Legal Advice: Unpaid Internships13 August 2018
What are your obligations in terms of unpaid internships? Nick Ruskin from K&L Gates looks at the fine print.
Some ACA members have been contacted about participation in unpaid student internship programs for "architecture graduates". Architecture practices should be cautious about agreeing to take on unpaid interns, to ensure that they do not unwittingly fall into an employment-type relationship.
Generally, an architecture firm will only be able to take on unpaid interns who are completing a vocational placement.
What is a vocational placement?
The Fair Work Act defines a "vocational placement" as a placement that is:
(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an education or training course; and
(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.
Under the Architects Award 2010, a "student of architecture" is an employee, who is normally enrolled full-time in a course of architecture and who is employed or gains experience in the practice of architecture. The Award also defines "employee" as a national systems employee for the purposes of the Fair Work Act. The Fair Work Act expressly excludes individuals completing a vocational placement from the definition of "national systems employee".
So, students who are completing a vocational placement are not "students of architecture" for the purposes of the Act, and it is not unlawful for you to take on students completing unpaid vocational placements.
Your obligations as an employer – what to check for
It is important to be aware of whether an unpaid intern in your architecture practice is actually completing a vocational placement.
When approached about offering an unpaid internship in your practice, ask:
- Is the applicant a current student at an authorised institution, such as an Australian university, TAFE or college?
- Is the applicant completing the internship as part of that course?
- Under which subject, or component of the course, is the placement being completed?; and
- Is the placement a requirement of that subject or component of their course? Can the applicant show evidence of this? (eg lecturer/supervisor authority, course or subject outline)
Architecture practices risk creating an employment relationship if they engage an unpaid intern who is not completing a genuine vocational placement.
If, for example, an architecture graduate or a current architecture student applied, of their own accord, for an unpaid internship with your firm, and that internship involved their undertaking tasks that assist your business output, the arrangement may give rise to an employment relationship, as the individual may be an employee.
For more information, see the Fair Work Ombudsman's information sheet on vocational placement.
NOTE: The ACA considers it unlikely that an education institution not recognised by the Architects Accreditation Council of Australia could offer unpaid internships and we are seeking further advice on this matter.
See also the full ACA member advice on unpaid internships and the University of Adelaide report from 2103 Experience or Exploitation?: The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia, commissioned by the Fair Work Ombudsman.
Nick Ruskin is a partner of K&L Gates in Melbourne, practising in labour relations employment and anti-discrimination law. He represents corporations in a number of industries including energy, retail, services and healthcare, and public sector clients in the health, higher education, government and community sectors.