By Anna Longdill

Application for judicial review by former Gloriavale members of decisions by the Labour Inspectorate not to investigate in 2017 and 2021 – justiciability of decisions – heightened judicial restraint – error of law – irrelevant consideration – failure to consider mandatory relevant consideration

Courage v Attorney-General [2026] NZEmpC 178 per Chief Judge Inglis

Hosea Courage, along with the other applicants, was formerly a member of the Gloriavale community. For many years, Gloriavale has operated commercial enterprises (moss and rendering factories, honey and dairy businesses) and also an industrial sized kitchen and laundry. Females, including children, were assigned to work in the kitchen and laundry.  Males, including children, were assigned to work in the businesses. The applicants all worked within the community from a young age.

Gloriavale operates under the umbrella of the Christian Church Community Trust, a registered charity. Charities Services, the government agency responsible for regulating charitable entities, undertook an inquiry into Gloriavale in 2016 and 2017. As a result, it raised concerns with the Labour Inspectorate relating to work being done within Gloriavale, including children working, health and safety issues, and long hours.

In 2017, a Labour Inspector undertook a “desk-top” initial inquiry to determine whether the Labour Inspectorate would have jurisdiction to proceed to an investigation into the employment status of members of Gloriavale.

In its report, the Labour Inspector noted that if people within Gloriavale could be considered employees, “there would inevitably by many serious breaches of employment law” and “[c]onsideration would have to be given to a charge of exploitation”.

The report concluded that, “on balance”, the work undertaken was either a partnership or voluntary work and that further investigation would be unlikely to be a productive exercise, and “may cause considerable disruption and use valuable resources without deriving any real benefit”.

The report recommended no further investigation “at present”. The Labour Inspectorate closed its file on 13 March 2018.

In late September 2020, two people living in Gloriavale made claims of poor working conditions and long hours. The office for the Minister of Workplace Relations and Safety requested that the Labour Inspectorate review its 2017 inquiry and attend a site visit that WorkSafe officials had planned.

On 28 September 2020, two Labour Inspectors visited Gloriavale together with four WorkSafe Inspectors. During the visit Labour Inspectors spoke to six individuals, in addition to two Gloriavale leaders. The Labour Inspectorate later met with the Gloriavale Leavers’ Support Trust and set up a process for members to raise concerns and/or provide information.

In February 2021, labour inspectors conducted an unannounced second site visit. Prior to that visit, a national manager within the Ministry of Business, Innovation and Employment appears to have decided that children would be excluded from the investigation. During the second visit, labour inspectors interviewed more Gloriavale members.  They also later interviewed 13 former members.

Following this, labour inspectors prepared a report which concluded that members “cannot currently be considered to be employees, and that the Labour Inspectorate therefore has no jurisdiction to investigate further”. The report asserted that Crown Law advice supported that view.

Crown Law had in fact identified several lines of follow-up inquiry. The labour inspectors however felt that putting additional resources into the investigation was unnecessary.  The 2021 report concluded that the workers were partners and volunteers, rather than employees, and there was no jurisdiction to investigate further.

The applicants applied to judicially review the labour inspectors’ exercise (or failure to exercise) of their statutory powers.

The Crown argued that the decisions were not justiciable as (a) The labour inspectors’ powers of investigation are inherently discretionary and involve the allocation of scarce resources; (b) The 2017 and 2021 reports were not final determinations of the applicants’ rights and review is accordingly premature; and (c) The 2017 and 2021 reports reflected conclusions of a general nature, not affecting the rights and interests of any of the applicants.  Alternatively, it argued that the application must be approached with “heightened restraint” in order that important constitutional boundaries be observed.

Applicable principles: Employment Relations Act 2000, ss 3, 6, 142A, 194, 223A, 223D, 224, 229, 229A, 235 – Is the application non-justiciable due to discretion and resource allocation issues? (No. While the court may appropriately be wary of invitations to interfere with decisions involving the allocation of resources, it will not be every decision that engages the issue. Context is the ultimate determiner.  The spectre of resource implications cannot be used as an impenetrable shield in judicial review.  Insufficient evidence to suggest that resource concerns had any material role to play. While labour inspectors have a discretion over whether and when and how to exercise the investigative and enforcement powers conferred by statute, that does not mean their decisions are non-justiciable. In judicial review, the tail (judicial restraint) does not wag the dog) – Premature? (No.  2017 and 2021 reports were final decisions) – Heightened restraint? (No. This is not and cannot be a case in which discretionary decision-making has a presumptive right of way.  Indeed, the particular context, engaging fundamental human rights and international obligations, warrants a standard of anxious scrutiny) – Was there a reviewable error in the 2017 decision? (Yes: (1) Labour inspector misunderstood law in deciding not to investigate further for jurisdictional reasons; (2) The unspecified disruption to the community was an irrelevant consideration; (3) Failed to have regard to a mandatory relevant consideration by omitting children from its scope; (4) Decision was manifestly unreasonable) – Was there a reviewable error in the 2021 decision? (Yes: (1) Failure to make further inquiries (suggested by Crown Law) into matters relevant to employment status unreasonable and irrational; (2) Failure to provide leavers who had been interviewed with opportunity to comment on counter-narrative provided by leadership made ultimate decision further unreasonable)

Held: The application for judicial review succeeds.

Note: Remedies will be dealt with at a reconvened hearing.

2026-NZEmpC-178-Courage-Ors-v-The-Attorney-General-Ors-2026-NZEmpC —