Professor Gordon Anderson, a lecturer at Victoria University, says it’s hard to apply one set of conditions to all the different arrangements that can broadly be classified as internships, and as such they fall under a “messy area” of employment law.
The extent to which you’re protected by employment law for the duration of your internship comes down to whether or not you are an employee of the organisation.
You may be an employee who’s not being paid properly, but you’re still an employee.
“If the work you do as part of your internship is to the commercial benefit of the organisation, and you receive some kind of reimbursement – even if it’s below the minimum wage – it’s harder for them to argue that you’re not their employee,” says Professor Anderson.
If you’re not an employee, you might be found to be a volunteer, defined under the Employment Relations Act as someone who does not expected to be rewarded for work, and receives no reward; the example Professor Anderson gives is of someone who undertakes unpaid work helping out at a charity op-shop for a couple of hours a week.
“It has to be quite clear on both sides there’s absolutely no expectation of any form of payment,” he says. “As soon as you go over that line, you start to look like much more of an employee of some sort, and the usual obligations will creep in.”
If you’re not a volunteer, you’re likely to count as an employee – no matter what title (if any) you were given, as the Employment Relation Act permits the court to determine the real nature of the arrangement.
“So even if one party is saying it was a volunteer role, but there’s evidence to the contrary, you’re still likely to be found to be an employee,” says Professor Anderson. “Of course, you may be an employee who’s not being paid properly, but you’re still an employee.”
Even requesting a contract that outlines the duties and duration of the internship doesn’t necessarily clear matters up. “As soon as you ask for a contract, the question becomes about what kind of contract it is,” he says.
Professor Anderson suspects that the majority of unpaid internships get by on a wing and a prayer, and the good will of both parties. “What you have is a bit of a mess in the law at the moment, mainly because it doesn’t cope with that situation very well. It’s quite difficult to fix up… [Internships] may give people experience, but the employers aren’t doing it for nothing.”
But amending the law to define internships leaves that definition open to exploitation. “I suspect there’d be a reluctance to open that too widely, as there’d then be a massive loophole for cheap labour if you allowed people to get away with it.”
Professor Anderson points to a recent Employment Court ruling, as a result of which a Nelson job seeker was awarded more than $6000 for unfair dismissal from a brief work trial, as one that might have implications on the handling of unpaid internships in future.
If there’s a rapid turnover and nothing ever comes out of it, they’re basically just looking for cheap labour.
But, in the meantime, he advises approaching any potential internships or job trials with caution. “If people are going into it with the expectation of not being paid, look at the reputation of the place. Do any jobs ever actually eventuate, or are you just providing free labour in an area where you’re never going to get a job anyway?
“If there’s a rapid turnover and nothing ever comes out of it, they’re basically just looking for cheap labour.”
Professor Anderson suggests finding out if an organisation has internal policies or guidelines about how internships should run, and how complaints are handled. Get as much clarity around what’s expected of you in the role as you can before you commit to it, and, if you can, talk to previous interns about their experiences of a workplace.
“Is there in fact any reasonable training involved, or are you just going to be doing a lot of donkey work around the place?” asks Professor Anderson. “And, if the latter – how valuable is that?”
