ERA complaint after Ministry of Education intern says she should be recognised as an employee

An investigation has been launched by the Employment Relations Authority after a former educational psychologist intern at the Ministry of Education laid a complaint. Photo / Getty Images

A woman who was paid $25,000 for eight months' work is taking the Ministry of Education to task saying she should have been treated as an employee, not an intern on a scholarship.

The complaint, which will be heard by the Employment Relations Authority later this year, relates to Melanie Govender's time as an educational psychology intern with the government department in 2019.

Govender was taken on by the Ministry three years ago as a recipient of an internship scholarship programme. She was paid a sum of $25,000 in two instalments for her work which ended eight months later.

But Govender claims that despite being hired as an intern, the work she undertook during her time at the Ministry constituted employment, and she should have been recognised as an employee under the Ministry's multi-union collective agreement.

The former intern's case rests on that agreement, which covers 'intern psychologists' among its list of positions and job types.

The collective agreement also states that intern psychologists should be employed on a fixed-term appointment, subject to the requirements of the Employment Relations Act.

The complaint drew a challenge from the Ministry, which told the ERA that Govender's time with the organisation did not constitute employment.

But regardless of that point, the Ministry sought to have the complaint thrown out anyway, arguing that the ERA has no legislative jurisdiction over the issue.

The Ministry said it was instead a matter for the Employment Court to consider, not the authority.

However, the ERA dismissed that argument, saying it's clear in the Employment Relations Act that both the authority and the court have the legal ability to determine whether or not an employment relationship exists.

The case is not just a matter for one body and not the other, the ERA said.

The Court of Appeal has previously ruled that the ERA is "expressly recognised as the primary investigative body" when it comes to employment status issues.

Findings and eventual orders of the ERA can be challenged in the Employment Court after a determination is issued.

The details of the case and submissions from both sides are yet to be heard, with a hearing set down for a three-days in June.

The Association of Professional and Executive Employees (APEX) is assisting Govender with the complaint.

The Ministry of Education was contacted for comment, but declined to speak as the case is still before the authority.

Multiple broader questions about the Ministry's internship arrangements went unanswered.

What is an internship?

According to Employment New Zealand, an internship can be a period of either paid or unpaid work experience.

Unpaid interns are legally classified as volunteers, and organisations or businesses need to ensure the work undertaken by interns would not usually be undertaken by an employee, and the main purpose of the work is for the intern to gain skills and experience.

A paid internship must meet the basic legal requirements of a normal employment relationship. Paid interns must receive at least the minimum wage and the length of the employment must be stated.

The other form of a paid internship is called a studentship, where students do a period of work experience in an academic department, such as helping researchers.

In legal terms, a studentship is considered a form of scholarship, meaning any remuneration is tax-free and not subject to employment law.