Employers are being warned against using lengthy unpaid work trials on potential new hires and unpaid internships.
The December / January period is a time when university and school students are on holidays and looking for work and work experience. The New Year is also a popular time for those seeking new jobs.
Many employers think they can have a student or potential new starter come in for a work trial to assess their performance in the job. Others use unpaid ‘internships’ as a way of getting work done.
Be aware! Some unpaid work arrangements are lawful and others are not.
Depending on the nature of the arrangement, the person doing the work may really be an employee and be entitled to be paid the legal minimum rate of pay for the type of work they are doing, along with other minimum employment entitlements.
Sometimes a person is asked or required to perform work or undertake a trial to be evaluated for a vacant position. A work trial is a skill demonstration used for the purposes of determining a prospective employee's suitability for a job.
A brief work trial can be legally unpaid if it is necessary to evaluate someone's suitability for the job, and:
- it involves no more than a demonstration of the person's skills, where they are relevant to a vacant position
- it is only for as long as needed to demonstrate the skills required for the job. This will be dependent on the nature and complexity of the work, but could range from an hour to one shift
- the person is under direct supervision of the potential employer (or other appropriate individual) for the entire trial.
Any period beyond what is reasonably required to demonstrate the skills required for the job must be paid at the appropriate minimum rate of pay.
Work experience and internships can be legally unpaid if they meet certain criteria.
An unpaid work experience arrangement or unpaid internship can be lawful if it is a vocational placement (formal work experience that is part of an education or training course) or if there is no employment relationship found to exist. In particular:
- the person must not be doing “productive” work
- the main benefit of the arrangement should be to the person doing the placement, and
- it must be clear that the person is receiving a meaningful learning experience, training or skill development.
If you are unsure how best to engage someone for a work trial, work experience as an intern or even as a volunteer, please contact us.