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.

TOPIC: Employment law

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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 employees in Queensland. He is part of the National employment law practice recognised by the respected Doyle’s Guide as the only first tier legal practice for employees in Australia. Giri is recognised as a preeminent lawyer for employees in Queensland by Doyle's Guide and he is a member of the Law Society of Queensland employment law subcommittee. He is also a LSQ accredited specialist in workplace relations and a Law Society of NSW accredited specialist in employment and industrial law. Giri has 15 years’ experience providing a full range of legal services to executive and employment law clients including CEOs of ASX 200 listed companies, the CEO of a prominent NGO, the CEO of a large software developer, executives in the financial and banking sectors, medical professionals, senior public servants, senior marketing executives and incorporated associations. Giri sees clients throughout Queensland and provides advice and legal representation in all areas of employment law including workplace bullying, employment contracts, redundancy, restraint of trade, discrimination, sexual harassment, adverse action, and unfair dismissal. He is also experienced in representing employees including very senior executives who are the subject of workplace investigations and disciplinary processes. Giri has negotiated a number of significant out of court settlements, and notes that the vast majority of his cases are successfully settled without going to court. He is conscious of the discretion required when dealing with people’s livelihood and reputation, noting that legal action is not often something a client will want splashed across the front page of the major newspapers. His significant cases include: headed the pro bono scheme for underpaid 7-Eleven workers run by Maurice Blackburn bringing one of the first successful adverse action cases under the new Fair Work Act representing an aircraft engineer who had his work rights breached representing Aid/Watch in the High Court, successfully challenging the Australian Taxation Office’s decision to deny it charitable status. This case significantly altered Australian tax law and enabled many charities to retain their charitable status successfully resolved breach of contract claim for CEO of multinational software company winning a discrimination case on behalf of a Senior police officer dismissed for discriminatory reasons defending and assisting the CEO of an ASX 200 company in response to serious allegations of harassment, and appeared before the Commonwealth Government Parliamentary Inquiry into corporate avoidance of the Fair Work Act. Giri’s influence as a thought leader in employment law in Australia is also well recognised. He addressed the Commonwealth House of Representatives Standing Committee on Employment on the need for new anti-bullying laws, and was delighted to see those laws enacted in 2014. He was also invited to make submissions to the NSW Parliamentary Inquiry into Bullying at NSW WorkCover, and is a regular contributor to public debate on employment issues. He also helped provide the seed which grew to establish Unions 4 Refugees in Queensland. Memberships and awards Preeminent Employment Lawyer in Queensland - Doyle's Guide 2017 and 2018 Leading Employment Lawyer in Queensland and Australia - Doyle's Guide 2016 Recommended Employment Lawyer - Doyle's Guide 2014 & 2015 Deputy Chair of the Law Society of Queensland employment law subcommittee Queensland Law Society member Multicultural Development Australia Ltd board member NSW Law Society member  ...

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