The application of labor law is rarely universal; most jurisdictions carve out specific exclusions based on the nature of the employer, the type of work, or the unique status of certain entities. This chapter delves into the nuanced exclusions within Ethiopian labor law, particularly concerning employees of religious institutions, charitable organizations, and international bodies, and the legal principles that underpin these distinctions.
Religious Institutions’ Employees
Labor disputes involving individuals providing religious services have historically presented significant challenges for the courts in Ethiopia. Religious institutions found themselves spending considerable time litigating with their service providers, diverting resources from their daily spiritual activities. This issue also raised constitutional questions related to freedom of religion and the fundamental principle of separation of church and state. The applicability of the Labor Proclamation to individuals providing religious services was a point on which many courts held divergent and inconsistent positions over time.
The contentious issue finally found resolution in a landmark decision by the Cassation Bench on May 4, 1998 E.C., in S.C. File No. 18419. This decision became a foundational and frequently cited precedent for subsequent similar cases, not only for lower courts but also for the Cassation Bench itself. The dispute originated from a termination of an employment contract between the applicant, Hamere Work St. Mary Church Parish Council Office, and the respondents, including Deacon Mihret Birhan (6 individuals).
The respondents had filed a lawsuit in the Federal First Instance Court, claiming that they had been unlawfully dismissed from their spiritual service employment with the applicant institution and sought reinstatement. The court, applying the provisions of Proclamation No. 42/85, concluded that the dismissal was unlawful and ordered their reinstatement. The Federal High Court, on appeal, upheld the lower court’s decision. However, the Cassation Bench, after reviewing the case, unequivocally clarified that disputes arising from spiritual service relationships are not covered by Proclamation No. 42/85, and that labor dispute bodies lack the subject matter jurisdiction to hear and decide such cases.
As stated in the Cassation Bench’s decision, labor dispute tribunals lack the authority to hear and decide disputes arising from spiritual service relationships under Proclamation No. 42/85. Instead, such disputes are to be resolved through the mechanisms established for resolving disagreements within religious institutions themselves. The Cassation Bench’s legal interpretation effectively categorized employees within religious institutions into two groups:
- Employees providing spiritual services: These are individuals whose services are directly connected to the religious institution’s faith and cannot be separated from it.
- Employees whose services are not intrinsically linked to the faith: These are individuals performing administrative, income-generating, or charitable functions.
According to the legal interpretation in S.C. File No. 18419, disputes arising from the spiritual service relationships of employees in the first category cannot be viewed separately from the faith itself. Therefore, delving into these employment relationships would entail delving into matters of faith, which would contravene Article 11 of the FDRE Constitution, which stipulates the separation of church and state and prohibits government interference in religious affairs. Consequently, the Council of Ministers, under Article 3(3)(b) of Proclamation No. 42/85, is empowered to issue regulations to exclude the Labor Proclamation’s applicability only to employees in the second category, not to those providing spiritual services. If it were to issue regulations for the first category, it would conflict with the constitutional principle of separation of church and state.
After two decades of silence, the Council of Ministers, exercising its authority under the Proclamation, finally issued the long-awaited regulation on February 30, 2007 E.C. This regulation, titled “Council of Ministers Regulation No. 342/2007 E.C. on Employment Relationships of Religious or Charitable Organizations,” limited the Proclamation’s applicability in two ways: first, certain employees were excluded from the Proclamation due to the spiritual nature of their services; second, even those covered by the Proclamation were denied the right to collective bargaining on matters such as wage increases, various benefits, and incentives.
Council of Ministers Regulation No. 342/2007 provided a legal foundation for the Cassation Bench’s stance, effectively codifying the court’s legal interpretation into written law. Article 3(1) of the Regulation explicitly states that the Labor Proclamation does not apply to individuals providing spiritual services within religious organizations, mirroring the language and substance of the legal interpretation in S.C. File No. 18419. Furthermore, Article 2(1) of the Regulation’s definition of spiritual service is directly copied from S.C. File No. 18419: “spiritual service” means “performing only spiritual functions directly connected to the faith within a religious organization.”
Regulation No. 342/2007 not only identifies religious organization employees to whom the Proclamation does not apply but also delineates those to whom it does. Accordingly, employees engaged in income-generating activities and administrative or charitable functions within religious organizations are included within the scope of Labor Proclamation No. 1156/2011. However, if an individual performs a mixed role, combining spiritual and administrative or spiritual and charitable functions, the Proclamation does not apply. Regarding collective bargaining, religious organizations are only obliged to negotiate on all matters with employees engaged in income-generating activities. They are not compelled to negotiate on wage increases, various benefits, incentives, and similar issues with other employees to whom the Proclamation applies.
What is Spiritual Service? And Its Criterion?
The legal interpretation in S.C. File No. 18419 and subsequent Cassation Bench decisions clarified that not all employees of religious institutions are excluded from the Labor Proclamation, but only those performing spiritual or religious functions. These employees are explicitly excluded by Council of Ministers Regulation No. 342/2007. But what constitutes spiritual or religious service? What is the criterion?
The criterion applied by the Cassation Bench in S.C. File No. 18419 defines employees performing religious or spiritual services as those “whose service is directly connected to the religious institution’s faith and cannot be separated from it.” This exact phrasing, without alteration, became the formal definition of spiritual service in Regulation No. 342/2007.
To determine the existence of a direct connection between the service (job functions) and the faith, the role of the plaintiff within the religious institution, the functions they perform, and the place of these functions within the faith are some of the points that need to be examined. While the Cassation Bench has, in some cases, conducted such an examination and rendered decisions, in others, it has concluded that the Proclamation does not apply even in the absence of clear indicators of spiritual service. For example, in S.C. File No. 47806 (Applicant Hohtesemay St. Mary Church Parish Council Office and Respondent Deacon Ayalew Adisu, December 20, 2002 E.C., Vol. 9), the Cassation Bench took the stance that the relationship between the applicant and respondent was religious, based on the respondent’s claim in his lawsuit that he was serving as a deacon.
Similarly, in S.C. File Nos. 21439 and 51071, a decision was rendered that the service was spiritual, taking into account the job functions. However, in S.C. File Nos. 38331, 41508, 20070, and 21086, the introduction to the Cassation Bench’s decision merely states, “the respondent provides spiritual service…” without indicating by what criterion it was deemed spiritual, or what the work and functions entailed.
In S.C. File No. 34440 (Applicant Menbere Patriarchate General Office and Respondent Megabi Mistir Mezgebu Belayneh, October 06, 2001 E.C., unpublished), the definition of ‘direct connection’ emerged as a distinct central issue. However, the Cassation Bench chose to evade the challenging question rather than provide an answer. The case originated from the respondent’s claim that he was serving as a teacher of Qine (a form of Ethiopian Orthodox Church poetry) and Aqwaqwam (a form of church chant). The applicant, in its response, raised an objection that the respondent’s service was spiritual and therefore not covered by the Proclamation. While the objection was rejected by the court that first heard the case and by the appellate court, the Cassation Bench overturned the lower courts’ decisions, accepting the applicant’s argument that the service of a Qine teacher is spiritual and therefore the case should not be heard by labor dispute bodies. The court that first heard the case had rejected the applicant’s objection by concluding that the respondent’s service was not a direct spiritual work connected to the religious institution.
In the cassation proceedings, the appropriateness of the case being heard in an ordinary court was taken as a central issue. To resolve this issue, the question of whether the service of a Qine teacher, in terms of its type and nature, has a direct connection to the religion, should have been answered first. Although the Cassation Bench touched upon this fundamental question, it passed over it without giving a legal interpretation. It is useful to look at what was stated in the commentary on this point:
“The respondent, in his response to this Cassation Bench, did not raise an argument that the service of a Qine teacher is not a direct spiritual work connected to the religious institution. Therefore, the respondent’s work as a Qine teacher was not found to be contentious as a direct spiritual work.”
The fact that this fundamental point, which had been contentious since the lower court and on which the applicant and respondent clearly differed and argued, was simply dismissed as “not found to be contentious” and a decision rendered, suggests that the Cassation Bench chose to evade the challenging question rather than confront it. To determine whether the functions performed by a person serving in a religious institution have a direct connection to the faith, it is necessary to view these functions through the lens of the faith. This not only raises a constitutional question of separation of church and state but also requires sufficient and relevant religious knowledge. If an ordinary court takes a stance that a service classified as spiritual by the religious institution is not spiritual, the constitutional question becomes prominent. This is why the issue is considered challenging.
Jurisdiction
A key point emphasized by the Cassation Bench is that labor dispute bodies lack subject matter jurisdiction to hear and decide disputes arising from spiritual service relationships. If the fundamental issue is jurisdiction, then whether or not an objection is raised by the litigants on this point, the judicial body to which the case is presented must sua sponte (on its own motion) declare that it lacks jurisdiction and close the file. (Applicant Global Computing Solutions PLC and Respondent Ato Dawit Moges et al. (7 persons), S.C. File No. 36983, December 2, 2001 E.C., unpublished). In S.C. File No. 18419, there is no indication that an objection regarding the lower courts’ jurisdiction was raised.
However, unless the party who filed the lawsuit explicitly states that they perform religious functions, or the religious institution presents supporting evidence and arguments, any decision by the court regarding its jurisdiction will be based on speculation and assumption rather than established facts. Given the existence of various religious institutions in the country, the content of spiritual or religious service will inevitably vary according to each institution. Therefore, the type of service should not be a point on which the court takes judicial notice.
In the dispute between Applicant Mergeta Lisanework Bizuneh and Respondent Patriarchate General Office (April 30, 2000 E.C., S.C. File No. 32229, Vol. 6), the applicant clearly stated in his lawsuit that he was the manager of the Ogaden Diocese in the respondent’s office. In the cassation proceedings, the Cassation Bench stated that the lower court lacked jurisdiction but did not close the file. In the case file, no objection was raised by the respondent that the applicant performed religious functions. The fact that the appellate court, the Employer-Employee Arbitration Board that first heard the case, and the Cassation Bench did not sua sponte close the file makes it difficult to conclude that they accepted that the applicant did not perform religious functions. However, the respondent’s silence by not raising an objection is appropriate. A court should sua sponte declare that it lacks jurisdiction and close the file only if the party who filed the lawsuit explicitly states in their complaint that they were providing spiritual service or were employed for that purpose. In this regard, the legal interpretation given in S.C. File No. 36983 is not appropriate for a jurisdictional question, especially one centered on spiritual service, arising in connection with the scope of the Proclamation’s applicability.
This section highlights the tension between a court’s duty to determine its own jurisdiction and the principle of judicial restraint. While courts must ensure they have jurisdiction, they should generally rely on the parties’ pleadings and evidence to establish facts, rather than making assumptions about the nature of the work, especially in sensitive areas like religious service.
Charitable Organizations’ Employees
Regulation No. 342/2007, concerning the relationships established by charitable organizations, attempts to delineate which employees are covered by the Proclamation, but does so in a confusing manner rather than clearly indicating which employees are excluded. As stated in Article 4, Labor Proclamation No. 1156/2011 applies to the following employees of charitable organizations:
- Employees engaged in income-generating activities within organizations established by charitable organizations for income generation.
- Employees engaged in administrative or charitable functions within charitable organizations.
Article 2(2) of the Regulation defines a charitable organization as an organization or association established to provide humanitarian, social, or development services to the public without a profit-making objective. ‘Income-generating work’ is defined as the production or distribution of goods, provision of services, or other similar income-generating work performed under an organization established by a religious or charitable organization for income generation. However, the Regulation does not specify which functions constitute administrative and charitable activities. This ambiguity inevitably makes it challenging for courts to identify employees of charitable organizations who are excluded from the Proclamation.
A charitable organization establishes an internal structure that enables it to effectively achieve its objectives. It employs individuals with diverse professions, skills, and knowledge. It is impractical to divide these employees into those engaged in charitable activities and those not. Administrative work also varies depending on the organization’s objective. For example, in an organization established to distribute aid, which employees are engaged in charitable activities? Is it only those who distribute the aid? Or can we say that other employees are also engaged in this activity? The driver who transports the aid, the assistant, the mechanic, the cashier who pays loaders and unloaders, the warehouse staff where the aid is stored, the warehouse guard, and the expert who conducts a survey before the aid is distributed, all play a role in achieving the charitable objective for which the organization was established.
In summary, while the applicability of the Labor Proclamation to employees of charitable organizations appears to be partially limited by Article 4 of Regulation No. 342/2007, a deeper examination of the provision’s content leads to the conclusion that no employee is actually excluded from the Proclamation. However, a clear limitation has been imposed on the implementation of the Proclamation regarding collective bargaining. As stated in Article 6 of the Regulation, charitable organizations are not obliged to engage in collective bargaining with employees engaged in administrative or charitable work concerning wage increases, various benefits, incentives, and similar matters. Since employees in income-generating organizations mentioned in Article 4(1) are not included in Article 6, the limitation does not preclude the obligation to engage in collective bargaining with these employees on the said matters.
This section highlights the issue of regulatory ambiguity and its practical implications. When legal definitions are unclear or incomplete, it creates uncertainty for both employers and employees, leading to potential disputes and difficulties in applying the law consistently. The limitation on collective bargaining rights for certain categories of employees within charitable organizations also raises concerns about labor rights disparities and the potential for undermining freedom of association.