It’s not that the decision isn’t just. It’s not that the decision isn’t well reasoned. It’s not that the decision isn’t well articulated.
The real problem is that the decision highlights the inadequacy of our legislation. The Employment Court was required to determine whether the women were employees or as argued by the Gloriavale patriarchy, volunteers.
Section 6 of the Employment Relations Act sets out the meaning of "employee". It includes home-workers and excludes volunteers. It spells out that the court must determine the real nature of the relationship between the parties. The analysis includes consideration of all relevant matters including matters that indicate the intention of the parties. A number of tests have been developed to assess the real nature of the relationship between the parties. These include integration, intention, control, fundamental/economic reality and industry practice.
In the Gloriavale case the tests traditionally applied had only limited relevance. For example, the integration test — the women were born into the community and therefore integrated from birth.
The chief judge concluded that when working on the teams, the women were not carrying out work for individual families or some notional "big family". Despite the judge’s conclusion, it is inevitable that the work of all members of the community ultimately in some way benefited each member of that community. Clearly it benefited the male leaders of the community more than the women. However that doesn’t detract from the proposition that each worker shared in the fruits of their own labour.
Significant weight was placed on the extent of control exercised by the patriarchy over the women. However, the patriarchy exercised control over all aspects of the women’s lives, not only those relating to work. In fact, the control exercised in relation to work was really only a subset of the control exercised by the patriarchy.
Ultimately the decision rested on the extent to which the workers were controlled by the patriarchy, the scale of the work required, together with the extent of commercial benefits accrued due to the work performed.
The chief judge accepted that the Gloriavale leadership conceptualises work within the community as being for the benefit of the community, rather than the individual, including individual leaders. She further accepted that this goes someway to explaining why the women undertook work.
However, she found: "It cannot, however, be assumed that, because this is so, the plaintiffs were volunteers and were not employees".
The judge acknowledged that those who joined the community as adults were more likely to satisfy the court that the relationship, in so far as work was concerned, was voluntary. However, the line was much murkier where a woman, such as each of the plaintiffs, had been born and raised in the community; kept largely separate from the outside world; and had been trained in strict norms. The court found parallels with cultural dynamics also present in migrant worker cases: "In one sense working in this way is voluntary — the migrant worker can choose not to take up the position or, having done so, can choose to leave. But the extent of any ‘choice’ is largely illusionary and must be seen on a spectrum. The plaintiffs were, I find, close to the no or very little real choice end of the spectrum in terms of work".
The court found that the women expected to be rewarded for their work while working on the teams and that they received reward for their work. This was in the form of being permitted to remain in the community with family and friends and continue to lead a life they were familiar with; receive food, shelter, clothing, religious support and guidance and the promise of spiritual redemption.
The evidence of Virginia Courage (one of the plaintiffs) was: "If I don’t sign the commitment, I won’t be in Gloriavale and I will not have access to my family, my friends, everything I have known in my life, the people that are important to me".
To my mind, the circumstances of the women at Gloriavale is much closer to the definition of slavery than to the definition of employee.
The government’s modern slavery response is well overdue. MBIE’s discussion document (a legislated response to modern slavery and worker exploitation) states: "While there is no internationally-agreed definition of modern slavery, it is commonly understood to refer to the most extreme forms of exploitation. Taken together, they broadly reflect exploitative situations that a person cannot leave due to threats, violence, coercion, deception and/or abuse of power.
The word modern is used to distinguish these practices from historical forms of slavery. "Modern" slavery includes slavery and other forms of abuse conditional on the constraint of the person’s freedom to exit their situation"
The government’s modern slavery Bill passed the public consultation phase in June 2023. It requires all types of entities to take reasonable/proportionate action if they become aware of modern slavery or worker exportation in their domestic operations and supply chains.
Medium-sized entities ($20 million-$50m annual revenue) would also be required to disclose the steps they are taking to address modern slavery while large entities ($50m and above annual revenue) would be required to undertake due diligence to prevent, mitigate and remedy modern slavery and worker exploitation.
The government defines worker exploitation as: "Non-minor breaches of employment standards in New Zealand."
New Zealand employees have the right to a number of minimum standards including paid rest breaks, minimum wage, written employment agreements and sick, bereavement, parental, domestic violence leave and annual leave.
Given the impending election, it is not clear whether the proposed legislation will actually see the light of day. However, consideration of the Gloriavale decision indicates it is very much needed.
— John Farrow is an employment/litigation partner with Dunedin law firm Anderson Lloyd. The opinions expressed in this article are those of the writer and do not purport to be specific legal or professional advice.
