Unpaid work experience, job placements and internships that are not vocational placements will be unlawful if the person is in an employment relationship with the business or organisation they are doing the work for. People in employment relationships are employees of a business and entitled to:
  • A minimum wage
  • The National Employment Standards
  • The terms of any applicable award or registered agreement
To work out whether or not a person is an employee each case must be considered on its own facts. It is a matter of working out whether the arrangement involves the creation of an employment contract. That contract does not have to be in writing; it can be a purely verbal agreement.

An employment contract can arise even where the parties call the arrangement something else, say it is not employment, or if a person agrees not to be paid wages for work they do. 

There are a range of indicators that an employment relationship exists, and it needs to be assessed on a case by case basis. Key indicators are:
  • An intention to enter into an agreed arrangement to do work for the employer
  • A commitment by the person to perform work for the benefit of the business or organisation and not as part of a running a business of their own
  • An expectation that the person receive payment for their work
It is not intended that people are employees while receiving benefits from the government and undertaking work placements/internships as part of Commonwealth employment programs.

The indicators below will help you work out whether an employment relationship exists and an unpaid work experience, job placement or internship is likely to be unlawful:

Reason for the Arrangement

If the purpose of the work experience, placement or internship is to give the person work experience it is less likely to be an employment relationship. But if the person is doing work to help with the ordinary operation of the business or organisation it may be an employment relationship arises. The more productive work that’s involved (rather than just observation, learning, training or skill development), the more likely it is that the person’s an employee.

Length of Time

Generally, the longer the period of the arrangement, the more likely the person is an employee.

Significance to the Business

Is the work normally done by paid employees? Does the business or organisation need this work to be done? If the person is doing work that would otherwise be done by an employee, or it's work that the business or organisation has to do, it's more likely the person is an employee.

What the Person is Doing

Although the person may do some productive activities as part of a learning experience, training or skill development, they're less likely to be an employee if they aren't expected or required by the business or organisation to come to work or do productive activities.

Who is Getting the Benefit?

The person who is doing the work should get the main benefit from the arrangement. If a business or organisation is getting the main benefit from engaging the person and their work, it’s more likely the person is an employee.