Employment Court Judgement
The Courage V Attorney General Employment Court case has returned a verdict 10 May 2022. The judge has ruled that Each of the three plaintiffs was an employee in each age bracket referred to above. None of them were volunteers within the meaning of s 6 of the Act.
There is a 58-page judgement which you can read here:
Otherwise take a look at some of the selected highlights below:
SUMMARY OF THE BOYS EMPLOYMENT COURT HEARING JUDEGEMENT EMPC 363/2021
A declaration under s 6(5) of the Employment Relations Act 2000
Plaintiffs: Daniel Pilgrim, Hosea Courage and Levi Courage
Defendants: Attorney General & Gloriavale Shepherds and Businesses
25 February 2022 – 4 March 2022
Employees or Volunteers?
 Witnesses for the Gloriavale defendants emphasised the so-called voluntary nature of the way in which work is done within the Community, and why it is approached in this way – emphasising its consistency with the principles underpinning what is described as a unique way of life, and the back-drop of residents agreeing to live within this framework. Each of these witnesses currently lives in Gloriavale and has taken the Declaration.
 The evidence given on behalf of the Gloriavale defendants stood in contrast to the evidence called on behalf of the plaintiffs. They drew a picture of a highly controlled, authoritarian environment which did not permit dissenting voices and which corralled obedience through fear. In summary they say that they were born into Gloriavale, were indoctrinated into a way of thinking from birth, knew no other way of life, and could not be said to have voluntarily consented to the work they were required to do by the Gloriavale leadership group, or the conditions under which they worked.
What is an Employee?
 As s 6(1)(a) makes plain, an employee works for hire or reward. What was the reward in this case? It is very clear on the evidence that the Gloriavale leadership regarded the provision of food, the necessities of life and the ability to participate in the Community as a reward – the quid-pro-quo for doing work through the three stages of the plaintiffs’ working life within the Community
 They carried out the work for reward – in exchange for food, shelter and a continued place in the Gloriavale Community.
Chores or Work?
 It will be apparent that I do not accept the Gloriavale defendants’ characterisation of work undertaken in this period of the plaintiffs’ lives as “chores” which might normally be required of a child by their caregiver. Nor do I accept that the reference to “work” within Gloriavale, in terms of what the plaintiffs did, held some sort of special meaning. It was work as work is commonly understood. It was laborious, often dangerous, required physical exertion over extended periods of time and it was for commercial benefit. The work was not assigned by the plaintiffs’ parents, but by the Gloriavale leadership. The plaintiffs’ parents were not involved in any meaningful way in decisions about whether the work took place, how long it took place for, where it took place, or when their children would be required to work.
 I have already referred to (and rejected) the submission advanced by the Gloriavale defendants that the work undertaken by the plaintiffs in the first age bracket was “chores”. There is, as with anything involving questions of fact and degree, a spectrum. Cases sitting in the middle of the spectrum, in the grey area, are likely to pose difficulties. This case does not sit in the grey area.
 The evidence reflected a classic employment situation in the six to 14 age group – workers selected for particular jobs by management; attending specified workplaces at times determined by management; working under the direction and control of management; for the hours required by management; for the benefit of the business endeavour; often in environments of an industrial and/or hazardous nature; at the strict direction and control of those in charge of the business operations; permitted to take a holiday per year (at a time convenient to the leadership) and limited time off if they were sick (although this was actively discouraged).
Jobs Boys and Young Men did:
Jobs listed throughout the course of the hearing included: Diary, honey factory, moss picking, moss processing, piggery, making hives, rock picking, gardening, weed control, Wilderness Quest, operating machinery, fencing etc
Transition Programme and ERO (Education Review Office)
 The basis on which work was performed (during the Transition year), and the way in which it was delegated and supervised throughout this period, remained strongly indicative of an employment relationship, and the expectations in terms of the hours worked and the effort to be expended increased significantly.
 For the avoidance of doubt, I do not accept (insofar as it is relevant to the Court’s inquiry) that this period of work can be described as work experience or some sort of learning opportunity offered in the context of attendance at school.
 The evidence squarely pointed to the plaintiffs’ work during this period being geared towards the utilisation of the 15-year old male work force to meet the commercial needs of the Gloriavale business enterprises.
 Despite the apparently positive reviews from the Education Review Office (the reviews were not before the Court), the evidence disclosed that, in reality, what was termed a work experience programme was simply the transition into full time work within the Gloriavale businesses.
While Peter Righteous described the year in evidence-in-chief as being designed for the student’s own education and improvement in work related knowledge and skills, he accepted in cross-examination that the programme did not operate as it was intended.
 It is true that the Education Review Office was apparently satisfied with what was being delivered – it is unclear why this is so, or what information it relied on in reaching its conclusions. For present purposes its apparent satisfaction must be viewed with significant caution given the evidence in relation to the rigorous management of Gloriavale’s engagement with external agencies, and Peter Righteous’s admission in cross-examination that the programme was not operating as it should have been, and that work transition/vocational placements were made where labour was needed within the Gloriavale businesses.
No Contract = no employment?
 The essence of the Gloriavale defendants’ case is that no contract was entered into for the provision of services. Rather the plaintiffs initially carried out chores, then work experience, and later were contributing voluntarily to the Community by working in various endeavours. There was, on the Gloriavale defendants’ analysis, no intention to enter into contractual relations; no offer, acceptance or consideration – and accordingly no employment relationship.
 Section 6(2) provides that, in determining whether a person is employed by another person under a contract of service, the Court must determine the real nature of the relationship.
 What of cases (as here) which involve a context of intersecting religious beliefs and what can be termed secular law? It was submitted on behalf of the Gloriavale defendants that the way of life, structures and work were all deeply rooted in the way in which members expressed their beliefs and that this raised a presumption against the existence of an employment relationship. I do not agree that one follows the other.
 As Peter Righteous pointed out, the spiritual life and the practical life are inextricably intertwined at Gloriavale, and it is clear that the approach to work within Gloriavale is significantly coloured by the Community’s faith-based beliefs. That is relevant to understanding the realities of the relationships between the relevant parties, what went on and why, as an integral part of this Court’s inquiry. It is not, however, controlling.
 To draw the threads together, the fact that work practices take place within a religious community with a particular view on how it should operate, and the principles under which it will function, does not mean that those work practices are beyond the reach of the law. The point has particular force where the work practices are applied for the benefit of commercial operations. Nor does it mean that such communities should escape close scrutiny by those with statutory authority to determine what the reality of the situation is, and how it sits with the relevant regulatory framework.
Reliance on Child Labour
 It is plain that the ready access to child labour (children of adult residents) constitutes a significant factor in the success of the Gloriavale business model.”
 Serenity Valor accepted that no-one within Gloriavale has been educated to do a job unless it has an identified need within the Community. Levi Courage expressed the view that the Community’s commercial operations would seriously suffer but for the utilisation of male children. Given the way in which the male child workforce was deployed by the leadership group I have no doubt this is correct.
 It is apparent that the identified business needs of the Gloriavale commercial operations dictated what the labour requirements were, and where various children were to be placed, and for how long, in order to meet those requirements. It was also established that these decisions were made by the leadership group, under the oversight, direction and control of the Overseeing Shepherd.
Choice in work placement for boys?
 While it was alleged that the plaintiffs exercised choice about where they worked, and that it involved consultation with their parents, this was not made out on the evidence. I accept that Peter Righteous tried to accommodate preferences, including from boys and/or their parents. However, he conceded in cross-examination that it was ultimately the interests of the Gloriavale businesses which dictated where labour resources needed to be applied and where they were applied
 I am satisfied that none of the plaintiffs had a choice as to if and where they worked.
 While I accept that there may have been isolated instances in which parents made a request for their child to be put to work in a particular business, for example to enable them to work closely with relatives, and there may have been times when the request was accommodated, it was the leaders (ultimately the Overseeing Shepherd) who decided who would go where, do what work and when.
 While I accept that children within the Gloriavale Community did not spend their entire time working, and that there were some opportunities for play (as some of the witnesses for the Gloriavale defendants pointed out and some of the plaintiffs’ witnesses agreed), I was left with the firm impression that these opportunities were limited and very much second to the prevailing work ethos and the way in which it manifested in the three plaintiffs’ lives during their time at the Community.
Failure of Key Leaders to Appear in Court
 It is necessary to make particular mention of the failure of Mark Christian to give evidence, despite a brief of evidence having been filed in advance of the hearing. Mark Christian is a Servant who was intimately involved with the work placement and supervision of each of the plaintiffs and other children within Gloriavale. The failure to give evidence remained unexplained. Mark Christian was referred to extensively by the plaintiffs in their evidence and was implicated in a significant number of the events complained about.
 I was invited by counsel for the plaintiffs, Mr Henry, to draw an adverse inference from the failure of Mark Christian to give evidence and I consider that appropriate in the particular circumstances.
 The Overseeing Shepherd, Howard Temple, also featured prominently throughout the evidence, in relation to the very high degree of direction and control he is said to exert within the Community, including in respect of work structure and practices. Howard Temple did not give evidence.
 Another member of the leadership team who was referred to extensively in evidence was Fervent Stedfast, the Financial Controller at Gloriavale until very recently, and who is named as a second defendant.
Overseeing Shepherd Role
 All Shepherds and Servants are personally appointed by the Overseeing Shepherd. In practice, the Overseeing Shepherd and his leadership group make all decisions on how the Community operates. Parents played a significantly diminished role in aspects of their children’s life and upbringing…
 The plaintiffs were brought up to accept, without question, the authority of the Overseeing Shepherd and the leadership group, and to submit absolutely to them. That overarching authority, and the requirement to obey, was routinely reinforced – often publicly. Instances of non-adherence were swiftly and firmly dealt with, including through physical and psychological punishment. One witness said that by the time a child attained 13-14 years of age they were well conditioned to what they called “a brutal control regime”. To avoid punishment, children had learned to submit to the control of the Shepherds and Servants. This, it was said, had the effect of creating lifetime conditioned responses to the Shepherds’ and Servants’ authority, which played out over the ensuing years.
 The Commitment confers absolute authority on the Overseeing Shepherd, and requires absolute submission to him and the Shepherds. John Ready, for example, gave evidence that it was said many times within the Community that you had no right to have an opinion. His evidence, and the evidence of others, is reinforced by what went on in a leadership meeting with Zion Pilgrim and his family, which I refer to in more detail below.
Servants and Shepherd’s Meeting
 Notably, disobedience could also result in attendance at a Shepherds’ and Servants’ meeting. Witnesses gave evidence as to the nature of these meetings, where the Shepherds and Servants spent a considerable amount of time (hours) berating the person being reprimanded.9 I infer from the evidence that this was the most feared form of discipline exerted within the Community. Having read the transcript, and listened to extracts of the audio, of such a meeting attended by the Pilgrim family shortly before their departure from the Community, that is not surprising
 The transcript of the meeting reflects the very significant power and control exercised by those in the leadership group, particularly the Overseeing Shepherd, over members of the Community in respect of the practical and spiritual aspects of their life; the way in which individuals within the Community are viewed (as being “nothing” and “nobody”); the requirement that there be unquestioning adherence to the direction and control exerted by the leaders; and the climate of fear that existed.
 The meeting also reinforced other evidence before the Court which pointed to the serious consequences likely to confront a member who could not or would not submit to the Overseeing Shepherd and the Gloriavale leadership, namely expulsion from the Community they had been born and brought up in (and a corresponding propulsion into a world they knew little about, were ill-equipped to live in, and which they had been brought up to believe was wrong and sinful); separation from their loved ones (family and friends); dislocation from a life they were familiar with and were adapted to; and the overarching threat of eternal damnation.
 Zion Pilgrim reinforced evidence given by others, and which I accept, that the Overseeing Shepherd exercised ultimate control, and had the final say, on all decisions relating to business life within Gloriavale.”
 He (Daniel Pilgrim) recalled Fervent Stedfast running through the Associate Partnership document with a group of about 10 boys, including himself. He said he was given no choice but to sign the document.
 He (Levi Courage) echoed Daniel Pilgrim’s evidence as to the prevailing expectation within Gloriavale in relation to contractual matters: “the reality as a 16 year old who had lived all his life in the Gloriavale Community there was no freedom to object, you just signed and that was as expected”.
 While it is clear that the Gloriavale defendants obtained a significant amount of legal advice and support, including in respect of the drafting of various documents relating to work, the evidence strongly suggested that form and reality diverged.
 The evidence of the plaintiffs, which I have accepted, is that they did not feel they had any choice but to enter into the arrangement given the consequences which they had been raised to believe would follow. They were, as minors, presented with the “stark choice”.
GV’s own documents & Agency Failures
 Loud alarm bells ought, in my view, to have been ringing from even a cursory reading of “What We Believe” and various other documents, including the Deed of Adherence and Partnership Agreement. That is because the documentation makes it very clear where the power lies; that the leadership group holds absolute power and control, including in relation to work, and that members of the Community submit to the leaders; and that members were not to report concerns to external agencies.
 I accept that those conducting work at Gloriavale were taught how to respond to outsiders, that the message was routinely reinforced by the leadership group, and that strict controls were placed around engagement with external agencies.
 As I have already observed, the Labour Inspectors gave evidence confirming that they had “What We Believe”, and numerous other Gloriavale documents, when carrying out their investigations in 2020/21; and when completing the desk-top review in 2017.
Being Hidden During Inspections
 The evidence pointed to a practice of ensuring that certain workers were made unavailable to be talked to by officials when they visited, that the lead engagement role was to be untaken by specific people, and others were schooled in how to present to external agencies (including in terms of their work status).
 … members of the Community, including children, were given clear messages as to what they should, and should not, say to external agencies and that this was consistently reinforced by members of the leadership group.
 Second, appearances can be deceptive, particularly where there is a significant power imbalance involved in the working relationship.
 Each of the plaintiffs was told to complete timesheets to record their hours of work. Hosea Courage gave evidence that he was told not to record more than eight hours a day and that if he wrote more Fervent Stedfast would ask him to change the figures.
 I accept that there were instances of children being denied food and publicly shamed if they failed to work hard enough (or were perceived to have failed to meet the required standards of behaviour more generally).
 During their time working at Gloriavale, each of the plaintiffs received around six days of holiday a year (although it was reduced from time to time by the leadership group depending on work pressures and/or budgetary constraints); they were required to work long hours, and hard; and there was a distinct reluctance to allow time off work for illness or incapacity.
 Zion Pilgrim gave direct evidence about his experiences of the company and leadership structure. At the time he left Gloriavale in September 2020, he was a director of eight listed companies. His evidence was that throughout the entire time he was recorded as a director with the Companies Office, no director meetings were held. When it was put to him that meetings of the leadership group (Shepherds and Servants) were in substance director and/or shareholder meetings, he described the proposition as a “pretty big stretch”. Rather, he said that the company directors within Gloriavale had no power, and the companies were “shells” with no corporate management system or structure.
 Use of the practice of shunning as a control mechanism was supported by comments made by members of the leadership group, including the Overseeing Shepherd, during the Pilgrim meeting of Shepherds and Servants which I deal with below.
Other controlling Features exhibited
 The controlling features of the way in which work was organised and the conditions under which it was performed are also reflected more generally in various practices adopted within the Community. The evidence was that mail delivery and distribution is centralised within the office; access to telephones is managed; and that passports, marriage certificates and birth certificates are kept in the office which is overseen by Fervent Stedfast…It remained unclear why individual families could not keep their own personal legal documents in their own control and care. I infer that it was another limb to the tight control exercised by the leadership group over residents.
Weekly Food Expenditure
 I pause to note that it might reasonably be assumed, based on the evidence before the Court, that the plaintiffs’ contribution via their work (6 days per week) vastly exceeded the costs of providing them with the necessities of life. In this regard Charity Christian’s evidence was that weekly food expenditure per person at Gloriavale equated to approximately $26-$27.
Slavery – can this be dealt with in the Employment Court?
 During submissions significant focus was given to whether the working conditions (if accepted) amounted to slavery or forced labour, and whether (if they did) the Court retained jurisdiction to make the declarations sought, or other declarations. I understood the Labour Inspectors involved in this case to suggest in evidence that slave-like working conditions would not be a matter for them – rather it might be something that WorkSafe or the Police might have a role in addressing.
 I do not accept that S6 should be read as carving out this particularly vulnerable group of workers. To do so would, in my view, undermine the objectives of the legislation. And it is notable that while Parliament has expressly excluded certain workers from holding employment status in S6 (some volunteers; real estate agents; film production workers; share milkers) it has not excluded those working as slaves or in servitude.
 The fact that the criminal law provides an offence regime for those dealing in slaves or forced labour does not mean that the employment jurisdiction has no role to play. There are many examples of employment and criminal law operating in tandem in respect of the same set of facts, although workers may prefer to go down one route rather than the other.45 And it is notable that s 98(1)(b) of the Crimes Act (dealing with slaves) uses the word “employ”, suggesting a broad reading is appropriate:
98 Dealing in slaves
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, within or outside New Zealand,-
(b) employs or uses any person as a slave, or permits any person to be so employed or used.
 It would be ironic if those suffering from the worst workplace abuses were unable to bring their claims to the Employment Court because the level of abuse (the tail) wagged the dog (a finding of employment status).
 In summary, a person working in slave-like conditions may still fall within the definition of employee for the purposes of s 6; the way in which employees have been treated during the course of their employment may well be relevant to remedies in this Court, including by way of penalties, banning orders and compensation for humiliation, loss of dignity and injury to feelings;47 findings as to whether criminal offending has occurred under the Crimes Act 1961 (dealing in slaves and dealing in people under 18 for engagement in forced labour),48 are for another Court.
 Each of the three plaintiffs was an employee in each age bracket referred to above. None of them were volunteers within the meaning of s 6 of the Act.
 Insofar as a declaration is sought as to the identity of the employer/employers within the Gloriavale structure, the issue is reserved.
 The evidence heard by the Court, some of it uncontested or confirmed by Gloriavale’s witnesses, raises serious concerns across a broad range of subjects. In other circumstances, I would have referred my judgment to the relevant government agencies but the presence of the Attorney-General as a party satisfies me that the necessary referrals will be considered and made where appropriate.
 The plaintiffs are entitled to costs, the quantum of which is reserved.
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