Overview

Disclaimer: This article is general information only, not legal advice. If you are unsure, always consult with a legal professional regarding your needs.

Volunteering, Internship, Placement. While all these terms describe unpaid work, they are not interchangeable. Also, just because the work is unpaid, the person completing the work is not automatically considered a volunteer.

Organisations have different obligations towards the person performing unpaid work depending on whether they are performing a volunteer role, work experience, a student placement or an internship.

If your organisation is not clear on the difference, there is a risk that Fair Work Australia may determine that an employment relationship exists and the person should be paid!

Volunteers

Volunteering is defined by Volunteering Australia as:

"Volunteering is time willingly given for the common good and without financial gain."

Concepts deemed outside this definition include:

• Compulsory educational service learning (where students are required to perform unpaid work as part of a course)
• Mandated court orders including community service and fines
• Internships
• Formal work experience / vocational placements
• Mandatory government programs
• Limited choice labour market government programs

Volunteering Australia has a Code of Practice for engaging volunteers which includes guidance for organisations to avoid creating “volunteer” roles which should be paid positions:

• Not place volunteer staff in roles that were previously held by paid staff or have been identified as paid jobs.
• Differentiate between paid and unpaid roles.
• Define volunteer roles, and develop clear role descriptions.
• Ensure volunteers are not required to take up additional work during industrial dispute or paid staff shortage.
• Not ask a volunteer to work in a voluntary capacity for more than 16 hours per week.
• Ensure that the work of volunteer staff complements but does not undermine the work of paid staff.
• Ensure that all voluntary work is undertaken on a voluntary basis and without coercion, that is, the volunteer wants to be there.

Interns

An “internship” is defined by the National Society for Experiential Education as:

“A carefully monitored work or volunteer experience in which an individual has intentional learning goals and reflects actively on what he or she is learning throughout the experience” Interns are not considered to have an employment relationship.

Staff/Employee

Staff/Employee is defined as: "A person who works for another in return for financial or other compensation." Paid employees are considered to have an employment relationship.

An Employment Relationship

“Where an unpaid work arrangement is not a vocational placement, the arrangement can only be lawful if no employment relationship exists.”

Fair Work Australia provides in depth information on Employment Relationships, the questions below can help you determine if there is or isn't an employment relationship.

What is the nature and purpose of the arrangement?

Was it to provide a learning experience or was it to get the person to do work to assist with the ordinary operation of the business or organisation? Where the arrangement involves productive work rather than just meaningful learning, training and skill development, it is likely to be an employment relationship.

How long is the arrangement for?

The longer the period of the arrangement, the more likely the person is an employee. Although even relatively short engagements can still be an employment relationship.

How significant is the arrangement to the business?

Is the work normally performed by paid employees? Does the business or organisation need this work to be done? The more integral the work is to the function of the business, the more likely it is that an employment relationship could be found.

What are the person's obligations?

In some cases a person might do some productive work to aid their learning. An employment relationship is unlikely to be found in these circumstances if:

• The role is primarily observational
• The expectation or requirement to perform such activities is incidental to that learning experience
• Not primarily for the operational benefit of the business or organisation

Who benefits from the arrangement?

The main benefit from a genuine unpaid work arrangement should flow to the person undertaking the role. If the business or organisation is gaining a significant benefit from the person's work, an employment relationship is more likely to exist.

While a person is not prevented from taking up employment with a business or organisation after completing an unpaid work arrangement, each situation should be carefully considered to determine if an employment relationship had been formed earlier.

More information is available through Fair Work Australia.