Exploitation or valuable experience?

Have you been working as an intern or casual, and are just not sure if you are being treated fairly by your employer?

Sadly those seemingly endless summer holidays have well and truly come to an end. You’ve replaced your list of summer reading novels with heavy and expensive textbooks, textbooks you are likely never to read. You’ve replaced the glow of your summer tan with that sweet fluorescent light of the uni library in the evening, meanwhile reminiscing about the fun-filled holidays you have just had.

For some of you, however, your holidays haven’t been all that relaxing. You may have decided to instead spend your summer break trying to get some work experience under your belt. Maybe you gave your pound of flesh at one of the big city firms in their summer clerkship programs, or maybe you tried your hand at a trade, or maybe you very reluctantly enrolled in a summer school placement.

For all those hours slaving away, the question remains – should you have been paid for your work? Whether or not you should have been paid depends on the type of work completed and the nature of the relationship between you and your employer.

VOCATIONAL PLACEMENTS

Vocational placements legally can be unpaid. A vocational placement is a work experience placement required by an academic institution (i.e. university or tafe) for completion of a subject. It can be organised by the institution or the individual; however, it must be approved by the academic institution. Typical examples would be a teaching prac at a local high school as part of a teaching degree or placement at a hospital for a nursing degree. At the discretion of the provider (e.g. hospital, school), these placements can be paid. However, there is no legal requirement that they must be paid.

UNPAID INTERNSHIPS

If you complete work that falls outside of the scope of vocational placement, whether or not you should be paid depends on the nature of the employment relationship. If an employment relationship exists, you should be paid for the work performed, at least at the minimum wage, and you should be paid for any other applicable entitlements e.g. annual leave.

Whether or not an employment relationship exists depends on the specific facts and circumstances. There is no exhaustive definition of this relationship; rather there are some indicators. The indicators of an employment relationship can include:

• A verbal or written agreement to perform work for the benefit of the organisation and to receive some compensation for that work.
• The work performed is focused on benefiting the operation of the business rather than benefiting the person’s learning experience.
• The work performed is essential to the running of the business/organisation.
• The work performed is usually completed by paid employees;
• and the length of time worked was long.

If the work performed can be classified as part of an employment relationship, you should be paid, regardless of what was agreed.

Example: You have agreed to an unpaid internship at an accounting firm. The agreement is that you will work four days a week for three months. Your job involves preparing tax returns. This work would normally be completed by a paid employee and the firm did charge clients for the work you completed. Even though you agreed to work unpaid, the arrangement suggests that it is an employment relationship and so you should have been paid.

VOLUNTEERING

As the name suggests, there is no legal requirement to pay volunteers. Some indicators of being a genuine volunteer are:

• Performing work for the advancement of something or someone else e.g. charity, church, club etc.
• No expectation of payment.
• No obligation to attend.
• No intention to create an employment relationship.

WHAT TO DO?

If you think that you should have been paid for work that you have performed, you should seek legal advice about your specific circumstances. You can contact the Student Legal Services on 9685 4790 for free legal advice if you are a currently enrolled WSU student.

If you agreed to unpaid work but were actually in an employment relationship, you can contact the Fair Work Ombudsman who can sometimes act to mediate the dispute between yourself and your employer.

If the Fair Work Ombudsman is unable to assist you, you could commence legal proceedings at the Federal Circuit Court to recover the unpaid wages. Be aware, you must commence legal proceedings to recover wages within six (6) years of the date that the debt has accrued. You should always seek legal advice about the merits of your matter before you commence court proceedings so you can avoid the possibility of a costs order against you for an unsuccessful claim.

Disclaimer: The information is general and should not be relied on as legal advice. Should you require advice, contact Student Legal Services on 9685 4790 or email studentlegalservices@westernsydney.edu.au
WSU Student Legal Service is a joint venture between Western Sydney Community Legal Centre Limited and WSU.
It provides advice to currently enrolled WSU students through SSAF funds.

Susannah Coles

Solicitor, Student Legal Services

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Susannah Coles

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