Are unpaid legal internships against the law?

Across the board, many students feel the pain involved in finding relevant work experience to help them secure a graduate position.

Youth unemployment is currently at higher levels than it has been for decades, which means competition for the remaining jobs is fierce.

The rising trend in unpaid internships is most prevalent in ‘glamorous’ fields such as media, or those in which there is an oversupply of graduates, taking advantage of the job insecurity.

Law students in particular know how competitive the field is, particularly with the ever-increasing flow of law students into an already saturated market.

Perhaps nowhere is the more prevalent than in the practice of criminal law.

Since there is a shortage of jobs in the legal market, it seems that students, graduates and employers have cottoned on: with employers sometimes taking advantage of the lack of jobs and students becoming accustomed to the idea that they must work for free in order to eventually secure a full time job.

One Ombudsman report into the matter found that the number of internships without pay had almost doubled in the last year.

Work experience has become vital, not just to get ahead, but in some cases just to keep up with peers, even if this means working unpaid for a while.

But what is the line between acceptable work experience and unethical exploitation?

Working for free for a not-for-profit organisation such as a community legal centre may be acceptable as you will be helping out a worthwhile cause.

But what if the internship is one at a private law firm – such a general practice, or a commercial, family or criminal law firm – that is charging out your time to clients while not paying you a cent?

According to the Fair Work Act 2009, employees deserve to get paid, and working without pay is against the law.

Work experience is one exception to this, but it must meet criteria of being ‘vocational training.’ According to the Act, vocational training is:

• Unpaid work experience, that is
• Undertaken as a requirement of an education or training course, and is
• Authorised under a Commonwealth, State or Territory law or regulation

The Practical Legal Training course required for new graduates in NSW to become admitted as lawyer requires a work experience element, comprising of 75 days (equivalent to 15 weeks) working in the profession.

Many students who cannot find paid positions must complete this for no pay.

While in the case of PLT working for free may be annoying, since it is part of education and is authorised, it technically fulfils the requirements of a legal internship.

However, the training must actually be ‘practical legal training’ and there is a strong argument that plonking a PLT student in front of a reception desk for weeks at a time and / or using them as a tea / coffee / sandwich person without giving them meaningful legal training is outside the scope of the exception and is therefore illegal.

And what about work experience positions generally?

When trying to figure out if you should be getting paid for your job, the Fair Work Ombudsman poses the question: who benefits from the relationship?

When a position is advertised as an ‘internship’ but actually sounds a lot more like a job, the employer may actually be breaching labour laws.

If an internship means that the student or graduate is being mentored, given experience that will be useful in the future, and not expected to produce work for clients and income for the employer, it is a lot more likely to be legal than one where an intern does work that would usually be done by an employee.

Some interns have applied for unpaid work anticipating valuable experience – only to find themselves cleaning or doing other menial tasks that have nothing to do with their studies or potential career paths.

The Fair Work Ombudsman report found that in three law schools they surveyed, including UTS, about half of those surveyed had participated in internships, and most of these were not for credit towards their degree or qualification.

A substantial amount of these were for smaller law firms or barristers.

And, as unbelievable as it sounds, there are even agencies which target interns (mostly former students from overseas), sourcing work experience for them – at the cost of the intern!

One of those companies, Borch Leeman, was found to have charged applicants at least $2850!

And a deeply entrenched culture of endless unpaid internships ends up becoming circular: whereby the fact that interns replace paid positions has the consequence of less paid jobs being available.

After all, why would a company hire someone when they have an endless stream of free labour?

It also raises concerns that a culture requiring unpaid work experience in order to eventually get a job unfairly disadvantages the less well-off students who may not be able to afford to work for free.

Other students try to juggle full time uni, a paid job (perhaps in retail or a cafe) as well as an unpaid legal internship.

For some who have been unfairly exploited, a complaint to Fair Work Australia may go some way towards addressing the injustice and deterring unscrupulous employers from unduly taking advantage of Law Society rules and the state of the labour force.

For others, it’s just part and parcel of achieving an end goal.