The chief judge of the Employment Court’s recent declaration that Serenity Pilgrim and other women in the Gloriavale community were employees is vaguely unsettling.

It’s not that the decision isn’t just. It’s not that the decision isn’t well reasoned. It’s not that the decision isn’t well articulated.

The real problem is that the decision highlights the inadequacy of our legislation. The Employment Court was required to determine whether the women were employees or as argued by the Gloriavale patriarchy, volunteers.

Section 6 of the Employment Relations Act sets out the meaning of "employee". It includes home-workers and excludes volunteers. It spells out that the court must determine the real nature of the relationship between the parties. The analysis includes consideration of all relevant matters including matters that indicate the intention of the parties. A number of tests have been developed to assess the real nature of the relationship between the parties. These include integration, intention, control, fundamental/economic reality and industry practice.

In the Gloriavale case the tests traditionally applied had only limited relevance. For example, the integration test — the women were born into the community and therefore integrated from birth.

The chief judge concluded that when working on the teams, the women were not carrying out work for individual families or some notional "big family". Despite the judge’s conclusion, it is inevitable that the work of all...

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