Work trials in Australia

MyHR team
By MyHR team

work trial cafe

We often receive queries about the use of work trials or tests during the hiring process: should they be paid or unpaid? Involve real tasks or simulations? One hour, a day, or a month-long?

Unfortunately, some of the information that people believe about work trials isn’t accurate and presents risks for employers. Because while trials are a great recruitment tool for assessing potential employees, it's important to approach them carefully to ensure fairness and compliance with employment legislation.

In this blog post, we'll explore why it's crucial to be thorough when conducting workplace tests and highlight key factors to consider during the trial process.

The business can’t benefit financially from the trial

During a work trial, it's important to remember that the business shouldn't gain financially from the tasks the candidate undertakes, so don’t get a person to do work to cover for one of your paid employees or to assist with your regular operations.

For example, if you’re assessing candidates for a role as a barista, get them to make a coffee for themselves or the hiring manager, rather than getting them to serve your paying customers.

This helps ensure that the trial focuses on the task at hand or the skill you’re assessing, and makes it clear that the candidate isn’t an employee on a ‘try before you buy’ approach.

Keep it short

The duration of a workplace trial should only be as long as is needed for you to evaluate whether the person has the skills to perform the role.

There are no exact legal guidelines and it will depend on the nature of the work, but the Fair Work Ombudsman recommends trials should last between an hour and up to one shift.

The longer a trial goes on, the more it could appear like actual employment.

No payment during trials

Contrary to some of the misinformation we see, work trials should not involve payment of any kind, whether that’s company products, vouchers, or money.

If candidates receive payment during the trial, it may establish an employment relationship, which creates specific legal obligations for the employer.

If you are asking job applicants to perform any type of workplace test, it’s crucial to clarify that the trial is unpaid and solely for assessment purposes. That way you maintain the integrity of the trial process and avoid potential disputes.

If, after a short unpaid test, you still need to assess the applicant’s suitability and skills for the vacant position, you must employ them as a casual employee or for a probationary period. This means paying them at least the minimum rate of pay for all the hours they work and providing all conditions they are entitled to under the National Employment Standards and any relevant award or agreement.

Make sure the person is supervised

For an unpaid work test to be legal, someone needs to supervise the person being assessed for the entire trial, whether that is the potential employer or other appropriate member of staff.

Quickly showing the candidate what you want them to do and then leaving them to get on with it could make the trial unlawful.

Clearly define the trial terms in writing

Before engaging a candidate on a work trial, make sure you write down the terms and conditions of the trial to ensure both parties understand what is expected.

When creating the document, clearly state that the trial is a recruitment tool to ensure the candidate is matched to the role, before you proceed any further with the hiring process.

It should also set out:

  • Details of the trial and what tasks the person will perform - these should be specific to the role.
  • Its duration.
  • That completion of the trial doesn't guarantee a job offer.
  • Participation in the trial is voluntary and the person won’t be paid for their time.

Having everything in writing and signed by both parties minimises risk that an actual employment relationship is established by default, and prevents misunderstandings that could lead to disputes and legal issues.

Our advice

Done correctly, work trials allow employers to make informed hiring decisions while giving candidates a fair chance to showcase their skills and suitability for the role.

But like all employment matters, planning and process is key. If you use workplace trials to assess potential employees, approach them fairly and carefully, design the trial, and be transparent about terms and conditions, duration, and their voluntary nature.

If you need longer periods of time to assess a person, employ them as a casual or using a valid probationary period.

If you need any advice or assistance in setting up effective, lawful workplace trials, MyHR can help.

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