Lawyer warns against using unpaid trials

by Victoria Bruce02 May 2016
While internships are commonplace, the issue of unpaid work remains a legal grey area for Australian employers.

Nathan Luke, employment law expert with Stacks Law Firm, says some firms even insist the job applicants themselves foot the bill for unpaid internships and these types of requests are becoming commonplace.

However, Luke says the law on unpaid work is clear and employers could be exposing themselves to legal risk if they refuse to pay minimum wage or demand that the employees pay their own administration fees.

"There are two types of unpaid work – educational or training courses, and then work experience or intern positions where you are not participating in work as an employee," Luke wrote in a recent article.

"If you are just watching and learning for a few weeks you can't expect to be paid,” he says.

“But if you are kept on for months and produce work or research as though you were an employee, you could be entitled to receive the minimum wage.”

Employers who bring new people in for a trial period and who do the work of an employee should be paid accordingly.

“If it doesn't last too long it could be a lawful unpaid trial. But once there is what's called an "employment relationship" you should be paid," Luke says.

He says legal action can be taken against employers who don't pay the minimum wage and against those who illegally exploit workers by keeping so-called fees for administration or insurance.

"Even if unpaid work is lawful under the Fair Work Act, there are other laws that could apply such as work health and safety, bullying in the workplace or discrimination."

Luke says the courts take a strong stance against the exploitation of jobseekers, and companies can be slapped with hefty fines as well as being forced to pay workers what they are owed.

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