As a university student or recent graduate, work experience is essential to bulk up your resume and develop your skills. However, it can be difficult to identify when you are legally entitled to pay for work completed. This article will break down the circumstances in which unpaid work is lawful and unlawful.
What are some lawful reasons for unpaid work?
Unpaid work can be lawful for a range of reasons, such as vocational placements, internships, and work experience. These circumstances typically provide a person with experience in a job or industry, training, skills, work experience as part of a formal program to assist people in obtaining work, to test the suitability of a person’s skills for a job, or as part of volunteering work for a not-for-profit organisation. Similarly, a person may be undertaking a work placement as part of a Commonwealth employment program, rendering them not an employee but instead a recipient of government benefits.
When does an employment relationship exist?
A person is an employee when there is an arrangement between the employee and the employer that involves an employment contract. This contract can be in writing or verbal. A contract can exist even when both parties contend that there was no employment and agree that there will be no payment provided. As long as work is done for the business, then a contract can exist.
Vocational Placements
What is a Vocational Placement?
Vocational placements provide students with the opportunity to obtain skills to facilitate their transition from full-time study to full-time employment. A placement that complies with the Fair Work Act is lawfully unpaid.
The Fair Work Act defines a vocational placement as:
- A placement that is arranged by an educational or training institution or initiated with a business by the student directly
- There cannot be an entitlement to pay for the work done by the student
- Not encompassing industrial award work arrangements
- A necessary component of the course being completed by the student that is offered at an Australian university, TAFE or school, or an authorised body delivering training courses.
If these criteria are not met, the placement will not constitute a vocational placement under the Fair Work Act. However, this does not entitle the student to payment. This is determined by whether they are in an employment relationship with the business.
Example of a Lawful Vocational Placement
Sarah is studying for a Certificate III in Hairdressing at TAFE. As part of her course, she is required to complete a six week placement at a hair salon. She contacts XYZ Stylists, a local hairdressing business and they agree to host her placement. Sarah works at XYZ Stylists for the six week period and does not receive payment. At the end of her placement, she has successfully completed the placement requirements of her course.
As the placement was organised by Sarah on behalf of her accredited educational institution as part of a necessary component of her course, it was a vocational placement and Sarah was not entitled to payment.
Example of an Unlawful Vocational Placement
Sarah is studying for a Certificate III in Hairdressing at TAFE. She decides to apply for a job at XYZ Stylists, a local hairdressing business. During her interview, the manager notices that Sarah is currently completing her studies. Instead of a job, she offers Sarah an unpaid placement during the summer break. Sarah, eager for some work experience, agrees despite the lack of pay.
As the placement was not organised for Sarah on behalf of her educational institution as part of a necessary component of her course, it was not a vocational placement and Sarah was entitled to be paid for the work completed.
Work Experience and Internships
What is Work Experience and Internships?
Work experience and internships are arrangements where a person works at a company or organisation to gain experience and hone their skills in a particular industry. They facilitate a smooth transition from study to work for university students and recent graduates.
Unpaid work experience and internships are lawful when an employment relationship does not exist between the two parties. Specifically, the student or graduate must not be completing substantial work that benefits the business. Instead, the student or graduate must be the main beneficiary of the arrangement, through experience, training or skill development. Read more about red flags to look out for during your internship here.
Example of a Lawful Unpaid Work Experience or Internship
Dylan is in his final year of studying law. He agrees to do an unpaid internship at a boutique law firm. He can choose when he wants to come into the office and his duties include ‘shadowing’ a solicitor so that he can learn the processes involved in legal work. As the role is observational and benefits Dylan instead of the firm, an employment relationship does not exist between the two parties and Dylan is not entitled to pay.
Example of an Unlawful Unpaid Work Experience or Internship
Dylan is in his final year of studying law. He agrees to do unpaid work experience at a boutique law firm. He works in the office two days a week, preparing legal documents and completing other administrative work. The law firm charges clients for the work being completed by Dylan. Despite Dylan and the firm both agreeing to do an unpaid internship, Dylan is completing work that a paid employee would nonetheless do. This means that an employment relationship exists between the two parties and entitles Dylan to pay.
Volunteering
What is Volunteering?
University students or graduates may choose to participate in volunteer work to bulk up their resume or give back to their local communities. Volunteering benefits the recipient, which is most often a church, charity, sporting club or local organisation. As volunteers are not employees they are not entitled to pay. However, an employment relationship may exist regardless of the agreement established between the student or graduate and organisation. A volunteering arrangement will not include a legally binding employment contract. The volunteer is also under no obligation to perform work and they must also not expect to be paid for work. If the volunteer work is formalised, there is a greater likelihood that an employment relationship exists.
Example of Lawful Unpaid Volunteering
Patrick approaches his local sporting club to ask about volunteering as a teacher for the under 10’s soccer program. The club agrees that Patrick can volunteer at his own convenience and will not be paid for the role. Whenever Patrick has some time, he comes down to the club in the evenings and helps the organiser teach the kids. Patrick is not an employee and is not entitled to payment.
Example of Unlawful Unpaid Volunteering
Patrick approaches his local sporting club to ask about volunteering as a teacher for the under 10’s soccer program. The club agrees that Patrick can volunteer and will not be paid for the role. Patrick starts off volunteering at his own convenience but as time passes, he is scheduled to teach the class by himself on the weekly roster. This formalisation means that Patrick is likely no longer a volunteer and has entered an employment relationship with the sporting club so he is entitled to payment.
What to do if you believe you are not being paid?
Employees are entitled to pay, superannuation and leave benefits under the Fair Work Act. If you believe you have been underpaid, you can choose to raise the matter with your employer, your union, or make a complaint to the Fair Work Ombudsman. The Ombudsman conducts investigations and ensures compliance to the Fair Work Act.