By Charles Power

The Fair Work Act 2009 (Cth) (FW Act) does not apply to a student who is completing a vocational placement. This person will not be entitled to minimum wages and other employment rights and entitlements.

A ‘vocational placement’ is a placement that is:

• undertaken with an employer for which a person is not entitled to be paid any remuneration; and
• undertaken as a requirement of an education or training course; and
• authorised under a law or an administrative arrangement of the Commonwealth, a state or a territory.

The placement must be required for completion of an education or training course authorised under a law. The placement may be a required component of the course as a whole, or of an individual subject or module of the course.

The institution delivering the course that provides for the placement must be authorised under an Australian, state or territory law or an administrative arrangement of the Commonwealth or a state or territory to do so. Bodies authorised to offer training courses under state or territory legislation will all satisfy this requirement.

In Upton v Geraldton Resource Centre (2013), an unfair dismissal applicant asked that the time he spent as a graduate lawyer on unpaid practical legal training should be included in the minimum employment period to be protected from unfair dismissal.

The Fair Work Commission (FWC) examined whether the applicant met the requirements of the FW Act for his work to be a vocational placement. On the question of whether the placement was authorised under a law or an administrative arrangement of the Commonwealth, the FWC observed that West Australian legislation required that to be eligible for admission to the legal profession in Western Australia, they must have satisfactorily completed the approved practical legal training requirements.

Therefore, the time in which the person had been on a placement with the employer to undertake practical legal training was a necessary and inherent requirement for him to be admitted to the legal profession.

The FWC ruled it was a voluntary placement in accordance with the meaning in the FW Act and undertaken to complete his practical legal training for admission to practice as a lawyer.