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Can an Employer ask me to Work for Free?

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by Lisa Johnson

23 days ago

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This morning, on the way to work, I read a story on Facebook (and you know if it’s on Facebook it must be true) about a young woman in New Zealand (I am allowed to reference NZ in my blogs now because it appears so many Aussies have dual citizenship there anyway), who applied for a job in a Café in Wellington.  She went in for an interview and was asked to do a one hour trial.  Which she did, and then was asked to come back in for a full shift.

At the end of her 8 hour shift she claims she was told she was not being paid for the shift, and that it was part of her ‘trial’.  She was offered a full time job based on her performance, but turned it down because she was so unhappy at being asked to work for 8 hours and not being paid for them.

So here is the question…can an employer ask you to work for free?

Believe it or not, under some circumstances they can (it appears that the laws are very similar between UnZed and Straya on this one, so if any more pollies get into hot water over their citizenship, they can just pop over the ditch and be assured that all is ‘business as usual’ and the good news is that it doesn’t look like they have to renounce their Australian citizenship to be a pollie in New Zealand!).  Anyway, enough mirth at the expense of hapless politicians, back to the story at hand..

An employer can ask you to work for free if…

  1. The aim is to give you some experience in a job or industry; or
  2. They want to test your skills to do actually do the job; or
  3. It’s a volunteer role for a not for profit organisation

Where things get messy and employers get into trouble, is where they don’t understand the rules around work experience and work trials.

For today, I am going to leave out Internships, work experience and vocational training so we can concentrate on work trials.  Because this is an area where both candidate and employer get into a world of pain.

Can the employer ask you to do an unpaid work trial?

Yes they can, but there ARE rules around this.  Fundamentally, a free trial can only be unpaid if it involves no more than a demonstration of your skills and is only for as long as needed to demonstrate those skills.  Where it gets ugly is around the ‘how long does it take to demonstrate your skills’ bit – because FairWork Australia says “…this will be dependent on the nature and complexity of the work, but could range from an hour to a shift.” 

What else is important, is that for the entire length of that trial, you would need to be under the direct supervision of the potential employer.  So if you get shown the ropes and then are left to get on with the work, you are probably not directly under supervision and are actually ‘working’ rather than demonstrating your skills.

Overall, FairWork looks at who benefits from the situation.  If are you being provided with training, are fully supervised and mainly observing other people undertaking the work, then YOU are the beneficiary of the relationship and the employer does not need to pay you.  However, if you are physically doing the job, with limited supervision or guidance and you are doing the same job that would normally be completed by paid employees, it could be argued that the employer is the beneficiary of your presence / activity and therefore you are entitled to be paid.

In the Wellington Café case, it looks like it would be reasonable for the job applicant to claim that her one hour initial trial had been long enough to demonstrate her skills, because this resulted in them asking her back to ‘work’ a full shift. This would be especially true if she was left unsupervised during that shift (although this is not mentioned at all in the article).

In conclusion…

Today we have learned that if you are the child of a New Zealand citizen, you automatically have citizenship of New Zealand and can go there and run for political office and you don’t have to renounce your Australian citizenship to do it.  And more importantly, if you apply for a job and an employer asks you to come in and do a free ‘trial’, there are rules around this and you may be entitled to be paid for the work you have completed under that trial.

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