• Legislation & regulations

The Labour Hire Authority (LHA) has recently seen examples of unpaid work trials in the labour hire industry which are unlawful – it’s important to understand the rules around trials and your legal obligations.

When a business recruits for a skilled role, it can be appropriate to validate the candidate’s capacity to carry out a specific task during the selection process before an offer of employment is made. The assessment should only take the time needed to assess the candidate’s required skills, and must be closely supervised.

For example, a candidate for a specialised boilermaker role might be asked to perform a few test welds, which are then tested at the employer’s expense in order to validate that the candidate can meet specific welding standards.

Unpaid trials are unlawful when they involve a worker performing work within a business for free or for a rate below the legal minimum. For example, it would be unlawful to supply a fruit picker to a host farm for an unpaid ‘trial’ for a full day or more.

Unpaid pre-employment assessments are lawful where they:

• are used to demonstrate a person’s skills required for a job
• only last as long as really necessary to assess specific competencies required for the job
• involve the person being supervised and assessed.

If a business wishes to further assess an applicant’s general suitability for a role, they must be paid at least the minimum rate of pay, and may be employed as a casual or for a probationary period.

Even if an unpaid pre-employment assessment or trial is lawful under the Fair Work Act, it is important to be aware that other laws will still apply for the duration of the trial, such as workplace health and safety and discrimination laws.

To maintain their labour hire licence, a provider must ensure they continue to comply with the relevant laws, including the Fair Work Act, as prescribed in the Labour Hire Licensing Act 2018 (Vic).

Businesses should consider a worker’s rights under the relevant award or certified agreement and determine if there is an established employment relationship. They should also understand the worker’s rights under the National Employment Standards.

More information

The Fair Work Ombudsman has provided guidance for employers on how to ensure unpaid trials are lawful.

For more information on workplace health and safety laws, visit WorkSafe Victoria.