. He was not an employee for s. 382 and this Commission has no jurisdiction. Orders will issue dismissing the application.

COMMISSIONER

 1     by “consensual compact made by and between the bishop, clergy, and laity”: see preface and s. 2.

 3   Anglican Church of Australia (Diocese of Brisbane) Property Act 1889 (Qld).

 4   ss. 14-16.

 5   Anglican Church of Australia Act 1895 (Qld) s. 9(1).

 6   The Respondent expressly submits the Corporation did not employ him: Written Submissions on Behalf of the Respondent, [16]. Affidavit of Smith [14]: the Corporation employs secular employees responsible for operation of the diocese. In Knowles v The Anglican Property Trust, Diocese of Bathurst [1999] NSWIRComm 157 the Trust was agreed between the parties to be the respondent of convenience; the Applicant did not attempt to identify an employer: [1999] NSWIRComm 157, [1], [13].

 7   Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, [32]-[35] Gaudron, McHugh, Hayne and Callinan JJ.

 8 s. 382.

 9   s. 380 and s. 14 for definition of “national system employer”.

 10   s. 335, and see ss. 11, 12 and 15.

 11   as to which see Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Abdalla v Viewdaze Pty Ltd t/as Malta Travel[2003] AIRC 504.

 12 209 CLR 95.

 13  [2010] FWA 2904.

 14   The dismissal was later found unfair and compensation ordered by another member: Bellia v Assisi Centre Inc t/as Assisi Centre Aged Care[2011] FWA 1504. See also [2011] FWAFB 5249; [2011] FWAFB 5944; Bellia v Commissioner of Fair Work Australia [2010] FCA 1416 and Bellia v Commissioner of Fair Work Australia [2010] FCA 1426.

 15 [1999] NSWIRComm 157 (Wright J, President); leave to appeal refused: Reverend Knowles & Anglican Property Trust [1999] NSWIRComm 576.

 16   Rev Knowles was resisting a change by the bishop to the nature and character of his ministry. The bishop revoked his license.

 17   under the Archbishop's Prerogative Canon and Licensing of Clergy Canon, and see Knowles.

 18   Canons Interpretation Canon definitions “Licensed Clergy”, “Member of the Clergy”.

 19   a matter disputed in the Affidavit of Read.

 20   payable by the parish: Parishes Regulation Canon s. 27.

 21   see Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117, [42] per Mason P, Ipp and McColl JJA agreeing: “Rules of ecclesiastical law do not translate automatically into contractual, trust or other secular rules (see generally, Scandrett v Dowling (1992) 27 NSWLR 483; and as to the Catholic Church in particular, see Clark v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R 26 at 33-4)”.

 22   Taxation Ruling TR 92/17[16]. In the House of Lords case cited it was held that the question whether the Applicant was employed under a contract of service was a question of law to be determined on the true construction on the Church's book of rules.

 23 Affidavit of Smith [20]. Licensing of Clergy Canon s. 2.

 24   Archbishop's Prerogative Canon s. 3(a); Licensing of Clergy Canon s. 3(2) and (3).

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