In recent weeks we have had a number of queries relating to the increasing prevalence in the workplace of the practice of providing unpaid work trials to people or requiring that people work on an unpaid basis in order to ‘check them out’ over a particular period. These periods of time vary from one day up to 3 – 4 weeks. 
It would certainly appear that there has been some significant increases in people walking into businesses and offering their services – for various reasons – without payment.
Of late we have also become aware of at least one local labour hire company engaging in this practice.
Workwise’s position on this is that there should be no such thing as unpaid work trials, there are a number of risks associated with the practice for employers and the practice is open to abuse by both unscrupulous employers and employees.
Employers need to be clear that within the Federal system the FWO takes a similar standpoint that there should be no unpaid work trials, however there is a broader interpretation in the State system. In essence this means that people on unpaid work trials are basically ‘volunteers’ who are neither seen as ‘workers’ or ‘employees’ under workplace legislation.
Whilst the State’s Department of Commerce does not encourage the practice of unpaid work trials, people (often ‘junior’ workers with limited experience) who provide their services under these sorts of arrangements work at their own risk. It is important that parents of underage children engaging in unpaid work attend any meetings with their children and the employer to ensure that there is a genuine offer of work at the end of any proposed ‘trial period’.
It is a fact that unscrupulous employers will take on unpaid workers (particularly juniors) with a verbal promise of ongoing work if they are ‘suitable’ that never eventuates, thus allowing them (the employer) the use of unpaid staff to cope with a busy period or some other operational requirement. Whilst behaviour of this sort preys on often vulnerable and inexperienced people, such fraudulent practices represent a potential breach of the Trade Practices Act. Too often people desperate for a job, keep quiet over this sort of treatment for fear of spoiling their chances of being given employment.
There are a whole series of risks on both sides and serious questions that often fail to be asked including the following:
- Does the person coming into your workplace have a pre existing injury or medical condition that may impact your liability?
- What happens if the person has an accident whilst on your site?
- Does your insurer know that you are offering unpaid work to ‘volunteers’ and would this affect your Policy?
- Is there a genuine job offer on the table or are the person’s services being utilized for a short term gain to the employer?
- How much do you know about the person coming into your workplace?
- Do you have a documented policy in place for managing ‘volunteers’?
As the ‘volunteer’ is not deemed to be an employee then they are not covered by workers compensation – employers may be vulnerable to a claim under their Public Liability where a person is injured. It follows that the injured person would make a claim against the employer based on negligence and lack of supervision to cover the costs associated with any workplace injury.
Given that, in many cases, very little is known about the ‘volunteer’, the system is open to manipulation by the unscrupulous looking to make a claim against a well meaning employer. As a guide an employer must ensure that any ‘volunteer’ is properly inducted and adequately supervised during their working period. Claims of negligence will arise from breaches of employer duty of care in this area.
Organisations’ which offer the services of their clients on an unpaid basis need to ensure that they are comprehensively covered for accident and injury, as is the case with bona fide work experience programs managed by many Secondary Schools and other educational institutions.
Workwise is of the firm view that other than bona fide work experience programs a ‘trial’ period of work should:
- Have some due diligence applied prior to taking a worker in terms of their background;
- Be properly documented stipulating time frames, requirements and specifics;
- Be on a paid basis;
- Run for a reasonable period of time to allow for a genuine assessment of the employee’s skill set and attitude;
- Involve the parents of underage children,
Further questions? Call us on (08) 9792 4451 to discuss.