Businesses always want to ensure the talent they are hiring are the best people for the roles they are filling. However, when undertaking the search for the best employees, are unpaid trial shifts legal? When inviting a candidate in for an unpaid trial shift, you should be careful that you are not violating employment laws. Some unpaid trial shifts are lawful, and others are not. This article will discuss when an unpaid trial shift is lawful and when it is in breach of employment laws.
Unpaid Trials to Demonstrate a Candidate’s Skills
A brief, unpaid work trial can be legal if it is necessary to evaluate someone’s suitability for the job.
You may invite the applicant to come in for an hour unpaid so that you can evaluate certain skills. This arrangement aims to determine the prospective employee’s suitability for the job. The unpaid work can be legal if the:
- trial involves no more than a demonstration of the person’s skills relevant to a vacant position;
- trial is only for as long as needed to demonstrate the skills required for the job (this can vary from an hour to one shift); and
- candidate is under the direct supervision of the potential employer for the entire trial.
If the period exceeds this, you are required to pay the employee at the appropriate rate of remuneration. To determine the appropriate minimum rate of remuneration, you should consider the national minimum wage and whether a modern award or enterprise agreement applies to your business and the worker. For example, if you own a boutique clothing store in a shopping centre, the General Retail Industry Award may apply to the worker, depending on factors such as the skills and qualifications required for the job.
When is an Employment Relationship Created?
An unpaid trial shift can be lawful if no employment relationship exists. Whether an employment agreement exists will depend on the circumstances. Indicators that an employment relationship has formed include the person:
- moving beyond demonstrating skills necessary to complete productive work;
- doing tasks that are not related to evaluating their skills; or
- going to work in the place of an employee.
Example of Unlawful Unpaid Trial
Lucy applied for a casual sales assistant role at her local clothing boutique.
The advertised hours for the role were Tuesday, Wednesday, and Thursday from 8 am to 4 pm. The ideal applicant will have at least three years of experience and be skilled in sales and fashion styling.
During her interview, Lucy informed that she must work the first week unpaid to allow the store manager time to assess her suitability for the position. She is also instructed to notify management the night before and arrange a replacement if she cannot perform any shifts during the first week.
The length of the “trial” and the expectation of Lucy to find a cover for her shift if she cannot work imply that this is an employment relationship. Accordingly, she should be compensated at the appropriate minimum rate of pay for all hours worked.
Continue reading this article below the formAlternative to Unpaid Trials
Where an unpaid trial is unlawful, you can consider employing the individual on a casual or even permanent basis for a temporary period to assess their suitability. A casual contract is ideal for a temporary employee as it involves minimal commitment, and the contract can be terminated with as little as an hour’s notice.
Another option is to enter a permanent employment contract with a probation period.
You can meet with your employee at the end of a probation period and decide whether employment should continue. If an employee does not pass the probation period, they have the right to receive notice of the end of their employment.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
An unpaid trial shift may be lawful depending on the circumstances. However, the nature of the arrangement will determine whether the relationship is one of employment. If it is an employment relationship, you are required to pay the employee under employment law.
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Frequently Asked Questions
An unpaid trial is lawful when it only requires a demonstration of skills needed for the role. Likewise, the duration of the shift should not be longer than necessary to demonstrate those skills. Finally, the individual must be under the direct supervision of the potential employer for the whole duration of the trial.
The employment relationship starts when the individual is doing productive work for the business. They are no longer simply doing skills to demonstrate their suitability for the role, and are no longer under supervision.
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