When it comes to unpaid work experience, the question to be asked is, “Is it legal?”
In a recent study commissioned by the Commonwealth Department of Employment, it was found that in the last five years there were over half a million Australians engaged in (or who were engaged in) unlawful work experience.
The study found that work experience where the duration was six months or longer was most likely to be unlawful and placements of one day or less were least likely to be unlawful.
So what is “unpaid work experience”? This is a general term used to describe numerous arrangements, including work experience, vocational placements and internships. Whether the unpaid work is lawful will depend on the circumstances and the arrangement under which the “work” is performed.
In one of our previous articles titled “Know your obligations: unpaid interns”, we provided a list of factors to identify when an employment relationship exists. These factors are important and must be seriously considered by an organisation to avoid encountering trouble with the Fair Work Ombudsman and/or the courts.
In June 2016, the Federal Circuit Court of Australia issued a fine of more than $270,000 to an employer that made an employee work 180 unpaid hours as an intern. The Court also issued a fine of $8,160 to the Director. The Court’s primary concern was that organisations were, “using interns” to exploit people who are capable of performing productive work and particularly those who are dependent on visa sponsorship or even a “foot in the door.”
It is very likely, given this recent study, that the Fair Work Ombudsman will continue to pursue organisations providing unlawful unpaid work experience.
If you are unsure of an intern or work experience arrangement that you are looking to put into place or already have in place, Workplace Law is able to provide advice to manage your risks.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
02 9256 7500 | firstname.lastname@example.org
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