A person may undertake a work experience arrangement to give them training, skills and/or experience in a job or industry to assist him/her to obtain work. This person cannot access the rights and entitlements of the Fair Work Act 2009 (Cth) (FW Act) if they are on a vocational placement.
A vocational placement for the purposes of the FW Act is an unpaid placement undertaken by a person as a requirement of an education or training course authorised under a law or an administrative arrangement of the Commonwealth, a State or Territory. A critical element of the FW Act definition is that the person not be entitled to be paid any remuneration while undertaking the placement. This requires that they not be an employee.
If the arrangement facilitating the placement reveals an intention for the person to commit to performing work for the benefit of the business or organisation in which he or she is placed, and there is an expectation of he or she receiving payment for that work, then an employment relationship is likely to exist. This might be inferred if the person is doing productive work that helps the ordinary operation of the business or organisation, rather than just observing, learning, training or developing their skills.
If the purpose or intention of the arrangement is to give the person the experience of work, it is less likely to be an employment relationship.
A person will be less likely to be in an employment arrangement if the person is not expected or required by the business or organisation to come to work, or do productive activities, and the person doing the work was getting the main benefit from the arrangement. Generally, the longer the period of the arrangement, the more likely the person is an employee. If the work is needed by the business or organisation and is normally done by paid employees, it is more likely the person is an employee.
In Klievens v Cappello Rowe Pty Ltd ( FWC 5126) the Fair Work Commission (FWC) ruled that an person undertaking practical legal training (PLT) required for admission to practice as a lawyer in New South Wales was on a vocational placement.
The ruling determined the question of whether a claimant had completed the minimum 6 months of employment in order to make a FW Act unfair dismissal claim.
The claimant was employed formally as a junior lawyer. The period of formal employment was less than 6 months. However the period of formal employment immediately followed a period of 2 weeks and 2 days, during which the claimant undertook unpaid work experience. This was part of the PLT component of the College of Law (NSW) graduate diploma course for admission to practice as a lawyer in New South Wales.
PLT is intended to comprise “real work” and not just observational work. While a PLT candidate may be engaged in productive activities, there is no expectation or requirement that he/she be obliged to assist the firm generate revenue.
The FWC ruled that PLT meets the FW Act definition of a vocational placement. PLT is a structured training program designed to assist prospective lawyers to develop the practical skills and proficiency required for the day-to-day practice of law. It is usually undertaken at the completion of a law degree. Successful completion of the program leads to the award of a Graduate Diploma of Legal Practice. The work experience placement must occur in the delivery of legal services and be supervised by a legal practitioner who meets certain requirements. It is authorised by the Legal Profession Uniform Admission Rules 2015 (NSW).
The FWC ruled the claimant was not an employee during the PLT placement. Although the claimant had performed some useful and productive activities of benefit to the firm and worked long hours on a full-time basis, this was consistent with the PLT program. Importantly, the claimant was not obliged to assist the firm to generate revenue, there was no an intention to enter into an employment contractual arrangement, and there was no expectation the claimant would be paid for his work. The main benefit of the arrangement flowed to the claimant because it enabled him to be admitted to practice.