It is common for young people looking for a start in the workforce to seek out unpaid work experience opportunities or internships in order to improve their CV, experience work in an office environment or get a foot in the door at a prospective employer.  Is an employer allowed to do this?  Is the employer at risk?

In January 2013, the Fair Work Ombudsman released a report on such arrangements.  The report, which was prepared by Adelaide University Law School, found that employers offering unpaid work may be breaching the Fair Work Act 2009 (Cth), are at risk of being investigated by the Fair Work Ombudsman and may be prosecuted for breaching the Fair Work Act.  If an employer is breaching the Fair Work Act then the unpaid worker will probably be an employee who is entitled to be remunerated just like any other employee.

If an employer is considering offering unpaid work experience opportunities or internships the employer should consider:

1. What is the Purpose of the Arrangement?

The arrangement must be a genuine work “experience” where the unpaid worker experiences the work environment.  If the unpaid worker is filling in someone else’s role or otherwise being productive then they may be an employee.  Allow the unpaid worker to observe and experience the business, spend time with different employees and participate in a variety of activities.

2. Who Benefits from the Arrangement?

If the employer, not the unpaid worker, is the main beneficiary of the arrangement then it may be an employment relationship.  Make sure the unpaid worker clearly benefits from the arrangement.

3. What are the Employer’s Expectations of the Unpaid Worker?

Don’t have any.  If the employer sets targets for the unpaid worker or treats them like any other employee then this suggests that they are an employee.

4. How Long Will the Arrangement Last?

The general rule is the longer the arrangement the more likely that the person will be an employee.

These matters should be considered before the employer enters into the arrangement.

If unpaid work experience opportunities or internships are carefully thought through and structured as a genuine learning experience, then they should be legal.  Employers should take care if they want to offer unpaid work experience opportunities or internships in order to minimise the risk that they will be subject to a Fair Work Ombudsman investigation or legal proceedings for breaching the Fair Work Act. If you need legal advice on your employment situation, call us today on 1300 544 755!

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Matthew Payne

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