Friday, 30 September 2011

Analysing the FWO report

The recent report by the Fair Work Ombudsman on Scientology may be a more cautious version of the draft document, but it still packs a punch – and there’s more to come.

The way Scientology tells it, the report released by Australia’s Fair Work Ombudsman earlier this month represents a crushing victory for the movement.

A statement they released on September 16, the day the report came out, certainly gave that impression.

“Today’s Fair Work Ombudsman decision that the Church of Scientology staff are volunteers vindicates the Church and is a victory for all religions and charities in Australia,” it said.[1]

In a separate statement, the movement even tried to argue that the media release accompanying the Ombudsman’s report had omitted its key finding, “…that former Scientologist staff were volunteers and not entitled to back pay.”

This was “misleading in the extreme”, the movement’s lawyer Louise McBride argued.

“The central finding was positive for the Church: that none of the complainants are employees and were in fact volunteers,” McBride said.[2]

In fact the Ombudsman’s report said no such thing.

It decided not to pursue any of the eight individual cases it had considered against the Church of Scientology.

It certainly ruled that some of the people concerned had been volunteers – rather than paid employees, with all the rights that status entails.

But where the claims fell outside the statutory time limit for legal action, the report made no finding on the employment status of the witness: the question was academic.

Scientology’s statements focussed on its “victories” in the individual claims – and even there, they overstated their case. The bigger picture however, looks bleak for the movement.

The Ombudsman’s report may have ruled that none of the eight witnesses interviewed had a legal case against the Church of Scientology.

But crucially, it added:

…this is not to say that the Church of Scientology has no employees or is not capable of ever being an employing entity.[3]

However Scientology might want to spin it, the report’s central conclusion was that Scientology’s trading outlets are not, as the movement insisted, exempt from Australia’s employment laws.

Scientology had tried to argue that because they had been recognised as a religion in Australia since 1983 they were automatically exempt from the country’s employment laws.

But for the FWO, that settled nothing. Citing case law, the report said:

… contracts of employment are not inconsistent with the performance of work for a religious organisation, and that whether this is the case for a given individual will depend on the facts of their relationship with the organisation.[4]

To get an idea of how significant that is, compare it with the situation in the United States.

As reported extensively here, several former Scientologists are suing the movement there for what they say they endured during their time in the movement’s elite cadre, the Sea Organization.

But one of the major hurdles they have to clear is the principle of ministerial exception, derived from the First Amendment of the U.S. Constitution guaranteeing religious freedom.

U.S. courts have often interpreted this to mean that religions are exempt from the demands of employment law – simply because they are religions.

A case currently before the U.S. Supreme Court could change that, but for the moment, former Scientologists there face an uphill battle just to get their case to trial.[5]

What the FWO report makes clear is that no such exemption necessarily applies in Australia.

The FWO’s conclusions in the report do not carry the force of a court judgment: they do not constitute case law.

But if Ombudsman’s office has got its reading of the law right – and one would have thought they would know – then ex-members in Australia whose cases fall inside the six-year statutory time limit have a head start on their U.S. counterparts. [6]

Witness 7: Jordan Anderson

The FWO’s report has nevertheless provoked frustration and anger from some critics of Scientology.

Media coverage of a leaked copy of the draft version of the report had led people to expect a far more outspoken, hard-hitting document.

The final report however, shorn of some of the headline allegations reported on just days earlier in the media, proved to be far more cautious.

That only added to the sense that Scientology had somehow, as one commentator put it, dodged a bullet.[7]

Senator Nick Xenophon, who has led the charge against Scientology in Australia, was particularly unhappy that a complaint from the ex-member referred to as Witness 7 had not been pursued.

Witness 7 is Jordan Anderson. She is one of the ex-members who talked to ABC Television’s Four Corners in the March 2010 documentary that prompted the FWO investigation – that and Senator Xenophon’s campaign against Scientology’s abuses. [8]

She told them how she had joined the movement’s elite cadre, the Sea Organization, at the age of 15 (signing the Sea Org’s billion-year contract to serve in this and future lives). She worked there between June 2005 and February 2009.

Despite her young age, she had had to answer a questionnaire that included extremely intrusive questions about any past sexual experiences she might have had.

She told the Ombudsman’s office how she worked between 9:00 am and 10:30 pm – sometimes as late as 5.00 am if they had not met their production quotas and work tasks.

On one occasion, she told investigators, she had had to work 72 hours without a break.

Her ability to leave work was restricted because Scientology provided her transport to her digs. Lunch was half an hour at midday: they worked a seven-day week with about three hours off on Saturday mornings. Wages varied between 30 and 70 (Australian) dollars a week – though sometimes they did not get paid at all.[9]

But the Ombudsman’s report said Jordan had “voluntarily joined” the Sea Org.

Based on the evidence disclosed in the course of the investigation the Fair Work Ombudsman has determined that, on balance, Witness 7’s relationship with the Church of Scientology was voluntary in nature, not one of employment.[10]

Thus the report concluded in this case:

The allegations by Witness 7 relating to alleged employment with the Church of
Scientology entities are not sustained. The nature of the relationship between
Witness 7 and the Church of Scientology entities was voluntary in nature.[11]

Senator Xenophon has a problem with this.

As he told ABC television’s Lateline programme, he could not understand how the Ombudsman could describe this witness’ participation as voluntary, “…given that the person was a minor, was told what hours to work and the circumstances in which they could work…[12]

“Volunteers can walk away. This person didn't have that choice. That's why I think cases such as this could well end up in the courts,” he added.

Xenophon’s view, his office says, “…is that we need a better legal definition of a volunteer given the findings.

“He will be looking at this need in the near future.”[13]

Liz Anderson

The decision also infuriated Jordan and her family, said Liz Anderson, her mother.

Liz Anderson, was one of the other witnesses heard by the Ombudsman’s office. Her case was one of those the office decided not to pursue (she was Witness 3).

In her own case, she understands the problem: “I worked in the SO [Sea Org] some 25 years ago so I knew I fell outside the statues, so no surprise there,” she told Infinite Complacency.

What she cannot accept is the way they handled her daughter’s case. Like Senator Xenophon, she pointed out that the Ombudsman’s office appeared to have ignored the fact that Jordan was a minor when she joined the Sea Org.

The family was “very angry and upset that FW [Fair Work] made the ruling against her claim,” she said.

Jordan did not consider herself a volunteer: she signed the SO [Sea Org] contract under the impression she would be working for Scientology, not volunteering for Scientology.

“What volunteer works 12 – 16 hours a day, seven days a week has no time off and is run off production quotas; is mustered four times a day to see if you are there; and is disciplined and punished for not meeting targets?”

Liz Anderson felt that the Ombudsman’s office, in considering her daughter’s testimony, had made no allowances for the lasting effect her daughter’s experience in Scientology had had on her.

“She’s still traumatised by her whole experience…,” she explained. Her daughter was still experiencing nightmares and flashbacks, she added: the very act of setting out her case to the FWO had been an ordeal.

Anderson’s own insight into the workings of the Ombudsman’s office may provide a clue as to why it decided to reject her daughter’s case.

“Fair Work operates off the premise that if there is any doubt at all then they will not rule against a business or organisation. It’s a black-and-white scenario,” she said.

“The reason for this is that if FW was taken to court by the CoS [Church of Scientology], they have to be absolutely sure they would win the case.”

She nevertheless held out some hope that, as the Ombudsman’s office continued to consider claims against Scientology, its position might harden.

The report itself said the Office is considering six more cases brought by Scientology employees. According Liz Anderson, these cases fall within the statutory time limit.[14]

Witness 4: Paul Schofield

The FWO report rejected all eight claims against the Church of Scientology.

But it did say it would continue to investigate one complaint against Narconon and Get Off Drugs Naturally. This was the one lodged by Witness 4: Paul Schofield.

Schofield is one of the ex-members whose letters to Senator Xenophon in 2009 sparked his campaign to end Scientology’s abusive practices.[15]

He also gave evidence to the June 2010 Senate economics committee inquiry that ended up calling for a charity commission to monitor charities.

That body could be up and running by mid-2012 – and the public benefit test it will operate for groups could see Scientology stripped of the tax-exempt status it currently enjoys.[16]

In its report, the FWO noted that Scientology had denied there was any link between it and the drug abuse treatment programmes Narconon or Get Off Drugs Naturally.[17]

In the draft version of its report, the FWO made it clear it found this unconvincing. It quoted from Scientology Australia’s own website, where it explained how donations to the International Association of Scientologists helped fund good works – such as Narconon.[18]

That passage was dropped from the final FWO report, which said only:

Given Witness 4’s allegations relate to the Church of Scientology entities, Narconon and Get Off Drugs Naturally the investigation findings for these entities are contained in the same report.

Schofield was fairly optimistic that the FWO would agree that Narconon and Get Off Drugs Naturally do owe him money.

“They underpaid me and I’m claiming unfair dismissal as well,” he told Infinite Complacency in an exchange of emails. “It’s now just a matter of how much I can prove they owe me.”

He hoped to hear by October, and if it went in his favour he would encourage other former staffers to lodge claims, he added.

Like Liz Anderson, he believed the new wave of claims from former Scientologists had more chance of success than the first eight – partly because they had a better idea of what the FWO needed in the way of evidence.

“This time the cult won’t be able to dodge the bullet,” he said.

If the FWO ruled that Scientology/Narconon that owed him money and they refused to pay, the agency would take them to court on his behalf, he pointed out.[19]

And given his personal resources compared to those of Scientology, that was something he particularly appreciated.

“I'm a bus driver with a mortgage and kids at school,” he wrote. “$cientology is a multi-billion dollar, multi-national corporation that tries to conceal its sordid history behind the veneer of religion.”

Understandably then, he took a more positive view of the FWO report than some other observers.

“The cult didn’t win this round,” he said.

“We just didn’t get the huge win the draft report led us to believe was on the way.”

Explaining the revisions

There is understandable anger that the FWO rejected all of the eight claims against the Church of Scientology (rather than Narconon).

One passage included in the draft report however gives a clue to the difficulties the investigators faced.

The confidentiality status of a number of witnesses (and their request to maintain that status) impeded the investigation’s evidence gathering processes. Similarly, due to the confidential nature of the witnesses, some evidence and documentation sought by [the] Fair Work Ombudsman under its statutory powers could not be specifically correlated to those individuals (in order to maintain their confidentiality.[20]

The draft report also complained of a lack of cooperation from Scientology, in terms that were too strong to survive to the final version.

Scientology’s officials, it noted, had declined an invitation to be formally interviewed, (although they later agreed to a taped meeting attended by two of its officials and two of their lawyers).

In addition, the Church of Scientology, particularly in the early stages of [the] Fair Work Ombudsman’s investigation, appeared reluctant to actively assist the Fair Work Ombudsman with its investigation. On occasions the Church of Scientology did not always provide the Fair Work Ombudsman with all relevant information as required by the Notices to Produce and did not always respond to requests to produce in a timely manner. It is unlikely that the Notices to Produce have been complied with fully. [21]

This passage in particular must surely have drawn a muscular response from Scientology’s lawyers: it is perhaps not surprising that it failed to make it to the final version.

Leaving aside the findings in the individual cases however, some critics of Scientology however remain angry at the way the final report lacked the punch of its draft.

Opinion on the message boards appears divided between those who feel the FWO caved in to pressure from Scientology; and those who think the revisions were a judicious repositioning, the better to move forward.[22]

While Scientology no doubt exerted considerable pressure on its side, it seems to me that the latter view is closer the mark.

In a section on its website explaining its role, the FWO says: “The Fair Work Ombudsman does not advocate or represent on behalf of any specific person or interest.” [23]

This may explain the more temperate tone of the final report, for the draft version offered trenchant views on matters that were outside its jurisdiction.

What caught the headlines in coverage of the leaked draft report was its suggestion that Scientology might have been guilty of false imprisonment of its members and forced labour, in breach of Australia’s laws against slavery.

One witness, Witness 2, had alleged that after being found “suppressive” – an enemy of Scientology – he or she had been forced to carry out cleaning duties that included scrubbing dumpsters and washing dishes, working throughout the night.

The witness described being watched over day and night by security guards who were there to prevent any attempt to escape. He or she had already said they wanted out.[24]

Another witness, Witness 6, also described having been declared “suppressive” and kept under guard day and night by security guards to prevent their departure.[25]

And there was also a mention of an accidental death on Scientology premises; and of “forced medical procedures”.[26]

The draft report said it would be referring these issues to the relevant authorities. In the final report however, these allegations were mentioned only obliquely as “matters which fall outside the jurisdiction of the Fair Work Ombudsman.”

The report did not dismiss these allegations then, but simply passed them on to the relevant authorities for consideration.

The Ombudsman’s office may have decided not to elaborate on these issues in the final report precisely because they were not competent to reach a judgement on them.

Of course that does not mean that these allegations will be pursued on the criminal side: there is surely a statute of limitations for such offences in Australia – only the most serious crimes have no limit on prosecution.

The draft report makes it clear that Witness 2’s allegations date back to 1995-6; Witness 6’s allegation of false imprisonment dates back even further, to 1988.

But with more cases coming to the FWO’s attention however, presumably any similar allegations will also be passed on to the relevant authorities.

Summing up

Despite the bravado of Scientology’s public statements, it is difficult to see the FWO report as a victory for the movement.

The Ombudsman’s office is going to force Scientology to acknowledge that at least some of its members have full employment rights – and the door is now open to more claims for ex-members.

Its recommendation that Scientology appoint an independent auditor to review its employment practices might seem like a soft option. But if that audit is conducted properly, Scientology is going to be forced to reform its working practices – with all the cost that entails.

In addition to that, there is the class action lawsuit being prepared by Slater & Gordon, one of Australia’s biggest legal firms – and here again, the contrast with the United States is striking.

Until recently, most of the major cases brought against the movement have been handled by individual lawyers such as Barry Van Sickle and Ken Dandar – at great personal cost.[27]

Very few lawyers are prepared to take a chance against the ferocious litigation machine that is Scientology.

Slater & Gordon, in contrast, is a big player in Australia. With 1,000 staff in more than 40 offices across the country, it describes itself as “one of the largest and widest networks of law offices in the country.”[28]

It is worth noting it was Slater & Gordon who approached the Anderson and other former members after seeing last year’s Four Corners documentary – not the other way around.

They do not appear to be in the least intimidated by Scientology and would surely not have invested so much time and effort into investigating this issue for their clients if they were not convinced they had a case.

Senator Xenophon already urged former members to contact the law firm to tell their stories and help build a case.

“Victims of Scientology have consistently told me that they are regularly treated as virtual slaves working incredibly long hours for little or no pay,” he said in a recent statement.

“It seems under Australian law this is not allowed and I would urge former members of the Church to seek what they are due.”

The Fair Work Ombudsman’s report may in some respects have been a disappointment. In the long run however, the information it has gathered – and is still gathering – may provide valuable ammunition for any action brought by Slater & Gordon.

And then there is the third element in the mix.

Thanks to Senator Xenophon’s two-year campaign, if Scientology wants to keep its tax-exempt status it is likely to be subjected to a public interest test under changes to the charity laws due to go through next year.

Given the movement’s current reputation, there cannot be too many neutral observers who would take bets on them clearing that hurdle.

[1] Statement from Church of Scientology on Fair Work Ombudsman Final Report, released Friday, September 16. For a summary of the report’s findings, see my earlier report: Fresh blows to Scientology in Australia.
[2] Fair Work Ombudsman media release on Church of Scientology omits central finding”: September 16. Both these Scientology statements, are posted to a Scibd account rather than at their main Australian website. Statements of this kind are often difficult if not impossible to find on the movement’s “shopfront” websites, the ones consulted by its own members, which seem reserved more for public relations and promotional material. That rather gives the impression that, even in the Internet age, the movement is still trying manage its members’ access to information. (A September 20 Google search of a quote from the second Scientology statement’s found only the one Scientology site hosting it: the Scribd address inserted above.)
The Scientology releases are good examples of what Scientology founder L. Ron Hubbard taught regarding public relations. “Handling the truth is a touchy business…,” he wrote in a 1970 policy letter. “You don’t have to tell everything you know… Tell an acceptable truth.” Hubbard Communications Office Policy Letter HCOPL, August 13, 1970; it also forms part of the Public Relations in Scientology’s Volunteer Minister’s Handbook (p461 of my 1982 edition).
[3] Finding 18, page 34, point 110 of the Statement of Findings.
[4] Page 19, point 56 of the “Statement of Findings in relation to the Fair Work Ombudsman’s investigation of entities related to the Church of Scientology, Narconon and Get Off Drugs Naturally”. The draft version of the report spelled it out even more clearly: The Fair Work Ombudsman’s finding that the Church of Scientology entities are trading corporations is not inconsistent with the evidence and commentary noted by the High Court in the 1983 case that gave the [Scientology] entities their religious status…(Page 20, point 63 of the draft report).
[5] The cases brought by Marc Headley and his wife Claire fell at the first hurdle when a district court judge dismissed citing the principle of ministerial exception. They are appealing. For more on this and the details of their cases, see Legal Update II: the Headleys, posted in August. The ministerial exception hurdle is one that all former members suing the movement in the U.S.Laura DeCrescenzo, Daniel Montalvo – will have to overcome at some point.
[6] The Ombudsman’s office was created by Australia’s Fair Work Act 2009 to operate independently of government and ensure compliance with employment laws (among other duties). Its services are free to all workers and employers in Australia and if need be, it has powers to sue employers that refuse to respect employees’ rights. This account of the Fair Work Ombudsman functions is taken from the “Our role” section of its website.
[7] Scientology Dodges a Bullet in Australia: Church Told to Pay Workers, Says ‘We'll Get Right On That’” by Tony Ortega, Editor-in-Chief of Village Voice. Ortega has provided regular coverage of Scientology in his blog, which has become a clearing house for all kinds of information about the movement.
[8] Although Witness 7 is not named in the FWO report, it notes that during the course of the FWO investigation she agreed to be identified to the Church of Scientology to help advance her case. She was named and interviewed on camera for ABC television’s Four Corners documentary programme, “Scientology: the Ex-Files”, first broadcast on March 8, 2010 and presented by Quentin McDermott. She has given her permission to be identified for this report.
[9] Alert readers will notice that these figures do not tally exactly with those in the report: they are corrections that were submitted by Liz Anderson but not incorporated into the final document. To compare the details, see pp31-33 – point 102 and its sub-sections – of the Statement of Findings.
[10] Op. cit.: bottom of page 33.
[11] Page 4, point 4(g) of the Statement of Findings. Regular readers of this website of course will realise that there is nothing unusual about Jordan Anderson’s description of working conditions in the Sea Org: a number of U.S.-based Sea Org members, including but not restricted to those who are suing the movement, have also described long hours, low pay and harsh working conditions. See for example, Abuse in the Sea Org.
[12] Xenophon disappointed by Scientology Report”, ABC’s Lateline news programme, September 16.
[13] Emailed response.
[14] Page 35, Point 111 of the Statement of Findings.
[15] See the “Fresh Allegations from Australia” section on this website, in particular, “Paul Schofield’s Letter”.
[16] You can find Paul Schofield’s testimony at the Senate committee’s hearings here. I reported on the committee’s decision to back Xenophon in an earlier posting: Senate Committee backs Xenophon campaign.
[17] Both are rehabilitation programmes for drug abusers that use controversial techniques developed by Scientology founder L. Ron Hubbard. This summary of the Get Off Drugs Naturally programme makes it clear that it uses the same system employed by Narconon. It is very like Hubbard’s Purification Rundown regime, which combines aerobic exercise, sessions in a sauna and what, according to some specialists, are dangerous quantities of vitamins. See the expert evidence in the 2009 Paris trial for more criticism of the programme. It’s a bit dry and technical, but best summed up by the final remark from Stéphane Lange, a senior inspector at France's health products watchdog the AFSSAPS. “Do you want a direct answer?” he asked the judge. “This seems to me to be quackery."
[18] This is part of the passage the draft report quotes, from the Scientology Australia website (as of May 6, 2011): “These contributions have, in recent years, provided funding for new Churches in major cities, including New York, Madrid, Hamburg and London. In addition, they have funded the International Centers for Narconon, Applied Scholastics, as well as a global Volunteer Minister Cavalcade — responsive to emergency relief from New York (9/11), to most recently, the Southeast Asia tsunami disaster and the cyclone in Innisfail.” (my emphasis).
[19] The FWO website makes this clear: The services of the Fair Work Ombudsman are free to all workers and employers in Australia.
[20] Page 32, point 104 of the draft report. During the course of the investigation, two of the witnesses agreed to waive their confidentiality to assist the FWO’s work (Witness 7 – Jordan Anderson – and Witness 8).
[21] Draft report, page 32, point 105.
[22] To get a sense of the range of views, see this thread at the Why We Protest website, run by the Anonymous movement; and this one at the Ex-Scientologists Message Board.
[23] This quote is also from the “Our role” section of the FWO website.
[24] Page 39, Finding 5, paragraphs 130 and 131 of the draft report.
[25] Page 43, Finding 11, paragraph 142 of the draft report.
[26] Page 5, paragraph 9, and page 52, paragraph 156.
[27] Ken Dandar won the civil settlement brought by the family of Lisa McPherson over her death while in Scientology’s care. He is currently suing Scientology over the death of Kyle T. Brennan, who shot himself while visiting his Scientology father. At issue is whether Brennan’s father locked away his son’s anti-depression medication, as per Scientology dogma.
Barry Van Sickle has brought several lawsuits on behalf of former member of Scientology’s Sea Org, alleging failure to pay minimum wage, abusive working conditions and undue pressure on female members to have abortions. He has already settled one case on behalf of John Lindstein and is fighting three others: Marc Headley, Claire Headley and Laura DeCrescenzo (see later postings in the Violence and Abuse in the Sea Org for updates). It is only relatively recently that larger law firms have got involved in such cases: the Metzger law firm is now working with Barry Van Sickle on his cases; and the Dykema law firm has filed two complaints by former Sea Org member Daniel Montalvo.


  1. Your crisp analysis and sensible summary is appreciated Jonny. Hopefully all former member/employees of this abusive cult will be able to receive due compensation for their *work*.

    Thanks for your contribution.

  2. Kevin Bloody Mackey1 October 2011 at 10:49

    Thank you Jonny, a great summary.

    You said;

    "Opinion on the message boards appears divided between those who feel the FWO caved in to pressure from Scientology; and those who think the revisions were a judicious repositioning, the better to move forward.

    While Scientology no doubt exerted considerable pressure on its side, it seems to me that the latter view is closer the mark."

    I believe the FWO watered down it's draft findings into a sustainable position as a result of the cults bullying, so it was a combination of factors.

    I was witness no. 1 and after the interview process was done and all evidence gathered a clerk at the FWO admitted to me that the result probably won't be what we'd hoped for, they said that given the litigious nature of the CofS the FWO wouldn't be in a position to commit huge amounts of "tax payer dollars" into a protracted case. Complaints were made to the Senate about this and the result was a very positive draft. I'm sure the subsequent legal pressure brought by the cult during the submission period after the draft release confirmed the FWO's fears. So now it will be decided in civil litigation whether we were volunteers or employees. I always read in Hubbard's policies that we were staff, so really, it's a no brainer for me.

  3. Many thanks for your comment Kevin.

    What you say about the pressure being brought to bear to a certain extent fits with what Liz Anderson said about them only wanting to pursue air-tight case: though it could be argued they were too cautious in assessing what qualifies as air-tight.

    What I neglected to mention in the original piece is that Australia Senate will be holding its budget estimates hearings later this month: October 17-21. If I understand correctly, senators have the opportunity to ask specific questions on matters of concern to them, so it will be interesting to see if Senator Xenophon -- or anyone else -- takes the opportunity to question the Fair Work Ombudsman on the conclusions of this report.

    My best guess, from the information provided at the Senate website, is that these matters would come under employment and workplace legislation, which would put it in Group B, therefore on October 19-20. See hear for details of the Senate hearings:

    In the meantime, if any other witnesses to the report would like to make their views known, I'd be grateful to hear from them (or anyone else for that matter).