An employer may ask a prospective employee to demonstrate that they have the necessary skills to successfully fulfil the requirements of the role by participating in an unpaid and supervised work trial. This is a legitimate part of the job application process and serves as an evaluation of an applicant’s abilities.
What is a work trial?
A work trial is an opportunity for the employer to assess your suitability for a job by observing your work. What the trial looks like and for how long it occurs will vary depending on the role. For example, a trial for a hairdressing job may involve doing a practice cut on a wig or even a client. Similarly, a trial for a mechanic job may involve changing the oil or checking the fluid levels.
When is an unpaid work trial lawful?
An unpaid work trial may occur for what is reasonably required to demonstrate skills. Anything outside this must include the minimum rate of pay for the role.
When is an unpaid work trial unlawful?
An unpaid work trial is unlawful if:
- The nature of the work makes it unnecessary for the prospective employee to demonstrate to the employer that they have the skills required for the job
- It continues on for longer than what is actually needed
- It requires more than just a demonstration of skills
- The prospective employee is not under the direct supervision of the employer for the duration of the trial
If an employer finds that an unpaid lawful work trial is not comprehensive in determining the applicant’s suitability, then further assessments can be made by lawfully employing the applicant as a casual employee or for a probationary period to ensure that they are being paid for the work they are completing.
Furthermore, employees must be paid for all time spent working. This includes time spent in training, team meetings, opening and closing the business, and for unreasonable trial shifts.
Example of a lawful unpaid trial
A bar is hiring an experienced bartender to legally sell and serve alcohol. The successful candidate must have the necessary skills to responsibly serve alcohol, including knowledge of the standard drink amounts and how to mix different cocktails. Louise applies for the bartending role. The manager, Vanessa, is impressed by Louise’s experience and Responsible Service of Alcohol certificate. Vanessa conducts Louise’s interview at the bar. After the interview, Vanessa asks Louise to serve a spirit and mix a cocktail to ensure that she has the necessary skills to successfully fulfil the requirements of the role. Vanessa watches Louise make the drinks and is satisfied by her skills. She offers Louise the job on the spot.
This unpaid trial was lawful as it was reasonable for Vanessa to determine whether Louise could practically fulfil the requirements of a bartender. The trial was short and only lasted for the duration of making two different drinks to show the range of Louise’s abilities. Vanessa was also present for the trial to observe Louise make the drinks. Thus, Louise is not required to be paid for the trial.
Example of an unlawful unpaid trial
A bar is hiring an experienced bartender to legally sell and serve alcohol. The successful candidate must have the necessary skills to responsibly serve alcohol, including knowledge of the standard drink amounts and how to mix different cocktails. Louise applies for the bartending role. The manager, Vanessa, is impressed by Louise’s experience and Responsible Service of Alcohol certificate. Vanessa conducts Louise’s interview at the bar. As the interview comes to a close, Vanessa asks Louise to work the evening shift to test her ability to make and mix drinks. Louise agrees and works the shift. However, she does not work under the direct supervision of Vanessa. After equipping Louise with a name tag, Vanessa decides to go to the back office to do some work. Later in the evening, Vanessa decides to go home early because there is an extra person working that evening. The next day, Vanessa contacts Louise and informs her that she was unsuccessful for the job.
This unpaid trial was unlawful as it was unreasonable for Vanessa to ask Louise to work a whole shift and then not observe her work to determine her skills. Vanessa exploited the work trial to get Louise to do unpaid labour. Louise should have been paid for the trial.