Sometimes an employer might ask a person to do an unpaid trial while they evaluate them for a vacant job. This is used to determine if the person is suitable for the job by getting them to demonstrate their skills, and is sometimes called a work trial.
Unpaid work trials may be unlawful where:
- it isn't necessary to demonstrate the skills required for the job, or has continued for longer than is actually needed. This will be dependent on the nature and complexity of the work, but could range from an hour to one shift
- it involves more than only a demonstration of the person’s skills, where they are directly relevant to a vacant position, or
- the person is not under direct supervision for the trial.
Any period beyond what is reasonably required to demonstrate the skills required for the job must be paid at the appropriate minimum rate of pay. If an employer wants to further assess a candidate's suitability, they could employ the person as a casual employee and/or for a probationary period and pay them accordingly for all hours worked.
Example: Lawful unpaid trial
Jack applies for a job as a trades assistant at a local panel beaters. As part of the applicant screening process, Jack is advised by the owner that on the day of the interview he'll need to show he knows his way around a car and a workshop, because it's a minimum requirement of the job. Jack agrees.
To do this, after the interview, Jack is asked to follow one of the tradesmen doing body repairs. The tradesman watches Jack to make sure he knows how to work safely and use the right tools. Jack shows he meets the minimum criteria for the role and the owner offers Jack the job.
Jack's brief trial was reasonable to demonstrate his skills and he does not need to be paid for the trial.
Example: Unpaid trial that should be paid
Jessica sees an advertisement on her university notice board for a job as a barista at a campus café.
The position was advertised for Monday, Tuesday and Thursday mornings from 7am to 12 noon. The successful candidate needs to have at least 3 years' experience and be able to make a wide range of coffees.
At her interview, Jessica is advised that she will need to work the first week unpaid to give the café manager time to see whether or not she is suitable for the job. She is also advised that if she isn't able to work any of the shifts in the first week, she needs to advise the manager the night before and arrange someone to cover her shift.
The duration of the 'trial' and the requirements placed on Jessica suggest that the arrangement is an employment relationship, meaning that she should be paid for all hours worked at the appropriate minimum rate of pay.
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Page reference No: 1775