Employment and Volunteering: Where is the Line?
Tuesday 23 September 2014 @ 12.54 p.m. | Industrial Law
In a recent case, the Melbourne radio station 3CW Chinese Radio has been ordered to back-pay two former staff members more than $60,000 in outstanding wages and entitlements after it paid them just $20 for each program they produced and presented, claiming the pair were volunteers not employees. But is the line that easy to draw in Australian employment law?
Unpaid Work and Australian Law
Unpaid work can take on different forms - including vocational placements, unpaid internships, unpaid work experience and unpaid trials. Unpaid work arrangements can be entered into for a number of reasons. These include:
- to give a person experience in a job or industry
- to test a person's job skills
- to volunteer time and effort to a not-for-profit organisation.
These arrangements can be initiated by employers, the person wanting the work or experience, or education/training institutions.
Some unpaid work arrangements are lawful and others are not. Depending on the nature of the arrangement, the person doing the work may be an employee and be entitled to be paid the legal minimum rate of pay for the type of work they're doing, along with other minimum employment entitlements.
Whether an unpaid work arrangement is lawful under the Fair Work Act 2009 (Cth) depends on:
- whether an employment relationship exists, or
- whether the arrangement involves a vocational placement.
How to Tell Whether Someone is Participating in Unpaid Work
Swaab Attorneys partner and workplace relations experts Warwick Ryan says:
“There’s [some] basic frameworks to look at it from...look at the nature of the business – is it a commercial enterprise? If it’s a non-commercial entity – such as a charity – then obviously there are lots of people who volunteer their time and it’s clearly a volunteer arrangement...Unpaid trials can only be for a very short space of time – less than a shift or perhaps a shift...They’re undertaking a situation where there is someone observing them for that period and it is predominately for their assessment. If it extends beyond that shift, you’ve got a problem. If they’re left unsupervised, you’ve got a problem."
Internships are generally the most controversial part of unpaid work and especially crop up when the job market is tight.
The Fair Work Ombudsman warns that where an unpaid work arrangement is not a vocational placement, the arrangement can only be lawful if no employment relationship exists. If there is an employment relationship, the person is actually an employee and entitled to conditions under the Fair Work Act 2009 including:
- A minimum wage;
- The National Employment Standards; and
- The terms of any applicable award or enterprise 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 to work involves an employment contract. That contract does not have to be in writing; it can also be a purely verbal agreement.
3CW Chinese Radio
After determining that the pair of "volunteers" were actually employees, the Fair Work Ombudsman determined that they were underpaid $45,839 and $14,287 respectively for work performed between January 2010 and June 2013. According to Fair Work, the employees had to wait more than three months for their wages on several occasions.
In order to avoid litigation, 3CW’s sole director and secretary, Zhao Qing Jiang, has entered an enforceable undertaking with the Fair Work Ombudsman.
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