Unpaid internships, work experience and volunteers in the arts.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

Ask around any theatre company, gallery, festival or production office and you will find people working for nothing. Some are students on a placement. Some are volunteers giving their time to a company they believe in. Others are doing the ordinary work of a paid role while being called an intern. The first two can be lawful. The third is a wage bill waiting to be paid. The Fair Work Act 2009 (Cth) does not use the word intern, and it does not care what the arrangement is called. It looks at what the person actually does. This note sets out when unpaid work is lawful in the arts, and when it is really paid employment.

Are unpaid internships legal in Australia?

Sometimes. An unpaid internship or work experience arrangement is lawful in two situations. The first is where it is a vocational placement, which is a formal placement that is part of an approved education or training course. The second is where there is genuinely no employment relationship at all, because the person is not doing productive work for the business and is there mainly to learn or observe. Outside those two situations, if a person is doing real work of value to the business, they are likely an employee, and an employee has to be paid.

The Fair Work Ombudsman regulates this area, and the arts have their own guidance through Creative Workplaces, the Fair Work body for the sector. The starting point in every case is the same question: is this really an employment relationship dressed up as something else.

What is a vocational placement under the Fair Work Act?

A vocational placement is the clearest form of lawful unpaid work. Section 12 of the Fair Work Act 2009 (Cth) defines it, and a placement is a vocational placement only if it has all three of these features. The person is not entitled to be paid any remuneration for the work. The placement is undertaken as a requirement of an education or training course. And the placement is authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory. A university drama student doing a placement that their degree requires, arranged through the university, is the standard example.

If all three features are present, the placement is lawfully unpaid, however much work the student does. If any one of them is missing, it is not a vocational placement, and the arrangement has to be judged as an ordinary work arrangement instead. The section is set out on the Federal Register of Legislation. A placement that a person sets up privately, with no connection to a course, does not fit the definition, no matter how educational it feels.

When does an unpaid internship become paid employment?

When it is really employment. There is no fixed number of days that makes an internship legal or illegal. What matters is the nature of the relationship. The courts and the Fair Work Ombudsman weigh up a set of factors: what the arrangement was meant to achieve, how long it runs, who benefits from the work, and whether the person is doing productive work that a paid employee would otherwise do.

An arrangement leans towards lawful unpaid work when it is short, its main purpose is to give the person experience or a chance to learn, the person is observing and being shown things rather than carrying a workload, and the business gains little from it. It leans towards employment when the person works regular hours, is rostered and supervised like staff, does work the organisation needs done, and the organisation would have to pay someone else to do it if the intern were not there. Where the arrangement is really employment, the person is an employee from the start, and is owed at least the minimum wage or the relevant award rate, usually the Live Performance Award 2020. Whether a person is an employee or a genuine contractor is a separate question, dealt with in the note on employee or independent contractor.

Are unpaid trials allowed?

A brief unpaid trial can be lawful, but only for as long as it takes to see whether a person can do the job. A single audition, or a short unpaid trial shift under direct supervision so an employer can assess a candidate's skills, will usually be fine. The trial has to be no longer than is needed for that purpose, and the person should be watched rather than left to run the work alone.

An unpaid trial stops being lawful once it turns into ordinary work. A trial that runs for days or weeks, or where the person is doing real work without close supervision, is employment, and the hours have to be paid. Rolling one unpaid trial into the next, or using a run of trial workers to staff the busy season, is the kind of arrangement the Fair Work Ombudsman pursues.

What about genuine volunteers in the arts?

Volunteering is lawful and valuable, and a great deal of the arts could not run without it. A genuine volunteer gives their time freely, usually to a not-for-profit or community organisation, for a reason such as belief in the cause or the pleasure of taking part, and without expecting to be paid. There is no legal obligation on a genuine volunteer to turn up or to do the work, and none on the organisation to pay them. Front of house at a community theatre, helping at a festival, or serving on a committee are common examples.

The label volunteer does not settle it either. If a person is promised payment, is required to work set hours under threat of losing the role, or is doing the work of a position the organisation would otherwise pay for, a court may find they are an employee despite the title. Genuine volunteering also sits more naturally with not-for-profit and community organisations than with a business run for profit. A commercial production that staffs itself with unpaid volunteers is on much weaker ground than a community group that could not operate any other way.

What are the risks for an arts organisation that gets it wrong?

The risks are real and they fall on the organisation, not the intern. If an unpaid intern or volunteer is found to have been an employee, the organisation has to back-pay everything they should have received: wages at the award or minimum rate, penalty rates and allowances, superannuation, and leave entitlements for the whole period. On top of the back-pay, the organisation and the individuals responsible can face civil penalties for breaching the Fair Work Act and the award.

The Fair Work Ombudsman has taken employers to court over unpaid internships that were really jobs, and penalties in these cases have run into the hundreds of thousands of dollars. The parallel risk of misclassifying paid workers as contractors is covered in the note on sham contracting, and the same theme runs through both: the substance of the relationship decides the obligations, not the paperwork. An organisation that treats interns as free staff carries a liability it may not see until a claim arrives.

What this means for interns, volunteers and the organisations that host them

If you are offered an unpaid internship or work experience, ask whether it is a vocational placement connected to a course, or whether you will be doing the ordinary work of the organisation. If it is the latter, you are likely an employee entitled to be paid, and you can raise that with the organisation or with the Fair Work Ombudsman. Being unpaid does not mean you were never owed anything, and there is a time within which entitlements can be recovered.

If you run an arts organisation, decide honestly what an unpaid arrangement is for before you offer it. Keep genuine placements tied to a course, keep trials short and supervised, keep volunteering to work that is truly voluntary and not the running of the organisation, and pay people who are doing the work of a job. If you are unsure whether an arrangement is lawful, or you have received a claim from a former intern or volunteer, get advice on where you stand before you respond. The way underpayment is recovered, and the criminal offence that now attaches to the most serious cases, is set out in the note on wage theft and underpayment in the arts.

Frequently asked.

Are unpaid internships legal in Australia?

Sometimes. An unpaid internship is lawful where it is a vocational placement that is part of an approved education or training course, or where there is genuinely no employment relationship because the person is mainly observing or learning and is not doing productive work for the business. If the person is doing real work of value to the organisation, like a paid employee would, they are likely an employee and must be paid.

What is a vocational placement?

A vocational placement is defined in section 12 of the Fair Work Act 2009 (Cth). It has three features: the person is not entitled to be paid, the placement is undertaken as a requirement of an education or training course, and the placement is authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory. If all three are present, the placement is lawfully unpaid. A placement set up privately, with no connection to a course, does not fit the definition.

Can a for-profit arts business take on unpaid interns?

Only if the arrangement is a genuine vocational placement, or there is truly no employment relationship. A commercial business that uses unpaid interns to do the ordinary work it needs done is at serious risk, because that work is usually employment that must be paid. Genuine volunteering sits far more naturally with not-for-profit and community organisations than with a business run for profit.

Is an unpaid trial shift legal?

A brief unpaid trial can be lawful for as long as it takes to assess whether a person can do the job, and the person should be directly supervised during it. A single audition or one short trial shift will usually be fine. Once the trial runs for days or weeks, or the person is doing real work without close supervision, it is employment and the hours must be paid.

Are volunteers for a not-for-profit theatre employees?

Usually not, if the volunteering is genuine. A genuine volunteer gives their time freely for a reason such as belief in the cause, without an expectation of payment and without a legal obligation to attend or do the work. But if a person is promised pay, is required to work set hours to keep the role, or is doing the work of a position the organisation would otherwise pay for, a court may find they are an employee despite the title.

What happens if an unpaid intern was really an employee?

The organisation has to back-pay everything the person should have received for the whole period, including wages at the award or minimum rate, penalty rates and allowances, superannuation and leave entitlements. The organisation and the individuals responsible can also face civil penalties under the Fair Work Act. The Fair Work Ombudsman has taken employers to court over unpaid internships, with penalties running into the hundreds of thousands of dollars.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 20 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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