Providing young and inexperienced people with the opportunity to learn new skills and see if a particular work environment is suited to them is a tradition within the Australian workplace landscape. Participating in work experience and mentorship programs can be as rewarding to the business as it is to the participants, offering access to motivated and engaged individuals. However, recent cases have highlighted that many businesses do not understand the restrictions and requirements around the appropriate engagement of staff in unpaid work experience, trial and mentorship arrangements. With high penalties and detailed restrictions, it is imperative that all businesses engaging unpaid workers understand how to do so compliantly.
Unpaid Work Experience
In an unpaid work experience situation, usually a student (either secondary or tertiary) is placed within a business for a specified period of time to gain vocational experience and exposure to the industry and work. In a work experience situation the worker gains the benefit of experience in their chosen field and the business gains the workers time at no cost.
For an unpaid work experience situation to be appropriate it must be part of a structured program, delivered either through a registered educational body (school, university etc) or in some instances through government job placement and work experience schemes. Under most structured work experience programs workers are covered by the program organisers workers compensation insurance and formal documentation is lodged regarding the workers time and attendance at the workplace.
The only legitimate use of “work experience” as a reason for workers to deliver unpaid work, is through a formal program, operated by an approved educational or government body. Without such a formal program any situation characterised by the business as ‘unpaid work experience’ is inappropriate and will attract penalties for breaches of the law, even if the worker has consented to the arrangement.
Unpaid internships and unpaid volunteer situations fall into the same category as unpaid work experience. These must be part of a structured, approved program, operated by an approved body and documented appropriately or they will be deemed inappropriate and the business will face penalties.
Unpaid Work Trial
An unpaid work trial is similar to a work experience situation, in that it allows the worker to assess how they would feel about working in a particular business, and it allows the business to assess if the worker has the specific skills and capacity to undertake the key tasks within the role. The key difference between an unpaid work experience situation and an unpaid work trial is, that for an unpaid work trial to be appropriate it must be; undertaken in connection with an actual job vacancy, it must be documented as an unpaid work trial that is agreed by both parties, and crucially, it cannot be for longer than is required to determine if the candidate has the skills and capacity required to undertake the role.
This last requirement of a legitimate unpaid work trial, the length, is up for some interpretation, however for most retail based roles it would be argued that a candidate would be able to demonstrate capacity within a 4-8 hour shift worked alongside an assessor. For some roles that involve higher functions a 2-3 day work trail may be appropriate.
An unpaid work trial that continues for longer than it takes to assess the candidates skills, or one that has the candidate working alone or with minimal supervision will be deemed to be inappropriate and the business will face penalties for breaches of the law, even if the worker has consented to the arrangement.
Within the workplace context a mentor is a person that has experience and knowledge to impart to the worker (mentee). Mentorships offer a way to enrich an industry, pass information from one generation of leaders to another, and reinforce business cultures. While there are formal mentorship programs most are informal and unpaid.
A mentorship is not an exchange of work for knowledge, rather it is a relationship that allows for the exchange of ideas and information.
A situation where a person is working unpaid in a business to “learn the ropes from the manager” is not a mentorship, it is a breach of the law.
Work and pay?
Anytime a person is working in a business they must either;
- be part of a formal structured work experience, internship or volunteer program operated by an approved educational or government body, or
- be undertaking a documented unpaid work trial that is of an appropriate length, or
- be paid for all work.
If a person is working there is no other option than these three scenarios, either it is approved and appropriate unpaid work, or it must be paid.
Here to Help
ACAPMA members are reminded that the ACAPMA Employment Professionals are available to assist with wages and Awards. For more information just call 1300 160 270.
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of the ACAPMA Workplace Relations Professionals its free for members. ACAPMA membership is affordable at only $810 per year for a single site and valuable with sites gaining HR and IR advice support and representation as well as a raft of other benefits and discounts.