#aplec2013 Day 2 First Plenary

PLT Placements and the Fair Work Act

Professor Andrew Stewart

Adelaide Law School

Professor Andrew Stewart and Professor Rosemary Owens co-authored the Fair Work Ombudsman’s report, ‘The nature and prevalence of unpaid work experience, internships and trial periods in Australia. Experience or Exploitation’, January 2013.

My impressions follow, tersely expressed. Errors and omissions are mine.

Andrew’s session discussed implications of the above report in the context of the work placement component of PLT programs.

Has focused on issue of unpaid work experience over the last 2 years. Report released February 2013, available from www.fwo.gov.au/unpaidwork  A key issue – question of whether PLT work placements are covered under the FWA.
Forms of work experience – apprenticeships, vocational education and training, school students, ‘work integrated learning’ in university courses, support programs for unemployed or injured workers.
Growth in ‘internships’ (cites ‘Intern Nation’ by Ross Perlin), pervasive in USA.
Report authors particularly interested in unpaid work experience outside of educational arrangements. Stratification – those able to persist with long term internships usually supported by families (socio-economic factors) – has a role to play in social mobility. Report distinguished unpaid work experience from volunteer work – latter performed with primary purpose of benefiting someone else or further a particular belief cf work experience focused toward improving employment prospects. (Some overlap though)
Evidence of significant use of unpaid trials/training in particular industries (e.g. film, fashion). Interns doing what would otherwise be paid entry-level work. Rife where graduate numbers  far in excess of available paid entry-level positions. Increasingly employers structuring their organisation around unpaid intern labour.

Surveyed law students from Uni of Adelaide, QUT and UWS – PLT placements not included in this survey – found 50% performed extracurricular unpaid work, majority not for credit toward degree, for some duration exceeding months, substantial number reported doing this work for law firms. Respondents reported reasons for doing this work included improving employability, practising skills, better understanding of work environment. Large number felt this was only way to enter legal profession given they had no personal/family networks in law.

Do employment laws (FWA) apply to unpaid work experience? FWA – no specific mention of unpaid work placements, other than ‘vocational placements’. So do minimum work conditions apply to unpaid work placements? FWA applies to anyone “employed”, but “employed” not defined in FWA. Looked at common law approaches to defining employment, e.g. Ermogenous v Greek Orthodox Community Inc, and ACE Insurance Ltd v Trifunovski [2013] FCAFC 3. Unpaid work as employment – mixed case law – sometimes found to lack intention to form employment arrangement. Something that starts as a non-contractual arrangement can evolve into an employment arrangement. Consideration for employment need not be wages. Report conclusion – on broad view of FWA – contract might be identified where commitment to work for experience/opportunity, and work is of value to employer, in which case FWA (and minimum conditions) should apply. Upcoming cases will test proposition.

Interesting cases from jurisdictions concerning legal profession – Strachan v Moodie [2012] NZCA 508; Edmonds v Lawson [2000] 2 WLR 1091. Wave of cases going through courts in USA – law clear but until now little enforcement.

Vocational placement exception in FWA – a ‘placement’ for which person not entitled to be paid any remuneration (usually doesn’t include reimbursements or gratuities), where placement undertaken as a requirement of education or training course authorised under law or administrative arrangement of Cth, state or territory. (Interpretation of section – must placement be authorised, or course? preferred interpretation is course).
If vocational placement exception does not apply, what is liability of educational institution [e.g. PLT provider] that organises or facilitates unpaid work experience as employer, or as accessory?

Fair Work Ombudsman might release position statement framing a broad approach to the vocational placement exception.
Question from floor – if institution involved in arranging placement, then more likely vocational placement exception applies, but if exception does not apply, institution could be liable as an accessory?
Yes – so institution needs to be careful about arrangements they facilitate.

Recent PLT placement case – Upton v Geraldton Resource Centre [2013] FWC 7827 – commenced unpaid placement, was offered paid employment after 22 days, dismissed within 6 month period, applied to FW under unfair dismissal provisions. Argument that 22 days unpaid placement should be included in minimum 6 month employment period was rejected by FW. Initial period treated by FW as ‘vocational placement’, authorised by Legal Profession Act 2008 (WA).
GLS v PLP [2013] VCAT 221 – complaint under Equal Opportunity Act 1995 (Vic) to VCAT re sexual harassment during PLT placement. Held that complainant was employee despite PLT placement, employee had received payment, and so complainant had standing to apply to VCAT under EOA. [Vocational placement exception under FWA would not have applied to this placement].  Other laws can apply to PLT placements – work health and safety, pending bullying legislation, migration legislation, Australian Consumer Law – might apply to misleading and deceptive conduct in advice and advertisements for unpaid work. PLT providers should take care with information supplied to trainees regarding work placements.

So, likely that FWA vocational placement exception should apply to most PLT placements, but care needed with arrangements.