Unpaid Trial Periods – are they legal?
Unpaid trials are agreed upon by the employer and prospective employee for the purposes of determining the candidate’s suitability and adequacy for the vacant position.
With certain unpaid trial arrangements, it is legal to not pay the person for their work. On other occasions, it may be deemed legally necessary to pay the person for the work completed. A great deal of ambiguity can exist around determining whether a work trial should be paid or unpaid. The following parameters must exist for an unpaid work trial to be justified.
It involves no more than a demonstration of the candidates skill, directly relevant to the vacant positionIt is only performed for as long as needed to demonstrate skills required for the job. This is dependent upon the complexity of the role but usually lasts between one hour to one shift The person is under direct supervision for the trail
Any period beyond what is reasonably required to demonstrate the skill must be paid at the appropriate minimum rate of pay. Alternatively, if more time is needed to assess the person’s capabilities, a casual arrangement or probationary period would suffice.
Example: Lawful unpaid trial
John applies for a job as a trade’s assistant at a local panel beaters. As part of the applicant screening process, John is advised by the owner that on the day of the interview, he will need to demonstrate that he knows his way around a car and a workshop because it’s a minimum requirement of the job. John agrees.
After the interview, John is asked to follow one of the tradesman around completing body repairs. The tradesman who watches John to make sure he knows how to work safely and correctly determines John meets the minimum skill set required for the job and the owner offers him the position.
John's brief trial was reasonable to demonstrate his skills and he does not need to be paid for the trial.
Example: Unlawful unpaid trial
Jane applied for a kitchen hand position at a local restaurant, whereby the successful applicant did not need to possess any specific skillset to perform the role. The duties for the position included scrubbing pots, cleaning the floors and tacking the rubbish out to the bin.
Jane was told that she had to work a day unpaid so that the employer could observe her suitability for the role. Jane agreed. At the end of the day Jane was told that she wasn’t suited for the position and wasn’t paid for any of her hours worked.
Jane should have been paid for all hours worked. The trial was not a skill demonstration and Jane performed productive work for the benefit of the company unsupervised.
If you have any queries regarding unpaid trials, please feel free to contact us at HR for Small Biz on (02) 8882 9694