Coffee Houses trade on their barista’s reputation, but when undertaking the gruelling and competitive search to secure the best barista for your business, are unpaid trial shifts legal?

After all, our ongoing efforts to source the perfect coffee is boundless and obsessive. We research roasteries, attend coffee tastings and write anonymous reviews about cold drip with caramel tasting notes. Barista positions are advertised in specialist coffee shops on the regular. Businesses, however, should be careful that they are not in breach of employment laws when inviting a candidate in for an unpaid trial shift. Some unpaid trial shifts are lawful, and others are not. If you employ somebody, however, without the intention of paying them, you may need to wave see you latte to your coffee house.

Unpaid Trials to Demonstrate a Candidate’s Skills

A brief work trial can be legally unpaid if it is necessary to evaluate someone’s suitability for the job.  You want to be confident your barista knows the difference between the Ethiopian and the Brazilian single origins. You want to test they can work well in a fast-paced environment and observe the silkiness of their milk. You may invite the applicant to come in for an hour unpaid so that you may evaluate these skills. The purpose of this arrangement is to determine the prospective employee’s suitability for the job. It can then be legally unpaid if also:

  • the trial involves no more than a demonstration of the person’s skills relevant to a vacant position
  • It is only for as long as needed to demonstrate the skills required for the job (this can vary from an hour to one shift)
  • the person is under direct supervision of the potential employer for the entire trial

Any period that exceeds this requires the business to pay the employee at the appropriate rate of remuneration.

For example, if someone responds to an ad for a barista position, and the employer requires he or she work three shifts unpaid, the employer may have to pay for this kind of “trial”. This is because it begins to look more closely like an employment contract.

When is an Employment Relationship created?

An unpaid trial shift can be lawful is no employment relationship exists. Whether an employment agreement exists will turn on the facts of each particular case. Indicators that an employment relationship has formed include:

  • The person has moved beyond demonstrating skills to completing productive work;
  • The person is doing tasks that are not related to evaluating their skills; or
  • The person is going work in the place of an employee.

Does the Arrangement to Work Involve an Employment Contract?

An employment contract does not need to be in writing, and the contract can be verbal. For an employment agreement to arise, the parties must:

  • Intend to create a legally binding arrangement (that is, the contract the agreement carries legal consequences if it is not observed);
  • Commit to performing work for the benefit of the business; and
  • Have a reciprocal relationship, that is the person performing the work gets something in return.

What is important in determining whether an unpaid trial shift has veered into the territory of an employment agreement is the nature of the arrangement. What the parties have chosen to call the Agreement is not the primary consideration. Other relevant factors include the following:

  • the nature and purpose of the arrangement;
  • the duration of same;
  • the significance of the Agreement to the business; and
  • the person’s obligations.

If you would like to assess a candidate’s suitability in hospitality, you should employ that person as a casual person and/or for a probationary period, and then pay them accordingly for all hours worked.

Conclusion

To ensure your business complies with these requirements under the Fair Work Act, you should first speak with an employment law specialist to gain a better understanding of your rights and obligations as an employer.

Questions? Get in touch on 1300 544 755.

Claudette Yazbek

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