Proctor : September 2019
42 PROCTOR | September 2019 When is unpaid work lawful? A guide for law students, graduates and legal practices BY MARCELLE WEBSTER Unpaid work arrangements include unpaid vocational placements, unpaid internships,1 unpaid trials and unpaid work experience. These arrangements may be useful for an individual to obtain ‘on the job’ experience, or as a means for an employer to test a person’s skills and suitability for a role. However unpaid work arrangements are only lawful in specific circumstances and therefore students, graduates and employers should be cautious when entering into an unpaid work arrangement. An unpaid work arrangement is only lawful if: a. the arrangement is a ‘vocational placement’ as defined in section 12 of the Fair Work Act 2009 (Cth) (Fair Work Act);2 or b. the person undertaking the work is not an ‘employee’ (that is, the relationship between the person undertaking the work and the employer is not an employer- employee relationship). As a general rule, legal practices should avoid engaging law students or graduates in long- term unpaid work arrangements. Where work is to be undertaken over an extended period, consideration should be given to engaging the person as an employee and providing them with the benefits of employment. Vocational placements Students completing vocational placements as defined in the Fair Work Act are not considered to be employees,3 and may therefore lawfully enter into an unpaid work arrangement. ‘Vocational placement’ is defined in section 12 of the Fair Work Act as a placement that is: a. undertaken with an employer for which a person is not entitled to be paid any remuneration, and b. undertaken as a requirement of an education or training course, and c. authorised under a law or an administrative arrangement of the Commonwealth, a state or territory. If the vocational placement meets all of the above requirements, the student is not an employee and therefore is not entitled to wages or other entitlements under the Fair Work Act. To assess whether a vocational placement meets the requirements of section 12, consider the indicators listed in the table on the facing page. Unpaid practical legal training (PLT) placements In Mitchell Klievens v Capello Rower Lawyers,4 Fair Work Commissioner Johns found that Mr Klievens (a law graduate who had undertaken unpaid work experience for his mandatory PLT) was not an employee during the relevant time, as the work arrangement met all three conditions of a ‘vocational placement’ as defined by section 12 of the Fair Work Act, namely: a. Mr Klievens had no entitlement to be paid. b. The placement/work was a requirement of a training course. c. The placement/work was authorised under New South Wales law.