Proctor : September 2019
43 PROCTOR | September 2019 In Queensland, Schedule 1 of the Supreme Court (Admission) Rules 2004 (Qld) defines the mandatory requirement of ‘workplace experience’ to be “supervised employment, or equivalent unpaid engagement, in an office principally engaged in legal practice”. Unpaid workplace experience, undertaken for the purpose of being admitted as a lawyer, is authorised under Queensland law. However, for an unpaid PLT placement to meet the definition of a ‘vocational placement’ it is important that the work arrangement meets the specific PLT course and training requirements, including in regard to the duration of the placement and the nature and type of work to be carried out by the student. Person is not an employee An unpaid work arrangement that does meet the criteria of a vocational placement may still be legal, provided that there is no employment relationship between the person undertaking the work and the employer. Whether or not an employment relationship exists depends on many different factors. No single factor will determine whether a person is an employee – the whole context of the relationship must be considered. In determining whether an employment relationship exists, courts will make a decision based on the facts and circumstances of each case. WORKPLACE LAW Some of the relevant indicators are listed in the table on the facing page. Other considerations Students and graduates should also be mindful of insurance implications while they are undertaking unpaid work. Some universities may offer a level of insurance to students undertaking work experience, however the student should check with the university about the precise terms and extent of the coverage of the insurance. Indicator No employer-employee relationship Employer-employee relationship Reason for the arrangement Is the reason for the engagement to provide the person with work experience or to require them to help with the ordinary operation of the business? Where the primary reasons for the arrangement are: a. to assess a person’s skills, or b. to provide the person with work experience. Where the predominant reason was for the person to help with the ordinary operation of the business. Length of engagement A very short period of arrangement (which is no longer than necessary to assess a person’s skills). An arrangement for an indefinite or longer period is more likely to make the person an employee. Tip: Employers should consider the status of students who seek to ‘stay on’ after their placements. Was the work productive? Work undertaken solely to observe Work undertaken is not productive work No obligation for the person to meet KPIs or to generate revenue. Expectation that the person will perform productive work. Expectation that the person will meet KPIs and/or be obliged to generate revenue. The work undertaken by the person is ordinarily undertaken by paid employees. Who is getting the benefit? The person is getting the primary benefit of the work arrangement. The business (employer) is getting the primary benefit of the work arrangement.