Ethos Spring 2021

Page 30


Work experience, internship, or employment? When is an intern an employee? John Wilson and Kieran Pender explore the potential legal pitfalls of the unpaid legal work experience placement.

“It can be particularly difficult to distinguish between internships, unpaid work experience, or clerkships (as they are more commonly known in the legal industry) and employment. However, it is important to do so to ensure the integrity of the standards and protections established by the [Fair Work Act].” — Deputy President Binet1 According to the old proverb, the shoemaker’s son often goes barefoot. Lawyers do not have that luxury. Just as we advise our clients on the law, so too must we ensure


that we practice what we preach in our workplaces. When it comes to the intricacies of employment law, that can pose some challenges. This article is about one such challenge: the proper legal classification of junior individuals who are present in a legal workplace on a short-term, unpaid basis. While these arrangements are often labelled ‘work experience’ or ‘internship’, such terms have no legal meaning. In most circumstances, that will have no consequence — ordinarily, there will be no legal relationship between the workplace and the individual. But sometimes an intern may, as a matter of law, be an employee. That can have many negative consequences — with an unpaid internship potentially giving rise to legal liability.