Unpaid Work Trials – Legal or Not?

As a business owner or manager, it can often be difficult to determine an applicants exact practical skills simply by reading their resume and conducting an interview. All job seekers are determined to make the best impression they can at interview, and that will include how they answer questions and what skills they do and don’t possess.

Whilst in an ideal world we would take everyone’s comments at face value and trust the accuracy of the words that are spoken, the reality we all experience as Managers is that it’s not always this simple.

In addition, the quality and type of work expected at one place of work may vary greatly to the expectations you have of your staff. Workplaces, quality standards, culture and practices in any industry are not created equal, so how else can you determine if this employee is in fact a perfect fit or you will be trying to squeeze a square peg in a round hole?

One method which is not always appropriately utilised are ‘work trials’ where you ask the potential employee to complete a ‘trial’ so that you can assess whether they have the skills you are looking for.

Unpaid Work Trials:

Unpaid Work Trials are legal, provided they are used for the sole purpose of assessing an applicants skills and ability to perform the inherent requirements of the role. Specifically, for an unpaid work trial to be legal the following criteria need to be followed:

• The unpaid trial must only be for the duration required to genuinely assess the applicants skills and ability to perform the tasks required for the position. Of course this depends on the complexity of the role, but typically would be for anywhere between a few minutes and up to a maximum of one short shift;
• During the unpaid work trial the applicant must the under the direct supervision of the Manager, owner or another employee at all times.

These examples may help you determine whether a Work Trial can be unpaid or not.

Lawful Unpaid Work Trial:

Jane applies for a job as a Barista with a local café. She attends an interview and is asked to complete a 1 hour work trial to demonstrate her ability to make a variety of coffees and prepare and present food items, Jane agrees. Jane arrives at 8am and is supervised by Sally who is rostered on as Supervisor for the shift. Sally shows Jane how to use the equipment including the coffee machine, register, and cooking equipment. Jane takes customer orders, prepares coffees and smoothies and serves food. The entire time Sally is at the counter / kitchen with Jane and is watching her to assess her skills and abilities. After about 50 minutes Sally is satisfied that she has seen enough to assess Jane’s skills and thanks her for attending. The next day the Manager calls Jane and lets her know she has been unsuccessful in securing the role. This work trial was for a reasonable length to adequately assess Jane’s skills, she was supervised at all times and attended only to demonstrate her skill to complete the tasks required of the role. This is a legal unpaid work trial.

Unlawful Unpaid Work Trial:

James applies for a job as a Shop Assistant within a clothes shop. He attends an interview at 8am before the store opens with the Area Manager, and is asked to stay for the day for a trial. James is very keen to get the job so he agrees. When Anne arrives for work at 9am the Area Manager tells her that James is completing a trial day and that he is not going to stay at the store and leaves. Anne shows James the registers and where stock is kept, and gives him some training on the clothes. James serves 3 customers, and demonstrates that he understood the product and could use the register and computer system. At 10am Anne tells James she has an appointment and will be a back in a few hours for him to have a lunch break. Anne returns at 1pm and tells James he can leave. James was left unattended and unsupervised, and was required to stay for longer than it had taken for him to demonstrate the required skill for the role. This does not meet the requirements of an unpaid work trial. James should have been paid in accordance with the relevant Award or Agreement.

Think You Need More Than an Unpaid Trial?

No problems! You have a few great options. You can employ the applicant on a casual basis, even telling them that this is a trial period for a week or whatever you think is necessary. You simply pay them as a casual under the relevant Modern Award or Fair Work Act and treat them as you would any other casual employee. Alternatively, of course you have their probationary period to assess their skills, abilities and suitability for the role. Again ensure you are meeting all of the requirements of the relevant legislation in terms of payments and entitlements.

Both of these options can be a great way to assess the potential employee for more than just core skills, but also how they interact with customers, get along with other staff, fit into your team and learn new skills.