Recently, two of our clients have sought our advice as to whether they can request a potential employee/candidate to do an unpaid trial with them. This is quite a common practice used to help determine if the person does actually have the skills to perform the role they are trying to fill.
To determine whether you can do this & not be acting illegally depends on a couple of factors:
- does an employment relationship exist, or
- is the trial part of a vocational work experience arrangement?
According to the Fair Work Ombudsman some unpaid work arrangements are lawful and others are not.
Depending on the nature of the arrangement, the person doing the work may be an employee and be entitled to be paid the legal minimum rate of pay for the type of work they’re doing, along with other minimum employment entitlements.
Some points to consider are:
- how long is the arrangement for? The longer the period of the arrangement, the more likely the person is an employee and should be paid as an employee….for example, if the person is asked to demonstrate their skills over an hour or two, generally it is appropriate for the trial to be unpaid
- how significant is the arrangement to the business? Is the work normally performed by paid employees? Does the business or organisation need this work to be done? The more integral the work is to the function of the business, the more likely it is that an employment relationship could be found
Many awards have clauses that cover on work trials and stipulate a minimum rate of pay.
Need advice? For timely, cost effective advice, contact Lisa Lee, Human Resources Manager at Classic Recruitment & Human Resources.