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Are unpaid trials legal?

Depending on the industry and type of role, you may be asked to come in for a trial shift as part of the recruitment process to assess your suitability for the role.  Whether the trial is lawful or not depends on a few factors:

  • A trial shift is lawful when it is only to demonstrate the persons skills that are directly related to the job they have applied for.
  • A trial shift should only last as long as is required to demonstrate the skills for the role. A trial shift cannot exceed one shift.
  • A trial shift must be directly supervised for the entire shift by a manager or appropriate employee.

If the employer is still unsure and wants to assess the applicant’s suitability for the role further, they must pay the employee at the least the relevant Award minimum at either a casual rate or employ them on a probationary period.  The prospective employee must be paid for all their hours worked after the initial trial period until a decision has been made.

So, when is an employment relationship created past an unpaid trial?

Signs that an employment relationship has formed are:

  • The prospective employee has moved past demonstrating the required skills and is now completing work.
  • The prospective employee is now doing tasks not related to evaluating their skills for the role.
  • The prospective employee is covering shifts of other employees.

An example of a lawful unpaid work trial:

Jessy has an unpaid trial as a receptionist.  The manager has asked Jessy to come in for a trial shift for 2 hours.  When Jessy arrives at 9am she is shown by the current receptionist the requirements for the role.  Jessy is shown how to make and take calls, make appointments, take messages, how to order stock and filing.  During the 2-hour trial Jessy is supervised by the other receptionist who is teaching and assessing her skills.

An example of an unlawful work trial:

Jessy has an unpaid trial as a receptionist.  The manager has asked Jessy to come in for a trial shift for 8 hours (9am-5pm).  When Jessy arrives at 9am she is shown by the current receptionist the requirements for the role.  Jessy is shown how to make and take calls, make appointments, take messages, how to order stock and filing.  At 10am the receptionist goes to another office and leaves Jessy to manage the reception area for the rest of the day without supervision.  The receptionist has not been able to assess Jessy’s suitability for the role.

If you have any questions about unpaid trials give HR Gurus a call on 1300 959 560.

Written by resident HR Guru Natalie Bol.

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