No.35 Work experience and internships

1. Introduction

1.1. Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.2. What is the issue?

The purpose of this Guidance Statement is to outline the ethical considerations under the Australian Solicitors Conduct Rules 2012 (‘ASCR’) and the common law for solicitors and law practices which offer work experience and traineeships, and which employ law graduates and law clerks

As observed by the Fair Work Commission, “It can be particularly difficult to distinguish between internships, work experience, or clerkships (as they are more commonly known in the legal industry) and employment. It is important to do so to ensure the integrity of the standards and protections established by the [Fair Work] Act. It is also important to ensure that the opportunity for genuine work experience or for society to benefit from pro bono service is not lost by characterising all time spent in a workplace as employment when the necessary elements of employment do not exist.”^[1]

1.3. Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. 

This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.

2. Ethical principles

ASCR 

Rules 4 (fundamental duties), 9 (confidentiality), 37 (supervision of legal services) and 42 (anti-discrimination and harassment) apply to this Guidance Statement.

These Rules impose a professional obligation on all solicitors.

3. Work Experience 

3.1. Overview

Work experience is a short-term placement, which might include shadowing, observing or helping out in the workplace and tends to be unpaid, though in some cases it may be paid. Unpaid work experience can include: 

1. unpaid vocational placements; 
2. unpaid internships; and 
3. unpaid trials which test an individual's skills and suitability for a role. 

Unpaid work experience is an important opportunity for students to gain practical “on the job” experience and make connections in the profession prior to full-time employment. It is important for the future of the legal profession that law firms, community legal centres and other organisations provide these opportunities to students. 

Unpaid work arrangements are not, by their nature, unlawful. However, such arrangements will only be lawful if they are part of a vocational placement or where an employment relationship does not exist.

Law students, graduates or new lawyers should not be offered unpaid work experience outside of a lawfully unpaid vocational placement or a genuine volunteer arrangement. The primary purpose of work experience is for the individual to learn, observe and develop skills. Law practices should not rely on unpaid work arrangements to fill essential roles that would otherwise be filled by paid employees.

Whether paid or unpaid, the individual will be regarded as a ‘worker’ for the purposes of work health and safety laws (given the definition of ‘worker’ extends to a trainee, a student gaining work experience and a volunteer).^[2]

3.2. When must work be paid?  Indicia of an employment relationship

Unpaid work experience will be unlawful if there is an employment relationship. If an employment relationship exists, the individual is entitled to a minimum wage and benefits under the National Employment Standards and the Legal Services Award 2020 (“the Award”). 

The existence of an employment relationship is determined on a case-by-case basis.^[3] No single factor will determine whether a person is an employee – the whole context of the relationship must be considered. Some of the relevant indicators are: 

Not-for-profit and community legal centres may offer unpaid work experience to law students or graduates in order for them to undertake genuine volunteer legal work. The Fair Work Ombudsman website states that where the main purpose of a volunteer is to benefit someone else, it is less likely that an employment relationship will be found to exist.^[5]

If the ‘true substance’ of a relationship is an employment relationship, it does not matter that it may be described in other terms, or indeed that the worker concerned may be acquiring additional skills or experience.^[6]

3.3. Exploitation of vulnerable students

The Fair Work Ombudsman has been very active in scrutinising work experience arrangements that fall outside the Fair Work Act’s ‘vocational placement’ exception (discussed in section 4 below), especially where businesses are seeking to exploit job-seekers by having them perform productive work that would otherwise be done by paid employees.^[7]

4. Vocational placements 

The Fair Work Act 2009 (Cth) provides that a person on a vocational placement is not an employee.^[8] A ‘vocational placement’ means a placement that is:

1. undertaken with an employer for which a person is not entitled to be paid any remuneration; and
2. undertaken as a requirement of an education or training course; and
3. authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.^[9]  

The placement can be established by the university or training institution or by the student but it must be a compulsory aspect of an approved course under state or federal regulation.^[10]

Universities are increasingly offering opportunities for students to enhance their professional skills and network within the profession through what is often called ‘work integrated learning’. Unpaid vocational training can be of any duration but must be legitimately within the student’s course of study and agreed with the training provider. Such placements are not intended to provide a basis for the student to undertake work which earns fees for the firm or constitutes work that maybe legally defined as work by an employee. The university may require a structured learning experience to be provided by the firm. It is therefore important for the law firm to be clear about the context in which a law student works within the firm. If there is an agreement for an unpaid educational experience, this must be arranged with the university or training provider and fall within the requirements above. Other contractual arrangements might be deemed an employment relationship and require a legal minimum rate of pay.^[11]

5. Legal Services Award 2020 and Fair Work Act 2009 compliance

5.1. Legal Services Award 2020 - Overview of Award

The Legal Services Award 2020 (“the Award”) applies to many people who work for Queensland solicitors and law practices.

QLS has produced the QLS Legal Services Award 2020 Compliance guide for employers (“the QLS guide”) which summarises many of the relevant obligations and considerations for employers.  As noted in the QLS guide, the preliminary considerations are:

5.1.1. Does the Award cover your business? ^[12]

Does your business:

1. provide legal and/or legal support services, or
2. operate a labour hire business or group training service providing labour hire employees or trainees in the legal services industry?

If so, your business will be covered by the Award. It covers all private legal practices. The Award does not cover:

3. community legal centres;
4. Aboriginal legal services;
5. employers whose primary activity is not within the legal services industry; or
6. the State public service.

The Award will also not apply to employers with an existing enterprise agreement.  

5.1.2. Does the Award apply to your individual employees?^[13]

Is your employee:

1. undertaking work of a clerical or administrative nature?
2. a law clerk as defined?
3. a law graduate as defined?

If so, the Award will apply to their employment and the Award contains classifications prescribing minimum rates of pay for each classification. 

The Award does not cover:

4. admitted solicitors;
5. other employed professionals such as information technology employees and accountants;^[14]  and
6. CEOs and other senior managerial staff.

5.2. Work Experience - Relevant considerations

The Award defines^[15] a work experience clerk as:

1. a person, whether a student or not;
2. who is employed for not more than 2 months in any consecutive period of 12 months;
3. for the purposes of gaining experience;
4. but does not include:

1.   law students;  or
2.  any person who is undertaking work experience according to the provisions of the relevant State or Territory legislation; or
3. secondary school student on a formal work program.

The term “work experience clerk” is not reflected in any Award classification nor is the term used anywhere else in the Award.  It is suggested that “the implication is that someone who is employed for more than 2 months in a consecutive 12 month period may be subject to award classifications.”^[16]

5.3. Traineeships – Relevant considerations

The Award contains minimum rates for employees subject to traineeships or the supported wage systems.^[17]

5.4. Law Graduates - Relevant considerations

The Award includes special conditions of employment for law graduates.

A law graduate is entitled to paid study leave not exceeding a total of 20 days in any 12-month period to attend a course of instruction, and prepare for and attend examinations that relate to the practical legal training required for their admission to practise as an Australian lawyer.^[18]

Paid study leave may be taken for a period or periods agreed between the employer and employee. The employer will not unreasonably refuse to agree to a request by the employee to take paid study leave.^[19]

5.5. Law Clerks - Relevant considerations

The Award defines^[20] a law clerk as a clerk who is engaged for the major part of their time in interviewing clients, preparing documents and general work assisting a barrister or solicitor in their practice, but will not include account clerks, law graduates, titles office clerks, receptionists and employees principally engaged in word processing, computer use, filing, machine operation, switchboard, delivery of documents or duties of a routine nature, to whom another award may apply.

5.6. In all cases – Comply with the law

Noting every solicitor’s ethical obligation to comply with the law,^[21] it is essential that all employers in legal practice must comply with:

1. the National Employment Standards (the national minimum entitlements for employees in Australia);^[22]
2. the provisions of the Legal Services Award;  and
3. any contractual arrangements with their employees.

6. Practical Considerations

The following considerations are relevant regardless of whether a person in the law practice is engaged as a work experience clerk, a trainee, a law graduate or a law clerk.

6.1. Sufficient or Proper Induction

The person should be afforded the same courtesies and undertake the same induction process as an employee of the law practice.

This would include ensuring that the person has received adequate and appropriate induction and training in relation to:

1. confidentiality and ethical obligations;
2. work health and safety;
3. all of the law practice’s policies and the law practice’s code of conduct;
4. risk management and Lexon tools.

As with any employee of the law practice, training does not end at the conclusion of the induction process.   Training and supervision is ongoing throughout the employment relationship.  Note also that a solicitor with designated responsibility for a matter must exercise reasonable supervision not just over solicitors but also over all other employees engaged in the provision of the legal services for that matter.^[23]

6.2. Agreement

As noted above, it is essential that all employers in legal practice must comply with:

1. the National Employment Standards (the national minimum entitlements for employees in Australia);^[24] and
2. the provisions of the Legal Services Award.

Whilst the specific arrangements between any employer and employee are unique, the following matters may be relevant and worthy of inclusion in any contract:

3. term of the contract;
4. key obligations of the parties;
5. remuneration (application of any relevant Award or agreements);
6. who is responsible for equipment, training, insurance;
7. confidentiality;
8. intellectual property ownership;
9. basis for dismissal;   and
10. termination of the contract – relevant notice periods.

6.3. Confidentiality Agreement

The obligations of strict confidentiality regarding client information^[25] are not relaxed simply because a person in the law practice is engaged only as a work experience clerk, a trainee, a law graduate or a law clerk.  That ethical duty is paramount and cannot be fettered.

In addition to appropriate induction training, a law practice should consider an appropriate formal confidentiality agreement (whether included in an employment agreement or as a separate document), not only for employees, but for all work experience clerks, trainees, law graduates and law clerks at the commencement of their engagement.

6.4. Responsibilities re:  Bullying and Harassment

A solicitor must not in the course of practice, engage in conduct which constitutes discrimination, sexual harassment or workplace bullying.^[26]

A solicitor must also comply with the law^[27] which would include providing a safe and healthy work environment for all employees. A person conducting a business must ensure, so far as is reasonably practicable, that the health and safety of workers and other persons are not put at risk from work carried out as part of the conduct of the business.^[28]

Solicitors should ensure that all work experience clerks, trainees, law graduates and law clerks receive the same protections as other employees. Conversely, the law practice should also consider the risks if any work experience clerk, trainee, law graduate or law clerk is the perpetrator of discrimination, sexual harassment or bullying. The law practice could still be vicariously liable for such behaviour and also risk ethical sanctions for any breaches of the Conduct Rules.^[29]

6.5. Be an ethical and positive introduction to the profession

Finally, it should be acknowledged that work experience is often a law student’s introduction to the legal profession. Whilst it can be onerous on a law practice to ensure that all legal and ethical obligations are met, ultimately it is incumbent upon all members of the profession to provide an ethical, positive and safe experience for all of those who participate in the practice of the law.^[30]

7. More Information

Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).

For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.^[31]

^[1] Adam Barbour v Memtaz Derbas T/A Derbas Lawyers [2021] FWC 1718, [123] (Deputy President Binet) ('Adam Barbour’).

^[2] See further information contained in section 6 of this Guidance Statement.

^[3] See, eg, Adam Barbour (n1) [70] (Deputy President Binet): , 

“Factors which are relevant in distinguishing work experience from employment include the following: 

a. The placement is mainly for the benefit of the person rather than the business.

b. The periods of placement are relatively short.

c. The person is not required to or expected to do productive work.

d. There is no significant commercial gain or value for the business derived out of the work performed by the person.”

^[4] Mr Mitchell Klievens v Cappello Rowe Lawyers [2017] FWC 5126, [47]-[58].