Unpaid work placements: Where’s the line between opportunity and exploitation?

Vocational placements are established – and regulated – methods in many industries for junior workers to kickstart their careers. These days, however, we’re seeing the creeping rise of internships and unpaid work trials, and they have a precarious legal foundation. Some unpaid work scenarios are shams and are downright unlawful. It’s important to know the line between opportunity and exploitation, especially now, as the federal government has – as part of it’s recent election platform – proposed a widespread intern scheme.

Beware of shams

Many unpaid work situations are unlawful and are likely shams or arrangements that employers deliberately come up with to avoid the obligation to pay. This might include, for example, employing you, then telling you that you have to go through a ‘training’ period. This ‘training’ can range from hours or days, to even weeks. During this time, you are, in fact, working, but the employer tells you that, because it’s training, you’re not entitled to payment.

This is patently false; even if you’re training, you have the right to payment because you’re going to work. What’s more, the fact that you’re training is of benefit to the employer, because once you complete the training, you’ll be a more productive employee. In many cases I’ve seen, ‘training’ is just another name for ‘work’. I’ve even seen some extreme examples where employees are supposedly ‘training’, but there’s no-one with them to show or teach them anything.

Be very wary of an internship that’s made on the basis that it’s voluntary. Your employer may simply be using you – and your services – on a daily basis to produce products or other work to benefit themselves. It’s a sham, and it’s exploitation.

This organisation should’ve known better

One of my clients represents the perfect example of an unacceptable unpaid work scenario. He was a lawyer who’d trained overseas, and a small organisation brought him in for some work, telling him it was an internship. He received no training or mentoring and was meanwhile producing legal work. He wasn’t even admitted to practice law in Australia, but the employer told him, “This will help you get admitted.” In fact, the employer never had any intention of assisting him with admission. And because he was producing real work, he should have been paid in accordance with – at the very least – the minimum wage, if not more money.

What’s the real deal?

Legitimate unpaid work arrangements are scarce; in most cases, you should be paid. The rare occasions that would qualify as genuine internships are those where the purpose is to provide you with an experience you otherwise could not have – where an employment relationship would not normally be possible. As part of them, you should receive lots of mentoring and tuition; you’re there to learn and gain experience rather than do work on a day-to-day basis. It’s effectively a volunteer arrangement that companies call an ‘internship’.

Then, of course, there’s genuine volunteer work, such as for charities. That’s certainly legitimate, as long as at the outset the organisation makes the nature of the arrangement very clear. If you truly want to volunteer, by all means do so, but do so for an organisation that needs volunteers. It should be for a charitable organisation that simply doesn’t have the resources or funds to pay, not for a massive corporation that can afford to pay people but would rather not.

Holding organisations accountable

If a potential employer is asking you to work for free, always push back and see whether there’s some opportunity to get paid. As I mentioned, a genuine unpaid internship is a rare circumstance. If you want to get real work experience, through which you’re simply observing and learning, make sure it’s for only a short period. And, if possible, get it in writing so you have some guarantee.

If a company makes you an offer, make sure it’s a lawful one; organisations cannot offer arrangements that are unlawful, and you should be sure to point this out to them. If you’ve already started working and you should be getting paid, you clearly have legal action available to you.

What employers need to know

Employers need to be aware that minimum wages, minimum conditions and minimum awards exist under the Fair Work Act. Breaching those conditions is unlawful. If you do break the law, you could be subject to paying not only an unpaid worker’s compensation, but also penalties for breaking the law. These monetary fines can be quite significant – as much as $52,000. Rather than incurring that type of hefty penalty, wouldn’t you have been better off just paying the worker in the first place?

Don’t let them exploit you

Organisations are most likely to exploit those who are excessively vulnerable. Often these are migrant workers, people of non-English-speaking backgrounds and those who are desperate for some experience, or simply a foot in the door. Get some assistance. See whether there’s a union you can join that will assist you, especially if you can’t afford legal advice.

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Giri Sivaraman

Maurice Blackburn Brisbane
Giri Sivaraman is a Principal at Maurice Blackburn. He is the head of the firm’s Queensland Employment law department based in Brisbane, which is listed by the highly respected Doyle's Guide to the Australian Legal Profession as one of two top tier law firms for ...

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