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FAQs

You can contact us here if you would like to ask more about any of the below.

Are Assistant Ministers employees?

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GWAG’s legal advice is that Assistant Ministers are legally recognised as employees and as such have the benefit of access to workplace rights under the Fair Work Act 2009. The legal test to determine if a person is an employee rather than an independent contractor focuses on the notion of control - Stevens v Brodribb (1986) 160 CLR 16. As Assistant Ministers are subject to the direct control of the Senior Minister/Pastor, they would be classified as an employee. To see our legal advice on this matter, click here.

Can Assistant Ministers take an action for unfair dismissal?

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Yes, as Assistant Ministers are classified as employees they can pursue an action for unfair dismissal through the Fair Work Commission. However, Assistant Ministers only have 21 days from the date of dismissal to pursue their claim. The Fair Work Commission is very strict in requiring all actions to be commenced within 21 days.

Is it legal to dismiss an Assistant Minister without providing reasons?

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No, it is illegal to dismiss any employee without providing reasons for their dismissal. Furthermore, the grounds for the summary dismissal of an employee are very limited.

What are the grounds for summary dismissal?

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The grounds for summary dismissals are quite limited - for example, theft or fraud, damage to the employer’s property, serious breaches of WHS laws, discrimination or harassment of another employee or refusal to carryout a lawful and reasonable direction.

Can an Assistant Minister be dismissed due to a personality clash with the Senior Minister/Pastor?

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No, it is illegal to dismiss any employee on the basis of an alleged personality clash. Prior to dismissing any employee from their position, the employer must clearly spell out the areas where the employee is failing to perform their duties and give the employee a reasonable period of time to improve their performance. This process is described as establishing a performance management plan.

What is bullying?

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A worker is bullied at work if (1) a person or group of people repeatedly act unreasonably towards them or a group or workers and (2) the behaviour creates a risk to health and safety. The key elements of bullying require that the conduct be repeated and unreasonable. Examples of unreasonable conduct include behaving aggressively, teasing or practical jokes, pressuring someone to behave inappropriately, excluding someone from work-related events, or unreasonable work demands.

What can an Assistant Minister do if they are being bullied at work?

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An Assistant Minister who is being bullied at work may approach the Fair Work Commission for an order to protect them from being bullied. For details of how to apply for an order to prevent bullying see the following link.

Is bullying against the law?

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Bullying conduct does not constitute a contravention of the Fair Work Act 2009 and as such is not illegal. However, bullying can be both a civil contravention and a criminal offence under the NSW Work Health and Safety Act 2011. Under section 19 of this legislation a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers. Therefore, if a person conducting an undertaking such as church knowingly permits its workers to continue working in a bullying work environment without taking any action to prevent such bullying, they can be personally liable under the NSW Work Health and Safety Act 2011. As the NSW WHS laws are based on model Federal legislation similar provisions apply in each state and territory.

What are the penalties for breaching the NSW Work Health and Safety Act 2011?

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The current penalties for breaching the NSW Work Health and Safety Act 2011 depend on the offence category. A Category 1 Offence is defined as gross negligence in exposing workers to a risk of death or serious injury or illness, which would include knowingly exposing a worker to a bulling environment which results in serious mental health injury. The current penalties for a Category 1 Offence are a maximum fine of $3.463 million for a corporation and $692,500 and/or 5 years imprisonment for each person conducting the undertaking. As the NSW WHS laws are based on model Federal legislation similar provisions apply in each state and territory.

Who could be personally liable under the NSW Work Health and Safety Act 2011?

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The individuals who are responsible for conducting the undertaking are personally liable under the NSW Work Health and Safety Act 2011 if they fail to provide a safe working environment. This would include the Senior Minister/Pastor, Wardens, Elders, and all the members of the Parish Council, Committee of Management and Session. As the NSW WHS laws are based on model Federal legislation similar provisions apply in each state and territory.

What should I do if I believe my church is breaching the NSW Work Health and Safety Act 2011?

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If you believe that your church is breaching the NSW Work Health and Safety Act 2011 by permitting workers to work in a bullying environment, you should lodge a complaint with SafeWork NSW. To report an incident call SafeWork on 13 10 50 or the relevant work safe regulator in your state / territory. Incidents can be notified 24 hours a day, 7 days a week.

Are non-disclosure agreements legal?

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It is legal for an employer to ask an employee to sign a non-disclosure agreement on termination. However, a non-disclosure agreement cannot prevent a person from disclosing a suspected breach of legislation to a regulator such the Fair Work Ombudsman or Safe Work NSW.

Should an Assistant Minister sign a non-disclosure agreement (NDA)?

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It can depend upon the circumstances. We generally advise employees not to sign a non-disclosure agreement because this can limit an employee’s ability to heal after a situation of unfair dismissal, and to advise others about the dangers of the workplace they have left. However, as the non-disclosure agreement can be linked to the payment of an agreed amount for the termination of the Assistant Minister’s employment, it may be in the Assistant Minister’s interests to sign the agreement in order to receive the termination payment. It may be possible to negotiate the payment of the agreed amount using employment law without having to sign a non-disclosure agreement.

Should an Assistant Minister agree to a non-disparagement clause in a non-disclosure agreement?

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It may be a condition of agreeing to make the termination payment that the Assistant Minister agree to a non-disparagement clause in the non-disclosure agreement. However, the Assistant Minister should insist on the insertion of a mutual non-disparagement clause in the non-disclosure agreement before signing the agreement.

What could happen if the Assistant Minister breaches the non-disparagement clause in a non-disclosure agreement?

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If the Assistant Minister breaches the non-disparagement clause, they could be forced to repay the entire termination payment made to them.

What could happen if the Senior Minister/Pastor or Church breached the non-disparagement clause in a non-disclosure agreement?

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There is little that an Assistant Minister can do legally if the Senior Minister/Pastor or Church breached the non-disparagement clause in a non-disclosure agreement. Regardless of this the Assistant Minister should immediately bring their concerns about the breach of the non-disparagement clause to the attention of the Senior Minister/Pastor and the church and demand a full investigation and explanation.

What can an Assistant Minister do if they have suffered an injury as a result of working in a bullying workplace?

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An Assistant Minister who has suffered an injury as a result of working in a bullying workplace, including a mental health injury, should lodge a workers compensation claim. The Assistant Minister could also pursue a negligence action against the church. For a negligence action, the Assistant Minister would have to show that the church breached its duty of care to the Assistant Minister by not providing a safe workplace free from bulling, and that the breach of duty had caused damage to the Assistant Minister. It is best for the Assistant Minister to approach a private plaintiff law firm if they are considering a negligence claim so as to obtain independent legal advice. These private plaintiff law firms will usually be willing to assist the Assistant Minister on a no win, no fee basis.

What are the steps for lodging a Workers Compensation claim?

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The first step is to advise their employer of their claim. The employer then has a legal obligation to advise their insurer. If the claim is refused, the worker can approach the Workers Compensation body in their state or territory. In NSW that is the Independent Review Office which used to be known as WIRO. The IRO is an NSW independent statutory office which is responsible for finding solutions for complaints about insurers from injured workers and employers. It is best for the Assistant Minister to approach a private plaintiff law firm if they have decided to approach IRO or the relevant workers compensation organisation in their state or territory so as to obtain independent legal advice. These private plaintiff law firms will usually be willing to assist the Assistant Minister on a no win, no fee basis.