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When unpaid work experience becomes exploitation

When unpaid work experience becomes exploitation

By Jessica Awad

Corruption 

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Many young lawyers volunteer their time outside work to get ahead in today’s competitive market, but there is a line between experience and exploitation of free labour.

Young lawyers are willing to undertake unpaid work to get an insight into the legal profession. But what are some of the warning signs in regards to exploitation, and how can you make sure you are not doing the work of someone who should be paid?

In general, the Fair Work Act 2009 (Cth) regulates the relationship between an employee and employer. The Act establishes the National Employment Standards (NES) and includes the obligation of an employer to pay employees. It involves mutuality of some sort whereby the employee performs work for the employer in exchange for consideration in return.

Volunteering

Not for profit organisations that benefit a charitable, religious or sporting cause are not employment relationships. Hence, they are not regulated by the Act and the NES do not apply. Volunteering positions can be indefinite and there is no expectation of payment, although an organisation may reimburse its volunteers for expenses. There is no formal legal definition of a volunteer, but it generally involves working in a designated role for an altruistic purpose. The key element is that the volunteer’s work does not contribute towards the income of the organisation. Therefore, someone who is volunteering with a business by helping it to achieve its commercial objectives is almost certainly not a volunteer, whereas someone who is simply aiding in the day-to-day running of the organisation is most likely a volunteer.

Work experience and internships

Unpaid work experience and internships are legal provided there’s no employment relationship. If there is, then the Act and the NES apply. This area represents the highest risk for law students and graduates in relation to exploitation. There is a basic assumption that when someone does work for a business they are doing so under an employment arrangement and are therefore entitled to be paid. When looking at whether an employment relationship exists, several factors need to be considered. These include the reason for the arrangement, the significance to the business, the tasks undertaken and the benefit. The table above gives some guidance on when undertaking unpaid work is appropriate and inappropriate.

Should you find yourself ticking the boxes in the “inappropriate” column, you should contact the Fair Work Commission for further advice. It may then be appropriate to have a discussion with your supervisor about getting paid for your work, or it might be time to look for something else.

Vocational placements

A vocational placement is defined in the Act as a work experience arrangement that is part of an education or training course where there is no expectation of payment. Employers are exempted from the obligation to pay people in vocational placements, even if an employment relationship exists. The key element is that the work is done as part of formal education, like a practical university subject, or to meet the requirements of a practical legal training (PLT) course.

Conclusion

Young lawyers are vulnerable to being exploited, so know your rights and make sure you are not being used as free labour. If you’re ever in doubt or aren’t sure about your rights, call the Fair Work Commission.

Item Appropriate Inappropriate
Purpose To gain knowledge or experience Doing work to help in the ordinary running of the business
Duration Fixed period of time,
usually short-term
Indefinite or for months on end
Nature of tasks Observation and aiding
in day-to-day tasks
Continuing expectation to perform specific tasks within tight deadlines
Benefits You are receiving most
of the benefit
The business or organisation is getting most of the benefit

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