For years, debate and controversy have surrounded the issue of the unpaid internship experience as an operation that straddles the line between legal and illegal. Some have gone further to argue that university students especially, are being held by the ‘short and curlies’.
This issue is on the rise as an influx of young people are applying for unpaid positions to garner experience that will make them more attractive to future employers and bridge the gap between their education and eventual career.
Employers are well aware of the above facts which is why it is important to know the difference between employment and an internship.
Under the Fair Work Act, both vocational placements where students receive course credit from an educational institution and internships where there is no ‘employment relationship’ are legal.
Thus, the following factors should be considered:
What is the nature and purpose of the arrangement?
Distinguish between a meaningful and learning work experience in which training and skill development is involved as opposed to assisting with the ordinary operation of the business which is more likely to reflect an employment relationship.
How long is the arrangement for?
Traditionally, the longer the period of the arrangement, the more likely the person is an employee.
How significant is the arrangement to the business?
If the work being done is normally performed by paid employees and the business or organisation needs it to be done to continue functioning, it is more likely you are performing the tasks of an employee.
What are the person’s obligations?
There will often be requirements and obligations regardless of whether you are being paid or are unpaid, so it is important to note that you role is primarily observational and the expectations are incidental your learning.
Who benefits from the arrangement?
Whilst the business or organisation may also get some benefit out of your role, they are primarily there to aid and train you in developing your learning before anything else.
As seen above, it can be quite difficult to tell the two apart. As a result, countries like England have made steps to ensuring that all internships are paid in order to bridge the gap between the poor and the rich. This largely comes from the belief that the unpaid internship leads to inequality and sends the message that only those who can afford the best experience will have it.
With such an emphasis placed on securing a position with a company before seeking a job in that area, young people feel like they do not have the luxury of searching for paid positions which are, undoubtedly, harder to find. Thus, young people need protection from the potential illegality that follows the unpaid internship.
Lawyers Weekly writer, Stephanie Garber, argues that young people do not have the time or money to seek out tribunals much less endure the Court process. In the meantime, perhaps Australia should follow the US model of placing the onus of proving that an employment relationship does not exist, on the employer.
Considering the area of law is rooted in ethics, one might ask why students and young people are still being asked to work for free when the benefits are not outweighing the consequences?
If you feel that you are being exploited as a young intern or as a casual employee, please do not hesitate to contact Freedman & Gopalan to discuss your rights on 02 8917 8700.