the experience or exploitation? report: implications for tertiary education
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Andrew Stewart & Rosemary Owens Adelaide Law School ACEN Forum, RMIT, 1 March 2013. The Experience or Exploitation? Report: Implications for Tertiary Education . Forms of work experience. Combining work and training apprenticeships vocational education and training - PowerPoint PPT PresentationTRANSCRIPT
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The Experience or Exploitation? Report: Implications for Tertiary
Education
Andrew Stewart & Rosemary OwensAdelaide Law School
ACEN Forum, RMIT, 1 March 2013
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Forms of work experience
Combining work and training apprenticeships vocational education and training work experience for school students ‘work integrated learning’ in
universities support programs for unemployed or
injured workers
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Forms of work experience Growth of arrangements for work experience
outside of formal education and training often now performed by an ‘intern’
‘a kind of smokescreen, more brand than job description, lumping together an explosion of intermittent and precarious roles we might otherwise call volunteer, temp, summer job, and so on’ (Ross Perlin, Intern Nation)
plus prevalence of unpaid trials compare volunteering, unpaid work performed
with the primary purpose of benefiting someone else or furthering a particular belief
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Global context Social and economic impacts of
globalisation eg GFC and impacts on youth employment
Pressures on industry productivity and flexibility
Transformation of work growth in non-standard, precarious work
Risks of growth of the informal economy
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Global context Educational services as part of a global
competitive industry regulatory changes
increased number of players – public and private changes in technology changes in funding increased global movement of students
Pressures for more work integrated learning young people spending longer in formal
education industry demands for ‘job ready’ graduates
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Prevalence of unpaid work experience
No definitive statistics – so more research needed!
But evidence of significant use of unpaid trials/training,
especially in certain industries use of unpaid interns to perform
extracurricular work that could or would otherwise be done by paid employees well established in some sectors on the rise in many others
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Prevalence of unpaid work experience
Findings supported by individual testimony and comments FWO investigations observations/material from stakeholders advertisements surveys
ACEN members university students YWLS survey
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ACEN survey 89 members – 29 institutions Strong awareness (60%) of unpaid work
organised or facilitated through their institution that was not part of courses
Proportion of students involved in this unpaid work? approx one-third estimated >50% estimated 2/3 doing work of benefit to
business/organisation
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ACEN survey Benefits
acquisition and practice of skills, improved understanding of industry, contacts/networking
Disparate attitudes from strong support for benefits gained to
concern at exploitation and real value High level of institutional involvement
70% indicated institution had formal agreements with industry/organisations
64% - written guidelines
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Legal position
Fair Work Act 2009 requires minimum wage and other entitlements if there is an ‘employment’ relationship not defined, but ‘vocational
placements’ excepted therefore left to common law, which
requires parties to have created an employment contract
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Legal position
Requirements for a contract include intention to create legal relations consideration mutuality of obligation
To be determined objectively, by reference to the reality of the arrangement, not necessarily what’s formally agreed
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Legal position
Limited and very mixed case law on status of unpaid trials and work experience
But on a broad view of the Fair Work Act, scope for identifying a contract where there is a commitment to work in
return for experience/opportunity work is of value to the ‘employer’
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‘Vocational placement’ exception Even if an employee, there is the
‘vocational placement’ exception ‘a placement that is:a) undertaken with an employer for which a
person is not entitled to be paid any remuneration; and
b) undertaken as a requirement of an education or training course; and
c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.’
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‘Vocational placement’ exception
‘A placement’ a process for placing?
what if student acts on their own initiative?
‘For which a person is not entitled to be paid any remuneration’ remuneration does not usually include
reimbursement of costs not a gratuity – because no entitlement
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‘Vocational placement’ exception
‘Undertaken as a requirement of an education or training course’ is a ‘course’ a program qualification? or does it also include a subject within a
course? is an elective subject a ‘requirement’ of a
course or only ‘core’ subjects? general opportunities for internships or
work experience facilitated by educational institutions seem clearly not to be covered
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‘Vocational placement’ exception
‘Authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory’ does the placement have to be
specifically authorised? or is it enough that the
course/program is authorised?
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‘Vocational placement’ exception
If the exception doesn’t apply, but an institution organises/facilitates unpaid work experience possible liability as an employer? possible liability as an accessory?
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Legal position
Application of other laws covered in detail in report
But briefly note work health and safety laws will
always apply potential application of Australian
Consumer Law to misleading advice or ads for unpaid work
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Migration legislation– international students
Migration legislation defines ‘work’ as ‘any activity that normally attracts remuneration’ may include work that is unpaid where
performed for benevolent, educational, or community purposes
at the very least, ‘work normally attracts remuneration’ if the person is an ‘employee’ because of Fair Work Act
Conditions 8104 and 8105 40 hours per fortnight
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Migration legislation– international students
Condition 8105 except where work is ‘a requirement of
the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students’
wording differs from vocational placement exception in the Fair Work Act
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Risks for international students If internship or other work experience is
within the definition of ‘work’ in Migration legislation;
outside the exception in Condition 8105; and they already are employed 40 hours per
fortnight Then there is a risk that they are in
breach of visa condition, as well as risk that rights under the Fair Work Act have been ignored
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International picture
International Labour Conference June 2012, resolution concerning The Youth Employment Crisis: A Call for Action:
‘[A]pprenticeships, and other work experience schemes have increased as ways to obtain decent work. However, such mechanisms can run the risk, in some cases, of being used as a way of obtaining cheap labour or replacing existing workers.’
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International picture
ILO website article, August 2012 ‘internships have become increasingly
common in developed economies, as has controversy over the practice’
warning of the dangers if internships become simply a ‘disguised form of employment’ and without any of the benefits they promise, such as real on the job training
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Legal developments in other countries
US, UK, Canada all have versions of the vocational
placement exception pressure in each country for interns to
be paid/treated in accordance with ordinary workplace laws
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United Kingdom Public debate and action
involvement of all stakeholders government, industry, trade union, education authorities
and institutions, young people concerns about equity, access and social mobility ‘Gateway to the Professions’ initiative 2011 ‘Common Best Practice Code for Higher
Quality Internships’ adoption of industry specific initiatives/codes of
practice government leading by example
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Our recommendations to FWO
1. Articulate a clear view as to legitimacy of unpaid work experience, in order to inform education and operational decisions
2. Provide more detailed guidance, eg as to vocational placement exception
3. Institute one or more targeted campaigns
4. Consider instigating test cases
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Our recommendations to FWO
5. More effective liaison with other government agencies, such as DIAC or ACCC
6. Engagement with stakeholders, eg to develop best practice approaches
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Implications for tertiary institutions
In the short term – review existing programs for legal compliance
In the longer term – finding the right balance