Employment Relations Authority – Employee status – Status of interns
At issue was whether intern psychologists who undertook 40-week practicum placements with the Ministry of Education (Ministry) were employees.
Students who wanted to become registered educational psychologists were required to complete a master’s degree in psychology, a postgraduate diploma and at least 1500 hours of supervised practice. The Ministry had an arrangement with three universities whereby students would undertake 40-week placements in return for a scholarship of $25,000 and access to supervised practice. The students also received the opportunity to complete their registration and to be considered for a permanent job with the Ministry.
The union claimed the intern psychologists were employees. The Ministry denied they entered into employment relationships with the interns, arguing the programme was for training purposes.
The Employment Relations Authority (Authority) found the interns were employees (see para 65). In doing so, the Authority considered:
- The memorandum of understanding between the Ministry and the universities stated that “sole responsibility and authority for the programmes of work, the relationship and for the conduct of the interns while working with the Ministry’s clients lies with the Ministry” (see paragraph 28).
- An intern gave evidence that her experience of being an intern was exactly what she went on to do as an educational psychologist. She estimated that 75 to 80% of her time during placement was spent on Ministry cases (see paragraphs 45, 47).
- The interns worked business hours with any absences needing permission (see paragraph 42).
- What the interns did was work. The interns were doing what was required of an employee (see paragraph 94). The work was an important responsibility (see paragraph 73).
- The work was done for reward (see paragraph 79).
- A small number of existing Ministry staff completed the intern placement to move into educational psychology. They were salaried under the collective agreement. The purported distinction between employment and training was not being applied to them (see paragraph 93).
The Authority considered its determination to be part of a trend in recent cases:
[66] Concluding that intern psychologists are employees as well as students completing their studies may disrupt assumptions that have operated about those practicum arrangements for some time. It is, however, consistent with the direction of travel apparent in many employment law cases in recent years where assumptions about what is work, what is employment and what is worth have been unpicked and overturned …
The Authority found the interns should be paid the applicable salary in the collective agreement with the value of the scholarship subtracted (see paragraphs 65, 108).