When does a job trial turn into unpaid labour? By Liane Arno
I HEARD a story the other day of someone who had recently moved to the area and went in search of a job. She saw a board in the window of a local café looking for staff and she thought she would give it a go. She was welcomed in and told she could come in for a trial the next day.
The next day she worked hard for four hours. After an initial show around she worked pretty well independently taking orders, operating the till and cleaning up.
I HEARD a story the other day of someone who had recently moved to the area and went in search of a job. She saw a board in the window of a local café looking for staff and she thought she would give it a go. She was welcomed in and told she could come in for a trial the next day.
The next day she worked hard for four hours. After an initial show around she worked pretty well independently taking orders, operating the till and cleaning up.
She felt she had done a good job and asked when she could next work. The owner told her she needed to look at the roster and would get back to her. Days went by and no call. She popped back in and was told there weren’t any shifts available at the moment, which she queried as there remained the board in the window. The owner remained firm. She asked if she could be paid for the four hours she had worked. She was told that because it was a trial there would be no payment.
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Confused, she got the courage to go to another café and asked them, hypothetically, what would happen if she went for a trial at a café and worked for four hours but didn’t get paid. The waitress smiled and said, “I know the place you are referring to [and named it]. The same thing happened to me. It wouldn’t happen here.”
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So she went back to the first café and argued that she had worked hard for the four hours. That she could understand a trial for an hour but not for four hours. She walked away with $50 cash – not much – but something.
I can wear two hats when listening to this tale. The first is my most recent experience as a small business owner. It is tough. Wages are high, particularly when penalty rates and superannuation are added into the mix. Many times staff were paid more than we were and sometimes you need to make a decision not to open, or to have someone else work a part of your business to limit the wages bill. But whatever decision you make you are still required to pay staff what they are legally entitled to be paid.
So this is where I put on my other hat as for most of my career I worked in industrial relations. Terms and conditions of employment are overseen by the Fair Work Commission. And yes, there are times when an unpaid trial is legal. But the person must be informed at the outset that it will be unpaid. And then the trial must conducted under direct supervision at all times.
Finally the trial must be only used to determine whether the person has the skills required for a vacant position. It is not for the person to complete a whole shift.
In this case as the skills were not complex an hour would have been sufficient. There are other mechanisms to determine if the person is right for the business. The business can employ the person on a casual basis, or put them on in a permanent position for a probationary period. At this time they must be paid their wage and entitlements.
I can wear two hats when listening to this tale. The first is my most recent experience as a small business owner. It is tough. Wages are high, particularly when penalty rates and superannuation are added into the mix. Many times staff were paid more than we were and sometimes you need to make a decision not to open, or to have someone else work a part of your business to limit the wages bill. But whatever decision you make you are still required to pay staff what they are legally entitled to be paid.
So this is where I put on my other hat as for most of my career I worked in industrial relations. Terms and conditions of employment are overseen by the Fair Work Commission. And yes, there are times when an unpaid trial is legal. But the person must be informed at the outset that it will be unpaid. And then the trial must conducted under direct supervision at all times.
Finally the trial must be only used to determine whether the person has the skills required for a vacant position. It is not for the person to complete a whole shift.
In this case as the skills were not complex an hour would have been sufficient. There are other mechanisms to determine if the person is right for the business. The business can employ the person on a casual basis, or put them on in a permanent position for a probationary period. At this time they must be paid their wage and entitlements.