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Ecclesiastical Case Reports
Ermogenous v Greek Orthodox Community of SA Inc
(High Court of Australia: Gaudron, McHugh, Kirby, Hayne and Callinan JJ, March 2002)
Australia - minister of religion - employment status
The appellant Archbishop Spyridon Ermogenous, for more than 20 years Archbishop of the autocephalous Greek Orthodox Church in Australia, made a claim in the Industrial Relations Court of South Australia against the respondent for sums claimed to be due to him for annual leave and long service leave. An Industrial Magistrate found for the appellant, concluding that the appellant had been employed by the respondent under a contract of employment. The Full Court of the Supreme Court of South Australia by majority allowed an appeal and ordered that the appellant's claim be dismissed. The appellant by special leave appealed to the High Court of Australia.
The majority of the Full Court (Doyle CJ and Bleby J) had taken as their starting point the proposition that an intention to enter into a contractual relationship about the remuneration and maintenance and support of a minister of religion is not to be presumed. This proposition was said to find its origin or support in several decisions in the United Kingdom (Re National Insurance Act 1911, Re Employment of Church of England Curates [1912] 2 Ch 563; Re Employment of Ministers of the United Methodist Church (1912) 107 LT 143; Scottish Insurance Commissioners v Church of Scotland [1914] SC 16; Rogers v Booth [1937] 2 All ER 751; President of The Methodist Conference v Parfitt [1984] QB 368, CA; Davies v Presbyterian Church of Wales [1986] ICR 280, HL; Santokh Singh v Guru Nanak Gurdwara [1990] ICR 309, CA; Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435, EAT; and Diocese of Southwark v Coker [1998] ICR 140, CA), New Zealand (Mabon v Conference of the Methodist Church in New Zealand [1998] 3 NZLR 513), Canada (McCaw v United Church of Canada (1988) 51 DLR (4th) 86), the United States (Moses v Diocese of Colorado and Frey 863 P 2d 310 (1993); Minker v Baltimore Annual Conference of the United Methodist Church 894 F 2d 1354 (1990)) and Australia (Knowles v Anglican Church Property Trust, Diocese of Bathurst (1999) 89 IR 47). They found that the parties had not intended to enter into a legally binding relationship. Fundamental to the reasoning of the majority was that a distinction should be drawn between the church and the respondent organisation.
In their joint judgment, the High Court (Gaudron, McHugh, Hayne and Callinan JJ) doubted the utility of using the language of presumptions in the context of the engagement of a minister of religion. At best the use of that language invited attention to identify the party who bears the onus of proof. The use of such language had in this case led to treating one proposition (that an intention to create legal relations is not to be presumed) as equivalent to another, different proposition (that generally, or usually, it is to be presumed that, an arrangement about remuneration of a minister of religion will not give rise to legally enforceable obligations). The inference drawn by the Full Court about the absence of an intention to create legal relations was an inference that was not open on the facts that had been found at trial.
Kirby J said that he was unconvinced that the English cases warranted a conclusion that, in Australia, a contract partaking of the usual features of one of employment, necessarily loses that character because it relates to the vocation of a minister of religion. A proved agreement to provide for the necessities of life of a minister of religion would be enforced by courts as an arrangement intended to have contractual or other binding force. To the extent that English decisions, starting from a different history and legal foundation and taking a different approach, reach a different conclusion, they do not express the common law of Australia. There is no presumption that contracts between religious or associated bodies and a minister of religion, of their nature, are not intended to be legally enforceable. At least where the contracts concerned proprietary and economic entitlements there is no inhibition either of a legal or a discretionary character that would prevent enforcement of such claims when they are otherwise proved to give rise to legal rights and duties.
As the Full Court did not consider whether any enforceable contract between the appellant and the respondent was a contract of employment the High Court remitted the matter to the Full Court for further hearing.
The judgment of the High Court is reported at [2002] HCA 8.
[This case note was kindly supplied by Garth Blake of Wentworth Chambers, Sydney, Australia.]
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