Document Chunk

Where an unpaid work arrangement is not a vocational placement, the arrangement can only be lawful if no employment relationship exists. If there is an employment relationship, the person is actually an employee and entitled to conditions under the FW Act including:

• a minimum wage
• the National Employment Standards
• the terms of any applicable award or enterprise agreement. To work out whether or not a person is an employee each case must be considered on its own facts. There is no definition of employment under the FW Act. Instead, it is a matter of working out whether the arrangement to work involves an employment contract. That contract does not have to be in writing; it can be a purely verbal agreement. For an employment contract to exist it must be clear that:
• the parties intend to create a legally binding arrangement
• there is a commitment to perform work for the benefit of the business or organisation
• the person performing the work is to get something in return (which might be just experience or training)
• the person must not be performing the work as part of a business of their own. When looking at whether an employment relationship exists, the nature of an arrangement should be considered, not just how the parties have chosen to describe it. The following factors should be considered: