It's increasingly common for junior or trainee employees to be asked to undertake some sort of unpaid time as part of their entry into employment. So, when is it legitimate not to pay for work time?
It is clear that traditional work experience, usually by school students, isn't "work," because although the student might undertake some tasks, those tasks generally don't substitute for having a paid employee do the work, and the engagement is usually for a strictly limited time, and an educational experience rather than work in its proper sense. On the other hand "interns" doing work which paid employees would otherwise be doing, would usually be entitled to payment in accordance with an applicable award, for at least the Federal Minimum Wage.
In a recent case, the Fair Work Ombudsman (FWO) took a shop which engaged junior employees on a series of "work trials" to Court. One employee was paid the average of $3.30 an hour for work trials over 12 days, and another $80.00 for 25 hours work.
The FWO took the view that the number and length of unpaid trials was inappropriate for a retail position. The FWO had no issue with "trialling a new employee to test their suitability" however, there should be limit to it, relative to the level of skill required for the job. The FWO felt that one or two hours on one day might be in order, but hours beyond that look like an employment relationship, so wages should be paid.
The shop-owner paid all outstanding entitlements, and entered an enforceable undertaking, promising future compliance with workplace law and to attend educational courses to understand their obligations under workplace law.
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