Now for an Aussie angle ...
"I'm finding they were not religious volunteers," Goldstein said. "They were engaged, particularly Dr. Brenda Upton, in a number of work-like activities."
The Witnesses vowed to appeal the ruling, saying Upton and the other 5,800 Witnesses who live and work in the church's
Goldstein obviously made the right decision in that Dr Upton was a worker based on her activities. In Australia (US decisions can be used as precedents) I think a similarly constructed argument would likewise be successful. If we make up a hypothetical it may run like this:
What do most Bethelites do? Cleaning and other domestic chores – so lets say that sister X is a cleaner and she has injured herself…Lets say she’s in the Sydney Bethel – this means that the NSW Industrial Relations Act 1996 and NSW Industrial Relations Regulations 1996 apply. Don't forget that in Australia perosnal medical insurance is optional, everyone has access to a Government medical scheme for the treatment of emergancies (full cover), injuries and all medical treatment (subsidised rates, it usually covers about 70% of the cost).
Now the fun begins – Is she covered by the Act? – the answer is perhaps … the tricky bit is the remuneration question. It’s not so much of how much they are paid but what the Org has in place to tell the Bro’s how much, when and how they are getting paid. So we are now going to fall into another argument of proving that a contract is in existence, now is the contract registered as a Federal Instrument? If it’s an Australian Workplace Agreement is must be – but I would seriously doubt the Bethelites are on AWA’s more like a private contract... as you all know the devil is in the details. But without a doubt the contract would govern working times, responsibilities, standards and the alike, as ‘remuneration’ the Bethelites will receive full board and an allowance … I think that most Lawyers could construct a fairly adequate argument that there is a “formal arrangement of services in exchange for ‘remuneration’’”. Just consider all the variations of salary sacrificing for an example, plus all Bethelites who receive over the tax free threshold are subject to the taxation laws of the Commonwealth – which a good lawyer would check whether the WTS pay on their behalf. Plus there’s the very simple statement that all workers are voluntarily participating in such an formal exchange of services in exchange for remuneration – the differing point is that they receive market rates for their labour.
OK – now that Sister X participates in this arrangement she will come within Schedule 1(b) of the Act, persons deemed to be employees.
The workers compensation angle would be easier to explore if she could be deemed to be a worker, it would be easier to start with the above. Yes volunteers are also covered for injury but not to the same extent as employees and it would be finacially advantageous for a non-employee to pursue it through the civil system (possibly through a negligence claim). We also have a different system than the US - if she is not an employee but rather a contractor then there is no worker compensation she can claim (contractors, visitors and may others are not covered by workers compensation).
In an Australian context Sister X would have two options to sue through the Industrial Relations Tribunal or a for damages. It would depend on what she wanted, both avenues (if successful) would provide that the WTS is liable for her medical expenses however through the Civil Court she could also be awarded damages, exemplary, punitive and compensatory damages.
The earlier $79,000 payment could also utilized as an act of admission by the WTS - offering such a payment admitted that they are liable and should provide monetary support for her on-going medical costs, (plus there is the media angle – how would it look that a woman in pain is denied medical access because she does not have the ability to pay for treatment after devoting her life to her religion – wouldn't go down too well). Otherwise, perhaps it was a payment not to sue at which she was required to sign an agreement that she will waive her rights to sue – I don’t know how it works in the US but in Australia you cannot sign away your right to access the judicial system and sue for a wrong.
How far back would the WTS be liable for lawsuits of the injuries?
How far back the WTS is liable depends on how long the allows for Tort cases (check your statutory time limits), usually somewhere between three (vehicle personal injury) and seven years (general tort/civil cases). However there is always the opportunity to seek an out of time motion and have your case heard even through the time limits have passed. This has occurred in Australia mostly in relation to sexual abuse cases (abused when a kid and sue when an adult) and in medical cases (asbestos cases when the damage doesn’t manifest itself immediately and may take decades) and also when a previous law that prohibited you bringing a motion has been judged as a law that is ultra vires (has not been made with the correct statutory authority) and is therefore void.
It was a huge mistake to have even allowed this thing to come to trial in the first place. They should've settled and written a check on the QT, and swept this thing under the rug when they had the chance. Why in the world they couldn't see the far-reaching implications in case they lost is beyond me. A huge mistake.
Settlement requires the agreement of both parties, perhaps Dr Upton though it was time the WTS were taught a lesson.
CM
