I am an unpaid intern/trainee – what are my rights?
A 2016 survey by the Federal Department of Employment found that 58% of respondents between the ages of 18 - 29 had done unpaid work in the past five years. Anecdotally, many young people feel they must work for free just to be noticed in the job market. So, it is worth asking – should interns be paid for their work?
The fact is some unpaid work is within the law, while other unpaid work is unlawful.
Under the Fair Work Act, the legality of not paying someone for their work depends upon:
- whether they are in a vocational placement; or
- whether they are in an employment relationship.
What is a vocational placement?
A vocational placement is formal work experience that is part of a training or education course. It can help people get experience in an industry and eventually find work. If your vocational placement meets the legal definition of a vocational placement under the Fair Work Act, such unpaid work is lawful.
Are you in an employment relationship?
If you are not in a vocational placement, you need to ask whether you are in an employment relationship. (Outside of vocational placements, unpaid work is only lawful when you are not in an employment relationship.)
So, are you in an employment relationship? The answer really depends on the nature of the arrangement. These are the some of the factors to consider:
How productive is the work you are doing?
If you are doing productive work rather than just observing and learning, you are more likely to be in an employee relationship.
The length of time of the arrangement?
The longer the period of the arrangement, the more likely it is that you are in an employment relationship.
How significant is the work to the business?
If the work is highly significant to the business, and if the work would usually be done by a paid employee, then it is more likely that you are in an employment relationship.
If the business is charging other people for work done entirely by you, it is more likely that you are in an employment relationship.
Who is getting the main benefit from the arrangement, you or the employer?
In a genuine unpaid work arrangement, you should be getting the main benefit from the arrangement. If the organisation is gaining a significant benefit, then it’s more likely that you are an employee.
What flows from being in an employment relationship?
If you meet the test of being in an employment relationship, you are an employee and you have rights under the Fair Work Act.
What are your rights under the Fair Work Act?
Under the Fair Work Act, an employee is guaranteed certain rights such as a minimum wage and award conditions. If you are not considered an employee, however, you are not entitled to any rights under the Fair Work Act.
What can you do if are not sure of your rights?
Read more about unpaid work, job placements and internships here.
I am doing unpaid work, and suspect my workplace should be treating me as an employee, what can I do?
Keep a record of the time you worked, duties undertaken, requirements and directions given, any advertisement for the role and copies of any formal documents or letters regarding the engagement.
General employment rights information is available from:
- Fair Work Ombudsman
- Young Workers Centre at Trades Hall Council
- Fitzroy Legal Services Handbook online
- a trade union which covers that type of work.
Victoria Law Foundation acknowledges the assistance of barrister Neill Campbell in the development of this blog