More than two-thirds of TDA readers who responded to a survey on unpaid internships said they at least sometimes felt exploited or taken advantage of. So, what are the legal requirements around unpaid internships? And what constitutes an exploitative workplace relationship? Here’s what you need to know.
First, the basics.
Each state and territory in Australia has individual workplace laws. There are also federal workplace laws. Unpaid work is regulated at both the state and federal levels. This is important to consider when assessing the legality of unpaid work.
Federal view.
The Fair Work Ombudsman, Australia’s independent workforce relations agency, says unpaid work experience is “okay”, provided that: the person is a student or on a vocational placement, or there isn’t an employment relationship. How do you know if you’re in an “employment relationship”?
Employment relationship.
Employees working for a company are in an employment relationship. A person in an employment relationship is entitled to a minimum wage and basic employment standards. To determine if someone is in an employment relationship, there are a few factors to consider. Vanja Bulut, a barrister specialising in employment law, says there are three questions that can help determine if an intern is in an employment relationship.
What they are.
Value:
Would the work the intern is doing be otherwise done by an employee, if the intern wasn’t there?
Benefit:
Is the company benefiting more from the work experience than the intern?
Control:
Does the company have a set work schedule for the intern as it would for its employees, rather than the intern being allowed to set a flexible roster?
If an intern answers yes to any of these questions, they could be classified as an employee, and would therefore be illegally unpaid.
What about placements?
Standards for vocational placements, which are used to provide students with practical learning experiences, are a bit different. Federal legislation allows for placements to be unpaid, as long as they meet the following requirements:
It’s arranged by a student’s institution or initiated by a student who needs to take the placement as part of their course.
It has no entitlement for pay. If it did, it would be an employment relationship.
The placement must be a required part of a student’s course.
It must be approved by an authorised institution (this would include all Australian universities and TAFEs).
Legal framework.
There is no set definition for what constitutes an intern in Australia. This is because some pieces of legislation view an intern as a volunteer or unpaid trainee. Others treat them as a worker or employee. Having no explicit definition of an intern can create ambiguous ‘grey areas’ in the law.
Legal protections.
Legal protections for interns across Australia are inconsistent and aren’t always clear. For example, sexual harassment and discrimination protections are expressly reserved for interns in Queensland, Tasmania, the ACT, and Northern Territory. NSW has explicit protections against sexual harassment but not discrimination. State Attorney-General Mark Speakman told TDA that interns could be protected from sexual discrimination “depending on the circumstances of the individual case”. A law passed at the federal level last year ensured that unpaid workers would be protected from sexual harassment. Interns will also receive new protections against hostile work environments under a Bill that passed Parliament in November.
What can be changed?
Bulut said that new legislation and awards that directly classify and provide clear protections for interns would help to provide greater understanding for both interns and organisations. Associate Professor at the University of Adelaide, Anne Hewitt, said protections currently reserved for employees could be extended to the broader ‘worker’ category and also suggested that additional provisions around quality assurance for placement work could be added into federal legislation.
