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 Australia.
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 exploitive".
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.
Footnotes
10 The Fair Work Ombudsman, Research Reports,
available at http://www.fairwork.gov.au/
about-us/reports-and-submissions/research-reports.
11 Fair Work Ombudsman v Crocmedia Pty Ltd
[2015] FCCA 140.
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