Layman’s Explanation of the Employer Judgment

Opinion piece: Liz Gregory.

(Thoughts, opinions and view expressed here belong to Liz Gregory and may or may not represent the views of all leavers or current members).

For a quick summary of the Judge’s most helpful comments, click here.
For those who want to read the full judgement you can do so here:

Liz’s thoughts on the Judgment

I am not a lawyer, but the Judge has been kind enough to write a judgment that is understandable for the lay people of this world. Please note this decision is just for the Girls’ Case (Pilgrim ). Leavers are still waiting for the judgment on who the Boys’ employer is (Courage case). My initial thoughts are below:

Power and Control:

I am very pleased the judge made it clear that the overarching issue is power and control. It has been recognised in court that the Overseeing Shepherd is in control of everything – work, life, assets, spiritual, financial etc. The judge noted in paragraph 15,

“I have formed the view that at all material times the employer was the Overseeing Shepherd. Essentially that is because the evidence pointed squarely to the Overseeing Shepherd, at any particular point in time, being the ultimate controlling force within the Community, specifically (although not exclusively) in respect of work and in respect of the assets of the Community.“

I find it particularly interesting that the judge has made reference to the “assets of the community“. When it suits them, Gloriavale attempts to state they have separate entities, however the reality of the situation is in my opinion, that the legal structure has been complexly created by Gloriavale’s lawyers to increase their Working for Families tax entitlements and to reduce liability from people leaving Gloriavale who may try to make claim. This last point is not conjecture. Gloriavale members stated it plainly in court! The judge has seen through this and the Leavers’ legal team will be arguing that point in the High Court during 2024 for some more clarity around the Trusts.

Overseeing Shepherd role and person liable

The judge was at pains to state the role of Overseeing Shepherd and the people who occupy it are liable. The judge determined the employer is the Overseeing Shepherd in his role as Overseeing Shepherd. So it’s Hopeful Christian until his death, then Howard Temple until his death and moving forwards it will be Stephen Standfast. The Overseeing Shepherd is the ultimate figure of power and control in the whole community.

She stated the contract did not and does not end on the death of the Overseeing Shepherd, but it’s continuous, and so the rights and obligations of the original party are transferred to the new party. (ie any employee responsibilities Hopeful had to his employees is carried through to Howard, and then Stephen. This includes any compensation for work done).

This is an important point as Gloriavale tried to argue that Hopeful Christian was dead and so any obligations and liabilities he may have had ceased at that point. The judge disagreed, and explained that a “novation” was in play when Hopeful died and Howard took over. Novation refers to the process where one of the contracting parties in the original contract is replaced by an entirely new party that assumes the rights and obligations of the original party. The judge determined that all the liabilities and responsibilities were assumed by the new Overseeing Shepherd.

This begs the question, will Gloriavale be contemplating disestablishing the Overseeing Shepherd position and “decentralising” the power base to get around this issue moving forwards? Don’t rule anything out. Additionally, how does Stephen Standfast feel about accepting the liability for Hopeful and Howard’s role in upholding worker exploitation on Howard’s death. Will he, or won’t he take on the role in its current form? I ask these questions, because Leavers have made it clear that Gloriavale will do whatever it needs to do to reduce liability, maintain its reputation, but still run the community along similar lines. Watch this space!

Concerns about dates girls joined the teams:

When I read the judgment I had an immediate concern. Why did the judge make statements that the Girls were only considered employees from the time they left school and started full-time work on the team? Because in one paragraph she stated:

“I am satisfied, based on the evidence before the Court, that the Overseeing Shepherd was the employer during the periods that each of the plaintiffs worked on the Teams.”

But then she went on to state for each plaintiff the specific years they were considered to be employees. In this case it was around 15 for each girl eg:

“Anna Courage was employed by the Overseeing Shepherd from around 2015 (when she started full-time work on the Teams) to the time she stopped working on the Teams.”

I find this curious and a bit concerning, given in her previous ruling regarding employee status, she acknowledged the way the girls were primed from birth into their role of servitude, and that they incrementally moved into the teams work prior to them leaving school. The transition was quite seamless. The evidence supported the fact that girls were working in the years preceding 15 and they were treated as team members, working from a pre-determined roster, without their mother’s presence from 12-13 years (or earlier). Their role was pivotal for the smooth running of the community.

It begs the question, will the girls be able to be compensated for the years prior to when they turned 15 and started full-time work?

The worst outcome of this part of the ruling, is that when you understand Gloriavale, you will understand their desire to find loopholes. It is not inconceivable that they will take this part of the ruling and will make their own new internal rule that they CAN continue to use young girls for community cooking/cleaning as they are not full-time. I feel this part of the ruling has neglected to recognise that people who work part-time, and/or who are under 15, are still legally entitled to employment protection and entitlements.

What about girls who didn’t work on the teams?

A second concern about the judgment is the lack of indication around girls who didn’t go to work on the teams, but rather they progressed into childcare, sewing or the office. Are they excluded from this ruling? They were in the same position as the girls who joined the cooking, cleaning, washing teams. They were told what to do, where to work and how to work, without any genuine input from themselves or their family.

A note to the Labour Inspectorate

On these finer points we will have to hope and pray that MBIE is able to use their logic and common-sense when enforcing the ruling. We hope if they can’t get agreement with Gloriavale on these points, they will take it on themselves to have that point argued in court with Gloriavale. The Leavers should not have to continue arguing these points of law in court for every conceivable Gloriavale scenario. The reality stands. Girls have been exploited for labour, and they weren’t treated as employees as they should have been – regardless of what age they started, and what part of the community they were placed in.

Moving forwards:

1) The Boys case (Courage) “who is the employer” decision is yet to be decided.

2) The court can add new parties to the proceedings at any stage (ie if it’s found there are other employers – other Shepherds, businesses, Trust etc)

3) The Girls can now proceed to make a claim to the Employment Relations Authority for compensation if they wish.

4) Gloriavale have sought permission to appeal the Girls’ Employee Status ruling, and the judges are still determining if they will be allowed to proceed with an Appeal. This may slow up the process for the girls seeking compensation.

5) The plaintiffs have said they would be willing to attend a settlement conference with Gloriavale to resolve the issues outside of court, but Gloriavale has not decided if they are wanting to proceed with that option. 

6) The suing of the Labour Inspectorate can now continue, however they are arguing this court is not the correct court to be sued in. There will be a hearing on the jurisdiction issue to resolve that. Sigh!

I find it disturbing that the Labour Inspectorate hasn’t get been willing to be humble yet and publicly admit they got it wrong, and now bend over backwards to make this situation right. Perhaps they are having back-room talks, and that long-awaited apology is being drafted as we speak…???

I won’t hold my breath because I don’t recall any Government agency apologising for anything in the Gloriavale sphere yet…

But I am not without hope. Here’s hoping it will be a sincere apology and come forth willingly from their heart – and not a forced concession because the political heat got too hot. I hope there will be some humanity and humility with the incoming Government.