Posted on 09 Sep. 2015
A fair work experience under the Fair Work Act
By Slater and Gordon
For many Australians, the way to break into the world of work has been to get work experience. It is a great way to get a taste of a chosen industry and to get that all-important experience which can improve the chances of later finding a job.
In fact, there is now a strong trend for universities and colleges to require their students to get a work placement as part of their course.
What is not so clear to some employers and job seekers, is how the Fair Work Act applies to individuals undertaking work experience.
Generally, a person undertaking work experience is not covered by the Fair Work Act.
The definition of an “employee” under the Fair Work Act is based on the existence of a contract of employment. People in a voluntary placement are generally not considered to be in a contract of employment.
Normally, a person on work experience does not get the chief benefit of an employment contract. That is, payment. Nor are they required to perform work, follow directions, or to be subject to control of their employer. A volunteer is usually “rewarded” by the achievement of some personal development or some social or community objective.
To put it another way, there is some mutual obligation between an employer and employee, but not between an organisation and a volunteer.
Employers should bear in mind that “work experience” is just that, and of course it should only be offered in good faith and with honest intentions.
The Fair Work Ombudsman has reviewed the way employers and educational facilities offer unpaid work to students and clarified some guidelines for employers thinking of offering unpaid work placements. These guidelines include:
- It is only lawful for a student to undertake an unpaid work placement that is part of a “Vocational Placement”.
- The Fair Work Act defines “Vocational Placement” as a placement that is taken:
- with an employer and where the person is not entitled to be paid any remuneration; and
- as a requirement of an education or training course, that means that it is necessary for the student to receive a credit towards the completion of their qualification; and
- authorised under a law or administrative arrangement of a State/ Territory or Federal government.
- It is possible for parties to enter into less formal work experience arrangements other than vocational placements - but only if no employment relationship (formal or informal) is entered into. The key here is there must be no mutual obligation between the worker and the organisation. One example might be allowing a student to “observe” the work only but not actually participate.
- It is not lawful for an employer to accept work and not pay remuneration for that work. This is important. If a volunteer is really an employee, an employer can face penalties for failing to comply with employer obligations, and an employee can miss out on payment of their wages and benefits.
For more information, visit Dispute Resolution services
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