Unpaid work new focus of Fair Work Ombudsman

The Fair Work Ombudsman (FWO) has announced a focus on unpaid work experience arrangements. A report commissioned by the FWO [click here] has found that unpaid trial work, unpaid internships and other forms of unpaid work experience arrangements are a growing feature within the Australian labour market.

Examples include:

• requiring persons (particularly young workers) to undertake unpaid job trials or training beyond that required to ascertain their suitability for the position; or
• unpaid internships - that is, unpaid work experience arrangements which may or may not form part of a vocational placement.

The report highlights that unpaid internships are prevalant in many professional industries where graduates outweigh the job opportunities available such as the areas of media, legal services, advertising, marketing, PR and event management.

The Fair Work Ombudsman, Nick Wilson stated:

"There are many quite legitimate work-based learning programs and vocational placements which genuinely enhance the learning of participants. Generally these vocational placements are linked directly to formalised training through universities or other training institutions.

… But a young person who is required to work unpaid in a café for a full week to test his or her 'suitability' for a paid position as barista, waiter or kitchen-hand is clearly being exploited."

The FWO has announced six recommendations from the report which it will seek to implement as follows:

1. Determine the legality and legitimacy of unpaid work experience to develop a position and approach to the FWO's education and operational decisions (including potential prosecutions).
2. Provide more detailed guidance on unpaid internships including the development of education materials with a focus on identified key industries - that is hair and beauty, hospitality, cafes and restaurants and professional services (medial, legal, and creative services).
3. Provide a special complaint handling procedure and increase compliance through community awareness, engagement with key stakeholders, and a targeted approach to compliance within the identified key industries.
4. Consider commencing proceedings against employers and persons engaging in exploitative unpaid work arrangements and the use of other compliance mechanisms as an alternative to litigation where appropriate.
5. Develop liaisons with other government agencies who have ability to influence unpaid work arrangements.
6. Provide education programs to higher education sectors and a self-audit tool to assist in ensuring the legitimacy of any unpaid arrangements.

Conclusion

Unpaid work arrangements may provide benefits to both employers and persons in gaining valuable experience. However, employers should take care when considering utilising persons on an unpaid basis whether via a vocational placement, work suitability trial or internship and seek legal advice regarding the potential risks and appropriate management of the arrangements.

If you would like more information about the case, please contact The following article summarises the Fair Work Commission's (the FWC) recent decision confirming that, in certain circumstances, a refusal by an employee to undertake a drug/ alcohol test is conduct sufficient to justify termination of employment.

Background

Mr Briggs commenced employment with AWH Pty Ltd (AWH) in January 2011 as a casual stores officer. Mr Briggs was subsequently employed in a full time position in August 2012. On each occasion, Mr Briggs accepted an offer of employment which included specific provisions requiring him to:

• be familiar with all AWH policies, observe all lawful directions, orders, instructions and policies of AWH;
• ensure that he was free from the effects of any drugs at all times whilst carrying out his duties; and
• comply with any requirement to undertake a medical examination and/or drug test to determine his fitness for work.

On both occasions, Mr Briggs also attended an induction during which AWH's Alcohol and Drug Misuse Policy (the Policy) was explained, as well as the consequences for failing to comply with it.

The Policy included the following provisions:

• a cut-off level for substances detected as specified under the Australian Standards or legislation;
• prohibition of the use of alcohol or drugs by employees while working or where their use inhibited safe working practices or contributed to unacceptable job performance/ behaviour;
• reserved AWH's right to conduct alcohol or controlled substances screening/testing in accordance with Australian Standards, or to conduct searches at work, on either a random or discretionary basis; and
• a refusal to undertake a test in accordance with the Policy would result in disciplinary action, including termination of employment for failing to comply with a work direction.

On 12 September 2012, Mr Briggs was selected (along with other employees) to undertake a random urine test conducted by an external testing laboratory provider (the Testing Provider). Mr Briggs questioned the validity of the Australian Standards with the Testing Provider and refused to undertake a urine test, instead offering to undertake a saliva swab.

AWH's General Manager then attended Mr Briggs who again, raised his concerns regarding the validity of the Australian Standards and the purpose of the tests, explaining that in his view, the tests were wrong and unlawful.

When it became apparent that Mr Briggs refused to follow the Policy as requested, a more formal meeting was conducted and Mr Briggs was requested to submit his reasons in writing for refusing to undertake the urine test. Mr Briggs submitted his reasons for refusing to do so in writing and again offering to undertake a saliva swab rather than a urine test. A further meeting was conducted where Mr Briggs was provided with a copy of the Policy to which he confirmed that he was aware of its existence.

After the meeting a further letter was sent to Mr Briggs which directed him to attend the offices of the Testing Provider to undertake a urine test in accordance with the Policy and that if he failed to do so, he would be in breach of the Policy having failed to comply with a work direction which may result in termination of his employment.

Mr Briggs failed to attend the Testing Provider and was subsequently asked to attend a further meeting with AWH. At this meeting, Mr Briggs employment was terminated for refusing to undertake a urine test and failing to undertake a lawful direction.

Decision

Commissioner Williams upheld the termination and observed that:

"There is generally no basis for the Commission to interfere with the managerial prerogative or an employer's right to make decisions on how to manage their business including a decision to introduce a workplace policy."

In making the decision Commissioner Williams considered that the only question in the matter was whether the direction by AWH that Mr Briggs comply with the Policy, was unreasonable. Commission Williams considered that Mr Brigg's submission that he refused to undertake the urine test based as his belief that the Policy was unreasonable and not 'best practice' had no basis and was rejected. He further stated that:

"In my view a testing policy is not unreasonable simply because an employer could have adopted an alternative approach to testing which an employee would have preferred, and which in some circumstances may have had different consequences or outcomes for tested employees."

In reaching this view, the FWC confirmed that employers have a right to put in place reasonable policies and require their employees to comply with these. In this case, the method of testing was a matter for AWH to determine, the Policy requiring employees to undertake urine tests was reasonable and Mr Briggs refusal to undertake a urine test when directed was a valid reason for dismissal.

As AWH complied with the procedural requirements regarding termination and there were no other relevant matters, the termination was upheld.

Conclusion

This case re-affirms the FWC's view that the implementation of reasonable policies in the workplace is a matter for the employer and a management prerogative. It also highlights the importance of ensuring that appropriate training, education and procedures are followed when drafting, developing, introducing and implementing drug and alcohol and other workplace policies and procedures. Such preparation is often an integral part of defending future litigation.

If you would like more information about the case, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.