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Unpaid trial shifts are not against the law in New Zealand. Many employers do opt to use them as a way of assessing whether a job applicant has the needed skills to do a particular role. 

However, you have to be careful when looking to use unpaid trial shifts. It can be quite easy to mistakenly breach the law despite your good intentions. Generally speaking, the law in New Zealand is protective of employee rights. An individual may be able to claim minimum employment rights if the trial shifts have not been carefully and specifically designed.

This article will:

  • set out why unpaid trial shifts are a popular option for many employers;
  • outline how you can ensure you conduct an unpaid trial shift without breaking any employment laws; and
  • highlight some common mistakes that employers tend to make. 

Why Do Employers Want to Use Unpaid Trial Shifts?

In many fast-paced industries, such as retail and hospitality, it can be important to see if a job candidate can perform a particular role in the workplace itself. 

For example, if you are hiring for a well-trained barista in a cafe, you may not be able to fully assess the candidate’s suitability from a face-to-face interview in an office.

For that reason, a short trial of the applicant can be a helpful aid to the recruitment process.

How to Make Sure Your Company’s Unpaid Trial Shift Is Lawful

As an employer, the most important thing for you to ensure is that there is absolute clarity and certainty about the unpaid trial shift. You need to outline what it:

  • entails; and
  • does not entail.

You should make clear to the applicant the reasons why the trial shift is occurring.

For instance, this could be to test for a particular skill in the fast-paced environment they would need to be working in.

You also need to be clear about:

  • what the test will actually cover;
  • who will be overseeing the trial shift; and
  • what you require from the applicant.

For instance, if you are hiring for a chef in a commercial kitchen, they may need to cook a particular dish or set of dishes in a set time-frame.

You should also clarify that the intent of the job trial is to assess the candidate’s abilities in some particular way, and that it is not an offer of employment.

Ideally, an unpaid trial shift would be:

  • short;
  • focused on a particular set of skills or attributes which cannot be tested for outside the workplace; and
  • clear in direction. 

You must ensure the candidate has no reason to believe that you will pay them for the test or that they are being offered a position. This includes whether on a probationary period or otherwise. 

Common Mistakes With Unpaid Trial Shifts

The risk with unpaid trial shifts is that you are perceived, despite your intentions, to be taking advantage of a job applicant to receive free labour. Of course, doing so would be unfair and the employee would be within their rights to seek minimum entitlements (such as the minimum wage for their time spent working).

Common mistakes by employers include:

  • leading the candidate to believe they would automatically get the job if they performed one or multiple unpaid shifts;
  • conducting unpaid trial shifts where there is substantive commercial benefit to the employer from the unpaid shift. For example, a full work day’s shift by a job applicant without any specificity or guidance as to which skills were actually being tested; and
  • not actually supervising the candidate as they perform the work trial. If nobody is witnessing what they are doing, it cannot really be considered any kind of test or trial for a future role. This would be considered unpaid labour under New Zealand law.

Avoiding these mistakes and having a focus on certainty and clarity with trial shifts is essential to conduct a legal and proper process during recruitment.

Key Takeaways

Unpaid trial shifts are legal in New Zealand. However, employers commonly conduct them in ways that breach the employment rights of the employee. This can jeopardise the recruitment process. It is very important to be clear with the applicant about what the purpose, scope and design of the trial actually is. It is also important to avoid leading the applicant on. This includes by hinting that they ‘might’ get paid, or be offered the role if they work the shift. If you want to know more about unpaid trial shifts, contact LegalVision’s New Zealand employment lawyers on 0800 005 570, or complete the form on this page.

Frequently Asked Questions

What is an unpaid trial shift?

Where a job applicant works in to ascertain whether they have particular skills, and the ability to perform those skills in a realistic context. The applicant is not paid for this and should not be under any impressions otherwise.

When are they illegal to use in New Zealand?

A variety of different trials have been found to have been illegal in New Zealand. These commonly include where the employer was looking to take advantage of the employee by getting them to perform labour for free, and where no actual skillset or recruitment process was really being conducted.

Can I make a job applicant do multiple unpaid trial shifts?

This is not technically illegal, but in most instances would be found to amount to a breach of the employee’s rights. You would need a specific reason why multiple shifts (as opposed to one, or none) were required to ascertain a particular skillset. 

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