Taking on an unpaid intern isn’t usually associated with an employment relationship. Most people understand that the person is just looking to pick up some experience and insights for a week or two. But, unless you’re clear, there may be misunderstandings and possibly legal implications.

Bear in mind that the Fair Work Act 2009 provides rights and entitlements for work performed by employees.

So is the unpaid work experience person an employee?

There is no one legal test to determine an employment relationship. Each case must be assessed individually. And remember that an employment agreement can take many forms, including in writing and verbal discussions.

A lengthy ongoing relationship between an organisation and an individual, for example, may be one factor in support of an employment relationship rather than work experience, which is usually conducted for a short period of time.

If an employment relationship is deemed to exist, then an individual is entitled to receive the benefits associated with employment. That may include entitlements and rights under an Award or Enterprise Agreement, the National Employment Standards or the national minimum wage.

Failure to provide basic employment entitlements to an employee will expose an employer to liability under the act, industrial instruments and the common law, which may include compensation claims and penalties.

The Fair Work Act 2009 is only one regulatory statute and laws vary from state to state regarding employment rights and entitlements.

During discussions with potential work experience candidates, employers should ask themselves:

What is the true nature of the relationship and work – is it to provide experience to the individual or to support business activity?

Has the employer set and communicated expectations to the individual, identified the nature of the experience and been clear on the parameters of the arrangement, including that work will indeed not be paid?

Note that unpaid work experience is different to vocational placement work where an individual has a formal work arrangement as part of an educational course. The Fair Work Act 2009 defines vocational placement, and individuals engaged through vocational placement are often excluded from receiving employee rights and benefits provided by the act.