Christian Organisations and the Law
Because Christian organisations exist to do the work of Christ, there are fortunately never any arguments or disagreements. All volunteers work exactly the way they should and every staff member is literally sent from heaven. Yeah, right!
Well, okay, that may not be entirely true. In fact, if we were honest we would admit that Christian organisations have as many challenging situations as other organisations when it comes to staff and volunteers.
Recently a church encountered a serious problem. Their youth pastor had instructed a lawyer to sue the organisation for a large sum of money. This youth pastor had started some years previously as an enthusiastic worker, willing to give all his time for minimal financial return.
Unfortunately his enthusiasm did not make up for his lack of ability, and when people started losing respect for him as a leader he began to turn bitter. His long hours of service at low wages became a burden to him. It was not long before he engaged a lawyer and complained amongst other things that he was underpaid, he had no contract of employment, and he was overworked.
Fortunately, after countless hours of angst by the church leadership, the story ended with an amicable resolution where both parties agreed to part ways in return for payment of a financial sum.
he law contains a large number of requirements that all employers must comply with. Most commercial businesses spend money and time to ensure they comply with the various legal obligations. People sometimes ask if there is any place in a Christian organisation for things that should, they believe, remain strictly in the 'commercial' world. After all, as one pastor recently said, "I am here to run a church. I don't have time to comply with all these things."
Does the Bible mention anything regarding the Christian's obligations when it comes to complying with the law? In Romans 13:5 Paul says, "it is necessary to submit to authorities, not only because of possible punishment but also because of conscience."
In New Zealand, if an employer does not comply with the various pieces of legislation, whether or not they are aware of their obligations, they are deemed to be breaking the law.
Provided that in complying with the law Christian organisations do not break God's commandments, they should certainly ensure that they meet all the legal requirements the Government has set in place. After all, such organisations should be able to be held up as examples in all things and to say at all times that their consciences are clear. That being so, Christian organisations need to find a way to ensure they comply with the vast array of legal obligations without being distracted from their main game.
What are the Legal Obligations?
In a Christian organisation there are many types of relationships that attract legal obligations. These may include relationships with employees, volunteers, a congregation, the parents of children who attend youth programmes, visitors who enter the premises during the week, contractors who perform maintenance on the buildings, and other organisations who may hire out those buildings. The list goes on.
All of these relationships can be grouped into two main areas of legal responsibility, namely 'employment' and 'health and safety'.
It is becoming increasingly common for Christian organisations to employ either full or part time staff rather than to rely entirely on volunteers. An important preliminary question is whether the relationships between, for example, a church and the pastors/administrative assistants should be labelled 'employment relationships'. From a legal sense, where a church is providing remuneration in some form to people who perform work for that organisation it is very difficult to argue that those people do not in law have an employment relationship with that organisation.
In some cases workers may be regarded as 'independent contractors'. An independent contractor is essentially someone who provides services in return for payment, but they are in all respects working on behalf of themselves and not on behalf of the Christian organisation.1 It would be very difficult for a Christian organisation to successfully show that a person working for the organisation is a contractor other than perhaps in the case of people engaged to provide, for example, property maintenance services.
A few years ago a Christian organisation had been working on the understanding that those who worked for it were independent contractors. One of the 'contractors' challenged that view and claimed that the relationship was in fact an employment relationship. The person claimed holiday pay and other entitlements. On examination it was clear that the relationship of 'contractor' would not be upheld if it was challenged legally. The parties managed to resolve the dispute but the Christian organisation had to make a financial payment that significantly stretched the financial resources of the organisation.
Working for God
In the case of Mabon,2 the church successfully argued that the minister was not employed by the church and instead was 'called' to work for God and accordingly the church did not have the normal employment obligations such as providing paid holidays and sick leave. However, the Court's decision in that case was based on the specific facts and there are a large number of hurdles that a church would need to satisfy before it could follow that approach.
In any event, while in some limited cases a minister may be considered to be something other than an employee, it would be more difficult to argue that people such as administrative staff are not employees.
Unless a particular Christian organisation has received independent legal advice to the contrary, it should have employment agreements in place with those to whom it pays a wage in return for services. Those organisations that do not have employment agreements in place face significant financial risk including having to back pay holiday pay, PAYE and potentially tax penalties.
It is daunting to realise that there are at least nine pieces of legislation that apply to the employment relationship. Some of these are the Employment Relations Act 2000, the Holidays Act 2003, Health and Safety in Employment Act 1992, Parental Leave and Employment Protection Act 1989, Wages Protection Act 1983, Privacy Act 1993, and the Human Rights Act 1993.
The Holidays Act came into force on 1 April 2004 and has changed the existing law significantly in many respects.
In most cases, financial penalties of up to $10,000 may apply in any situation where an employer fails to comply with the requirement of the particular piece of legislation.
Each of the statutes listed above imposes a number of obligations and in most cases case law has developed around exactly what those obligations mean. In summary, at a minimum, every Christian organisation that employs staff should have the following in place:
1. Written employment agreements with staff which include:IN ADDITION, AS a matter of good practice, church organisations should include in their employment agreements things such as a statement of faith and a standard of morality. Without requiring staff to sign up to those additional components, it can be difficult to address a situation where a person begins to live a lifestyle at odds with the organisation's beliefs, or where someone no longer believes in aspects of the organisation's statement of faith.
*Description of the duties to be performed
2. All contracts of any type must be amended by 1 April 2005 to comply with the Holidays Act 2003 and from 1 April 2004 all new contracts must comply with the Holidays Act 2003.
*Hours, days and place of work
*What will be paid for working on a public holiday
*Entitlements to sick leave and bereavement leave
*Entitlements to annual and public holidays
*Explanation of the services available for resolution of problems.
3. All staff must be advised of the organisation's health and safety policy and be adequately trained on the organisation's health and safety procedures.
4. All personal information about staff and volunteers must be collected and stored in accordance with the Privacy Act 1993.
5. Staff and volunteers must not be unlawfully discriminated against when decisions are made about them. The Human Rights Act allows some exceptions for religious organisations.
Christian organisations should also have policies that address personal development of staff and performance management. Some organisations take this one step further and engage with their volunteers on a similar basis, providing them with measurable targets and appropriate personal development.
Some organisations have a six or twelve monthly strategic planning session during which they compare the current effectiveness of the organisation to the desired state. Flowing from that analysis, development initiatives for staff and volunteers are established to ensure achievement of the organisation's goals. The value of this approach is that it ensures that the people doing the work are heading in (and developing in) a direction consistent with the direction of the organisation.
Health and Safety
When we were young, people could make tree huts that had the potential for collapsing at any time. People were expected to realise that if someone was washing a floor it probably meant the floor was slippery. Unfortunately, the last twenty years has seen the increasing regulation of health and safety in New Zealand to the extent that common sense has been put to one side. The net effect is that employers now have a large degree of responsibility when it comes to health and safety.
Under the current health and safety laws, any organisation or person that has a place of work is responsible for the safety of anyone who enters that place of work. For a Christian organisation this can include staff, volunteers, church members, visitors, and people fixing the premises.
For example, churches would be responsible for ensuring that:
*Staff have safe work stations (computers, phones, desks, chairs) which comply with the regulations around Occupational Overuse Syndrome.
Where an incident occurs and the Christian organisation does not have adequate systems and policies in place, it can potentially be fined up to $500,000. For example, at a practical level, if a child was abused by a youth worker and the Christian organisation had not adequately vetted the youth worker prior to appointing him/her or the organisation's policies were not adequate to ensure that the opportunity for such abuse was eliminated, there would be a strong likelihood that the organisation could face significant penalties.
*All floors, stairs, walkways, and entrances are safe and no hazard exists such as loose tiles or carpet.
*Staff are not overworked to the extent that they are stressed beyond what would be reasonable.
*All youth workers are trained and are deemed appropriate to work with children.
*Systems are in place to address any safety issues around youth activities.
*Fire evacuation plans are prepared, publicised and fire drills are rehearsed
*A documented hazard identification check is performed on a regular basis and hazards are either eliminated or minimised.
*The church has a health and safety policy and the policy is publicised.
*All accidents and injuries are documented and any identified hazards are addressed.
There are a number of other issues which present potentially significant risk to Christian organisations. For example, where a person is prayed for and subsequently advised not to take their medication, or where someone falls to the floor whilst being prayed for and hurts him/herself.
While it might seem extreme, it is important to realise that while we need to listen to what the Lord is doing at any particular moment, we also need to ensure that we are not placing people at unacceptable risk where that can be avoided by having appropriate systems in place. And so it is advisable that Christian organisations review their practices in these and other areas and ensure that appropriate systems are in place.
hristian organisations in New Zealand face the possibility that their actions will be increasingly scrutinised.
There is talk about the possible introduction of Hate Laws (these are already in existence in other Commonwealth countries), which could potentially restrict what can legally be said from the pulpit and in any other public forums.
It is not unlikely that some Christian organisations will also be reviewed in terms of their charitable status.
It is also a real possibility that some churches will face legal action in the future for a decision not to appoint someone to a church position due to their sexual orientation.
Considering the vast array of legal obligations and challenges, Christian organisations need to upskill on their legal responsibilites and ensure that they comply. The areas of employment law and health and safety are a great place to start.
1 There is a vast amount of case law concerning whether a person is a contractor or employee. Factors that would assist a finding that a person is a contractor would include: the contractor controls when and how the work is done, they provide their own tools to perform the work, they can have someone else do the work on their behalf, they provide services to other organisations, they pay their own taxes. Church organisations should seek advice if they intend to treat any particular relationship is one of independent contractor.
2 Mabon v The Conference of the Methodist Church of New Zealand CA 250/97
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