Do I need to pay the Work trial/Work experience person?

Posted by Luke Mitchell on 16 September 2014

I still remember my first work experience in year 10 as an Electrician and how beneficial it was to my decision not to become an Electrician. This type of vocational work experience is still available (and invaluable). However work experience conducted by an individual for no remuneration where the employer engages the person to conduct tasks related to their business and there is no educational organisation involved could result in the employer ending up in front of the Fair Work Commission. 

The problem for employers is that the Fair Work Act 2009 (Cth) determines when unpaid work is lawful and the legislation limits both the circumstances and commercial advantage of these kind of arrangements. 

The two basic questions that need to be considered in a work experience arrangement are:

- whether the placement is vocational (typically a placement arranged as part of a training or educational course); or
- whether an employment relationship exists. 

For employers not involved with vocational placements the question of the employment relationship is the critical question when considering work experience, unpaid trials or engagements of a similar kind. There is no set definition for an “employment relationship” and therefore the cases are handled on a case by case basis. 

It is important that Employers consider the following points when engaging people without Award remuneration:

1) The nature and purpose of the arrangement - This includes the work completed by the person and whether that work is for the training (and benefit) of the person, or whether that work is for the operational benefit for the employer.

2) The significance of the performed tasks to the employer - This includes the significance to the employer of the tasks performed by the person. An example would be are the tasks performed by the person usually undertaken by paid employees.

3) The person’s obligations in undertaking the work - This point looks at whether the work is observational, if the work is conducted to aid the learning process or if the work is predominately to aid the employers business.

4) The benefiting party - The person undertaking the unpaid work should gain the predominant benefit from the work experience. If the employer is gaining the predominant benefit from the work experience it is more likely that an employment relationship will be found. 

5) The length of the engagement - The longer and engagement lasts the more likely the relationship will be considered an employment relationship. 

If you are concerned about any issues raised in this blog please contact Dooley & Associates Solicitors and ask to speak with someone from our Employment Law team.