Unpaid Training

Employees frequently need to undergo training in the workplace, either to onboard as a new employee or to progress within their organisation. There is sometimes a question over whether a worker should be paid while training. Australian law provides very limited scope for unpaid work, such as the provision for trial shifts so that workers can demonstrate competence under supervision during the interview process. This article looks at when a worker should be paid to undergo training and the legality of requiring an employee to engage in unpaid training.

Workplace training

Most employees undertake training during their employment, whether it is on-the-job training during standard work hours or additional training outside of work hours. For example, when an employee first starts work, they typically have to attend mandatory work, health and safety and compliance training. If an employee moves to a new role within the company or receives a promotion, they will usually do additional training to adapt to the requirements of the new role. Often a manager or co-worker provides this training, but sometimes the training is contracted out to a third party. Training can be in person or online, depending on the role and industry, during normal work hours or outside these hours, and in the workplace or at an external training provider.

Whether a person is paid for training depends on whether there is an employment relationship between the worker and the employer. In Australia, the Fair Work Act 2009 mandates that existing employees must be paid for any hours worked, including time that they dedicate to training. This includes time that an employee dedicates to training before their first official shift. The employee should check whether there are any special rules in their enterprise agreement or modern award about payment for training, but generally, employees should be paid their hourly rate or equivalent for any mandatory training.

Mandatory training

Mandatory training is instruction that an employer requires the employee to attend where the employee has no ability to refuse. This type of training is typically used to instruct employees on workplace rules and regulations and develop competency in their ordinary positions. Payment for hours spent in mandatory training should abide by the normal pattern for the employee. For instance, the employee should be paid as usual for training during standard work hours.

As employers can expect employees to work reasonable additional hours, this extends to mandatory training requirements. An employer can require an employee to attend training outside normal work hours so long as they provide sufficient notice, and the time is not excessive. For employees covered by enterprise agreements and modern awards, these additional hours are generally paid at overtime rates, while other workers may have an offset clause in their employment contract that specifies that these additional hours are within their general salary payment. When mandatory training incurs extra costs and travel expense for the employee, there may be provision in the enterprise agreement or modern award for payment defrayment.

It is legal for an employer not to pay for mandatory training in specific limited circumstances. For instance, in some professions, university students work mandatory practical placement without remuneration and therefore undergo unpaid training. This is predicated on the assumption that the student is gaining experience relevant to their degree and necessary for them to practice in their chosen field. Notably, some placements choose to pay their students for their work, including their training.

Non-mandatory training

Non-mandatory training is undertaken on a voluntary basis. This type of training often has some relation to the employee’s role but is aimed at professional development, allowing the employee to choose to upskill. An employer may agree to pay for an employee’s professional development, though this is not required under law.

Non-mandatory training is often offered outside normal working hours, such as during unpaid lunchtime. In such cases, the employer must clearly communicate with the staff (preferably in writing) that participation in this training is optional and unpaid. In addition, employees must clearly understand that there will be no repercussions for failing to attend the training.

Another example of unpaid voluntary training is the experience gained by interns as unpaid workers, such as during summer internships. Payment is usually not applicable in this situation and as such training time is not compensated.

Case study

In Argentier v City Perfume Retail Pty Ltd [2023], the Fair Work Commission determined that an employee was unfairly dismissed from her casual position before she even commenced work because of a dispute over unpaid training. In April 2023, Ms Argentier obtained a casual position as a brand ambassador at City Perfume Retail. After signing her employment contract and completing onboarding, she was advised that she would be rostered on the next week. Before her first shift, the employer informed Ms Argentier that all new hires needed to attend a training session at head office.

When she was advised that this training session was unpaid professional development, Ms Argentier informed the employer that she would not attend. The employer replied that the training was beneficial for her own knowledge and though unpaid, she would receive a gift. Ms Argentier again declined to attend, and the employer subsequently told her that her role was withdrawn. Ms Argentier lodged an application with the FWC alleging a contravention of the general protection provisions.

The employer raised a jurisdictional objection on the grounds that Ms Argentier had not commenced official employment with them. However, the FWC determined that there was an employment relationship between Ms Argentier and the employer as specified in the signed employment contract. The FWC also decided that there was no doubt that it was the employer who terminated the employment on the basis of Ms Argentier exercising a protected right.  

Contact Go To Court Lawyers for any guidance on unpaid training and advice on your specific situation.