This decision of the Fair Work Commission deals with the legal principles involved in determining whether a minister of religion is an employee of a church.
“The approach to determining if a religious minister is an employee
Whether there is a contract between the parties – the intention to create legal relations
[56]
The High Court of Australia in the matter of Ermogenous v Greek Orthodox Community of SA Inc37 (Ermogenous) set out the correct approach to determining if a Minister of Religion is an employee.
[57]
Ermogenous involved an application by Archbishop Ermogenous for payment of what he asserted were accrued entitlements to annual and long service leave following his resignation, arising from what the Archbishop said was an employment relationship with an
33 Respondent’s Further Submissions Further Material Filed by the Applicant (dated 19 May 2025) at paragraph 3.2(b).
34 Ibid at 2.3(b).
35 Ibid at 2.3(c).
36 Ibid at 2.5.
37 [2002] HCA 8 (‘HCA Ermogenous’).
[2026] FWC 2992
12
incorporated association known as the Greek Orthodox Community of SA Incorporated (the Community). The Industrial Magistrate of the South Australian Industrial Relations Court (SAIRC) had found an employment relationship existed and ordered payment of the Archbishop’s entitlements.38 That decision was affirmed (with minor amendments to the orders) by a single Judge of the SAIRC39 and then a Full Court.40 On appeal from the Full Court of the SAIRC, the Full Court of the Supreme Court of South Australia overturned the previous decisions and found that the parties had no intention to create legal relations and therefore no contract could have been formed between them.41
[58]
The matter was appealed to the High Court of Australia. The High Court overturned the Full Court of the Supreme Court of South Australia. Justices Gaudron, McHugh, Hayne and Callinan (the majority), said:
“‘It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.’ To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet, ‘[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts’.
…
Because the inquiry about the last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either party may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”42
38 (1997) 64 SAIR 622.
39 (1998) 65 SAIR 514.
40 (1999) 66 SAIR 136.
41 (2000) 77 SASR 523.
42 HCA Ermogenous at [24]-[25], citing Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 457, South Australia v The Commonwealth (1962) 108 CLR 130 at 154, Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 at 367, Masters v Cameron (1954) 91 CLR 353 at 362, ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348-353; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5.
[2026] FWC 2992
13
(footnotes omitted).
[59]
The majority warned against making broad assumptions about the basis of relationships between churches and their ministers and the “unthinking application of the practices of one tradition to another. Especially is that so if the questions concern the structures of church governance, the relationship between clergy and laity, or the relationship between the community and whatever may be the group or institution that is identified by that community as the ‘church’.”43
[60]
The majority concurred with the approach taken by the Industrial Magistrate at first instance who “expressly recognised that, in each of the several cases to which the respondent had referred in support of its submissions, there had been:
‘a close consideration of the particular facts of the matter, including the charters, statutes, and documents of fundamental belief of each creed considered, the documented position of the clergy in respect of each of the churches mentioned, and the special provisions of statute which govern the actual situation in the law of that particular church.’”44
[61]
The majority noted that the Industrial Magistrate had undertaken a close examination of the evidence about those subjects and “examined, with care all of the objective circumstances which bore on whether the parties intended to make a contract, as distinct from an arrangement binding only in honour.”45 That is the task that must be undertaken in this matter.
[62]
In determining that there was no intention to create legal relations, the Court considered if Archbishop Ermogenous was appointed to an office as defined by the laws of the Church, and in doing so considered who appointed and engaged him, the entity in which the office existed and the application of internal church rules to the circumstances.46 The majority noted: “[i]t should go without saying that those matters of church structure and governance may very well differ in the present case from those that exist in other churches and communities and that there can, therefore, be no automatic translation of what was decided in … [other cases] to the present.”47
[63]
The majority also found that “[w]hether a conclusion that [the Archbishop] had been appointed to an ecclesiastical office would preclude a conclusion that he served in that office under a contract of employment is a question we need not explore.”48
[64]
The Court reflected on the difficulties of identifying the employer of a Minister of religion, particularly when the employer is said to be an unincorporated association and the
43 HCA Ermogenous at [7].
44 Ibid at [44].
45 Ibid.
46 Ibid at [30]-[31].
47 Ibid at [31].
48 Ibid.
[2026] FWC 2992
14
terms on which the Minister performs duties is regulated by the rules of the unincorporated association. Citing Cameron v Hogan49, the majority noted:
“there are at least two difficulties that arise if action is brought to enforce a contract said to have been made with an unincorporated body. First, there is difficulty in properly constituting the action by sufficiently identifying all the proper parties to the suit … Secondly, there is the further difficulty of identifying who it is who is said to be responsible for the breach alleged. Are all members of the body to be said to be in breach of the contract; are only some to be said to be in breach? These are not mere formal difficulties. They invite close attention to identifying the contract that is alleged to have been made, and in particular, the identification of its parties.”50
(footnotes omitted).
[65]
Significantly, the majority of the Court rejected the finding of the Full Court of the Supreme Court that an intention to enter contractual relations is not to be presumed where the arrangement concerns the engagement of a minister of religion but it must be affirmatively proved:
“That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers, is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is like-wise self evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract”.51
And “[t]o say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister’s spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment.”52
[66]
The High Court found no basis to deviate from the findings of the Industrial Magistrate at first instance, in respect of his findings that the relationship between the Archbishop and the Church was contractual and had the element of an intention to create legal, contractual relations. The initial finding that the Archbishop was engaged under a contract of employment flowed from the Industrial Magistrate’s acceptance of the evidence of the Archbishop that in a meeting that took place when the contract was formed, he was told he was to be engaged as an employee on the same terms as priests engaged by the Community,53 and that the Community had previously recruited and employed clergy who were subject to the direction of the Community and were treated as employees.54
49 (1934) 51 CLR 358 at 371.
50 HCA Ermogenous at [33].
51 Ibid at [37].
52 Ibid at [38].
53 Ibid at [42].
54 Ibid at [40].
[2026] FWC 2992
15
[67]
Relevant to the majority’s finding in Ermogenous was also that the “essentially spiritual” character of the relationship asserted between the Archbishop and the Community in fact had different character because the Community’s functions were broader than religious matters. The Community’s purpose was the “preservation of the Hellenic and Orthodox culture they had been formed to enhance and preserve” and “[i]ts members were not all observant practitioners of the Greek Orthodox faith. Attempts were made to establish an incorporated association that would be the civil law expression of what might be described as the ‘church’ as an institution. Those attempts did not succeed.”55
Consideration
[68]
Fr Pawlowski’s entry into the Society was on the basis of religious vows he offered to God and to the Society. He sought admission by declaring to the Society that it was his “will to fulfil these Constitutions” and he professed his “perpetual religious vows” in February 1995.56 In April 1995, Fr Pawlowski undertook the “Act of perpetual religious profession” and made his vows, declaring:
“having come to know the Constitutions, spirit and mission of the Society of Christ, [I] stand before Thee, O Eternal and merciful God, and dedicating myself voluntarily to the noble service of the Kingdom of truth, peace and salvation, I make, in this Society, a lifelong vow of chastity, poverty and obedience. I make this heartfelt religious vow of mine on the hands of the Reverend Superior General, sincerely resolving that, with the help of the grace of God, and under the protection of the Most Holy Mother, I will live according to the spirit of this Society and in accordance with its Constitutions.”57
[69]
The vows offered by Fr Pawlowski and his submission by way of a vow of obedience to the Constitution of the Society, demonstrates an intention to be bound in honour to his vocation as a member of a religious order and not an intention to be subject to a contract of employment, at least in respect of his membership of the Society.
[70]
The Society itself is an unincorporated association, subject to its own rules, contained in its Constitutions, and to the Canon Law of the Roman Catholic Church. I accept the evidence of Fr Gardzinski, which was largely uncontroverted by Fr Pawlowski, that as a religious order the Society is obliged to follow Canon Law and any decrees issued by the Pope, as the head of the Roman Catholic Church. The Society’s own Constitutions have to be approved by the Holy See as the central governing body of the Roman Catholic Church, led by the Pope. Fr Pawlowski, on his own case, accepts his subjugation to Canon Law and in fact appealed his expulsion from the Order to the Holy See.
[71]
The entity registered with the ACNC is the Trustees of the Society of Christ. There was no evidence about the functions of the trust structure referred to by Fr Gardzinski, but I presume from evidence about Fr Pawlowski living in a house belonging to the Society that it owns property. The difficulty of identifying the purported employer of a minister of religion,
55 Ibid at [40]-[41].
56 Annexure MG7 to the Statement of Fr Gardzinski.
57 Ibid.
[2026] FWC 2992
16
particularly when the employer is said to be an unincorporated association, exists in this matter. Fr Pawlowski asserted an employment relationship with the Province in Australia.58 Whilst Fr Gardzinski says each Province is its own separate entity, and the Australian Province operates its own trust, the Australian Province is subject to the rule of the General Council and the Superior General, which is in turn under the jurisdiction and direction of the Holy See. It appears to me that Fr Pawlowski does not have a contractual relationship with the Society of Christ as the order based in Poland because his membership is based on his voluntary vows. The Trustees of the Society of Christ in Australia is an unincorporated association under the rule and direction of the Order in Poland, and as such does not have a separate legal identity from its members. Whilst Fr Pawlowski says he is employed by the Society of Christ in Australia,59 he later argued that the letter or Agreement sent to him by Fr Skiba of the Society of Christ Adelaide was his contract of employment. If this were the case, then the Society of Christ Adelaide would be his employer. Again, there is no evidence before me that the Society of Christ Adelaide is anything more than an unincorporated association, established as an administrative structure within the Order. The difficulty in ascertaining the actual employer in order to enforce any contract of employment in this matter is a factor weighing against a finding that a contractual relationship exists between the parties.
[72]
In addition, the Agreement of 30 January 2020 (the Agreement) itself says that the basis for the ‘Agreement for pastoral work and cooperation’ includes not only the terms in that document but the Provincial Superiors letter of 7 January 2020, the Constitution of the Province and the Integrity in Ministry for Catholic Clergy and Religious in Australia. If this were a contract, then it can be presumed that those documents are read into the contract. The Constitution of the Province is not in evidence. The letter of 30 January 2020 is the only mention in the documents filed that the Province has its own Constitution. It is unclear if this is a translation error and the relevant Constitution is the Constitution of the Order. Likewise, the Integrity in Ministry for Catholic Clergy and Religious in Australia document is not in evidence, but I can assume it is a policy that sets out behavioural and ethical considerations for clergy in their dealings with laity. There is nothing that turns on this. The letter of 7 January 2020 is a letter issued by the Provincial Superior that releases Fr Pawlowski from duties as pastoral priest in Auckland and appoints him as an Assistant Priest for Polish migrants in Adelaide. It does no more than that. The language used is consistent with a direction from a Superior to a priest who lives under a vow of obedience.
[73]
The Agreement, even in its title, adopts language that reflects co-operation to undertake the duties of ministry between Fr Pawlowski and Fr Skiba. I agree with the submissions of the Respondent that the responsibilities set out in the Agreement of 30 January 2020 are consistent with Fr Pawlowski’s religious profession of vows to the Order and not a contract between the parties. The document asserted by Fr Pawlowski to be a contract of employment does not appear to be a contract at all and weighs against a finding that there is an intention between the parties to create a legal relationship.
[74]
A point of distinction from the case of Ermogenous is the differences in the nature of the organisations entering into the purported contract. In Ermogenous, a critical factor in the finding that the parties had an intention to create legal relations was the nature of the
58 Transcript PN132-PN138.
59 Ibid PN129-136.
[2026] FWC 2992
17
Community itself. In Ermogenous, the Community was found to be a group of members with missions and functions broader than religious matters. That is not the case here. The Society of Christ’s mission is to minister to Polish Catholics in Poland and abroad. Its mission and those that minister within the Order are ecclesiastical only in nature.
[75]
Further, the Society is only intended to minister to Poles who profess the Catholic faith. The relationship between Fr Pawlowski and the Society of Christ was based on vows of canonical obedience and governed by the Canon Law of the Catholic Church and the constitution of the Society of Christ. There is substantial evidence that Fr Pawlowski and the Society of Christ constructed their relationship on the basis it was subject to Canon Law and the Society’s Constitution and the relationship existed only for the furtherance of objectives arising from a common faith shared with members of the Society and Polish faithful within the Catholic Church. It was also a relationship in which the governance structures of the Order, and ultimately the Holy See, exercised ecclesiastical control over Fr Pawlowski. He accepted that control and for the most part complied with his vow of obedience.
[76]
Objectively considering the nature of the relationship between Fr Pawlowski and the Society of Christ, it was one regulated by Canon Law and the Society’s Constitutions and not intended to be subject to civil law and review by Australian Courts and Tribunals. The law is clear that a relationship between a minister of religion and a church can be both spiritual and contractual in a manner that gives rise to legally enforceable rights and duties. But, for the reasons set out, this is not, in my view, the case here.
[77]
Whilst the Agreement for pastoral work of 30 January 2020 reflects an agreement between the parties about the work that was to be done and by whom, it is not evident that it forms a contract between the parties. I am also unable to find that the party purported to be the employer can form such a contract with Fr Pawlowski, nor that the parties had an intention to create legal relations and enter into such a contract.
[78]
On that basis, it is my view that Fr Pawlowski is not an employee of the Society of Christ and cannot, therefore, be dismissed.
If there was an intention to create a contractual relationship, whether it was one of employment
[79]
If I am wrong in my view that there was no intention between the parties to create legal relations, and there was an intention to create a legally binding contractual relationship, it is necessary to consider whether the contract was one of employment.
[80]
Fr Pawlowski submits that the Respondent has misrepresented the relationship between them as one of “volunteering and not employment; they confused my voluntary entry into the pastoral service as a priest (my vocation) with volunteering in delivering my duties in the specific appointment.”60
[81]
Fr Pawlowski says that an employment relationship exists because he performed his work for the Society, it was not in addition to any other work or commitments and his
60 Submissions of the Applicant (dated 31 January 2025) at paragraph 25.
[2026] FWC 2992
18
engagement was for the exclusive full-time delivery of identified duties.61 He says the other factors identifying the relationship as one of employment include the binding agreement for him to be placed in Adelaide for the length of six years, that the Society had control of his day to day duties, gave him direction and supervision of his activities, and paid him a stipend which was a benefit for the time he had performed work. Fr Pawlowski also says that an employment relationship can be found from his visa status at the time he was relocated from Poland and the fact he received JobKeeper support payments from the Australian Government during the covid pandemic.
[82]
Before the Full Court of the Supreme Court, the Greek Orthodox Community of South Australia in Ermogenous had argued that if there had been an enforceable contract between it and the Archbishop then it was not in law a contract of employment. That issue was not determined by the High Court but was remitted to the Full Court of the Supreme Court. The Full Court ultimately determined not to upset the application of traditional approaches to identifying a contract of employment adopted by the Industrial Relations Court of South Australia:
“The issue of whether the contract between the appellant and the respondent is one of employment is not an issue that warrants the grant of leave to appeal. The issue involves the application of well established principles. … Each case will turn on its own facts, and the most that can be determined in this case is the correct application of the relevant principles to the facts of this case. … The fact that on three occasions the Industrial Relations Court has held that the contract is one of employment is a further reason for refusing to grant leave to appeal”.62
[83]
The majority of the High Court summarised the Industrial Magistrate’s conclusion about the existence of a contract of employment:
“The Industrial Magistrate concluded that the appellant [Archbishop] had been employed by the respondent [Community] under a contract of employment. Three steps on the way to that conclusion may be noted. First, the respondent’s contention that there could be no binding agreement for employment of a minister of religion was rejected. Secondly, the Industrial Magistrate found that the respondent reserved the right to control the way in which the appellant went about his duties. … Thirdly, the Industrial Magistrate found that the appellant was recruited to join an existing organisation in the evolution of which he was allowed no say and in which he was required to play his role and discharge his duties. He was, in the view of the Industrial Magistrate, a part of the organisation of the respondent.”63
(footnotes omitted).
[84]
The Full Court of the Supreme Court, by Doyle CJ, adopted the reasoning of the Industrial Magistrate and noted the findings of fact made by the Industrial Magistrate that
61 Ibid at paragraph 30.
62 [2002] SASC 384 at [9] per Doyle CJ with whom Mullighan and Bleby JJ agreed.
63 HCA Ermogenous at [17] and referenced in the second Supreme Court decision of Ermogenous [2002] SASC 384 at [12].
[2026] FWC 2992
19
formed the basis of his view that a contract of employment existed between the parties. Those facts included:
•
The Archbishop was told by representatives of the Community that he would be one of their employees.
•
The Community conceded that it employed priests.
•
The Community maintained records as though the Archbishop was its employee.
•
The Community treated the Archbishop as an integral part of its organisation.
•
A significant degree of control, including over spiritual matters of ritual and administration of sacraments, was exercised by the Community over the Archbishop including the Committee of the Community urging the Archbishop to attend at certain churches, to take actions in an official capacity and the Archbishop understood them to have the force of directions.
•
The Archbishop “saw himself as being subject to the detailed direction and control specifically of the SA Community, its management committee and its officers on a broad and detailed range of matters that overlapped with and extended into whatever areas of independent discretion he was thought to have.”
•
The Community was “constantly alert to detect and reverse any and all attempts by the applicant to assert some independent and unappealable discretion to act”.
•
The applicant had no real degree of independence or control, or a “distinct sphere of competence”.
•
The officers of the Community insisted that the Archbishop “adhere to their will and preference in the running of the affairs of the church, whether the issues related to mundane matters of organisation, property and finance, or to the designated reserved area of ‘spiritual’ matters such as the consecration of priests, the exercise of discipline over the clergy of the church or the calling and conduct of a synod. Those officers clearly reserved to themselves the right of final arbitration over issues as to what matters lay within the applicant’s jurisdiction of spiritual affairs, and appear to have left very little indeed to the applicant.”64
Correct legal approach to determining whether there is an employment relationship
[85]
On the Applicant’s case, his employment with the Society of Christ in Adelaide commenced on 7 January 2020. For reasons set out below, I find that the asserted period of employment concluded on 7 October 2021. At all relevant times, the law that applied to the determination of an employment relationship was a consideration of the overall circumstances, the practical reality and the true nature of the relationship.65 The indicia to be considered were established by the High Court in matters such as Hollis v Vabu.66 The High Court authorities which moved away from this approach and towards giving priority to the terms of the contract reached between the parties were not handed down until the relationship between Fr Pawlowski and the Society of Christ had ended.67 Likewise, the amendment to the Act inserting section
64 Second Supreme Court decision of Ermogenous [2002] SASC 384 at [12] – [13], referring to findings in (1997) 64 SAIR 622.
65 See ‘The Modern Contract of Employment’ Neil, Chin and Parkin, 3rd ed (2023) at [1.046].
66 (2001) 207 CLR 21.
67 Referring to CFMMEU v Personnel Contracting Pty Ltd (2022) 96 ALJR 89 and ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144.
[2026] FWC 2992
20
15AA ‘Determining the ordinary meanings of employee and employer’ was not made until 26 August 2024.
[86]
I now give consideration to the parties’ submissions as to whether an employment relationship exists and the indicia considered in these circumstances.
Labelling of the relationship
[87]
There is no labelling of the relationship in this matter as one of employment. This is a point of distinction between the circumstances in Ermogenous. The ‘contract’ as asserted by Fr Pawlowski of 30 January 2020, refers only to an agreement for pastoral work and co-operation between Fr Pawlowski and the Priest of the Adelaide ministry, Fr Skiba. Whilst it does contain references to remuneration for work (addressed below), the document otherwise sets out a division of duties between the two priests. The letter refers to “jointly agreeing” to deal with unexpected duties, alternating saying mass at different mass centres and jointly determining the allocation of worship ceremonies, by way of examples.
[88]
There is no document, or evidence before me, that the relationship between Fr Pawlowski and the Society of Christ, was ever labelled one of employment. Fr Gardzinski’s evidence was that no priests or clergy were employed by the Society and employment of priests was prohibited by Canon Law.
[89]
I do not agree with the submissions put by the Respondent that the relationship between it and Fr Pawlowski was, or can be, labelled one of volunteer.68 I prefer the approach taken by the Commission in Reverend Fihaki v Uniting Church in Australia, Qld Synod69 (Fihaki), where the finding was that the Reverend was not an employee or contractor, but rather “in a separate category of spiritual or covenantal relationship”.70
Length of placement
[90]
Fr Pawlowski submits that he had a contract for his placement in Adelaide for a term of six years that was terminated without a valid reason.71 He suggests that his placement for a period of six years is an indicator of an employment relationship.72
[91]
I do not agree that the intended length of his placement is indicative of employment. It appears on the evidence that the Society arranges for relocation of its priests “every six years or more if required.”73 There is nothing inherently employment-related about a relocation for ministry elsewhere after a period of time determined by the Society. The relocations appear to be done by Provincial decree. A unilateral, geographical relocation by an employer of the place in which an employee performs work, especially of the distances in these circumstances – from Auckland to Adelaide for example – is not a usual feature of employment. Fr Pawlowski
68 Submissions of the Respondent (dated 17 January 2025) at paragraphs 3.3(h)-(k).
69 [2023] FWC 1650 (‘Fihaki’). The decision was appealed, see [2023] FWCFB 167, but the findings were not overturned.
70 Fihaki at [125].
71 Supplementary statement of the Applicant dated 9 October 2024 pg.2.
72 Submissions of the Applicant (dated 31 January 2025) at paragraph 35.8.
73 Supplementary statement of the Applicant dated 9 October 2024 pg.2.
[2026] FWC 2992
21
submits that relocations are undertaken by mutual agreement. The decrees appear to be issued unilaterally by the Society. However, even if Fr Pawlowski is correct, it is not necessarily suggestive of an employment relationship.
Control – direction of duties
[92]
Significant emphasis was placed on this indicium in finding a relationship of employment in Ermogenous. The evidence in this matter shows that the Society had significant control over where Fr Pawlowski performed his work.74 However, there is no evidence that control was exercised over how he performed his work, including his spiritual work. The letter of Fr Skiba was, as I have said, a division of duties. It does not prescribe how Fr Pawlowski would perform, for example, his visitations to the sick and elderly or religious ceremonies. The performance of the latter is likely dictated by the tenants, traditions and prescriptions of the Roman Catholic Church.
[93]
Fr Pawlowski submitted that he performed “ongoing work under the control, direction and supervision of the employer and receive[d] benefits for the time worked.”75 However, there was no evidence before me that the Society exercised significant control over the day to day duties of Fr Pawlowski and how those duties were performed. I am also not persuaded that the control issued over Fr Pawlowski in respect of what duties it was necessary for him to perform and where he performed them (in respect of where he lived and carried out his ministry) was any more than the control ceded to the Society by Fr Pawlowski’s voluntary religious vow of obedience and his broader commitment to God, the Church and his Order.
Payment of a stipend, superannuation and taxation
[94]
In referencing his entitlement to regular remuneration as evidence of an employment relationship, Fr Pawlowski referred to the relevant section of Canon Law that provides for such an entitlement:
“Can. 281 §1. Since clerics dedicate themselves to ecclesiastical ministry, they deserve remuneration which is consistent with their condition, taking into account the nature of their function and the conditions of places and times, and by which they can provide for the necessities of their life as well as for the equitable payment of those whose services they need.”76
[95]
The evidence before me is that Fr Pawlowski was paid one hundred dollars per week77 as a stipend and in addition was provided with food supplies, health insurance and accommodation, in which was included an office, chapel, kitchen and garage.
74 This is consistent with my comments about the Society unilaterally transferring Fr Pawlowski to new ministries.
75 Submissions of the Applicant (dated 31 January 2025) at paragraph 35.5.
76 Code of Canon Law – Book II – The People of God – Part I. (Cann. 208-329).
77 Fr Pawlowski filed a copy of a cheque given to him by the Society of Christ in the amount of $400.00 and submitted it was for January 2021. The Respondent did not dispute the amount of the stipend.
[2026] FWC 2992
22
[96]
Fr Gardzinski’s evidence was that article 24.6 of the Constitutions of the Society78 allows the Society’s treasurer to grant a sum of money to the member as an allowance, rather than the member being required to request money for every item they might need. But Fr Gardzinski’s evidence was that: “This is by no means considered a salary or earnings” and “anything ‘earned’ by a member is understood as a contribution to the communal funds of the Society, from which a member’s personal expenses are covered, and which is gained for the society to fulfil its mission, and not for a member’s personal gain.”79
[97]
Consistent with the reasoning in Fihaki, I accept that the payment of remuneration and provisions for living are a creation of Canon Law and the Constitutions of the Society and does not form salary or wages paid to Fr Pawlowski. Fr Pawlowski himself traces the creation of the entitlement to Canon Law. I also agree with the findings in Fihaki that a stipend does not form “‘consideration for its ministers, rather a method of providing material support for the Minister to serve God’”.80
[98]
There was no evidence before me that the Society withheld any taxation from amounts paid to Fr Pawlowski or that any superannuation was paid on his behalf to a superannuation fund.
Payment and entitlement to leave
[99]
The allocation of Fr Pawlowski to leave of two months each other year and one month in the opposite year, along with travel allowances, appears to be confirmed in the letter of 30 January 2020 from Fr Skiba, but there is no evidence that it has a genesis in Canon Law or the Constitutions of the Society.
[100]
This may be a factor indicative of an employment relationship. The provision of paid annual leave is an entitlement for employees under the National Employment Standards (NES) set out in the Act.81 The leave granted to Fr Pawlowski is in excess of the NES and has a characteristic of a contractual above safety-net entitlement (if there were a contract). The travel allowance for flights, travel insurance and spending money is obviously an entitlement outside the minimum statutory entitlements afforded to employees under the Act but could be an entitlement provided pursuant to a contract of employment. The amounts of leave and travel expenses are conveyed to apply regularly, consistently and the amounts are clearly set out in writing in the Agreement of 30 January 2020.
[101]
There was no evidence about the accrual, taking or payment of long service leave. There was reference in the evidence to Fr Pawlowski returning to Poland when he was unwell to be treated by doctors that service the Society at its headquarters, but no reference to sick leave entitlements as such.
Visa arrangements
78 Annexure MG8 to the statement of Fr Gardzinski.
79 Statement of Fr Gardzinski at paragraph 19(b) and (c).
80 Fihaki at [97] referencing the decision of the United Kingdom Supreme Court in The President of the Methodist Conference v Preston [2013] UKSC 29.
81 See Part 2-2 Division 6 of the Act.
[2026] FWC 2992
23
[102]
Fr Pawlowski also asserted that the nature of his initial visa to enter and work in Australia was dependent on an existing employment relationship.82 Fr Pawlowski’s evidence was that: “I was brought to Australia in 1999 on a Labour Agreement visa subclass 120 as a Catholic Religious Priest … The visa was issued specifically for work and not volunteering.”83 He drew the Commission’s attention to a letter from the Department of Immigration and Multicultural Affairs (the Department) of 30 April 199984 that confirmed that the nomination of Fr Pawlowski under the Labour Agreement had been approved for permanent residency. The letter advised the recipient, in this case the Australian Catholic Migrant and Refugee Office, that it should notify the Department if it wished to withdraw the nomination, there was any variation to the relevant details or if they no longer wished to employ the nominee.
[103]
This letter appears to me to be a generic letter advising the recipient of their obligations. The letter notes Fr Pawlowski’s position as “Catholic Religious Priest”. The letter does not assist in identifying if Fr Pawlowski was actually an employee. Fr Pawlowski was granted a visa some time ago. There was not sufficient evidence before me to enable me to understand the arrangements that applied to the visa granted to Fr Pawlowski and if the granting of that visa required an employment relationship to exist. In any event, the holding of a visa dependent on the existence of an employment relationship may not otherwise override the other relevant indicia. It would certainly support an assertion that the relationship had been labelled employment at a particular time. There is no direct evidence of the visa requirements pertaining to Fr Pawlowski.
[104]
I note Fr Pawlowski made a number of submissions and requests that the Respondent produce documents relating to the visa granted to Fr Skiba. The Respondent refused to provide the material because it was not relevant to Fr Pawlowski’s circumstances and it compromised Fr Skiba’s privacy. The circumstances of the granting of a visa to Fr Pawlowski some years before the visa granted to Fr Skiba is, in my view, unlikely to materially assist in ascertaining whether Fr Pawlowski was an employee. Additionally, Fr Pawlowski’s case is that the contract of employment from which he was dismissed was the contract for work in Adelaide commencing in 2020. His original visa status does not have a bearing on those circumstances.
Jobkeeper payments
[105]
Fr Pawlowski also relied on the receipt of JobKeeper payments during the covid pandemic as evidence that he was an employee. He provided a copy of his JobKeeper religious practitioner nomination notice as evidence.85 That form is titled: “JobKeeper religious practitioner nomination notice”. It sets out at Section D the Religious Practitioner Eligibility Requirements and says: “To be an eligible religious practitioner you need to meet these requirements: At 1 March 2020, and for the fortnight, you were a minister of religion or a full time member of a religious order and pursued your vocation as a religious practitioner (but not as an employee) and as a member of the registered religious institution outlined in Section
82 Applicant’s Explanatory Statement pg. 3; Submissions of the Applicant (dated 31 January 2025) at paragraph 40 and pages 5 – 10.
83 Submissions of the Applicant (dated 31 January 2025) at paragraph 42.
84 Attachment 20 to Submissions of the Applicant (dated 31 January 2025).
85 Attachment 21 to Submissions of the Applicant (dated 31 January 2025).
[2026] FWC 2992
24
A.” Fr Pawlowski identified the Society of Christ Adelaide in Section A and signed the declaration in Section E.
[106]
Consistent with the findings of the Commission in Fihaki, I also find that the payment of JobKeeper payments to Fr Pawlowski do not characterise the relationship as an employment relationship. In Fihaki, the Commission relied on a Government media release submitted by the Respondent, reflecting the expansion of the JobKeeper scheme to religious practitioners, that noted “many religious practitioners are not ‘employees’ of their religious institutions”.86 That is consistent with the declaration signed by Fr Pawlowski that he pursued his vocation as religious practitioner and not an employee.
Inability to resign
[107]
On his own case, Fr Pawlowski was refused release from the Society to be incardinated into another diocese or archdiocese to perform work. He describes in his evidence, a number of examples in which he sought release, on a temporary or ongoing basis, from the Society to minister as a Catholic priest elsewhere. His applications were refused. The bishops and archbishops from whom he sought agreement to work in their regions were only able, according to Canon Law, to accept his application if he had been released from his Order. Fr Pawlowski submitted: “According to the Code of Canon Law … a formal consent of the Superior of the Society of Christ, and forwarding that consent to the Vatican, is required to release me from duties for the Institute of the Society of Christ.”87 Fr Pawlowski included references to the relevant sections of the Canon Law.
[108]
An inability to voluntarily leave the relationship upon resignation, even from membership of the Society and not his role as an ordained priest, is inconsistent with this relationship being one of employment. It is also consistent with Fr Pawlowski accepting his subjugation to Canon Law and not the civil laws applicable to employment relationships in Australia. I do not accept Fr Pawlowski’s characterisation of the refusal to release him from the Order as a restraint on his ability to perform work for another employer and earn a living.88
Provision of tools of trade
[109]
Also, of note, is the provision to the Applicant of all of his tools of trade (such as a car and office supplies), food and accommodation. Such provision, could in some circumstances, be an indicator of an employment relationship, rather than one of principal and contractor. However, given the nature of the provisions, being much broader than just tools of trade, in my view it is rather indicative of Fr Pawlowski living in accordance with his vow of poverty and consistently with the Constitutions of the Society.
Conclusion
86 Fihaki at [87].
87 Submissions of the Applicant (dated 31 January 2025).at paragraph 16.
88 Ibid at paragraphs 18 and 65 – 79.
[2026] FWC 2992
25
[110]
Balancing the criteria, I find that the indicia weighing against a finding that the contract was one of employment significantly outweigh the indicia suggesting an employment relationship exists between the parties.
Consideration of whether a dismissal occurred within the meaning under section 386 of the Act
[111]
Section 386(1) of the Act sets out as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[112]
Section 386(2) and (3) of the Act are not relevant to the facts of this matter.
[113]
Section 382 of the Act provides that a person who is protected from unfair dismissal must be an employee.
[114]
If Fr Pawlowski was an employee of the Society, and his contract of employment was for the placement in Adelaide, the decree relieving him of his ministries in Adelaide and directing him to return to the Provincial house in Canberra, would constitute a dismissal at the initiative of the employer, in accordance with section 386(1)(a) of the Act.”
Pawlowski v Trustee of the Society of Christ [2026] FWC 2992 delivered 7 August 2026 per Thornton C