You're approached by an ambitious student, or fresh
faced graduate, bemoaning the tight labour market. It's
impossible, they proclaim, to secure a role without some
experience. And so they beg and plead for an unpaid internship or
work experience. Initially you resist, explaining you don't
have any available jobs. But they persist, you relent, and secretly
you're filled with a warm glow for being so magnanimous and
helping to launch this person's career.
But then enter, stage right, the Fair Work Act 2009
(Cth). The Act mandates that employers pay employees a minimum
wage, with hefty penalties attaching to non-compliance.
So what, you say. An unpaid intern is a volunteer not an
employee, right? Alas, it's not that simple.
Two leading Adelaide Law School academics have just completed a
report to the Fair Work Ombudsman titled Experience or
Exploitation? The Nature, Prevalence and Regulation of Unpaid Work
Experience, Internships and Trial Periods in Australia. In
response, the FWO has announced that it plans to audit allegedly
high risk industries (health and beauty, hospitality and
professional services) and to prosecute wrongdoers.
The problem arises where the line between passive observer, and
active worker, starts to blur. The argument is that once the
"intern" is performing "work", which someone
would otherwise be paid to perform, they've tripped the line
into employee status and should be paid.
There are some exceptions. A vocational placement, undertaken as
a requirement of an education or training course which is
authorised by a law or administrative arrangement, is not
employment. So you're safe with your year 10 work experience
kid. Voluntary work for a not-for-profit is usually pretty safe
too. But beyond that, having someone in the office doing work for
free – even at their behest – is potentially getting
you into danger territory.
So now might be the time to audit your arrangements; before the
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