17 September 2011

Elron and employment

Given my interest in belief systems - particularly legal and scholarly reception of religion and parapsychology - I've been reading the Fair Work Ombudsman's 88 page report [PDF] on employment aspects of Scientology.

The latter is the cult founded by L Ron Hubbard and featuring delights such as Xenu, who supposedly shipped billions of people to Earth some 75 million years ago, parked them around volcanoes and killed them using hydrogen bombs (their spirits remaining to haunt our contemporaries unless dispelled through application of a substantial payment to the uber-Scientologists in return for a form of spiritual cleansing).

The Ombudsman is a Commonwealth government agency established as part of the national workplace regulation reforms, an area of interest given my teaching employment law. Yesterday it released the findings of a lengthy investigation into allegations regarding the employment practices of the Church of Scientology (CoS). That investigation did not address the facticity of Scientology's beliefs. It was more restricted, exploring whether the CoS is bound to apply minimum working conditions under the Fair Work Act 2009 (Cth), awards or agreements (and whether the CoS is required to keep certain time and wage records as part of that regime). As importantly, the Ombudsman considered whether people working for the church are employees and whether they have been receiving benefits to which they are entitled under the Fair Work Act, awards or agreements.

The Ombudsman has characterised CoS entities which engage in trading activities as constitutional corporations for the purposes of the Fair Work Act and its predecessor legislation. It has gone to state that -
• some allegations raised by some witnesses fall outside the statutory time limit for consideration or cannot be sustained and are therefore unable to be pursued,
• it will continue to investigate allegations raised by one witness which relates to an entity known as Get off Drugs Naturally,
• it will refer to other relevant authorities allegations made against the CoS which fall outside its jurisdiction, and
• it will request that the CoS and its related entities conduct a comprehensive self-audit to ensure compliance with the Fair Work Act – and if employees are found to have been underpaid, for those underpayments to be rectified.
That self-audit should prudently be conducted at the earliest opportunity using a consultant that the Ombudsman approves and who has no connection to the church. The consultant should be briefed to -
• review the procedures for the engagement of workers and to properly determine the applicable Modern Award and National Employment Standards for each individual,
• review the status of existing employees to ensure they are receiving their lawful entitlements,
• recommend the introduction of changes to record-keeping and issuing of play slips and the Fair Work Information Statement to ensure compliance with the Fair Work Act, and
• recommend a framework to the Church which enables the identification of relevant legislation relating to all employee entitlements, such as long service leave.
That review reflects the formal Finding that the Ombudsman "considered, but was not persuaded, by submissions from the CoS that the Fair Work Act did not apply because the church 'is a religious entity ... and there isn’t any worker relationship or employer relationship'", given that documents and policies examined by Fair Work inspectors during the investigation "plainly contradicted" the CoS assertion.

The Ombudsman characterised the CoS as a "bureaucratised organisation" which "appears to have imported practices and procedures into Australia with little thought to workplace relations laws". A consequence of that indifference is arguably that -
Witnesses told the Fair Work Ombudsman they were directed to work up to 72 hours without a break to complete tasks assigned to them for as little as $10 a week at a time when the Federal Minimum Wage for a full-time adult before shift and weekend penalties was $543.78 for a 38-hour week.
Several features of the arrangements within the CoS entities were not consistent with volunteer or voluntary work and "a significant level of control and direction was applied to workers by more senior church members who held positions of authority".

The Ombudsman went on to comment that -
the complaints that have been investigated, and the receipt of further complaints, is indicative of systemic problems relating to the way labour has been obtained by the CoS and which has caused these arrangements to be the subject of external criticism.

At the very least, the volume of complaints should alert the CoS that there needs to be a change to the current practices relating to how they recruited and are receiving free labour from their followers, should they hope to reduce the number of complaints into the future.

Equally, the Fair Work Ombudsman offers advice to persons giving their labour for free to any religious organisation that they should be mindful of their intentions in doing so and to the extent possible, protect their own interests and immediately withdraw their labour if they perceive that their relationship ceases to be truly voluntary.

In many instances, the witnesses provided considerable free labour to the CoS over a period of several years where they either knew or ought to have known that they were unlikely to be paid for that work from an early stage.
In time-honoured bureaucratic tradition, the Ombudsman notes that -
Some claimed the use of unconscionable tactics by the CoS designed to retain their commitment. The Fair Work Ombudsman makes no findings in respect of those allegations, but advises that if workers providing services to religious or any other organisation consider that they are being subjected to intimidation or other illegal pressure to continue to provide their labour, they should contact police.