A 2016 study, funded by the Federal Government, found that one-third of people between the ages of 16 and 64 had performed some type of unpaid work experience in the past five years, as part of a job trial or internship.
Undertaking a ‘trial shift’ is commonplace, particularly for young people and especially within the retail and hospitality industries. It is generally accepted that a ‘trial’ will be carried out to test the skills and personality of a potential employee and while employers are usually within their rights to request unpaid work trials, they need to be careful that they are not breaching employment laws in the process. In some cases, even expecting the unpaid work trial to cover a whole shift may not fall within the realm of what is acceptable by law.
What constitutes an acceptable unpaid trial?
Generally, an unpaid work trial is legal if it simply involves a brief demonstration of a candidate’s skills.
An unpaid work trial is legal when:
- the candidate is under direct supervision for the whole trial;
- it only involves a demonstration of the candidate’s skill/s, in the capacity that the skill is directly relevant to the position; and
- the trial lasts only for the time it takes the candidate to demonstrate the skill/s required.
For example, an unpaid work trial may be considered legal when an applicant for a position is required to briefly demonstrate relevant skills as part of an applicant screening process.
It would not be considered reasonable, or legal, for an employer to request that a new employee works for their first week unpaid to assess their suitability for a position.
Are work trials legal if the employee is paid?
Yes. An employer can put new employees on a probationary period. The purpose of a probationary period is to assess the candidate's suitability for the position. A probationary period can range from a few weeks to a few months.
The employer would need to ensure they pay the potential employee at least the minimum rate for any hours worked to remain compliant with the law.
Do interns and work experience students also need to be paid?
Employers should be very careful about the type of work they give to young people under the guise of work experience or an internship.
Unpaid work experience may be ok if there is no employment relationship, or the on-the-job training is part of a student or vocational placement.
Where internships are concerned, in circumstances where unpaid work is organised as part of a university (or vocational training organisation) course, the work will be considered legal providing the following criteria is met:
- The internship must be performed without remuneration
- It must be a requirement of an education or training course that the work be undertaken; and
- The institution that requires the placement must be authorised under law or an administrative arrangement of the Commonwealth, a State or territory to do so.
If you are considering taking on a work experience student, intern or requesting work trials from potential employees, ensure that you are on the right side of the law by protecting their rights and, where applicable, paying them accordingly. If you need further information, we recommend you speak to a HR consultant or employment lawyer.