It is estimated that approximately 6.1 million people perform
unpaid volunteer work in Australia. There is no doubt that
volunteers are a vital part of the Australian community, in many
instances performing and providing fundamental services for the
community. However, volunteering is not the only form of unpaid
work in Australia, with most young people and recent graduates
often performing unpaid work to gain experience in the hope that it
may lead to paid work. This is despite the Fair Work Act
2009 (Cth) prohibiting the performance of unpaid work, unless
it is a vocational placement.
In 2013, the then Fair Work Ombudsman, Nick Wilson, commissioned
a research report10 by Professors Andrew Stuart and
Rosemary Owens into the nature and prevalence of unpaid work in
Australia, with a focus on unpaid work experience, internships and
trial periods. Whilst unable to provide any statistics, the report
found that, within Australia, unpaid work existed on a scale
"substantial enough to warrant attention as a serious legal,
practical and policy challenge."
It was this report which founded the Fair Work Ombudsman's
compliance, education and intervention campaign into unpaid work in
That campaign resulted in a number of investigations and
ultimately a prosecution in which an employer in the media industry
was fined $24,000 out of a potential fine of $51,00011.
Specifically, the media company was using a number of "work
experience" persons and "volunteers" to produce
radio and television programs. Following the Fair Work
Ombudsman's initial enquiries, all "work experience",
"volunteers" and "contractors" were offered
employment and back payments made. Nonetheless, and despite the
company's cooperation a prosecution was still commenced.
The prosecution related to 2 work experience students who
performed unpaid work for approximately 3 weeks, after which they
were offered casual employment. Even though they were offered
casual employment, the employees were only paid $75 per shift or
between $80 to $120 on weekends as reimbursement for
"expenses". As a consequence of the company
characterising the payments as reimbursement for expenses, the
company was required to back pay the employees for all time worked,
a total of $22,168.08, as the payments made could not be used to
set off the total amounts owed.
In penalising the company the Court noted that whilst the
company had not deliberately exploited the 2 employees, the company
could not avoid the "proposition that it is, at best,
dishonorable to profit from the work of volunteers, and at worst
This case is an important reminder for all organisations which
use volunteer or unpaid labour. Whilst the use and engagement of
volunteers, interns and work experience placements is legitimate,
it is fundamental that organisations put in place appropriate
documentation, policies, training and processes to ensure and
maintain the nature of the relationship. It is also important to
remember that an organisation's work, health and safety
obligations extend to its unpaid labour as well.
The ultimate cost for 3 weeks of unpaid labour by 2 people was
substantially more than the employees minimum wages and was no
doubt a difficult lesson for the company involved. To ensure your
unpaid labour doesn't cost more than a wage, contact Rachael
Sutton or Alicia Mataere in our Workplace Relations team.
10 The Fair Work Ombudsman, Research Reports,
available at http://www.fairwork.gov.au/
about-us/reports-and-submissions/research-reports. 11Fair Work Ombudsman v Crocmedia Pty Ltd
 FCCA 140.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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