Apprenticeships and traineeships are formal training arrangements where ‘work’ is combined with ‘training’. Work experience occurs when a person receives on-the-job training for a period of time, usually unpaid and is often (but not always) associated with student placements.
Apprenticeships arise when a person (the apprentice) enters into an agreement to work in a skilled trade with an employer and the apprentice receives training/education (eg: carpenter, electrician). An apprentice is paid for the time they spend with the employer.
Traineeships arise when a person (the trainee) enters into an agreement to work in a particular industry/vocation whilst also studying for a certificate qualification to work in that industry/vocation (eg: administration, tourism). A trainee is paid for the time they spend working at the place of employment.
In Australia, the Fair Work Act 2009 (FWA) covers most employees and employers. In Queensland, the FWA covers national system employees and employers; that is, employees and employers in the private sector.
Employees and employers of the Queensland Government, as well as local councils are generally covered by the Industrial Relations Act 2016 (IRA).
The FWA stipulates that State and Territory training laws can apply to national system employees. The main legislation in Queensland that regulates training providers and the terms on which apprentices and trainees can be engaged is the Further Education and Training Act 2014.
Despite their special status, apprentices and trainees are considered to be employees. They, therefore, have the benefit of the minimum entitlements set out under employment legislation (including the National Employment Standards) and receive the same entitlements as other employees (eg: annual leave, public holidays, sick leave).
Apprentices and trainees will usually also be covered by modern awards and registered enterprise bargaining agreements. These instruments usually operate in conjunction with State and Territory laws rather than overriding them.
Generally, probationary periods apply to apprentices and trainees and are determined through the approved training scheme. While on probation, the apprentice or employer can withdraw from the training contract simply by giving the appropriate period of notice (stipulated in the NES or applicable award/agreement). Generally, once the probationary period has elapsed, the training contract becomes binding on both parties.
Work experience occurs when a person receives on-the-job training for a period of time. A person does not need to paid for work experience (unpaid work) if there is no employment relationship in place or if the person is a student or on a vocational placement.
To determine whether an employment relationship exists it is necessary to consider:
Each case must be assessed to ascertain whether an employment relationship exists.
If an employment relationship does exist and the person undertaking the work experience is unpaid for the work, then the organisation/business offering the work experience may be in breach of employment laws.
The law surrounding apprenticeships, traineeships and work experience can be difficult to understand particularly when determining a person’s rights and obligations under employment law.
Should you wish to obtain legal advice in relation to these matters, you should contact a Gilshenan & Luton employment lawyer who will assist you.