Employers may at times arrange to have unpaid volunteers or work experience “interns” carry out work in their business on a short or long term basis, and in some industries, this arrangement is very common.

But is an employer still required to make payment to an unpaid volunteer or work experience intern?

Employers are legally required to pay individuals for all ‘productive work’, other than work classed as a ‘vocational placement’, or genuine volunteer work.

A vocational placement, undertaken as a requirement of an education or training course which is authorised by law or administrative arrangement, is not employment. Accordingly, employers should be fully aware of the individual’s course requirements.

Generally, it will be unlawful to engage workers in unpaid work, as part of work experience on an internship, unless the employer can show that the person is not an ’employee’.

The ‘work experience / paid employee’ distinction is one between passive observer and active worker. If the individual is undertaking productive work, which someone else would otherwise be paid to perform, it is likely that an ’employment relationship’ exists between the individual and the employer.

The fact that it was the worker who first approached the employer and offered to perform unpaid work experience is irrelevant, and this will not change an employer’s obligations to pay the person the relevant minimum wages and other entitlements.

It is also risky for an employer to ask potential employees to participate in unpaid work trials, including for training purposes, for an extended period of time.

Substantial penalties of up to $51,000 may result from non-compliance.

Should an employer engage an individual for unpaid work for work experience, work health and safety laws, workers compensation laws and discrimination laws will still apply to the arrangement.