It is common for young job seekers to engage in unpaid work experience, internships, or unpaid trial work in the hope of getting a foot in the door and securing a long term job. While these arrangements can be considered as legitimate for educational purposes, employers should approach these arrangements with caution.

Employment authorities are often investigating issues associated with unpaid work, including unpaid work experience arrangements. The issue with such arrangements is that there is often a likelihood that an employment relationship is established and the worker is deemed an employee and therefore entitled to be paid minimum wages and other employee entitlements under the relevant laws, awards or agreement.

On the other hand, there may be situations where unpaid work can be seen as lawful as these workers are not classified as employees and therefore do not fall under employment law. The following examples provide some guidance.

Vocational Work
Vocational work arrangements are often a mandatory requirement for training or education courses. If a person is deemed to be a vocational worker, the person is not generally covered under employment legislation, thus are not technically an employee and therefore not required to receive wages. Usually, a vocational placement is defined as one that meets all of the following requirements:

• It is undertaken as a requirement of an Australian-based education or training course.
• It is authorised under a law or an administrative arrangement of the Commonwealth, state or a territory.
• It is undertaken with an employer for which a person is not entitled to be paid any remuneration.

Example 1:
Thomas is doing a science degree at university and in order to complete the degree, there is a requirement to undertake four weeks of vocational work experience at a registered hospital. The university and hospital have an arrangement for student placements and Thomas understands that this work experience is part of the training requirements to complete the degree, and as such will not be paid. In such arrangements, it is usually the training or education organisation that would cover the insurance for this student attending the workplace.

Genuine unpaid work experience and internships
Unpaid work experience placements and internships that do not meet the definition of a vocational placement can be lawful in some instances.

Generally, if a worker is engaged as part of an authorised educational training course to allow a student to observe and undertake practical on the job experience, it may be deemed to be a genuine unpaid educational arrangement.

To determine whether a person is a bona fide work experience person, the following factors should be considered as indicators of such an arrangement:

• Purpose of the arrangement: was it to provide work experience to the person or was it to get the person to do work to assist with the business outputs and productivity?
• Length of time: generally, the longer the period of the placement, the more likely the person is deemed to really be an employee.
• The person’s obligations in the workplace: although the person may do some productive activities during a placement, they are less likely to be considered an employee if there is no expectation or requirement of productivity in the workplace.
• Who benefits from the arrangement? The main benefit of a genuine work placement or internship should flow to the person doing the placement. If a business is gaining a significant benefit as a result of engaging the person, this may indicate that an employment relationship has been formed. Unpaid work experience programs are less likely to involve employment if they are primarily observational.
• Was the placement entered into through a university or vocational training organisation? If so, then it is unlikely that an employment relationship exists.

Example 2
A workplace was approached by Rachel, a keen school student who wanted to engage in some 'work experience' because she wanted to be able to write some work experience on her resume. The employer agreed to take on Rachel as a work exerience student, arranging for her to come into the workplace for a few hours in the afternoon, two days a week. Rachel started off observing in the office but has since got a good understanding of how the business operates and has consequently been assisting in basic administrative tasks and duties such as cleaning and answering the phone. The employer finds this very useful to have extra help available, as the receptionist often has to finish early. Rachel has been coming in regularly for the past few months and is becoming part ot the team. The arrangement was made between Rachel and the employer, not through Rachel's school. Despite the request for work experience coming from Rachel and she is happy for it to be unpaid, when assessing the situation against the above indicators, it is likely that an employment relationship may exist which may trigger the need to pay minimum junior wages and entitlements to Rachel. Such an arrangement should be handled with caution.


Volunteer Work
Volunteer work is common in the not-for-profit sector, usually performed in charities, community service organisations, clubs and sport and recreation groups. Genuine volunteers are not employees and therefore do not need to be paid. However, an employer needs to assess whether an employment relationship exists between the two parties by assessing all the relevant factors mentioned above. For further information on the definition of volunteering see volunteeringaustralia.org

If remuneration is deemed to be required
If the work relationship between the employee and employer does not fit one of the categories described above for an unpaid work relationship, then the work relationship may be a genuine employment relationship.  In this case the employer will need to pay the employee their appropriate remuneration.  Employers can determine the employee’s correct rate of pay and other relevant entitlements by checking the appropriate award and corresponding award wages guide. 


Trial Work
It is common for employers to request job candidates to perform trial work in the business, before offering employment to determine whether the candidate will be a good fit or not. If it is expected that the person will be performing productive activities, the person would normally be deemed to be an employee and entitled to be paid as such during that period.

If a work experience placement or internship is used to determine a prospective employee’s suitability for a job, then employers should consider paying such people a casual rate of pay for the trial period.

Similarly, probationary employees are entitled to any applicable employee entitlements and payment for all hours worked, like all other employees. Despite being a probationary employee, the person will still accrue and have access to entitlements such as annual leave, personal/carers leave, compassionate leave, public holidays and other applicable employment entitlements.


Other laws
Even if a particular unpaid work arrangement is permissible under employment law, it is important to be aware that other laws may still apply in relation to matters such as work health and safety or discrimination.

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