You have a number of rights at work under Commonwealth and Queensland legislation.
In some cases, students are working in “unpaid internships” that are unlawful because the student is actually in an employment relationship with the business or organisation.
Whether a person is in an employment relationship depends on the circumstances. It is a matter of working out whether the arrangement involves the creation of an employment contract. That contract does not have to be in writing; it can be a purely verbal agreement.
An employment contract can arise even where the parties call the arrangement something else, say it is not employment, or if a person agrees not to be paid wages for work they do.
Key indicators that an employment relationship exists are:
an intention to enter into an agreed arrangement to do work for the employer
a commitment by the person to perform work for the benefit of the business or organisation and not as part of a running a business of their own, and
an expectation that the person receive payment for their work.
The indicators below will help you work out whether an employment relationship exists and an unpaid work experience, job placement or internship is likely to be unlawful:
Reason for the arrangement
If the purpose of the work experience, placement or internship to give the person work experience it is less likely to be an employment relationship. But if the person is doing work to help with the ordinary operation of the business or organisation it may be an employment relationship arises. The more productive work that’s involved (rather than just observation, learning, training or skill development), the more likely it is that the person’s an employee.
Length of time
Generally, the longer the period of the arrangement, the more likely the person is an employee.
Significance to the business
Is the work normally done by paid employees? Does the business or organisation need this work to be done? If the person is doing work that would otherwise be done by an employee, or it’s work that the business or organisation has to do, it's more likely the person is an employee.
What the person is doing
Although the person may do some productive activities as part of a learning experience, training or skill development, they’re less likely to be an employee if they aren't expected or required by the business or organisation to come to work or do productive activities.
Who’s getting the benefit?
The person who’s doing the work should get the main benefit from the arrangement. If a business or organisation is getting the main benefit from engaging the person and their work, it’s more likely the person is an employee.
Jonathon is a final year accounting student. He agreed to do an unpaid internship with an accountancy firm and was promised a job once he graduates.
Jonathon attended the firm for 3 days a week. He prepared customer tax returns and company financials. The firm charged clients for the work he did.
Although Jonathon had agreed not to be paid, he did work that would have otherwise been done by a paid employee. This indicates an employment relationship existed. As such he should be paid for all the hours he worked.
Under the National Employment Standards, you are entitled to certain leave entitlements for all employees covered by national workplace laws.
Annual (holiday) leave: Under the standards, all employees (except casual employees) are entitled to at least 4 weeks of paid annual leave for every year of service.
Personal, carers’ and compassionate leave:
For every year of service, full-time and part-time employees are entitled to at least: 10 days of paid personal (sick)/carers’ leave; 2 days of unpaid carers’ leave (if needed); 2 days of paid compassionate leave (if needed).
Casual employees are only entitled to 2 days of unpaid carers’ leave (if needed) and 2 days of unpaid compassionate leave (if needed).
Public holidays: On public holidays, employees who would usually work on that day are entitled to a day off with pay (subject to reasonable requests to work). View a list of Queensland public holidays.
Contact the Fair Work Ombudsman on 13 13 94 for more information on leave entitlements.
Some information displayed on this page was written by the Queensland Government.
It is used here by Griffith LSA under the CC BY 4.0 license.
The text in some cases has been modified.
The Queensland Government does not endorse Griffith LSA or our use of their information.
Some information displayed on this page was written by the Fair Work Ombudsman.
It is used here by Griffith LSA under the CC BY 3.0 license.
The text in some cases has been modified.
The Fair Work Ombudsman does not endorse Griffith LSA or our use of their information.