Labour Legislation and the Church

Participants: David Butcher (CPSA), Erwin Dedekind (ELKSA-NT), Graeme Dorrington (MCSA), Albert Engel (Moravian), Elizabeth Gabuza (ACZ), Collin Goeiman (FSPCC/URCSA), Rod Greville (CPSA), Israel Lengoasa (Salvation Army), L. von Lüttichau (ELKSA-NT), RJ Maenetsa (HKSA), Thomas Makgato (ELCSA), Phillip Makhuna (AME), Daniel Maluleke (URCSA), Flora Moloto (GPCC), Senamo Molisiwa (CAIC), Nelus Niemandt (NGK), Thozama Nkutha (URCSA), Garda Pettitt (Rhema), Robert Samson (PCSA), Ann Selatela (FUCC), Daniel Tamboer (Moravian), George Trimble (MCSA), Paul Vilakazi (AME), David Wanless (UCCSA), John Weldon (CPSA), Thobela Willem (Order of Ethiopia).

1. Welcome

Malcolm Damon welcomed participants and explained the objectives of the workshop which were:

• To inform churches about their rights and obligations under new labour legislation;
• To alert churches to some of the problems that may arise in interpreting the legislation, especially the difficulty of fitting clergy/church relationships into the legislation’s definition of the relationship between employee and employer; and
• To initiate a dialogue among churches and between the SACC and the Department of Labour on the employment status of clergy in order to begin to develop clear and consistent guidelines of the appropriate application of labour legislation to churches and clergy.

He noted that the issue of the employment status of clergy arose last year when the SACC Public Policy Liaison Unit made a submission to Parliament on the Employment Equity Bill. The PPLU conducted a survey of SACC member denominations, and this revealed wide variations in the interpretation and application of labour legislation.

Handouts: Summary of the PPLU survey results

2. Recently-adopted Labour Legislation

Doug Tilton highlighted key provisions of the new Constitution, the Labour Relations Act (No. 66 of 1995), the Basic Conditions of Employment Act (No. 75 of 1997) and the Employment Equity Act (No. 55 of 1998) that have particular implications for churches. He distributed a list of these key points together with a Department of Labour publication entitled “Workers’ Rights Are Human Rights”. He noted that the law requires a summary of the Basic Conditions of Employment Act be posted in the workplace, and he distributed copies of the poster published by the government for this purpose. The Department of Labour representatives also made available copies of the full Basic Conditions of Employment Act, as well as the regulations published pursuant to the Act. (The regulations contain the BCEA summary in all official languages, as well as appropriate forms for the collection and reporting of data as required by the Act.) He looked at the definition of “employee” contained in all three Acts, and suggested sources for additional information. Valaine Lategan and Mbuli Sithole of the Department of Labour provided further details about the legislation during the question and answer period.

Handouts: A list of the key provisions of recent labour legislation, “Workers’ Rights are Human Rights”, Basic Conditions of Employment Act and regulations, BCEA summary posters, Code of Good Practice on Sexual Harassment

3. Are Clergy Employees?

Malcolm Damon introduced the panelists: Mbuli Sithole, Deputy Director: Equal Opportunities, Department of Labour; Valaine Lategan, Senior Administrative Officer, Department of Labour; Bongani Khumalo, Senior Commissioner, Gauteng Commission for Conciliation, Mediation, and Arbitration; and Mahmoud Fadal, Commissioner, Gauteng CCMA.

Ms. Sithole and Ms. Lategan gave an overview of the Employment Equity Bill, exploring the concept of unfair discrimination, drawing attention to the affirmative action obligations incumbent on employers, and identifying provisions of particular concern to the church. Ms. Sithole indicated that the Department is still considering guidelines that would assist businesses and organisations to determine who should be considered the “employer” for the purposes of the Act in cases where employees are supervised (partly or fully) and paid by different parts of the organisation.

Mr. Khumalo reviewed recent court decisions and legal scholarship, both in South Africa and abroad, to derive eight criteria which should be used to assess whether or not a person should be considered an “employee” in terms of labour law. He concluded that the courts would consider the vast majority of clergy in South Africa to be “employees” for the purposes of applying labour laws.

Nelus Niemandt related the recent steps taken by the Dutch Reformed Church to comply with the new labour laws. The whole book of order (Kerkorde) was recently revised in order to bring it in compliance with labour laws. The denomination recognises clergy as "employees". Kerkorde states: "Die gemeente of kerkverband (ring, sinode of Algemene Sinode) in wie se diens ín predikant staan, is die werkgewer van die predikant." [The congregation or church (circuit, synod or General Synod) for whom the minister works is the employer of that minister.] Local congregations (considered to be "employers") have discretion in hiring and firing pastors. This was confirmed in a case in the Labour Court (J 273/97 Schreuder and Die Nederduitse Gereformeerde Kerk Wilgespruit ea.) in which the court ruled that a clergyman is an employee of the local congregation. Mr. Niemandt made the point that the specific system of church governance might influence the position of various churches in this regard, but that the situation in the DRC with its Presbyteral system is very clear.

The DRC has published an extensive manual for congregations (available--in Afrikaans only--on the church’s web site). The manual covers aspects such as labour laws, a labour policy for congregations, contracts, work descriptions, record keeping, leave and disciplinary actions. Congregations are expected to revise all contracts to bring them in line with current labour laws by the end of 1999. Every congregation must also appoint a committee to manage labour relations within the congregation. (Elke kerkvergadering het ín kommissie wat die diensverhouding tussen hom as werkgewer en sy werknemers bestuur. Die kommissie kan kundiges betrek.)

The General Synod appointed a committee (Algemene Kommissie vir Diensverhoudinge; contact person: Nelus Niemandt 011 475 6811) with the specific task of research and policy formulation regarding labour matters. Some clergy have formed a trade union, and the denomination is moving towards a collective bargaining model in the negotiation of clergy contracts.

The importance of acting pro-actively was stressed in the light of very expensive laws-suits - in one case the cost ran up to R2 million!

George Trimble shared the interpretation and experience of the Methodist Church of Southern Africa. The denomination believes that, in accordance with its pastoral responsibility and moral obligation and to achieve fairness and equity, it is complying with the spirit of the recent labour legislation.

In respect of the question of whether a minister is an “employee” as defined in terms of the new labour legislation, it was the Methodist Church’s interpretation that a minister fell outside of the definition of an employee and accordingly was not subject to the labour legislation (for example, the Labour Relations Act and the Basic Conditions of Employment Act). Various brief reasons were given as to why the Methodist Church had reached this conclusion. Mr. Trimble went on to point out that should a minister be considered to be an employee, this would intrinsically alter the nature of the relationship between the Church and its ministers and would have far-reaching implications regarding, amongst other things, the appointment and stationing of ministers as well as the rights and obligations between the Church and its ministers.

Mr. Khumalo’s presentation and a summary of Ms. Sithole’s remarks accompany this report.

4. Way forward

It was noted that, for every denomination, certain categories of workers (support staff, administrative personnel, etc.) are clearly considered “employees” in terms of the definition used in recent labour legislation. However, the discussion during the previous session revealed that there is much more uncertainty about the applicability of the term “employee” with respect to other categories of church workers, especially clergy. This session was intended to encourage participants to begin to think in greater detail about how the law should be applied and what changes are required to facilitate application in a manner consistent with our respective ecclesiastical structures and theological doctrines.

Participants formed three small groups and met for 50 minutes to discuss three questions:

1. What criteria should churches use to determine if a worker is an “employee” in terms of labour legislation?
2. What criteria should be used to determine who is the corresponding “employer”?
3. What actions should we take:
   1. within our own denominations, and
   2. with respect to government
   to build a consensus around these critera?

Criteria

Several factors were suggested as criteria that might be helpful in distinguishing employee-employer relationships from other types of relationships. These included:

• The existence of a contract (in which case, the question of who is the employer is also resolved)
• Who issues an IRP5 certificate (helps to establish employer, but must also recognise that some IRP5s are issued with respect to independent contractors)
• The extent to which skills are mobile (i.e., is a clergy person free to minister in another denomination?)

It was felt that eligibility for taxation alone was not a good guide to the nature of the relationship. It was agreed that support personnel are always in an employee-employer relationship, but the boundaries of that category may require further clarification. There were also questions around whether self-supporting, stipendiary, and part-time clergy would be considered employees, and, if so, in what situations.

Actions

The participants agreed on the following agenda for action:

• Participants will put the matter on agendas of their respective denominations, encouraging study and dialogue within the church.
• These denominational discussions should involve reviewing denominational constitutions (and Canon Law, Book of Order, etc.) in light of the new legislation to determine if any changes are appropriate and necessary to facilitate compliance with the law.
• Participants will keep the SACC Public Policy Liaison Unit informed of the progress of discussions and decision-making within their denomination.
• The SACC-PPLU should facilitate contact and information sharing among denominational officials/committees considering labour issues. As an initial step, it should include a list of workshop participants and their contact details in the follow-up packet.
• The SACC-PPLU should develop a list of the pros and cons of explicitly placing clergy-denomination relationships within an employee-employer framework and circulate this list to denominations. Denominations should use this information as an aid to deciding what actions are most appropriate in their respective situations.
• The SACC-PPLU should convene a follow-up consultation in 12 to 18 months to enable denominations to report on their progress, to exchange experiences and approaches, and to consider whether action is necessary to reconcile labour legislation (and associated regulations) with the methods of interpreting and implementing the law that are emerging within the Church.
• The SACC should explore the possibility of having the religious community represented on NEDLAC.