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Published online by Cambridge University Press: 01 January 2025
This article extends current understandings of regulation of tertiary education, in particular, work experience undertaken by tertiary students, by contributing a ‘law in practice’ analysis of the effect of the existing regulatory regime on work integrated learning practice within Australian universities. It considers how Australian universities are responding to, implementing, or overlooking the formal regulatory framework regarding work experience placements. The analysis is informed by data gathered in a series of 68 semi-structured interviews conducted with individuals from 15 universities around Australia and provides unique insights into how Universities are acting as regulators in the broad sense of the word. Understanding the enforcement of educational regulation is important, because it is the only national tool directed to ensuring work experience opportunities afford real learning which will facilitate skills development and increase future employment opportunities and are equitable and safe for student participants.
This work was supported by the Australian Research Council’s Discovery Project grant DP150104516. I gratefully acknowledge my fellow CIs on the ARC grant, Professor Emerita Rosemary Owens AO, Professor Andrew Stewart and Associate Professor Joanna Howe. The data collection process which has enabled this analysis was a team effort. I also acknowledge the invaluable assistance of Dr Francesca Rimini, whose expertise in qualitative data collection and analysis guided us through the journey.
1. Australian Collaborative Education Network, Universities Australia, Australian Chamber of Commerce and Industry, Australian Industry Group and the Business Council of Australia, National Strategy on Work Integrated Learning in University Education (2015), <http://acen.edu.au/wp-content/uploads/2015/11/National-WIL-Strategy-in-university-education-032015.pdf>, 1.
2. Ibid 2.
3. Damian Oliver et al, Unpaid Work Experience in Australia: Prevalence, nature and impact (Department of Employment, 2016), 24.
4. Damian Oliver et al, Unpaid Work Experience in Australia: Prevalence, nature and impact (Department of Employment, 2016), 26.
5. Universities Australia, Work Integrated Learning in Universities: Final Report (2019, Universities Australia).
6. Ibid 8.
7. See, eg, Fair Internship Initiative, Impact of Covid-19-related Measures on UN Internships (1 May 2020), <https://fairinternshipinitiative.org/2020/05/01/impact-of-covid-19-related-measures-on-un-internships/> (accessed 20 September 2020); National Association of Colleges and Employers, Quick Poll: Employers Maintaining Plans for College Hiring, Holding Internships (5 May 2020), <https://www.naceweb.org/talent-acquisition/trends-and-predictions/quick-poll-employers-maintaining-plans-for-college-hiring-holding-internships/> (accessed 20 September 2020); Yello, Virtual Internship Statistics and Trends: A 2020 COVID-19 Impact Report, <https://yello.co/blog/virtual-internship-statistics/> (accessed 20 September 2020).
8. See, eg, <https://www.virtualinternships.com/> (accessed 20 September 2020).
9. See, eg, Australian Internships, Virtual Internship Program, <https://www.internships.com.au/virtual-internship> (accessed 20 September 2020).
10. For further discussion of the support for WIL in Australia, see Anne Hewitt, Rosemary Owens and Andrew Stewart, ‘Mind The Gap: Is The Regulation of Work Integrated Learning in Higher Education Working?’ Monash University Law Review (2018) 44(1) 234, 244-248.
11. The ILO also notes the risk that work experience placements may be used by organisations to obtain cheap labour or replace existing workers. See International Labour Organisation, ‘The Youth Employment Crisis: A Call for Action’ (Resolution and Conclusions of the 101st Session of the International Labour Organisation, Preventing Exclusion from the Labour Market: Tackling the COVID-19 Youth Employment Crisis (Policy Brief, May 2020) 14.
12. ILO, Preventing Exclusion from the Labour Market (n 26) 14.
13. See, eg, Craig Cameron, ‘The Vulnerable Worker? A Labour Law Challenge for WIL and Work Experience’ (2013) 14(3) Asia Pacific Journal of Cooperative Education 135; Anne Hewitt ‘Avoiding the Trap of Exploitative Work: A National Approach to Making Work-Integrated Learning Effective, Equitable and Safe’ (2018) 31(2) Australian Journal of Labour Law 101‐130.
14. Anne Hewitt, Rosemary Owens and Andrew Stewart, ‘Mind The Gap: Is The Regulation of Work Integrated Learning in Higher Education Working?’ Monash University Law Review (2018) 44(1) 234, 265.
15. Julia Black ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 1, 26.
16. This is discussed in detail in Part 2 below.
17. Craig Cameron, ‘The vulnerable worker? A labour law challenge for WIL and work experience’ (2013) 14(3) Asia Pacific Journal of Cooperative Education 135, Cameron (n 13) 140.
18. ‘Regulating Post-Secondary Work Experience: Labour Law at the Boundary of Work and Education’, DP150104516.
19. David N Schiff, ‘Socio-Legal Theory: Social Structure and Law’ The Modern Law Review 39(3)1976:287, 287.
20. Jan Orrell, Good Practice Report: Work-integrated Learning (Report 2011) 5. See also Debra D Burke and Robert Carton, ‘The Pedagogical, Legal, and Ethical Implications of Unpaid Internships’ (2013) 30 Journal of Legal Studies Education 99, 101-7.
21. For an explanation of different types of WIL, see Patrick, Carol-joy, Peach, D., Pocknee, C., Webb, F., Fletcher, M., Pretto, G. (2008, December). The WIL [Work Integrated Learning] report: A National Scoping Study (Final Report, December 2008) Brisbane: Queensland University of Technology. Available online at: <www.altc.edu.au> and <www.acen.edu.au> pp 14-16.
22. TEQSA, Guidance Note: Work Integrated Learning Version 1.2 (11 October 2017). Note: at the time of publication this guidance not is under review.
23. Extracurricular internships are associated with a series of additional regulatory challenges. For example, where work experience is not part of a course of study there is a possibility that a student undertaking it is an ‘employee’ and is entitled to the protections of the Fair Work Act 2009 (Cth). For further analysis of these issues, see, eg, Andrew Stewart and Rosemary Owens, ‘Experience or Exploitation? The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia’ (Report, Fair Work Ombudsman, 2013) 137‐150, 249‐253.
24. All 40 Australian universities are authorised as self-accrediting institutions under the Tertiary Education Quality and Standards Agency Act 2011 (Cth). This limitation is consistent with that applied in Hewitt, Owens and Stewart (n 10).
25. National Strategy on Work Integrated Learning in University Education (2015).
26. The educational benefits and risks of WIL are discussed in Anne Hewitt (n 13).
27. A sense of the scope and depth of pedagogical research into WIL can be found by considering the resources available on the Australian Collaborative Education network website: <www.acen.edu.au>.
28. Christine Parker and Vibeke Lehmann Nielsen, Explaining Compliance: Business Responses to Regulation (Edward Elgar, 2011).
29. See, eg, Coleen Chen, ‘Exploitation versus Experience: Paying University Fees for Unpaid Internships ‘University of Melbourne Student Union at <https://umsu.unimelb.edu.au/exploitation-versus-experience-paying-university-fees-for-unpaid-internships/> and Ellen Wexler, ‘Paying to Work: New twist in the debate over unpaid internships is whether colleges should charge tuition for them’ Inside Higher Ed 17 May 2016 at <https://www.insidehighered.com/news/2016/05/17/when-students-pay-tuition-work-unpaid-internships>. In some United States of America colleges, academic credit is not offered for internships. See Christian Zhang, ‘CSA announces changes to course withdrawal, internship policies’ Columbia Spectator, 24 August 2014 at <https://www.columbiaspectator.com/2014/02/21/csa-announces-changes-course-withdrawal-internship-policies/>. The Columbia University Centre for Career Education states on its website ‘Columbia University typically does not offer academic credit or course points for internships’ at <https://www.careereducation.columbia.edu/resources/frequently-asked-questions-about-internships>.
30. Ross Perlin, Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy (Verso, revised ed, 2012) ch 5.
31. See Higher Education Support Act 2003 (Cth) s 33-30(1) regarding non-payment for ‘work experience in industry’ and the definition of that term in sch 1 cl 1(1) as in force prior to the amendments enacted by the Higher Education Support Amendment (Job-Ready Graduates and Supporting Regional and Remote Students) Act 2020 (Cth).
32. See Higher Education Support Act Administration Guidelines 2012 (Cth) 5.5.1 which provide that if the educational provider meets those criteria, then a placement is not regarded as ‘work experience in industry’. See also Department of Education and Training, Higher Education Administrative Information for Providers (2014) 38.
33. For discussion of how to make WIL effective as a learning experience, see Hewitt, (n 13)
34. Tertiary Education Quality and Standards Agency Act 2011 (Cth) ss 3(c)(iii), 3(d).
35. TEQSA can accredit a course of study that leads to a higher education qualification against Levels 5, 6, 7, 8, 9, or 10 of the Australian Qualifications Framework, which embodies the national policy for regulated qualifications in Australian education and training (available at <https://www.aqf.edu.au>). Accreditation usually lasts for seven years and can be renewed before expiry.
36. *Threshold Standards* (n 23)
37. Tertiary Education Quality and Standards Agency, Application Guide for Registered Higher Education Providers: new course accreditation, renewal of course accreditation for existing providers Version 3.1.1 (2017), <https://www.teqsa.gov.au/latest-news/publications/application-guide-registered-higher-education-providers-new-course>, 7.
39. Ibid 3.1.3.
42. Ibid Appendix D, p19. WIL is defined by TEQSA as ‘any arrangement where students undertake learning in a workplace outside of their higher education provider as a part of their course of study’: Tertiary Education Quality and Standards Agency, Guidance Note: Work-Integrated Leaning (11 October 2017), 1.
43. Higher Education Standards Framework (Threshold Standards) 2021, 5.4.1.
44. Tertiary Education Quality and Standards Agency, Guidance Note: Work-Integrated Leaning (11 October 2017). Note, this Guidance Note is under review at the time of publication.
45. Tertiary Education Quality and Standards Agency, Guidance Note: Work-Integrated Leaning (11 October 2017), 2.
46. Tertiary Education Quality and Standards Agency Act 2011 (Cth) s 59.
47. Ibid s 99.
48. TEQSA compliance audits and re-registrations are irregular (occurring up to every seven years.
49. A register of the decisions made by TEQSA can be found at <http://www.teqsa.gov.au/national-register>.
50. Code of Practice for Providers of Education and Training to Overseas Students (2018) Cth, Standard 1.2.2.
51. Ibid Standard 2.1.2.
52. Ibid Standard 3.3.1.
53. Ibid Standard 11.1.2.
54. Ibid Standard 11.2.3.
55. Ibid Standard 11.2.5.
56. *Threshold Standards* (n 23) Standard 7.1.2.
57. Each State and Territory in Australia accredits the initial teacher education programs offered in their State or Territory. The Australian Institute for Teaching and School Leadership (AITSL) ‘Accredited programs list’ provides a comprehensive list of all currently accredited initial teacher education programs offered in Australia at <https://www.aitsl.edu.au/deliver-ite-programs/apl>. The AITSL has also produced a set of Standards and Procedures which establish the requirements that an initial teacher education program must meet to be nationally accredited, including a requirement that the program include no fewer than 80 days in undergraduate and double-degree teacher education programs and no fewer than 60 days in graduate-entry programs: AITSL, Accreditation of initial teacher education programs in Australia Standards and Procedures (September 2018) Standard 5.2, 16.
58. See, eg, the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA).
59. At the time of writing the Registered Nurse Accreditation Standards 2012 were under review. See <https://www.anmac.org.au/standards-and-review/standards-under-review/registered-nurse-accreditation-standards-review> (accessed 29 October 2019).
60. Australian Nursing and Midwifery Accreditation Council, Review of Nursing Education (20 June 2019), 4. Available at <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwiMhfCcysDlAhWPfn0KHeOoDU0QFjAAegQIAhAC&url=https%3A%2F%2Fconsultations.health.gov.au%2Foffice-of-the-chief-nursing-and-midwifery-officer%2Feducating-the-nurse-of-the-future-independent-revi-1%2Fsupporting_documents%2FGatling_M_Australian%2520Nursing%2520and%2520Midwifery%2520Accreditation%2520Council.PDF&usg=AOvVaw1BD5dfUGh6scrX437apX07>.
61. The equity, efficacy and safety of WIL are further explored in Anne Hewitt (n 13) 101-130.
62. Julia Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 1, 1.
63. For an introduction to regulatory theory from a labour law perspective, see Andrew Stewart et al, Creighton and Stewart’s Labour Law (Federation Press, 6th edition, 2016) 19. See also John Howe, ‘A different world: The regulatory project in labour law’ in John Howe, Anna Chapman and Ingrid Landau (eds), The Evolving Project of Labour Law (The Federation Press, 2017).
64. The interview data and analysis which informs this article has been conducted with the support of Australian Research Council’s Discovery Projects funding scheme (‘Regulating Post-Secondary Work Experience: Labour Law at the Boundary of Work and Education’, DP150104516). That project was undertaken by the author along with Professor Andrew Stewart, Professor Emerita Rosemary Owens, and Associate Professor Joanna Howe. All interviews and data analysis were completed by that project team. Initial ethics approval (approval number H-2016-254) from The University of Adelaide and further approvals for interviews and the survey obtained in 2017-2019.
65. Donald E Polkinghorne (2005). Language and meaning: Data collection in qualitative research. Journal of Counseling Psychology, 52(2), 137.
67. These categories overlapped in some institutions; for example, a university could be both regional and have campuses in outer suburbs of cities in that region.
68. New South Wales, Queensland, South Australia, Victoria, Western Australia. Excluded were Tasmania and all Australian territories. The rationale for the exclusions was time; cost; particularity (accounts in excluded regions would be sui generis).
69. All interviews were conducted on an individual basis following an Interview Protocol to ensure consistency of the interviewers’ approach and a File Management Protocol. We used the same foundation interview instrument containing 27 questions for each cohort. In addition, the ‘Education’, ‘Careers’ and ‘International’ cohorts were asked five additional questions related to education and host organisations, and ‘Education’ participants were also asked to provide a vignette of a typical work experience opportunity in their school or discipline.
70. Kate Ford, Iddo Oberski, & Steve Higgins (2000). Computer-Aided Qualitative Analysis of Interview Data: Some Recommendations for Collaborative Working. The Qualitative Report, 4(3), 1, 5.
71. N_C-P01_171010 [98].
72. S_A-P02_170710 [83].
73. I_D-P02_171006 [149].
74. R_B-P01_170720 [94].
75. K_A_P01_170510 [163].
76. K_A_P01_170510 [166].
77. K_A_P01_170510.
78. R_B-P01_170720.
79. R_B-P01_170720.
80. W_D-P01_170901.
81. M_A-P01_ [81].
82. K_D-P01_ [56].
83. J_C-P01_171009 [36].
84. N_C-P01_171010 [45].
85. J_D-P01_171010 [84].
86. K_B-P01 [52].
87. M_B-P01.
88. L_B-P01_170815. (emphasis added).
89. J_A-P01_171010.
90. S_B-P02_170711.
91. R_A-P01_170720.
92. N_A-P01_171009.
93. S_A-P01_170710 [109].
94. N_B-P01_171009 [72].
95. L_B-P01_170815.
96. N_A-P01.
97. M_C-P01.
98. M_B-P01 [91].
99. N_C-P01_171010 [71].
100. S_B-P02_170711 [98].
101. M_B-P01.
102. R_C-P01_170719 [58].
103. S_A-P01_170710 [35].
104. S_A-P01_170710 [54].
105. L_B-P01 [59].
106. Saunders, M. N. K., & Townsend, K. (2016)‘. Reporting and justifying the number of interview participants in organization and workplace research’. British Journal of Management, 27(4), 836-852. doi:http://dx.doi.org.10.1111/1467-8551.12182: 849.
107. Purposive sampling strategies are ‘non-random ways of ensuring that particular categories of cases within a sampling universe are represented in the final sample of a project’ Robinson, O., C. (2014). ‘Sampling in interview-based qualitative research: A theoretical and practical guide’. Qualitative Research in Psychology, 11(1), 25-41. doi:http://dx.doi.org.10.1080/14780887.2013.801543: 32.
108. In accordance with the terms of the ethics approval for the project, the data itself is not publicly available.
109. See, eg, Bates analysis of workload associated with WIL and its recognition: Merrylin Bates, ‘Work-integrated learning workloads: The realities and responsibilities’ (2011)12(2) Asia-Pacific Journal of Cooperative Education 111-124.
110. ACU_A-P01.
111. For example, TEQSA audits occur on a 7-year cycle and TEQSA has freedom to evaluate compliance with specific Standards rather than conducting a comprehensive evaluation. See Part 2 above.
112. This analysis was conducted of programs in Germany and the United States of America. Inez von Weitershausen, Training the ‘Workforce of the Future’: Insights from Work-Based Higher Education Programs in Germany and the United States, MIT Work of the Future Working Paper 04-2020 (April 15, 2020), 2. Available at: <https://workofthefuture.mit.edu/sites/default/files/2020-04/WotF-Working-Paper-04-2020.pdf>.
113. Australian Collaborative Education Network, Universities Australia, Australian Chamber of Commerce and Industry, Australian Industry Group and the Business Council of Australia, National Strategy on Work Integrated Learning in University Education (2015), <http://acen.edu.au/wp-content/uploads/2015/11/National-WIL-Strategy-in-university-education-032015.pdf>, 1.
114. ILO Monitor: COVID-19 and the World of Work, 4th ed, 27 May 2020, <https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/briefingnote/wcms_745963.pdf> (accessed 20 September 2020), 2.